V.GOPALA GOWDA, CJ & S.C.PARIJA, J. RVWPET NOS.249 & 254 OF 2009 (Decided on 11.01.2011). GOVERNING BODY OF ISPAT COLLEGE, ROURKELA. ……….. Petitioner. .Vrs. STATE OF ORISSA & ORS. ……….. Opp.Parties. CIVIL PROCEDURE CODE, 1908 (ACT NO. 5 OF 1908) – ORDER 47, RULE 1. For Petitioner - M/s. H.S.Mishra, A.K.Mishra, A.S.Behera & T.K.Sahoo. For Opp.Parties - Addl. Govt. Advocate. S.C. PARIJA, J. The writ petitioner in W.P.(C) No.9601 of 2006 has filed these two review petitions seeking review of the common order dated 1.7.2009, passed in W.P.(C) Nos.9601 of 2006 and 11663 of 2008, with the following prayer : “The petitioner above named, therefore, prays that in the fact and circumstances of the case stated above, this Hon’ble Court may please to admit this application and after hearing the parties, the impugned order under Annexure-1 may kindly be suitably reviewed and the said order is un-executable and un-implementable due to want of post either permanent or temporary lecturer in the Department of Physics.” 2. The factual background of the case in brief is that the present opposite party no.3, Sri Rameswar Prasad Mishra, filed a representation before the Director, Higher Education, Orissa, opposite party no.2, questioning his removal from service as a Lecturer in Physics in the petitioner’s college. The Director, opposite party no.2, after hearing the parties and considering the documents on record, came to the conclusion that Sri Rameswar Prasad Mishra was in fact denied natural justice, inasmuch as, though he was in a better footing than others, his case was ignored. The Director disposed of the representation by order dated 16.6.2006, observing as follows: “Therefore without prejudice to the claim or claims of others, the Principal- cum-Secretary, Ispat College, Rourkela, opposite party no.4, is directed to reinstate Sri Rameswar Prasad Mishra, as Lecturer in Physics within one month from issuance of this order.” The said order of the Director dated 16.6.2006 was assailed by the petitioner in W.P.(C) No.9601 of 2006. Sri Rameswar Prasad Mishra, present opposite party no.3, filed W.P.(C) No.11663 of 2008, for implementation of the order passed by the Director. After hearing learned counsel appearing for the parties and considering the materials available on record, this Court by common order dated 1.7.2009, disposed of both the writ petitions with the findings that the impugned order of the Director does not suffer from any legal infirmity or irregularity and therefore needs no interference in exercise of the writ jurisdiction. Accordingly, the authorities were directed to implement the order passed by the Director, as expeditiously as possible. It is this common order dated 1.7.2009, passed in W.P.(C) No.9601 of 2006 and W.P.(C) No.11663 of 2008, which is now sought to be reviewed in these two review petitions. 3. In the review petitions, the petitioner has not taken any ground for seeking review, except that the order sought to be reviewed is un-executable and cannot be implemented due to want of post of lecturer in the Department of Physics in the petitioner’s college. On a perusal of the averments made in the original writ petition filed by the present petitioner, i.e. W.P.(C) No.9601 of 2006, it is seen that no such ground regarding non-availability of post of lecturer in the Department of Physics has been taken. Moreover, no plea to that effect had been raised at the time of hearing of the said writ petition and therefore no finding in that regard has been recorded in the order. Sri H.S. Mishra, learned counsel appearing for the review petitioner was not the counsel appearing for the petitioner in W.P. (C) No.9601 of 2006 and therefore he is not in a position to say as to what was argued before the Court and whether any such plea regarding non-availability of post had been taken at the time of hearing of the original writ petition. 4. The propriety of filing review petitions and arguments on it by a new counsel, who was not the counsel appearing in the original proceedings, came up for consideration before the apex Court in the case of Tamil Nadu Electricity Board –Vrs.– N. Raju Reddiar and another, AIR 1997 SC 1005, wherein the Hon’ble Court while deprecating such practice, observed as follows : “xx xx xx. 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 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.” 5. A similar question came up for consideration before the Allahabad High Court in the case of Mohan Lal Bagla –Vrs.