. .

SAS! (D) THROUGH LRS. ·

v. . . . . .

ARAVINDAKSHAN NARI AND OTHERS .•

(SLP (C) No.(CC4339) of2017)

MARCH 03, 2017

. fDlPAKMISRAAND. .

MOHAN M. SHAN'(ANAGOUDAR, JJ~)

 Delay/laches.- Review applications kept pendingfor span of 4 years - J?elayed disposal - Duty of courtllitig(lnt/counsel - Held: It is the duty of the Registry .of eve1y High Court to place the matter before te concerned Judge/Bench so that the. review application ca11 be def{?t111ith in quitepromptitude-1tis the duty and obligation of.a litigmit to file a review and not to keep it defective as if a defective petition can be allowed to remain .on life support, as per his desire -!tis the obligation of the counsel filing an application for review to cure or remove t.he defects a.t the earliest - An adroit ·.method cannot be adopted io file an application for review and wait till its re}eciion a11d, thereafte1; challenge the orders in the special leave petition and take specio~1s and mercurial plea asserting thatdelay had occurred because the petitioner Was prosecuting the application for review - Review jurisdiction. ·

Dismissing the speCial leave petition, the Court.

HELD: 1. An application for review lias to be disposed of

as expeditiously as possible. It is the duty of the Registry of every High Court to place the matter before the concerned Judge/llench F so that the revi.ew application can be dealt with in quite promptitude. If a notice is required to be isued to the. opposite . . party in the application for review, a specific date can be given on . \vl1ich day the n1atter can be dealt with.in accordance with law.A reasonable period can be spent for disposal of the review, but definitely not follr years. The prescription of iimitation for filing . G ail applicationfor review has its own sanctity. The Registry of the High Courts has a duty to place the matter bfole the Judge/ Bench with defects so that there can be prc•emptory orders for removal of defects. There 11111y be absence of diligence ciu the ·

H 99

A part of the litigant, bu't the Regist1:y of the High- Courts is rcq uired to be vigilant. Procrastination oflitigation in this manner is 1wthiug

but a subterfuge taken recomse to in 11 manner that cau epitomize "cleverness" in its conventional sense. [Paras 11, 12] [103-D-E,

G-H; 104-A-B)

B Thungabhadra Industries Ltd. v .. Govt. of A.P. AIR 1964 , SC 1372 : [1964) SCR 174; Parsion Devi v. Sumitri Devi (1997) 8 SCC 715; [1997] 4 Suppl. SCR 470; Meera Bhanja v. 'Nirmalti Ku11uiri Choudhury (1995) 1 SCC 170 : (1994) 5 Su11pl. SCR 503; Aribam Tuleshwar. Sharma v. Aribam Pishak Sharma (1979) 4 SCC 389 - C relied on.

Case Law Reference

(19641 SCR 174 relied on Para 7 . .. f 1997] 4 Suppl. SCR 470 relied on Para8

[1994] 5 Suppl. SCR 503 relied on ..

Para 8 ,·,-]

(197~) 4 sec 389 relied on Para8

CIVIL APPELLATE JURISDICTION: Special Leave Petition (C) .... CC No. 4339 of2017.

 From the Judgment and Order 'dated 09.03.2012 in R. S. A. No. 345 Of2012 and26.10.2016 in R. S.A. No. 345 of2012 in R.P. No. 886 of2017 oftjle High Court ofKerala at_Ernakulam. " ; .· .. . .· . . .. , :Renjith B.-Marar, Ms. LakShnfrN. Kaimal, Laksh1neesh s: Karnath, T.:K. Babu, Anubhav Anand Pandey, Advs. for the Petitioner,

F 1 The Judgment of the Cburt wa~ delivered by

I • i I i, •

_ J . , . DIPAl{ MISRA, J. I. In this special leave petiti9n, th~ challe}1ge is to, the order dateq,9 th March, 2012, passed.by the learned Single Judge , or°the}-Iigh:Cotirt ofKeraia at Ernakulam in R.S.A. No.34? of 2012 and the order dated 26th October, 2016, passed in Review Petition G o.~86of201.2 .. "iil. ..,. .. , i, - •• "'-- ' : 2. Ordimirily; we would liave pased a short order in the matter dismissing the special leave petition which would have paved the'path for extinction for the litigation, for it is devoid of any merit warranting any interference but, an eloquent one, the circumstances impel us to H state something more.

SASI (D) THROUGH LRS. v. ARAVINDAKSHAN NARI AND

OTHERS [DlPAK MISRA, J.]

3. A Regular Second Appeal was preferred before the High Court under Section 100 of the Code of Civil Procedure challenging the judgment and decree passed in Appeal Suit No, 149.of2008, which had given the stamp of approval to the judgment and decree passed by the learned Munsiff, Alappuzha in O.S. No.518 of2003. 1he learned Single Judge of the High Court dismissed the Second Appeal on 9th March, 2012.

The appellant therein filed a revie\V petition under Order 4 7 Rule_ I_ C.P.C. on 20th September, 2012. The review was barred by limitation and eventually, the same was not entertained on merits.

4. We are really not concerned with the entertaining of an application for review with some delay, but what is perplexing is that the review petitio11 preferred in 2012, was kept pending for almost four years and, thereafter, the High Com1 has dismissed the same by observing that an effort has been made to seek review of the main judgment as if the High Com1 was expected to exercise appellate jurisdiction while dealing with an application for review.

5. Order47 Rule 1 of the Code of Civil Procedure reads as follows:- "!. Application for review of judgment.- (I) Any person considering himself aggrieved -

(a) by a decree or order fi; om which an appeal is allowed, but

fromwhich no appeal has, been prefen:ed.

