Procedural Review vs Review on Merits: A Short Note for Courts and Practitioners

 The expression “review” is used in two distinct senses. The first is procedural review, which is inherent or implied in every court or tribunal to correct a palpably erroneous order passed under a misapprehension. The second is review on merits, where the error sought to be corrected is one of law apparent on the face of the record.

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What is distinction between Procedural review and substantive review?

We are unable to appreciate the contention that merely because the ex parte award was based on the statement of the manager of the appellant, the order setting aside the ex parte award, in fact, amounts to review. The decision in Narshi Thakershi v. Pradyumansinghji MANU/SC/0433/1970 : AIR1970SC1273 is distinguishable. It is an authority for the proposition that the power of review is not an inherent power, it must be conferred either specifically or by necessary implication. Sub-sections (1) and (3) of Section 11 of the Act themselves make a distinction between procedure and powers of the Tribunal under the Act. While the procedure is left to be devised by the Tribunal to suit carrying out its functions under the Act, the powers of civil court conferred upon it are clearly defined. The question whether a party must be heard before it is proceeded against is one of procedure and not of power in the sense in which the words are used in Section 11. The answer to the question is, therefore, to be found in Sub-section (1) of Section 11 and not in Sub-section (3) of Section 11. Furthermore, different considerations arise on review. The expression 'review' is used in two distinct senses, namely (1) a procedural review which is either inherent or implied in a court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense that the Court in Narshi Thakershi's case held that no review lies on merits unless a status specifically provides for it. Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every court or Tribunal. {Para 13}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2355 of 1979

Decided On: 12.12.1980

 Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal and Ors.

Hon'ble Judges/Coram:

Y.V. Chandrachud, C.J. and A.P. Sen, J.

Citation: 1980 (supp) SCC 420,MANU/SC/0308/1980

Author:A.P. Sen, J.

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Whether application for recall of order for procedural review is maintainable U/S 362 of CRPC?

This application for recall of the order was maintainable as it was an application seeking a procedural review, and not a substantive review to which Section 362 of the Code of Criminal Procedure, 1973, would be attracted. [Grindlays Bank Ltd. v. Central Government Industrial Tribunal & Ors. 1980 (supp) SCC 420]. On the aspect of the difference between recall and review and when an order of recall can be passed reference can be made to Budhia Swain and Others v. Gopinath Deb and Others, (1999) 4 SCC 396.

IN THE SUPREME COURT OF INDIA

 CRIMINAL APPELLATE JURISDICTION

Coram: SANJIV KHANNA; BELA M. TRIVEDI, JJ. 

S.L.P. (CRL.) NO. 9313 OF 2021;

 GANESH PATEL Vs UMAKANT RAJORIA

Dated: MARCH 07, 2022

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Whether Arbitrator can apply principles of Civil procedure code and Evidence Act to arbitration proceeding?

There cannot be a dispute that the power exercised by the arbitral tribunal is a quasi-judicial. In view of the provisions of the 1996 Act, which confers various statutory powers and obligations on the arbitral tribunal, we do not find any such distinction between the statutory tribunal constituted under the statutory provisions or Constitution in so far as the power of procedural review is concerned. We have already noticed that Section 19 provides that arbitral tribunal shall not be bound by the Rules of procedure as contained in Code of Civil Procedure. Section 19 cannot be read to mean that arbitral tribunal is incapacitated in drawing sustenance from any provisions of Code of Civil Procedure. This was clearly laid down in Nahar Industrial Enterprises Limited v. Hong Kong and Shanghai Banking Corporation, MANU/SC/1330/2009 : (2009) 8 SCC 646. In Paragraph 98(n), following was stated:

(n) It is not bound by the procedure laid down under the Code. It may however be noticed in this regard that just because the Tribunal is not bound by the Code, it does not mean that it would not have jurisdiction to exercise powers of a court as contained in the Code. "Rather, the Tribunal can travel beyond the Code of Civil Procedure and the only fetter that is put on its powers is to observe the principles of natural justice," (See Industrial Credit and Investment Corpn. of India Ltd. v. Grapco Industries Ltd.)

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 15036 of 2017 (Arising out of SLP (C) No. 16636 of 2015)

Decided On: 20.09.2017

 Srei Infrastructure Finance Limited  Vs. Tuff Drilling Private Limited

Hon'ble Judges/Coram:

A.K. Sikri and Ashok Bhushan, JJ.

Citation: (2018) 11 SCC 470

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What is meaning of expression procedural review and review on merits?

The expression 'review' is used in two distinct senses, namely (1) a procedural review which is either inherent or implied in a court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense that the Court in Narshi Thakershi's case held that no review lies on merits unless a status specifically provides for it. Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every court or Tribunal.

Supreme Court of India

Grindlays Bank Ltd vs Central Government Industrial ... on 12 December, 1980

Equivalent citations: 1981 AIR 606, 1981 SCR (2) 341

Bench: Sen, A.P. (J)

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