Whether the court can recall or review its own order if latest amendment in statute is not brought to its notice at the time of passing of previous order?

Having heard the learned Counsel for the parties and on perusal of the record of the case including the written submissions, we are inclined to recall our order dated 07.01.2019 because, in our view, it contains an error apparent on the face of the order. {Para 6}

7. The apparent error is that it was not brought to our notice that the Parliament, consequent upon the decision of this Court in Ahmedabad Pvt. Primary Teachers Association (supra), had amended the definition of "employee" as defined in Section 2(e) of the Payment of Gratuity Act by amending Act No. 47 of 2009 with retrospective effect from 03.04.1997. This amendment, in our opinion, had a direct bearing over the issue involved in this appeal.

8. What was brought to our notice was only the decision of this Court rendered in Ahmedabad Pvt. Primary Teachers Association (supra) by contending that the issue involved in this appeal remains no longer res integra and stands answered in Appellant's favour. We accepted this submission.

9. In our view, the error mentioned above is an error apparent on the face of the record of the case because the material, subsequent event, which came into existence, had a direct bearing over the controversy involved in this appeal, was not brought to our notice at the time of hearing the appeal. It is this apparent error, which led to passing of the order dated 07.01.2019 in favour of the Appellant.

10. In view of the aforesaid discussion, we recall our order dated 07.01.2019 passed in this appeal. As a consequence, the appeal (Civil Appeal No. 2530 of 2012) is restored to its original number for its disposal on merits in accordance with law.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2530 of 2012

Decided On: 07.03.2019

Birla Institute of Technology Vs. The State of Jharkhand and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and Indu Malhotra, JJ.

Author:Abhay Manohar Sapre, J.

Citations: 2019 (4) SCC 513, AIR 2019 SUPREME COURT 1309, AIRONLINE 2019 SC 481, MANU/SC/0337/2019.

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When court should review its own order?

 Thus, from the proposition of law that emerges from the judgments referred to above, it is clear that once the Court holds that it does not have jurisdiction to consider the application/petition/suit filed before it, it has no option but to return such proceeding filed before it, to be presented before appropriate Court. In this view of the matter, it appears that this Court while passing judgment and order dated 30-06-2017 lost sight of the aforesaid position of law and while confirming the finding of the trial Court regarding lack of jurisdiction, this Court went ahead to consider and decide the application on merits. To that extent, the said judgment and order of this Court is required to be reviewed. As regards the contention raised on behalf of the non-applicants that review jurisdiction is very limited and that the Court cannot exercise appellate powers while deciding an application for review, there can be no quarrel with the proposition of law but, at the same time when there is an error apparent on the face of record, in my view, the application for review deserves to be allowed. Accordingly, the application for review filed by the applicants in the instant case is allowed.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Misc. Civil Application (Review) No. 1211 of 2017 in Civil Revision Application No. 91 of 2016 (D)

Decided On: 20.03.2018

 Baban Ramchandra Shukla Vs.  Parag Arvind Shukla and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2018(4) MHLJ 50

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Whether wrong application of law is error apparent on face of record?

 According to the learned Counsel for the Appellant, Section 11(3) of the Bombay Rent Act, 1947, as applicable to the State of Gujarat, has been followed in the instant case whereas Section 11(3) that is applicable in Mumbai is different. If that be so, it is an error apparent on the face of the Court which the High Court should correct at the first instance.

2. Accordingly, we dispose of this appeal with liberty to the Appellant to file an application for review before the High Court within 30 days from today. If the Appellant is able to satisfy the High Court that the High Court has followed a provision which is not applicable to the State of Maharashtra, needless to say, appropriate orders for recalling the judgment and passing a fresh judgment in the light of the applicable provisions will be rendered.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2120 of 2004

Decided On: 09.08.2017

 Suhas Ramchandra Apte Vs. Vasantrao Shankarrao Bhosle (D) thr. L.Rs.

