Malthesh Gudda Pooja
Vs. State of Karnataka & Ors.
J U D G M E N T
R.V.RAVEENDRAN, J.
1.
Leave
granted.
2.
By
an order dated 8.11.2006, the Government of Karnataka appointed the Assistant Commissioner,
Haveri District as the Administrator of the Malathesh (Sri Mylara Linga)
Temple, Devara Gudda, till the formation of a Managing Committee. The appellant
along with one Guddanna Gowda claiming to be Panchas (Trustees) filed Writ
Petition No.16158/2006 in the 2High Court of Karnataka challenging the said
notification dated 8.11.2006. The third respondent herein got himself impleaded
in the said writ petition, as a devotee of the temple.
The said writ
petition was allowed in part by a learned Single Judge, by order dated 22.12.2006
and the said notification dated 8.11.2006 was quashed, reserving liberty to the
State to pass appropriate orders after affording an opportunity to the writ
petitioners. The writ petitioners filed an appeal (Writ Appeal No.169/2007) at
the Dharwad Circuit Bench challenging that part of the order reserving liberty to
respondents 1 and 2 to pass fresh orders. By judgment dated 31.1.2009, a
Division Bench of the High Court (V.Gopala Gowda and L.Narayana Swamy, JJ)
dismissed the writ appeal.
3.
The
appellant filed a review petition (R.P.No.1513/2009) for review of the said order,
at the Dharwad Circuit Bench. The said review petition was placed before a
Division Bench consisting of K.Sreedhar Rao and Ravi Malimath, JJ., at the
Dharwad Circuit Bench. The third respondent objected to the hearing of the
review petition by the said Bench on the ground that the writ appeal was heard
and disposed of by the Division Bench consisting of V.Gopala Gowda and
L.Narayana Swamy, JJ. and the review petition should therefore be heard and
decided by the same Bench. He also contended that the notification dated
29.12.2008 of the High Court notifying that the review petitions relating to
judgments passed by a Division Bench or Single Bench in respect of Circuit
Bench, Dharwad will be posted as per the roster existing in the Circuit Bench, Dharwad,
was contrary to Rule 5 of the Karnataka High Court Rules, 1959.4.
A Division Bench
consisting of K.Sreedhar Rao and Ravi Malimath, JJ. heard the said review petition
and allowed it by judgment dated 17.12.2009 and directed that the appeal should
be heard afresh for disposal in accordance with law. With reference to the objection
of the third respondent that the learned Judges who disposed of the appeal
alone should hear the review petition, it was held as follows : "3. Rule 5
is not a rigid mandate. The exception to the rule is provided in the rule itself.
In the case of death or non-availability of the judge, the review petition is
permitted to be heard by the Bench other than the one, which passed the order.
The experience has shown
that for correcting trivial mistakes in the judgment, the review jurisdiction
is invoked by the parties. In the scheme of sitting arrangement for the Circuit
Benches, it is difficult to obtain the same combination to hear the review within
a reasonable time. Therefore, in order to obviate the hardship to the
litigants, the above notification is issued. Even on merits when a judgment or
an order is to be reviewed, the similar difficulty of non-availability of the Bench,
which passed the order within a reasonable time, is very much felt.
4.
The
exercise of power of allotment of subjects and cases is the prerogative of the
Hon'ble Chief Justice.
5.
Keeping
in view the practical considerations the above notification is issued. Therefore
the notification cannot be termed as arbitrary and illegal." 45. The
appellant thereafter filed a memo dated 25.3.2010 for listing the writ appeal
(restored by order dated 17.12.2009) for fresh hearing. The said memo came up for
orders before a Division Bench consisting of D.V. Shailendra Kumar and N.Ananda,
JJ., at Dharwad Circuit Bench. After hearing the parties on the said memo, the said
Division Bench passed the impugned order dated 23.4.2010 holding that the
judgment dated 17.12.2009 in Review Petition No.1513/2009 allowing the petition
in exercise of the review jurisdiction under Order 47 Rule 1 CPC was nothing short
of a nullity in the eye of law and was without jurisdiction, having regard to
the fact that the Bench which rendered the judgment in writ appeal No.169/2007
(V.Gopala Gowda and Narayana Swamy, JJ) were still Judges in the High Court and
were available for hearing; and that therefore a different Division Bench had
no jurisdiction to take up a review petition, grant a review and reverse the
order made in the writ appeal. Consequently the memo filed by the appellant for
listing of restored Writ Appeal No.169/2007 for hearing was dismissed.
