1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR M.C.A . (REVIEW) NO. 527 OF 2007 IN SECOND APPEAL NO. 249/2001 (Nitin Bhaurao Tidke Vs. Sou. Sujata w/o Nitin Tidke) Appeal District : Application No. of 200 Writ petition Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. CORAM : Smt. Vasanti A. Naik, J. DATED : 23 rd JUNE, 2008. None appears on behalf of the applicant. Mrs. Barabde appears on behalf of the respondent. Time and again it is noticed by this Court that review applications are filed and argued by the advocates who have not appeared at the earlier stage of the matters which are decided by this Court and in many of them, grievance is made that the earlier counsel had not raised certain grounds which ought to have been raised by him or the Court had failed to consider certain grounds which were raised by the counsel. The practice of filing review applications as a routine and that too with the change of counsel without obtaining the consent of the counsel who appeared at the earlier stage has been deprecated by the Hon'ble Supreme Court, as seen from the judgment reported in 1997 (9) SCC 736 and the 2 subsequent judgments. The present review application is also filed by a counsel who did not appear in Second Appeal No. 249/2001 which was decided by the judgment dated 29th August, 2006. Learned counsel Shri J.J. Chandurkar had appeared for the appellant in the earlier matter and the present review application is filed by Shri Bhamburkar, without obtaining the consent from the earlier counsel Shri J.J. Chandurkar. Though the counsel for the applicant was directed to show cause as to how he could appear in the matter on behalf of the applicant in spite of the law laid down by the Hon'ble Supreme Court, the counsel for the applicant is not present in the Court today and has also not shown any cause as to how he could appear on behalf of the applicant in the miscellaneous civil application. It is further interesting to note that after the second appeal was decided by this Court by the judgment dated 29th August, 2006, the applicant issued certain communications to the Hon'ble, The Chief Justice of the Bombay High Court, with a request that the review application filed by the applicant be entrusted to a Judge of Bombay High Court other than the one who had decided the second appeal. It is necessary to note that no orders were passed by the Hon'ble, The Chief Justice on this application. However, when the counsel for the 3 applicant expressed a desire that the review application be listed before some other Bench, the Hon'ble Judge who had decided the second appeal on 29th August, 2006, thought it fit to order that the miscellaneous civil application may not be listed before him. Though the application made by the applicant to the Hon'ble, The Chief Justice does not mention a single reason for placing the matter before a Judge, other than the Judge who had decided the second appeal, the Hon'ble Judge of this Court mentioned in the order dated 10th August, 2007 that faith of the litigant is an indivisible part of process of doing justice and, therefore, he would not hear the matter. It is notable that the communication written by the applicant to the Hon'ble, The Chief Justice on 9/3/2007, mentions only the facts of the case and the merits of the matter and how the Hon'ble Judge of this Court erred in deciding the second appeal against him. At this stage when this order was being passed, Shri Bhamburkar, the learned counsel for the applicant, appeared before the Court and informed that after the order was passed by this Court on 18th June, 2008, asking the counsel for the applicant to show cause as to how he could appear in the matter, a fresh vakalatnama is filed on record on 18/6/2008, on which a no objection of the earlier counsel Shri J.J. Chandurkar is obtained. 4 On the merits of the present miscellaneous civil application, it is submitted on behalf of the applicant that the applicant had filed Civil Application No. 2700/2005 in Second Appeal No. 249/2001, praying that the substantial questions of law as stated in the civil application, be formulated in addition and the appeal be heard on the said substantial questions of law. It is pointed out on behalf of the applicant that this Court had passed an order on C.A. No. 2700/2005 on 27th April, 2005 and granted liberty to the appellant/present applicant to raise the substantial questions of law during the course of arguments on merit. The order on Civil Application No. 2700/2005 reads thus: “Heard. The learned counsel for the appellant is at liberty to raise these substantial questions of law during argument on merit.” It is stated in para 9 of the present miscellaneous civil application that in view of the order dated 27/4/2005, arguments on the three substantial questions of law were advanced, but it seems from the judgment that these three substantial questions of law have not been considered by this Court while deciding the second appeal on 29th August, 2006. The prayer made in the miscellaneous 5 civil application is vehemently opposed by the counsel for the respondent. The respondent has also raised a preliminary objection to the maintainability of the review application filed by the applicant. It is stated in the reply/preliminary objection that by merely changing the counsel, the applicant is raising the same points which were considered by the Court while deciding the second appeal. The respondent had raised an objection about the tenability of the review on the ground that it was not filed by the same advocate who had appeared at the time when the second appeal was decided on merits by the judgment dated 29th August, 2006. It is also stated in the reply that the judgment was delivered after hearing