Order XLVII Rule 1 explained

Relevant paragraphs of the judgment where Order XLVII Rule 1 has been explained

Supreme Court of India

DATE OF JUDGMENT: 10/01/2005

CASE NO.: Appeal (civil) 237-239 of 2005

Board of Control for Cricket, India & Anr.                        .. .. .. PETITIONER

VERSUS

Netaji Cricket Club & Ors.              .. .. .. RESPONDENT

BENCH : Santosh Hegde & S.B. Sinha

JUDGMENT:

(Arising Out Of SLP (C) Nos. 21820-21822 Of 2004) With Civil Appeal No. Of 2005 (@ SLP (C) No. 23351 Of 2004) Civil Appeal Nos. Of 2005 (@ SLP (C) Nos. 23837-23838 Of 2004) Civil Appeal Nos. Of 2005 (@ SLP (C) Nos. 22361-22363 Of 2004)

S.B. SINHA, J :

Leave granted in all SLPs.

These appeals involving common questions of law and fact were taken up for hearing together and  are being disposed of by this common judgment.

.. ..

.. ..

.. ..

We are, furthermore, of the opinion that the jurisdiction of the High Court in entertaining a review application cannot be said to be ex facie bad in law. Section 114 of the Code empowers a court to review its order if the conditions precedents laid down therein are satisfied. The substantive provision of law does not prescribe any limitation on the power of the court except those which are expressly provided in Section 114 of the Code in terms whereof it is empowered to make such order as it thinks fit.

Order 47, Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.

Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words ‘sufficient reason’ in Order 47, Rule 1 of the Code is wide enough to include a misconception of fact or law by a court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine “actus curiae neminem gravabit”.

It is true that in Moran Mar Basselios Catholicos and Another Vs. The Most Rev. Mar Poulose Athanasius and Others [(1955) 1 SCR 520], this Court made observations as regard limitations in the application of review of its order stating :

“Before going into the merits of the case it is as well to bear in mind the scope of the application for review which has given rise to the present appeal. It is needless to emphasise that the scope of an application for review is much more restricted than that of an appeal. Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order XLVII, rule 1 of our Code of Civil Procedure, 1908, the Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specified grounds, namely (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason. It has been held by the Judicial Committee that the words “any other sufficient reason” must mean “a reason sufficient on grounds, at least analogous to those specified in the rule.”, but the said rule is not universal.

Yet again in Lily Thomas (supra), this Court has laid down the law in the following terms:

“52. The dictionary meaning of the word “review” is “the act of looking, offer something again with a view to correction or improvement”. It cannot be denied that the review is the creation of a statute.

This Court in Patel Narshi Thakershi v.  Pradyumansinghji Arjunsinghji, AIR 1970 SC 1273 held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of

justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error”

(Emphasis supplied) It is also not correct to contend that the court while exercising its review jurisdiction in any situation whatsoever cannot take into consideration a subsequent event. In a case of this nature when the court accepts its own mistake in understanding the nature and purport of the undertaking given by the learned senior counsel appearing on behalf of the Board and its correlation with as to what transpired in the AGM of the Board held on 29th September, 2004, the subsequent event may be taken into consideration by the court for the purpose of rectifying its own mistake.

In Rajesh D. Darbar and Others Vs. Narasingrao Krishnaji Kulkarni & Ors. [(2003) 7 SCC 219], this Court noticed:

“4. The impact of subsequent happenings may now be spelt out. First, its bearing on the right of action, second, on the nature of the relief and third, on its importance to create or destroy substantive rights. Where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or reshaped in the light of updated facts. Patterson v. State of Alabama [1934] 294 U.S. 600, illustrates this position. It is important that the party claiming the relief or change of relief must have the same right from which either the first or the modified remedy may flow. Subsequent events in the course of the case cannot be constitutive of substantive rights enforceable in that very litigation except in a narrow category (later spelt out) but may influence the equitable jurisdiction to mould reliefs. Conversely, where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and it is made applicable at any stage. Lachmeshwar Prasad v. Keshwar Lal AIR 1941 FC 5 falls in this category. Courts of justice may, when the compelling equities of a case oblige them, shape reliefs – cannot deny rights – to make them justly relevant in the updated circumstances. Where the relief is discretionary, Courts may exercise this jurisdiction to avoid injustice. Likewise, where the right to the remedy depends, under the statute itself, on the presence or absence of certain basic facts at the time the relief is to be ultimately granted, the Court, even in appeal, can take note of such supervening facts with fundamental impact. This Court’s judgment in Pasupuleti Venkateswarlu v. Motor & General Traders AIR 1975 SC 1409 read in its statutory setting, falls in this category. Where a cause of action is deficient but later events have made up the deficiency, the Court may, in order to avoid multiplicity of litigation, permit amendment and continue the proceeding, provided no prejudice is caused to the other side. All these are done only in exceptional situations and just cannot be done if the statute, on which the legal proceeding is based, inhibits, by its scheme or otherwise, such change  in cause of action or relief. The primary concern of the court is to implement the justice of the legislation. Rights vested by virtue of a statute cannot be divested by this equitable doctrine – See V.P.R.V. Chockalingam Chetty v. Seethai Ache AIR 1927 PC 252.”

Furthermore, the impugned order is interlocutory in nature. The order is not wholly without jurisdiction so as to warrant interference of this Court at this stage. The Division Bench of the High Court had jurisdiction to admit the review application and examine the contention as to whether it can have a re-look over the matter. This Court, it is trite, ordinarily would not interfere with an interlocutory order admitting a review petition. The contentions raised before us as regard the justification or otherwise of the Division Bench exercising its power of review can be raised before it. Furthermore, the court having regard to clause (ii) of its order dated 29.9.2004 may have to consider as to whether the election was held in accordance with the constitution of the Board and the rules and bye-laws framed by it.

The conduct of the Board furthermore is not above board. The manner in which the Board had acted leaves much to desire.

The question as to whether the Maharashtra Cricket Association has unjustly been deprived of its right to participate in the AGM through Mr. Agashe whereas DDCA and the Rajasthan Cricket Association had been allowed to participate therein is a question which would require deeper probe and a detailed scrutiny.

The Board had not filed even legal opinion which it obtained before replying to Mr. Thorve’s letter dated 10th April, 2004. The tenor of the Board’s letter dated 3rd May, 2004 clearly demonstrates that a written opinion was obtained as therein the following expressions have been used: “the legal opinion further states”

In the said legal opinion a distinction appears to have been made between a policy decision to be taken by Maharashtra Cricket Association vis-`-vis representation of the Association in the meetings of the Board. No distinction might have been drawn therein as regard different types of meetings of the Board, viz., Extraordinary General Meeting and Annual General Meeting or any other meeting, nor do we find any. A person may either be entitled to represent an association or he is not. A person’s right to represent an association ordinarily would not vary with the nature of the meeting unless otherwise provided in the statute. So far no satisfactory explanation has been furnished as to why another legal opinion was sought for and acted upon in preference to the first one.

One of the question is whether Mr. Agashe could have represented the Maharashtra Cricket Association in terms of resolution dated 27.09.2004. Different standards cannot be adopted by the Board, viz., one for the purpose of requisitioned meeting for inviting Mr. Dalmia to become the patron-in-chief of the Board and other for the purpose of attending an AGM. In other meetings, Maharashtra Cricket Association had admittedly been represented by Mr. Agashe. It is also doubtful as to whether the Board could have gone into, if at all, the validity or otherwise of the meeting of the Maharashtra Cricket Association held on 27th September, 2004. It is also a matter of contention as to whether Mr. Deshmukh had exceeded his jurisdiction not only in taking his stand as contained in his letter dated 27th September, 2004 but also sending copies thereof to Mr. Thorve and Mr. Ajay B. Shirke before it was received by the Maharashtra Cricket Association.

Mr. Deshmukh in terms of the order of the Bombay High Court prima facie was merely to attend the meeting and give his approval or withhold it as regard any policy decision which may be taken. Whether sending a representative of the Maharashtra Cricket Association is a matter of policy warranting interference by the observers appointed by the Bombay High Court is again a contentious issue. The members of the Association could not have undermined the importance of electing its representative for the ensuing Annual General Meeting of the Board.