The Division Bench
relied upon the provisions of Order 47 Rules 1 and 5 of Code of Civil Procedure
(for short the `Code') and Rule 5 of the High Court of Karnataka Rules, 1959
(`High Court Rules' or `Rules' for short) in passing the order dated 23.4.2010.
It held : 5 (i) The Division Bench which heard the review petition had no jurisdiction
to take up the review petition as the learned Judges who constituted the Bench which
heard and disposed of the writ appeal on 31.1.2009 continued to be the Judges
of the court. (ii) The review proceedings are not by way of appeal and have to
be strictly confined to the ambit of order 47 Rule 1 CPC.
(iii) The Division Bench
which heard the review petition instead of confining itself to the ambit of
Order 47 Rule 1 had dealt with the merits of the judgment dated 31.1.2009 as if
it was sitting in appeal over the said judgment and allowed the review petition
which was contrary to law. The effect of the impugned order dated 23.4.2010 was
to declare that the review judgment dated 17.12.2009 was non est and a nullity and
consequently the earlier judgment dated 31.1.2009 passed in the writ appeal
continued to be in effect. The said order is challenged in this appeal by
special leave. Question for consideration
6.
The
question for consideration is whether a Division Bench of the High Court, while
considering a memo for listing an appeal restored for fresh hearing, on grant of
application for review by a co-ordinate bench could refuse to act upon the
order of review on the ground that the said order made by a bench different
from the bench which passed the original order, granting review is a nullity
and that the original order stands. 6Who can hear applications for review?
7.
Order
47 of the Code relates to review. The relevant portions of Rules 1(1), 4, 5,
and 8 are extracted below : "1. Application for review of judgment.--(1)
Any person considering himself aggrieved - (a) by a decree or order from which an
appeal is allowed, but from which no appeal has been preferred, (b) by a decree
or order from which no appeal is allowed, or (c) by a decision on a reference
from a Court of Small Causes, and who, from the discovery of new and important
matter or evidence which, after the exercise of due diligence was not within
his knowledge or could not be produced by him at the time when the decree was
passed or order made, or on account of some mistake or error apparent on the face
of the record, or for any other sufficient reason, desires to obtain a review
of the decree passed or order made against him, may apply for a review of
judgment to the Court which passed the decree or made the order. X x x x x 4.
Application where rejected.-
(1) Where it appears
to the Court that there is not sufficient ground for a review, it shall reject
the application. (2) Application where granted.--Where the Court is of opinion that
the application for review should be granted, it shall grant the same: Provided
that - (a) no such application shall be granted without previous notice to the opposite
party, to enable him to appear and be heard in support of the decree or order,
a review of which is applied for; and x x x x x 5. Application for review in
Court consisting of two or more judges.
Where the Judge or
Judges, or any one of the Judges, who passed the decree or made the order, a
review of which is applied for, continues or continue attached to the Court at the
time when the application for a review is presented, and is not or are not
precluded by absence or other cause for a period of six months next after the application
from considering the decree or order to which the application refers, such Judge
or Judges or any of them shall hear the application, and no other Judge or
Judges of the Court shall hear the same. x x x x
8.
Registry
of application granted, and order for re-hearing. When an application for
review is granted, a note thereof shall be made in the register and the Court
may at once re-hear the case or make such order in regard to the re-hearing as
it thinks fit." (emphasis supplied)8. Section 122 of the Code relates to
power of the High Courts to make rules. The said section empowers the High Court
from time to time, after previous publication to make rules regulating their
own procedure, and may by such rules annul, alter or add to all or any of the rules
in the First Schedule to the Code.