(b) by a decree or order from which no appeal is all Owed, or . . ' . ' . . (c), by a decision on a reference from a Comt of Small Causes,

and , who, fo:>in the. discovery of new and important matter or evidence which, aftertheexercise.ofdue:diligence was.not within his knowledge or could not be produced by him at the time when the decree was passe<; I r order made, or on account of some .. mistake or error apparent on th~ face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order niade against him, may apply for a review of judgment to the Cou1t which passed the decree or made the order. . .

(2) A party who is not-appealing from a decree ororder may apply for a review of judgment notwithstanding the pende.ncy of an appeal by some other party except where the ground of such appeal is conimon to the' applicant and the appellant,' or when,

. D:.

being respondent, lie can present to the Appellate Court the case ·

. on which he applies for the review. · · ·

. Explan(Jtion.- The fact.that the decision on a question offaw 011

which the judgment of the Courtis 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 ofsuchjudgment .

. . . . ·. ·. ' .. ' .

6. The grounds enumerated therein are specific. The pri~1cip1es . for interference in exercise of review jurisdictimi are well settled. The Court passing the order is e1ititled to revie\v the order, if ahy of the . gounds specified in .the aforesaid provision are satisfied. ·

7. In Tlumgabluulra lllcluslries Ltd. v. Govt. of A.I'.' , tlie Court while dealing with the scope ofreviewhad opined:- ·

"What, however, we are now concerned with is whether the statement in the order of Septe1nber 1959 that tl1e case did not

involve any substantial question of law is an 'error apparent on the face of the record'). The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the eailier order itself might be en-oneous: Similarly, even if the s.tatement was wrong, it would not follow that it was an 'error apparent on the face of the record', for there is a distinction which is real, though . it might not always be capable of exposition, bet\veen a mere

erroneous decision and a decision which could be characterised

.· as viti.ated by 'error appa'rent'. A review is by no means an appeal

in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error." .

8. In Parsio11 Devi v. Sumitri DevP , the Court after referring to. Tlumgabliadra lndu~; tries Ltd. (supra), Meera JJ/umja v. Nii:mala Kumari C/10-uclhury3 and Aribant Tu/es/11var Slrnri11ll v. Aribam Pislzak Slwrma' , held thus:-

"U nder Order 47Rule I CPC ajudginent 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

'AIR 1964SC 1372 2 (1977) s sec 115 '0995) 1sec110 '(1979)4 sec 389

,. '' 'SAST (D)THROUGH LRS. v. ARAVINDAKSI~AN NARI AND '103 OTHERS [p!PAK MISRA, l]

by a process .of reasonii1g; can hardly be said to be an error ; apparent on the fa.ce bf therecord jµstifying the c0urtto exertise ''''

its powerof review under Order 4 7 Ru le. l CPC. ln exercise of . the jutisdiction under Order47 Rule I CPC itis nolpermissible

. for.an erroneous decision to be "reheard and correeted'\Areview p, etition, it tnust be reme.:nbered has a limited purpose and ca11not be allowed to be "an appeal in'disguise"''~ . ·

. .B

9. The foresaid autlcirities clearlyspellout the nature, scope and .ambit of power to be exercised; The error has to be self-evident and is not to be found out by a process ofi-easoning: We have adverted to' the aforesaid aspects only to highlight .the nature.of review proceedii1gs:

 10. In the case at hand, be itclearly stated, we are really !lot concerned with the exercise of the power ofreview and its I imitation by tle court.We are concerned with the delay in disposal of the application foi review which was kept pending for a span of four years.

11. An applicationfor review, regard beii1g had to its limited scope, has to be disposed of as expeditiously as possible. Though we do not intend to fix any time limit, it has to be. the duty.ofthe Registry of every ijigh Courfto place the matter before the concerned Judge/Be1lch so . that the review application can be dealt with in quite promptitude. If a notice is required to be issued to the opposite party inthe application for review, a specific date can be given on which day the. matter can be dealt with in accordance with law, A reasonable period can be spent for disposal of the review, but definitely not four years. We are compelled to say so as the learned counsel for the petitioner has submitted that there is a delay of 1700 days in preferring the special leave petition against the principal order as, he was prosecuting the remedy of tevie\Y before the High Court. The situation is not acceptable.

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12. We are obliged to observe certain aspects. An endeavour has to be made by the High Courts to dispose of the applications for review . with expediency. It is the duty and obligation of a litigant to file a review and not to keep it defective as if a defective petition can be allowed to remain on life support, as per his desire. Jt is the obligation of the counsel filing an application for review to cure or remove the defects at the earliest. The prescription of limitation for filing an application for review has its own sanctity, The Registry of the High Courts has a duty to place the matter before the Judge/Bench with defects so that there can be

pre-emptory orders for removal of defects. An adroit method cannot be adopted to file, an application for review and wait till its rejection and, thereafter, challenge the orders in the special leave petition and take specious and mercurial plea asserting that delay had occurred because the petitioner was prosecuting the application for review. There may be absence of diligence on the part of the litigant, but the Registry of the High Courts.is required to be vigilant.Procrastination oflitigation in this manner is nothing bt a subterfuge taken recourse to in a manner that can epitomiz~ "cleverness" in its conventional sense. We say no more in this regard. · ·

13, We request the High Courts not to keep the applications for review pending as that is likely to delay the matter in every court and also embolden the likes of the petitioner to take a stand intelligently depicting the same in the application for condonation of delay.

14. Let a copy of this order be sen.t to the Registrar General of each of the HighCourts so that it can be placed before the learned ChiefJ ustice/ Acting Chief Justice of the High Court to do the'needful in the matter. ' · . ' 15.As earlier indicated, the special.leave petition has to pave the path of dismissal and accordingly it stands dismissed, both on the ground of delay, as well as also on merits.

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L ' ·~ ' Devika Gujral

, I , SLP dismissed.

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