– Board of Revenue, U.P., Lucknow and others, AIR 2005 All 308, wherein the Hon’ble Court while referring to the observations of the apex Court in Tamil Nadu Electricity Board (supra), proceeded to hold as under: “xx xx xx. The review petition appears to have been filed by new counsel mainly on the ground that some letters written by Mohan Lal Bagla to the Deputy Collector, Sales Tax and to the Commissioner have not been taken note and bid sheet has not been considered by this Court in respect to which suffice it to say that it cannot be said by Sri Singh, who is new counsel for the purpose of arguing review petition that whether the aforesaid letters were referred in the argument and they were relied by the then counsel and whether any effort was 2 made by learned advocate to lay emphasis on those documents as they have any relevance in the matter in issue and thus the question touching with the proceedings of the Court and discussion during course of argument by a new counsel who was neither arguing counsel nor assisting counsel at the initial stage, cannot be permitted. To argue some details as a question of fact in second inning of the matter cannot be permitted. xx xx xx” 6. Coming to the question as to whether a plea which has not been taken or raised at the time of hearing of the original writ petition can be allowed to be raised while seeking review of the order passed in the said writ petition, it is now fairly well settled that if a counsel has not raised a point or taken a plea in the original proceeding, review is not maintainable, for the simple reason that such a mistake would not be apparent on the face of the record. Moreover, the expression “discovery of new and important matter of evidence” contained in the provisions of Order XLVII Rule 1 CPC means, discovery of an evidence or any material, which could not be produced at the initial stage, in spite of due diligence. The said expression cannot be expanded to take within its ambit an argument which could have been advanced by the counsel, at the time of hearing of the original proceeding. 7. In Bhagwati Singh –Vrs.– Deputy Director of Consolidation & Anr., AIR 1977 All. 163, the Allahabad High Court rejected the review application filed on a ground which had not been argued earlier because the counsel, at initial stage, had committed mistake in not relying on and arguing those points, observing as under :- “It is not possible to review a judgment only to give the petitioner a fresh inning. It is not for the litigant to judge of counsel’s wisdom after the case has been decided. It is for the counsel to argue the case in the manner he thinks it should be argued. Once the case has been finally argued on merit and decided on merit, no application for review lies on the ground that the case should have been differently argued.” 8. Coming to the question regarding maintainability of the review petition, it is now 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 XLVII, Rule 1 CPC. A perusal of the said provisions of Order XLVII, Rule 1 show that review of a judgment or an order could be sought : (a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) on account of some mistake or error apparent on the face of record or any other sufficient reason. 9. The scope of review came up for consideration before the apex Court in the case of M/s. Thungabhadra Industries Ltd. –Vrs.– The Government of Andhra Pradesh, represented by the Deputy Commissioner of Commercial Taxes, Anantapur, AIR 1964 SC 1372, wherein the Supreme Court held as follows : 3 “There is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterized as vitiated by “error apparent”. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. Where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face and there could reasonably be no two opinions entertained about it, a clear case or error apparent on the face of the record would be made out.” 10. In Aribam Tuleshwar Sharma –Vrs.– Aribam Pishak Sharma, AIR 1979 SC 1047, the Supreme Court held as under : “It is true as observed by this Court in Shivdeo Singh v. State of Punjab (AIR 1963 SC 1908) there is nothing in Article 226 of the Constitution to preclude a 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 of 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.” 11. In the case of Northern India Caterers (India) Ltd. –Vrs.– Lt. Governor of Delhi, AIR 1980 SC 674, it has been held that a 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. Whatever may be the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case and the finality of the judgment delivered by the Court will not be reconsidered except where a glaring omission or a patent mistake or a grave error has crept in earlier by judicial fallibility. 12. The decision in Aribam’s case (supra) has been followed by the Supreme Court in the case of Smt. Meera Bhanja –Vrs.– Smt. Nirmala Kumari Choudary, AIR 1995 SC 455, wherein the Hon’ble Court has reiterated that an error apparent on the face of the record for acquiring jurisdiction to review must be such an error which may strike one on a mere looking at the record and would not require any long drawn process of reasoning. 4 13. In a later decision in the case of Parsion Devi –Vrs.– Sumiri Devi, 1997 (8) SCC 715, the Supreme Court relying upon the decisions in the cases of Aribam’s (supra) and Smt. Meera Bhanja (supra) observed as under : “Under Order XLVII, Rule 1, CPC a judgment may be open to review inter alia, if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order XLVII, Rule 1, CPC. In exercise of the jurisdiction under Order XLVII, Rule 1, CPC it is not permissible for an erroneous decision to be reheard and corrected. A review petition, it must be remembered has a limited purpose and cannot be allowed to be an appeal in disguise.” 