The High Court, in
exercise of the powers conferred under Article 225 of the Constitution, section
122 of the Code and other relevant provisions, with the previous approval of the
Government of Karnataka promulgated and issued the High Court of Karnataka
Rules, 1959 in regard to the practice and procedures to be followed by the High
Court. Rule 5 of chapter 3 of the said Rules provides as under : "5. Every
petition or application for review, reconsideration or correction of a
judgment, decree, order or sentence shall be posted before the original Bench
which pronounced, made or passed such judgment, decree, order or sentence or if
the Judge or any of the Judges who constituted the said Bench is not available
by reason of death, retirement or absence, before any other Bench constituted
in the same manner as the original Bench." (emphasis supplied)
The Rules made under
Rule 122 cannot be inconsistent with the body of the Code (that is sections in
the Code), but can be inconsistent with any of the Rules in the First Schedule
to the Code. As the Rules under section 122 can alter or add any rule in the
First Schedule to the Code, the provisions of Rule 5 of Chapter 3 of the High
Court Rules will prevail over Rule 5 of Order 47 of the Code.
9.
After
the Circuit Bench of the High Court started functioning at Dharwad and Gulberga
in July 2008, the Registry faced difficulties in listing the review petitions before
the Bench which heard and disposed of the matters due to the fact that both or
one of the Judges of the Bench will not be available at the Circuit Bench.
Certain number of Judges from the main Bench chosen by the Chief Justice as per
a broad roster, hold sittings for 5 to 6 weeks in the circuit benches followed
by other batches of Judges and many a time a Judge who had sat during a
particular session of 5 to 6 weeks may not sit again in the same circuit Bench
for more than six months to one year. Further in case of decisions rendered by
division benches, the two learned Judges who constituted the Bench may not sit
together in the circuit Bench again as they may be posted during different periods
before the Circuit Bench.
Therefore the Registry
submitted a note dated 19.12.2008 to the 9learned Chief Justice seeking
directions in that behalf. The relevant portions of the said note are extracted
below : "...........in case of the Review Petitions relating to judgment, decree,
order or sentence pronounced, made or passed by the Division Bench out of which
one of the Hon'ble Judge is not available for the reasons stated in Rule 5, it
may not be permissible to post the said Review Petition before the Division Bench
assigned with the respective subjects at this Circuit Bench even if one of the Hon'ble
Judge having sittings at this Circuit Bench was a member of the Division Bench
original constituted. X x x x x Because, having regard to Rule 5 of the High
Court of Karnataka Rules 1959, it may not be permissible to post such of the Review
Petitions before other Single Bench constituted at this Circuit Bench assigned
with the concerned subjects.
Consequently, either
such Review Petitions shall have to be kept pending at this Circuit Bench for
being posted before the original Bench, which pronounced, made or passed such
judgment, decree, order or sentence as and when it is constituted at this Circuit
Bench or such Review Petitions may have to be transferred to the Principal
Bench for being posted before the original Bench. In view of the above said
Rule 5 of the Karnataka High Court Rules, 1959, kind orders are solicited as to
what norms are to be followed, if a Review Petition is filed against the order
of Division Bench or a Single Bench on merits before the High Court Circuit
Bench, Dharwad."
On the said note, the
learned Chief Justice made an order that the review petition may be posted as
per the roster. In pursuance of it, the High Court issued a notification No.HCBB.CBD.01/2008
dated 29.12.2008 reading as follows : "It is hereby notified that the Review
Petitions relating to Judgments, Decree, Order or sentence pronounced, made or passed
by the Division Bench or Single Bench in respect of Circuit Bench, Dharwad, will
be posted as per the roster existing in the Circuit Bench, Dharwad." 10It
is in view of the said notification, instead of listing the review petitions before
the Judges who passed the order, the review petitions were being listed before
the Bench which was currently assigned the subject roster.
10.
