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2018 DIGILAW 576 (ALL)

DEVENDRA KUMAR KHARE v. STATE OF U. P.

2018-03-09

KRISHNA PRATAP SINGH, RAMESH SINHA

body2018
JUDGMENT By the Court.—Heard Dr. Devendra Kumar Khare in person and Shri Anurag Sharma, holding brief of Shri Avanish Mishra, learned counsel for Medical Council of India on the delay condonation application. 2. The present review application has been filed alongwith the delay condonation application. There is a delay of 18 days in filing the review application. 3. The cause shown in filing the review application with delay is sufficient. The delay in filing the review application is condoned. The delay condonation application is allowed 4. Now we proceed to decide the matter on merits. 5. By means of this review application, the applicant-petitioner has prayed for recall of the order dated 15.9.2017 passed by a Division Bench of this Court consisting of one of us (Krishna Pratap Singh, J) whereby the writ petition was dismissed. 6. Heard Dr. Devendra Kumar Khare in person and Shri Anurag Sharma, holding brief of Shri Avanish Mishra, learned counsel for Medical Council of India on the review application and perused the record of the case. 7. Dr. Devendra Kumar Khare has submitted that the Division Bench while passing the order dated 15.9.2017 has travelled beyond the pleadings of the parties and has relied upon irrelevant material. He further contended that the Division Bench has drawn conclusion against the petitioner without any material on record on the basis of conjectures and surmises, which deserves to be set aside. 8. Dr. Devendra Kumar Khare also contended that this Court has also taken into consideration the fact that the interview had taken place in the year 2011 and there is no order reserving any post to be filled by the petitioner in case he succeeds in the writ petition. He submits that the reasons given by this Court suffer from error apparent on the face of record and therefore, the judgement and order dated 15.9.2017 deserves to be reviewed and the writ petition deserves to be allowed. 9. On the matter of scope of review, Dr. Devendra Kumar Khare has relied upon the decision of Supreme Court in Review petitions (C) Nos. 2159-2268 of 2013 (Medical Council of India v. Christian Medical College, Vellore and other and others) decided on 11.4.2016 as well as a decision of the Division Bench of this Court in Radhey Shyam Pandey v. Chief Secretary, Uttar Pradesh, 2001 (3) AWC 2043. 10. 2159-2268 of 2013 (Medical Council of India v. Christian Medical College, Vellore and other and others) decided on 11.4.2016 as well as a decision of the Division Bench of this Court in Radhey Shyam Pandey v. Chief Secretary, Uttar Pradesh, 2001 (3) AWC 2043. 10. Medical Council of India (Supra) was a case in which review application was initially placed before a three-Judge Bench and notices were issued. Thereafter it was brought to the notice of the Bench that connected matters involving an identical issue, had been referred to a Five-Judge Bench. Accordingly review applications were ordered to be heard by a Five-Judge Bench, which allowed the review petitions and recalled the judgement in question. The aforesaid order was passed in the special facts and circumstances of the case and do not apply to the facts of the present case and, therefore, is of no help to the petitioner herein. 11. Another judgement cited by the petitioner, i.e. Radhey Shyam Pandey v. Chief Secretary, Uttar Pradesh (Supra) is absolutely has no concern with the fact of the present case. 12. Learned counsel appearing for the Medical Council of India has argued that after considering the entire facts available on record, the Division Bench has passed the order in question and the Court has not erred in passing the order and, therefore, review application is liable to be rejected. In support of this contention learned counsel has placed reliance upon the judgement of the Apex Court in Kamlesh Verma v. Mayawati and others, 2013 (3) GLH 143. 13. In Kamlesh Verma v. Mayawati and others (Supra) the Apex Court has held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit or Order XLVII Rule 1 of CPC. In review jurisdiction, mere disagreement with the view of the judgement cannot be a ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgement in the guise that an alternative view is possible under the review jurisdiction. The Apex Court has summarized the grounds on which review are maintainable as stipulated by the statute as under: (1) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him. The Apex Court has summarized the grounds on which review are maintainable as stipulated by the statute as under: (1) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him. (2) Mistake or error apparent on the face of record. (3) Any other sufficient reason.’ 14. The words”any other sufficient reason” has been interpreted in Chajju Ram v. Neki, AIR 1922 PC 112 and approved by the Apex Court in Moran Mar Basselios Catholicos v. Most Rev. mar Poulose Athanasius, (1955)1 SCR 520 , to mean “ a reason sufficient on ground at least analogous to those specified in the rule”. The same principles have been reiterated in Union of India v. Sandur Manganese and Iron Ores Limited, JT 2013 (8) SC 275. 15. Review is not rehearing of an original matter. The power of review cannot be confused with appellate power which enables a superior Court to correct all errors committed by a subordinate Court. A repetition of old and overruled argument is not enough to re-open concluded adjudication. 16. The Apex Court in Jain Studios Ltd. v. Shin Satellite Public Co. Ltd., (2006) 5 SCC 501 , held as under: “So far as the grievance of the applicant on merit is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with the appellate power which enables a superior Court to correct all errors committed by a subordinate Court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases.” 17. Review of the earlier order cannot be done unless the Court is satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. The Apex Court in Col. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases.” 17. Review of the earlier order cannot be done unless the Court is satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. The Apex Court in Col. Avtar Singh Sekhon v. Union of India, 1980 (Supp) SCC 562, held thus: “A review is not a routine procedure. Here we resolved to hear Shri Kapil at length to remove any feeling that the party has been hurt without being heard. But we cannot review our earlier order unless satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.” 18. In Chandra Kante v. Sheikh Habib, (1975) 1 SCC 674 , the Apex Court has observed as under: “A review of a judgement is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility... The present state is not a virgin ground but review of an earlier order which has the normal feature of finality.” 19. The Apex Court has repeatedly held in various judgments that the jurisdiction and scope of review is not that of an appeal and it can be entertained only if there is an error apparent on the face of the record. A mere repetition through different counsel, of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. 20. The power of review is very limited and the review must be confined strictly only to the errors apparent on the face of the record. Reappraisal of the evidence on record for finding out the error would amount to exercise of appellate jurisdiction which is not permissible by the law. 21. A perusal of the order in question shows that arguments raised before the Court were considered and decided by the judgement dated 15.9.2017, which is sought to be recalled. If the applicant-petitioner has any grievance against the order in question, he can prefer an appeal. 21. A perusal of the order in question shows that arguments raised before the Court were considered and decided by the judgement dated 15.9.2017, which is sought to be recalled. If the applicant-petitioner has any grievance against the order in question, he can prefer an appeal. Argument advanced by the applicant-petitioner shows that question of facts and provision of law were not considered in a particular manner in which the petitioner wants to agitate it, that cannot be a ground for reviewing the order in question. The view taken by the Court vide order dated 15.9.2017 was a possible view having regard to the facts discernible from the facts on record, therefore, it cannot be said to be an error on the face of record and no review can be made. The review application can only be maintained on the basis of an error apparent from the record. The Court cannot enter into a process of taking evidence to establish something which were not on record in order to create records for the purpose. The Court is not to entertain such questions and if such questions are entertained, it would open a Pandora’s box and lead to great anomalies, which is undesirable 22. In view of the above discussion, we are of the view that no good ground is made out to review/recall the order dated 15.9.2017 passed by this Court. 23. The review application is devoid of merits and it is accordingly rejected.