The Maharashtra Cricket Association itself has filed a Special Leave Petition questioning the order of the Division Bench of the Madras High Court dated 29th September, 2004. In a situation of this nature, this Court may not exercise its jurisdiction under Article 136 of the Constitution of India because the order impugned before it is not correct. The jurisdiction of this Court under Article 136 of the Constitution is a discretionary one.

In Municipal Board, Pratabgarh and Another Vs. Mahendra Singh Chawla and Others [(1982) 3 SCC 331], it was held:

“6. What are the options before us. Obviously, as a logical corollary to our finding we have to interfere with the judgment of the High Court, because the view taken by it is not in conformity with the law. It is at this stage that Mr. Sanghi, learned counsel for the respondent invited us to consider the humanitarian aspect of the matter. The submission is that the jurisdiction of this Court under Article 136 of the Constitution is discretionary and, therefore, this Court is not bound to tilt at every approach found not in consonance or conformity with law but the interference may have a deleterious effect on the parties involved in the dispute. Laws cannot be interpreted and enforced divorced from their effect on human beings for whom the laws are meant. Undoubtedly, rule of law must prevail but as is often said, ‘rule of law must run akin to rule of life. And life of law is not logic but experience. By pointing out the error which according to us crept into the High Court’s judgment the legal position is restored and the rule of law has been ensured its prestine glory. Having performed that duty under Art. 136, is it obligatory on this Court to take the matter to its logical end so that while the law will affirm its element of certainty, the equity may stand massacred. There comes in the element of discretion which this Court enjoys in exercise of its extraordinary jurisdiction under Art. 136_”

In Taherakhatoon (D) by LRS. Vs. Salambin Mohammad [(1999) 2 SCC 635], this Court held:

“20. In view of the above decisions, even though we are now dealing with the appeal after grant of special leave, we are not bound to go into merits and even if we do so and declare the law or point out the error – still we may not interfere if the justice of the case on facts does not require interference or if we feel that the relief could be moulded in a different fashion…”

The said decision has been followed by a 3-Judge Bench of this Court in Chandra Singh and Others Vs. State of Rajasthan and Another [(2003) 6 SCC 545].

Yet again in Ram Chandra Singh Vs. Savitri Devi and Others [(2003) 8 SCC 319], this Court observed::

“In such an event also, the Court may have to find out a remedy which would be just and equitable.

The High Court furthermore failed to notice the principle ‘actus curiae neminem gravabit’. In Rajesh D. Darbar & Others Vs. Narasingrao Krishnaji Kulkarni & Ors. [JT 2003 (7) SC 209], this Court noticed:

“The courts can take notice of the subsequent events and can mould the relief accordingly. But there is a rider to these well established principles. This can be done only in exceptional circumstances, some of which have been highlighted above. This equitable principle cannot, however, stand in the way of the court adjudicating the rights already vested by a statute. This well settled position need not detain us, when the second point urged by the appellants is focused. There can be no quarrel with the proposition as noted by the High Court that a party cannot be made to suffer on account of an act of the Court.

There is a well recognised maxim of equity, namely, actus curiae neminem gravabit which means an act of the Court shall prejudice no man. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia, i.e. the law does not compel a man to do that what he cannot possibly perform_”

Recently, in M.P. Special Police Establishment Vs. State of M.P. and Others [(2004) 8 SCC 788], this Court held:

“31. We have, on the premises aforementioned, no hesitation to hold that the decision of the Council of Ministers was ex facie irrational whereas the decision of the Governor was not. In a situation of this nature, the writ court while exercising its jurisdiction under Article 226 of the Constitution as also this Court under Articles 136 and 142 of the Constitution can pass an appropriate order which would do complete justice to the parties. The High Court unfortunately failed to consider this aspect of the matter.”

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This entry was posted in Code of Civil Procedure 1908, Order 47 Rule 1, Uncategorized. Bookmark the permalink.

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