The
validity of the circular dated 29.12.2008 was considered by another Division
Bench of the High Court in Sri Balachandra Vigneshwara Dixit v. H.S. Srikanta Babu
[C.C.C. No.2020 of 2009 (Civil) decided on 26.3.2010]. The said decision held that
the circular dated 29.12.2008 directing that the review petitions relating to
judgments, decree and orders made by a Division Bench or a Single Bench at
Circuit Bench, Dharwad be posted as per the roster existing in the Circuit
Bench, Dharwad is ultra vires Rule 5 of the Karnataka High Court Rules, 1959 and
quashed the said circular. In that behalf, the Division Bench observed as
follows :
"45. In this
context, if a review petition is filed and the judges who passed the order are
not sitting at the Circuit Benches, then it is open to the parties to file a review
petition either at the Circuit Bench where the original order was passed, or at
the Principal Bench. Then it is open to the Chief Justice to constitute the bench
in accordance with Rules, arrange roster and have the said review petition
heard and decided either at the Circuit Bench or at the Principal Bench. The party
had the opportunity of full hearing of the case. If the order is against him, without
availing the remedy of appeal, if he wants to avail the remedy of review, he cannot
plead that his convenience alone should be taken into consideration in arranging
hearing of the review petition.
If he is really
aggrieved, wants review, it should not be difficult for him even to appear before
the Principal Bench and argue his case for review. 46. In that view of the
matter, the contention that a review petition cannot be heard by the Principal
Bench at Bangalore when the original order is passed at the Circuit Benches at Dharwad/Gulbarga,
is without any 11 substance. It would be better if those review petitions are
also heard at the Circuit Benches, and that is possible only when the original
Bench which passed the order, is functioning in the Circuit Benches.
If the original Bench
is not functioning in those Circuit Benches, and if there is difficulty to
constitute such Bench for the purpose of hearing the review petition, it is
open to the learned Chief Justice to constitute the Bench at the Principal Bench
at Bangalore, and the parties can prosecute the same at Bangalore." The
said order was challenged by the High Court in SLP [C] No.14337/2010 and this
court on 13.5.2010 stayed the operation of the said order. Be that as it may. The
validity of the order dated 29.12.2008 does not arise for our consideration in
this case. It is relevant to note that the impugned order dated 23.4.2010 was
made after the decision of the High Court in Sri Balachandra Vigneshwara Dixit
and before the stay of that decision by this Court.
11.
We
may now examine the scope of Rule 5 of Chapter 3 of the High Court Rules and
Rule 5 of Order 47 of the Code. At the outset it should be noticed that there
is no inconsistency between the two provisions. As noticed above Rule 5 of Chapter
3 of the High Court Rules provides that every petition for review of a judgment
shall be posted before the original Bench which pronounced the judgment or if
the Judges who constituted the such Bench constituted are not available by reason
of death, retirement or absence before any other Bench in the same manner as
the original Bench.
The word `absence' is
not defined and the duration of absence is not 12indicated in the said Rule.
The ordinary meaning of the word `absence' is "the state of being away from
one's usual place". Order 47 Rule 5 of the Code, provides that the review petition
shall be heard only by the Judges who passed the order if the said Judges
continues or continue attached to the Court (at the time when the application for
review is made) and are not precluded by absence or other cause from
considering the application for a period of six months. The words "continue
attached to the Court" mean available to perform normal duties and has not
been transferred or away on deputation.
The words `absence or
other cause for a period of six months' in Rule 5 of Order 47 of the Code and the
words `by reason of death, retirement or absence' in Rule 5 of Chapter 3 of the
High Court Rules, in essence refer to the same causes, due to which the review
application cannot be heard by the same bench which passed the original order.
As Rule 5 of Chapter 3 of High Court Rules does not specify the period of
`absence' but it is clear from the context that it does not refer to casual
absence. Therefore, it is appropriate to interpret the said words as `absence for
a period of six months next after the application' by taking guidance from Rule
5 of Order 47 of the Code.
12.