Hon'ble Judges/Coram:

Kurian Joseph and R. Banumathi, JJ.

Citation: (2017) 14 SCC 772

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Whether court can review its own order if there is patent mistake or glaring omission in earlier order?

Shri. Kenkre, counsel for the respondents, however while not disputing the various propositions laid down by the authorities says that the fact in this case remains that no claim for interest cannot be claimed in a review application in the garb of styling it as an error apparent on the face of the record and according to him the parameters of what is an error apparent on the face of the record is set out in a more recent case decided by the Supreme Court in the decision of M/s. Northern India Caterers (India) Ltd v. Lt. Governor of Delhi MANU/SC/0445/1979 : [1980]2SCR650 of this reports clearly lays down that it is well settled that party is not entitled to seek a review of a judgment delivered by the Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. It also equally lays down that there can be no dispute that the review proceeding cannot be equated with the case and the finality of the judgment delivered by the Court will not be reconsidered except when a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. Several authorities have also been considered in this report.

14. I was at first attracted to the argument made by Shri Kenkre on behalf of the respondents that the applicant having not made a claim for interest and further not having agitated the point even during the course of the hearing the question as to grant of interest in review is even now possible. But however as I observed earlier that having regard to the definition of mesne profits the interest in implicit in the damages to be awarded which together make the expression "mesne profits". Now the authorities cited or the second point on an analysis would no doubt point out that if there is any patent mistake or glaring omission in the earlier order the same is liable to be reviewed. This in my view is also clear from the decision relied on by Mr. Kenkre reported in MANU/SC/0445/1979 : [1980]2SCR650 as it observes that the Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice. Therefore the thrust of the authorities is if a point has not been erroneously decided or never touched in the judgment delivered and if without any elaborate argument and long drawn proceedings the error could be pointed out such an order is liable to be reviewed. Applying these tests in the present case I am satisfied that all that I have to do is on reading the earlier impugned judgment I have to read the definition of mesne profits. Once I do that I must come to the conclusion that by patent and glaring mistake interest was not awarded and this is without any elaborate argument. This will therefore come within the ambit or scope of an error apparent on the face of the record as this aspect of the matter never found any place in the impugned judgment.

Citation : AIR 1989 Bom 309

IN THE HIGH COURT OF BOMBAY (PANAJI BENCH, GOA)

Civil Review Appln. No. 13 of 1987

Decided On: 13.01.1988

Tarquino Raul Henriques Vs. Damodar Mangalji and Co. Pvt. Ltd. and Anr.

Hon'ble Judges/Coram:
G.D. Kamat, J.

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Whether third party can file application for review of order of grant of probate?

The next question is about the maintainability of an application for review at the instance of a person who was not party to the appeal. The decision relied upon by Mr. Basu opines that a person aggrieved by an order can only file an application for review and if he is not a party to the proceedings, he cannot be aggrieved. In our view, the principle laid down in that decision cannot have any application to testamentary jurisdiction where the final decision passed is a judgment in rem and is binding against the whole world unlike the ordinary cases where the judgment is only binding upon the parties or their representatives. The Probate Court is vested with power under Section263 to revoke a probate even suo motu if it appears that there is a just cause for revocation and the Court's attention is drawn to such fact by even a third party. Therefore, simply because the present applicants were not parties to the appeal, that fact cannot stand in their way in applying for review when they are undisputedly heirs and legal representatives of the deceased testator in case of intestate succession having coveatable interest in the probate proceedings.

IN THE HIGH COURT OF CALCUTTA

R.V.W. 2116 of 2005 in F.A. No. 311 of 1988

Decided On: 21.04.2006

 Uma Addhya Vs. Biren Mondal

Hon'ble Judges/Coram:B. Bhattacharya and P.N. Sinha, JJ.

Citation: AIR 2006 Cal 200

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Whether an order can be reviewed on ground that it was passed due to misconception of court?

