SC: In review, court to appreciate case as per pleadings and governing law

 

The Hon’ble Supreme Court, on 14th November 2019, in the matter of Yashwant Sinha & Ors. v. Central Bureau Of Investigation Through Its Director & Anr. pronounced that no doubt, a Court, in review, does not reappreciate and correct a mere erroneous decision. That reappreciation is tabooed, is not the same as holding that a Court will not appreciate the case as reflected in the pleadings and the law by which the Court is governed.

The Hon’ble Supreme Court observed that:

A review is not an appeal in disguise. The applicant, in a review, is, on most occasions, told off the gates, by pointing out that his remedy lay in pursuing an appeal. In the case of a decision rendered by this Court, it is to be noticed that the underpinning based on availability of an appeal, is not available as this Court is the final Court and no appeal lies. (Para 41 of the judgement pronounced by Hon’ble Justice K.M. Joseph)

The fact that no appeal lies from the judgment of the Supreme Court may not, however, result in the jurisdiction of the Supreme Court under Article 137 of the Constitution being enlarged. However, when the Court is invited to exercise its power of review, this aspect may also be borne in mind, viz., that unlike the other courts from which an appeal may be provided either under the Constitution or other laws, or by special leave under Article 136 of the Constitution, no appeal lies from the judgment of the Supreme Court, and it is in that sense, the final Court. (Para 43 of the judgement pronounced by Hon’ble Justice K.M. Joseph)

The underlying assumption for the principle that a review is not an appeal in disguise, being that the decision is appealable, is really not available in regard to a decision rendered by the Supreme Court. (Para 43 of the judgement pronounced by Hon’ble Justice K.M. Joseph)

 A review petition is maintainable if the impugned judgment discloses an error apparent on the face of the record. Unlike a proceeding in Certiorari jurisdiction, wherein the error must not only be apparent on the face of the record, it must be an error of law, which must be apparent on the face of the record, for granting review under Article 137 of the Constitution read with Order XLVII Rule 1 of the CPC, the error can be an error of fact or of law. No doubt, it must be apparent on the face of record. Such an error has been described as a palpable error or glaring omission. As to what constitutes an error apparent on the face of record, is a matter to be found in context of the facts of each case. (Para 43 of the judgement pronounced by Hon’ble Justice K.M. Joseph)

If a court is oblivious to the relevant statutory provisions, the judgment would, in fact, be per incuriam. No doubt, the concept of per incuriam is apposite in the context of its value as the precedent but as between the parties, certainly it would be open to urge that a judgment rendered, in ignorance of the applicable law, must be reviewed. The judgment, in such a case, becomes open to review as it would betray a clear error in the decision. (Para 45 of the judgement pronounced by Hon’ble Justice K.M. Joseph)

No doubt, a Court, in review, does not reappreciate and correct a mere erroneous decision. That reappreciation is tabooed, is not the same as holding that a Court will not appreciate the case as reflected in the pleadings and the law by which the Court is governed. (Para 47 of the judgement pronounced by Hon’ble Justice K.M. Joseph)

It may also happen that the court does refer to the reliefs sought but thereafter does not undertake any discussion regarding the case for the relief sought and proceeds to non-suit the party. (Para 52 of the judgement pronounced by Hon’ble Justice K.M. Joseph)

A judgment may be silent in regard to a relief which is sought by a party. If a decree is silent, as regards any relief which is claimed by the plaintiff, Explanation V to Section 11 declares that the relief must be treated as declined. (Para 53 of the judgement pronounced by Hon’ble Justice K.M. Joseph)  

When a court decides a case, it must follow judgments which are binding on it. This is not to say that a smaller Bench of this Court, if it entertains serious doubts about the correctness of an earlier judgment, may not consider referring the matter to a larger Bench. However, as long as it does not undertake any such exercise, it cannot refuse to follow the judgment and that too of a Constitution Bench. Any such refusal to follow the decision binding on it, would undoubtedly disclose an error which would be palpable being self-evident. (Para 55 of the judgement pronounced by Hon’ble Justice K.M. Joseph)  

Just as in the case of a binding Statute being ignored and giving rise to the right to file a review, neither on logic nor in law would the refusal to follow a binding judgement, qualify for a different treatment if a review is filed. Be it a civil or a criminal matter, an error apparent on the face of the record, furnishes a ground for review.  (Para 57 of the judgement pronounced by Hon’ble Justice K.M. Joseph)

Copy of judgement: Judgement_14-Nov-2019

-Adv. Tushar Kaushik

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