14. The ambit and scope of a review, as has been held in the aforementioned cases, has been considered, affirmed and reiterated in a subsequent decision of the apex Court in the case of Haridas Das –Vrs.– Smt. Usha Rani Barik & Others, AIR 2006 SC 1634, wherein the Hon’ble Court observed as under : “In order to appreciate the scope of a review, Section 114 of the CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the Court since it merely states that it “may make such order thereon as it thinks fit.” The parameters are prescribed in Order XLVII of the CPC and for the purposes of this lies, permit the defendant to press for a rehearing “on account of some mistake or error apparent on the face of the records or for any other sufficient reason.” The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/ or cited binding precedents to the Court and thereby enjoyed a favourable verdict. This is amply evident from the explanation in Rule 1 of the Order XLVII which states that the fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the Court should exercise the power to review its order with the greatest circumspection.” 15. On an analysis of the aforesaid decisions, it is seen that the law is well settled that the power of review is available only when there is a mistake or an error apparent on the face of the record and not for correcting an erroneous decision. Hence the plea that the decision is erroneous on merit due to wrong interpretation of law or because of illegal and erroneous finding, whether on fact or in law, cannot be a ground for review. The said power of review cannot be exercised for rehearing and correcting an erroneous decision. The only remedy available to the aggrieved party, is to assail such erroneous decision in appeal. The power to review is a restricted power which authorizes the Court, which passed the judgment sought to be reviewed, to look over through the judgment not in order to substitute a fresh or a second judgment but in order to correct it or 5 improve it, because some material which it ought to have considered had escaped its consideration or failed to be placed before it for any other reason. 16. In view of the above discussion, the law of review can be summarized that it lies only on the grounds mentioned in Order XLVII, Rule 1 CPC. The party must satisfy the Court that the matter or evidence discovered by it at a subsequent stage could not be discovered or produced at the initial stage though it had acted with due diligence. A party filing a review application on the ground of any other “sufficient reason” must satisfy that the said reason is analogous to the conditions mentioned in Order XLVII, Rule 1 CPC. Under the garb of review, a party cannot be permitted to re-open the case and to gain a full-fledged inning for making submissions, nor review lies merely on the ground that it may be possible for the Court to take a view contrary to what had been taken earlier. Review lies only when there is error apparent on the face of the record and that fallibility is by the over-sight of the Court. If a counsel has argued a case to his satisfaction and he had not raised the particular point for any reason whatsoever, it cannot be a ground of review for the reason that he was the master of his case and might not have considered it proper to press the same or could have thought that arguing that point would not serve any purpose. If a case has been decided after full consideration of arguments made by a counsel, he cannot be permitted, even under the garb of doing justice or substantial justice, to engage the Court again to decide the controversy already decided. If a party is aggrieved of a judgment or order, it must approach the higher Court by way of appeal or revision, as the case may be, but entertaining a review to reconsider the case would amount to exceeding its jurisdiction, conferred for the very limited purpose of review. Justice connotes different meaning to different persons in different contexts and therefore, Courts cannot be persuaded to entertain a review application to do justice unless it lies only on the grounds permitted in law, as has been discussed above. 17. In the present case, the petitioner has not specified as to what is the glaring omission or error apparent on the face of the record which requires reconsideration by way of review. The only plea taken by the petitioner in the review petitions is that the order sought to be reviewed is un-executable and cannot be implemented due to want of post in the Department of Physics. This plea having not been taken either in the averments made in the original writ petition or at the time of hearing of the same, it cannot be permitted to be raised now as a ground for review of the original order. 18. Applying the principles of law as discussed above to the facts of the present case, the conclusion is irresistible that both the review petitions as laid are not maintainable and the same are accordingly dismissed. Review petitions dismissed. 6