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2019 DIGILAW 1298 (GAU)

National Institute for Open Schooling and Ors. , Rep. by Its Chairman, Mhrd, Government of India, Noida v. Prince Wazir A. Majumdar

2019-11-27

SANJAY KUMAR MEDHI

body2019
JUDGMENT : Sanjay Kumar Medhi, J. Heard Ms. R. Borah, learned counsel for the review petitioners, who have filed this petition seeking review of the order dated 25.01.2019, passed by this Court in WP(C)/2161/2017. Also heard Ms. S.B. Choudhury, learned counsel for the respondents (writ petitioners). 2. Ms. Borah, learned counsel for the petitioners, by referring to the order dated 25.01.2019, submits that a wrong submission was made by the earlier counsel for the review petitioners and based on such submission, certain directions were passed vide the order dated 25.01.2019. She further submits that the stand of the review petitioners was elaborately stated in the affidavit-in-opposition and without referring to the same, submissions were made by the earlier counsel leading to an error apparent on the face of the records. It is also submitted that upon verification, no materials could be found that the respondents/writ petitioners had indeed passed their secondary examination held in April/May, 2008 from the National Institute of Open Schooling and therefore, there was a requirement to review the said judgment. 3. Ms. Choudhury, learned counsel for the respondents (writ petitioners), on the other hand, submits that apart from the submissions/admissions made by the earlier counsel, this Court has also taken into consideration that the petitioners have attained higher qualification after passing the secondary examination which is prima facie indicative that indeed they had appeared and were successful in the said secondary examination. She, accordingly, submits that no case for exercise of powers of review is made out in this petition. 4. The rival submissions made by the learned counsel for the parties have been duly considered. The powers to review are circumscribed and it is only on certain conditions when such powers are liable to be exercised. Order 47 of the Code of Civil Procedure, 1908, is with regard to review. Rule 1 lays down that such powers can be exercised only upon discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge or could not be produced at the time when the order was passed or on account of some mistake or error apparent on the face of the record or for any other sufficient reasons. Though under Section 141 (Miscellaneous proceedings), the application of the Code per se has been excluded from a writ proceedings, the spirit of the same would apply. 5. Though under Section 141 (Miscellaneous proceedings), the application of the Code per se has been excluded from a writ proceedings, the spirit of the same would apply. 5. Chapter X of the Gauhati High Court Rules lays down the procedure to present a review petition. 6. The Hon'ble Supreme Court in the case of Tamil Nadu Electricity Board and Ors. Vs. N. Raju Reddiar and Anr., (1997) 9 SCC 736 , has deprecated the practice to file review petition as a routine manner that too, with change of counsel, without obtaining consent of the earlier counsel. 7. For ready reference, the relevant extracts of the said judgment is quoted herein below - "1. It is a sad spectacle that a new practice unbecoming and not worthy of or conducive to the profession is cropping up. Mr. Mariaputham, Advocate-on-Record had filed vakalatnama for the petitioner-respondent when the special leave petition was filed. After the matter was disposed of, Mr. V. Balachandran, Advocate had filed a petition for review. That was also dismissed by this Court on 24.04.1996. Yet another advocate, Mr. S.U.K. Sagar, has now been engaged to file the present application styled as "application for clarification", on the specious plea that the order is not clear and unambiguous. When an appeal/special leave petition is dismissed, except in rare cases where error of law or fact is apparent on the record, no review can be filed; that too by the Advocate-on-Record who neither appeared nor was party in the main case. It is salutary to note that the Court spends valuable time in deciding a case. Review petition is not, and should not be, an attempt for hearing the matter again on merits. Unfortunately, it has become, in recent time, a practice to file such review petitions as a routine; that too, with change of counsel, without obtaining consent of the Advocate-on-Record at earlier stage. This is not conducive to healthy practice of the Bar which has the responsibility to maintain the salutary practice of profession. In the Review Petition No. 2670 of 1996 in CA No. 1867 of 1992, a Bench of three Judges to which one of us, K. Ramaswamy, J., was a member, had held as under: The record of the appeal indicates that Shri Sudarsh Menon was the Advocate-on-Record when the appeal was heard and decided on merits. In the Review Petition No. 2670 of 1996 in CA No. 1867 of 1992, a Bench of three Judges to which one of us, K. Ramaswamy, J., was a member, had held as under: The record of the appeal indicates that Shri Sudarsh Menon was the Advocate-on-Record when the appeal was heard and decided on merits. The review petition has been field by Shri Prabir Chowdhury who was neither an arguing counsel when the appeal was heard nor was he present at the time of arguments. It is unknown on what basis he has written the grounds in the review petitions as if it is a rehearing of an appeal against our order. He did not confine to the scope of review. It would not be in the interest of the profession to permit such practice. That apart, he has not obtained 'No Objection Certificate' from the Advocate-on-Record in the appeal, in spite of the fact that Registry had informed him of the requirement for doing so. Filing of the 'No Objection Certificate' would be the basis for him to come on record. Otherwise, the Advocate-on-Record is answerable to the Court. The failure to obtain the 'No Objection Certificate' from the erstwhile counsel has disentitled him to file the review petition. Even otherwise, the review petition has no merits. It is an attempt to reargue the matter on merits. On these grounds, we dismiss the review petition. 2. Once the petition for review is dismissed, no application for clarification should be filed, much less with the change of the Advocate-on-Record. This practice of changing the advocates and filing repeated petitions should be deprecated with a heavy hand for purity of administration of law and salutary and healthy practice." 8. In the instant case, the aforesaid requirement of having consent from the earlier counsel has not been fulfilled. It is submitted that the review petitioner being a body under the Central Government, panel advocates keep on changing and it may not be possible to get consent on an affidavit. However, that may not be the sole reasons for rejecting this review petition inasmuch as apart from recording the submission of the earlier counsel, this Court has also made certain observation and cited reasons for allowing the writ petition. 9. However, that may not be the sole reasons for rejecting this review petition inasmuch as apart from recording the submission of the earlier counsel, this Court has also made certain observation and cited reasons for allowing the writ petition. 9. In this connection, the learned counsel for the review petitioners has referred to a communication dated 06.12.2018 (Annexure-2 to the review petition), written by the father of one of the respondent. It is seen that the said communication was an existing one and cannot be treated for a ground for review in view of the expressed grounds laid down in the Statute. 10. In view of the aforesaid facts and circumstances and the discussions made above, this Court is of the opinion that none of the grounds to exercise the powers of review have been able to be made out. There is no discovery to knew an important matter or evidence which after due diligence was not within the knowledge or cannot be produced at the time when the order was passed or that some mistake or error apparent on the face of the record has been able to be shown. Though "sufficient reasons" is a subjective expression, no such reasons have been able to be demonstrated by the review petitioner. 11. In that view of the matter, the instant petition is held to be devoid of any grounds and the same is, accordingly, dismissed.