It  is an error apparent on the face of the record  if  the
judgment   does  not  deal  effectively  and  determine   an
important  issue in the case on which depends the  title  of
the plaintiff and the maintainability of the suit.
To decide against a party on matters,which do not come with-
in the issues on which parties went to trial clearly amounts
to an error apparent on the face of the record.
Where the error complained of is that the Court assumed that
a  concession had been made when in fact none had been made
or  that the Court misconceived the terms of the  concession
or  the scope and extent of it or the attitude taken, up  by
the  party  and has been misled by a misconception  of such
alleged  concession,  such  error  must  be  regarded  as  a
sufficient  reason analogous to an error on the face of  the
record within the meaning of Order 47, rule I of the Code of
Civil Procedure.
Such error will not generally appear on the record and will
have  to  be  brought  before  the  Court  by  means  of  an
affidavit.

Supreme Court of India

Moran Mar Basselios Catholicos ... vs The

 Most Rev. Mar Poulose ... on 21 May, 1954

Equivalent citations: 1954 AIR SC 526, 1955 SCR 520

BENCH:
JAGANNADHADAS, B.
DAS, SUDHI RANJAN
HASAN, GHULAM

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Under which circumstances court can review its own order?

At the outset, we want to express that it is well-settled that the power of review is limited in nature and the jurisdiction required to be exercised in this regard is circumscribed by the definite limits fixed by the language used in Order XLVII Rule 1. There are basically three grounds on which the review may be allowed. Those are: (i) discovery of new and important matter of evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or order was made; (ii) mistake or error apparent on the face of the record; or (iii) for any other sufficient reason.

Bombay High Court

Spanco Limited : Review vs A2Z Maintenance & Engineering ... on 1 September, 2010

Bench: D.D. Sinha, Mridula Bhatkar

Citation: 2010 (7) MHLJ 391

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How to ascertain error apparent on face of record for deciding review application?

It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1, CPC. In connection with the limitation of the powers of the court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharmal, speaking through Chinnappa Reddy, J., has made the following pertinent observations: (SCC p. 390, para

3) 1 (1979) 4 SCC 389: AIR 1979 SC 1047 "It is true as observed by this Court in Shivdeo Singh v. State of Punjab2, there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court."

9. Now it is also to be kept in view that in the impugned judgment, the Division Bench of the High Court has clearly observed that they were entertaining the review petition only on the ground of error apparent on the face of the record and not on any other ground. So far as that aspect is concerned, it has to be kept in view that an error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. We may usefully refer to the observations of this Court in the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale3 wherein, K.C. Das Gupta, J., speaking for the Court has made the following observations in connection with an error apparent on the face of the record:

An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ.

Supreme Court of India

Meera Bhanja vs Nirmala Kumari Choudhury on 16 November, 1994

Equivalent citations: 1995 AIR 455, 1995 SCC (1) 170

BENCH:

MAJMUDAR S.B. (J)
JEEVAN REDDY, B.P. (J)

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Whether court can review a judgment if it is based on question of law which was reversed or modified by subsequent decision of superior court in any other case?

The issue can be examined from another angle. Explanation to
Order XLVII, Rule 1 of Code of Civil Procedure, 1908 (hereinafter
referred to as the ‘CPC’) provides that if the decision on a question of
law on which the judgment of the court is based, is reversed or
modified by the subsequent decision of a superior court in any other
case, it shall not be a ground for the review of such judgment. Thus,
even an erroneous decision cannot be a ground for the court to
undertake review, as the first and foremost requirement of entertaining
a review petition is that the order, review of which is sought, suffers
from any error apparent on the face of the order and in absence of any
such error, finality attached to the judgment/order cannot be
disturbed. (Vide: Rajendra Kumar & Ors. v. Rambhai & Ors.,
AIR 2003 SC 2095).

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.10620 OF 2013

Dr. Subramanian Swamy V State of Tamil Nadu & Ors.

Hon'ble Judges/Coram:
B.S. Chauhan and S.A. Bobde, JJ.

Citation; AIR 2015 SC460

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