the learned counsel for the parties at length and no case is made out for interfering with the judgment passed by this Court on 29th August, 2006, specially in review application. It is lastly stated in the reply that the applicant-husband has filed this review application merely with an intention to harass the respondent-wife and in the facts and circumstances of the case, the review application is liable to be dismissed with compensatory costs of Rs. 10,000/- as the applicant has not approached the Court with clean hands. I have perused the judgment dated 29/8/2006 as also the contents of the miscellaneous civil application. A statement is made in paragraph 6 9 of the miscellaneous civil application that the arguments were advanced by the learned counsel on the three substantial questions of law, of which leave was granted to the appellant. Had this review application been filed by the earlier counsel and in case the said statement about the advancing of argument was supported by the earlier counsel Shri J.J. Chandurkar who had appeared at the time of final hearing of the second appeal, the said statement would have carried a lot of weight. However, this is not the case here. The statement in paragraph 9 of the application that the arguments were advanced by the counsel, is not supported by the affidavit of the learned counsel. Learned Counsel Shri J.J. Chandurkar had also not filed any affidavit in the Court immediately thereafter to point out that the three grounds were raised and not considered. It is also pertinent to note that after the applicant filed this review application, the applicant had written a communication to the Hon'ble The Chief Justice on 9/3/2007 asking the Hon'ble The Chief Justice that the matter be entrusted to a Judge of the Bombay High Court at Nagpur other than the Judge who has decided the second appeal. At the risk of repetition, it is stated that no ground whatsoever has been made out in the communication for making this unreasonable request of placing the matter before a Judge who 7 had not decided the second appeal. In fact, the learned Judge who had decided the second appeal would have been the best Judge to consider the ground raised in this miscellaneous civil application about non-consideration of the arguments raised at the time of hearing. I have perused the text of the Civil Application No. 2700/2005 and the three substantial questions of law stated in the civil application. Unfortunately, none of the questions of law stated in Civil Application No. 2700/2005 could be said to be substantial questions of law. Also, the order dated 27th April, 2005 passed in Second Appeal No. 249/2001, on Civil Application No. 2700/2005, does not disclose that the substantial questions of law stated in the application were indeed framed by the Court as substantial questions of law. The Court had merely granted a liberty to the counsel to raise the substantial questions of law stated in the civil application, at the time of advancing arguments on merits. The liberty may or may not be availed by the counsel. Since the substantial questions of law were not framed by the Court and since there is no affidavit of the earlier counsel to support the statement made in paragraph 9 of the miscellaneous civil application, it cannot be said that the arguments on the three questions were advanced by the counsel and were not considered by the Court while deciding the matter on merits. Even 8 otherwise, none of the three questions stated in Civil Application No. 2700/2005 could be said to be substantial questions of law. It has been observed by the Hon'ble Supreme Court in the judgment reported in 1997(9) SCC page 736 that when the matter is dismissed, except in rare cases where error of law or fact is apparent on the record, no review can be filed. It is also observed by the Hon'ble Supreme Court that the Court spends valuable time for deciding a case and the review petition is not and should not be an attempt for hearing the matter again on merits. The Hon'ble Supreme Court was at pains to observe that it has become, in recent time, a practice to file such review applications as a routine and that too with the change of counsel without obtaining consent of the advocate who appeared in the matter at the earlier stage. The Hon'ble Supreme Court further noticed that this is not conducive to healthy practice of the Bar which has the responsibility to maintain the salutary practice of profession. While making the aforesaid observations, the Hon'ble Supreme Court further noted the observations made by one of the Hon'ble Judges of the Hon'ble Supreme Court in Review Petition No. 2670 of 1996, wherein it was observed that the failure on the part of the counsel to obtain 'No Objection Certificate' from the erstwhile counsel, disentitles him to file a review 9 petition. It is pertinent to note that in the instant case, after this Court had issued a show cause notice on 10th June, 2008, necessary no objection has been obtained from the earlier counsel and the Vakalatnama is filed on 18/6/2008, though the review application is filed on 13/10/2006. The conduct of the applicant is not befitting a bona fide litigant as he has unnecessarily made a prayer to the Hon'ble The Chief Justice to place the matter before a Judge of this Court, other than the Judge who had decided the second appeal, without showing even a remote cause for making such an unreasonable request. I have perused the grounds raised in the miscellaneous civil application. No ground has been made out for reviewing the judgment passed by this Court on 29th August, 2006. In the facts and circumstances of the case, the miscellaneous civil application is dismissed with compensatory costs of Rs. 10,000/-. JUDGE RMP