A.P.S.R.T.C. & Ors Vs. Abdul Kareem  Insc 38 (12 January 2007)
Arijit Pasayat & H.K. Sema I.A. 3 of 2006 In Civil Appeal No. 7797 of 2003 Dr.
Arijit Pasayat, J.
this application, the applicant who was the respondent in the appeal has prayed
for clarification of the order dated 2.8.2005 in the concerned Civil Appeal No.
7797 of 2003.
stated that the applicant (respondent in the civil appeal) is living in penury,
has no means to pay back the amount which is sought to the recovered. The pension
amount has already being attached and the balance is now being sought to be
counsel for the appellant-Corporation on the other hand submitted that in the
guise of application for clarification, review of the judgment is being sought
order dated 2nd August, 2005 it was held that the learned Single judge and the
Division Bench had erroneously granted the benefits of increment notionally to
the applicant during the period when he was out of service.
petition is in essence and substance seeking for a review under the guise of
making an application for clarification apparently being fully aware of the
normal procedure that such applications for review are not, unless Court
directs, listed for open hearing in court, at the initial stage at least,
before ordering notice to the other side and could be summarily rejected, if
found to be of no prima facie merit. The move adopted itself is unjustified,
and could not be countenanced also either by way of review or in the form of the
present application as well. The nature of relief sought, and the reasons
assigned are such that even under the pretext of filing a review such an
exercise cannot be undertaken, virtually for re-hearing and alteration of the
judgment because it is not to the liking of the party, when there is no
apparent error on record whatsoever to call for even a review. The said move is
clearly misconceived and nothing but sheer abuse of process, which of late is
found to be on the increase, more for selfish reasons than to further or
strengthen the cause of justice. The device thus adopted, being otherwise an
impermissible move by mere change in nomenclature of the applications does not
change the basic nature of the petition.
thinking virtually based on surmises too, at any rate is no justification to
adopt such undesirable practices. If at all it should be for weighty and
to be noted that a review application can be filed under Article 137 of the
Constitution read with Order XL of the Supreme Court Rules, 1966 (in short the
Rules). Rule 3 of Order XL is significant. It reads as follows:- "Rule 3 -
Unless otherwise ordered by the Court an application for review shall be
disposed of by circulation without any oral arguments, but the petitioner may
supplement his petition by additional written arguments.
Court may either dismiss the petition or direct notice to the opposite party.
An application for review shall as far as practicable be circulated to the same
Judge or Bench of Judges that delivered the judgment or order sought to be
reviewed." In Delhi Administration v. Gurdip Singh Uban
(7) SCC 296), it was held that by describing an application one for
"clarification" or "modification" though it is really one
of review a party cannot be permitted to circumvent or bypass the circulation
procedure and indirectly obtain a hearing in the open Court. What cannot be
done directly cannot be permitted to be done indirectly. The court should not
permit hearing of such an application for "clarification",
"modification" or "recall" if the application is in
substance a clever move for review.
application cannot be maintained and is rejected.