This
court in Reliance Industries Ltd. vs. Pravinbhai Jasbhai Patel & Ors. [1997
(7) SCC 300] explained the object and scope of review applications as under: "It
has to be kept in view, that review petitions are not by way of appeals before the
superior Court but they are by way of requests to the same Court which decided
the matter, for persuading it to recall or reconsider its own decision on
grounds which are legally permissible for reviewing such orders. As laid down
by O. XLVII R. 5, CPC as far as possible the same two learned Judges or more
Judges who decided the original proceedings have to hear the review petition
arising from their own judgment.
Thus in substance a
review amounts to reconsideration of its own decision by the very same Court.
When the Court sits to review its own order, it obviously is not sitting in
appeal over its judgment but is seeking to have a fresh look at its own
judgment of course within the limits of review powers, but still invoking for that
limited purpose the very same jurisdiction which it exercised earlier. It is
axiomatic that if a Division Bench of two learned Judges deciding the appeal
had exercised appellate powers and when its decision is sought to be reviewed it
can be said to be required to reconsider its own decision within the limits of
review jurisdiction but still in exercise of the same appellate jurisdiction which
it earlier exercised.
Similarly when a
decision rendered in exercise of original jurisdiction by a Bench of two
learned Judges is sought to be reviewed the learned Judges exercising review
jurisdiction subject to the limitations inhering in such an exercise, can be
said to be called upon to reconsider their decision earlier rendered in
exercise of the very same original jurisdiction. In that review jurisdiction
takes colour from the nature of the jurisdiction exercised by the Court at the
time when the main judgment, sought to be reviewed, was rendered. Review jurisdiction,
therefore, cannot be said to be some independent jurisdiction sought to be exercised
by the Court dehors the nature of the jurisdiction exercised by it when the
judgment sought to be reviewed was rendered by it."
13.
Order
47 Rule 5 of the Code and Rule 5 of the Chapter 3 of the High Court Rules
require, and in fact mandates that if the Judges who made the order in regard
to which review is sought continue to be the Judges of the court, they should
hear the application for review and not any other Judges 14unless precluded by
death, retirement or absence from the Court for a period of six months from the
date of the application. An application for review is not an appeal or a
revision to a superior court but a request to the same court to recall or reconsider
its decision on the limited grounds prescribed for review.
The reason for
requiring the same Judges to hear the application for review is simple. Judges who
decided the matter would have heard it at length, applied their mind and would
know best, the facts and legal position in the context of which the decision was
rendered. They will be able to appreciate the point in issue, when the grounds
for review are raised. If the matter should go before another Bench, the Judges
constituting that bench will be looking at the matter for the first time and
will have to familiarize themselves about the entire case to know whether the grounds
for review exist.
Further when it goes before
some other Bench, there is always a chance that the members of the new bench
may be influenced by their own perspectives, which need not necessarily be that
of the Bench which decided the case. Benjamin Cardozo's celebrated statement in
the Nature of Judicial Process (page 12) is relevant in this context: "There
is in each of us a stream of tendency, whether you choose to call it philosophy
or not, which gives coherence to thought and action. Judges cannot escape that current
any more than other mortals.
All their lives, forces
which they do not recognize and cannot name, have been tugging at them -
inherited instincts, traditional beliefs, acquired convictions; ......In this
mental background every problem finds its setting. We may try to see things as objectively
as we please. Nonetheless, we can never see them with any eye except our
own."Necessarily therefore, when a Bench other than the Bench which
rendered the judgment, is required to consider an application for review, there
is every likelihood of some tendency on the part of a different bench to look
at the matter slightly differently from the manner in which the authors of the
judgment looked at it.
Therefore the rule of
consistency and finality of decisions, make it necessary that subject to
circumstances which may make it impossible or impractical for the original bench
to hear it, the review applications should be considered by the Judge or Judges
who heard and decided the matter or if one of them is not available, at least by
a bench consisting of the other Judge. It is only where both Judges are not
available (due to the reasons mentioned above) the applications for review will
have to be placed before some other bench as there is no alternative. But when
the Judges or at least one of them, who rendered the judgment, continues to be
members or member of the court and available to perform normal duties, all
efforts should be made to place it before them. The said requirement should not
be routinely dispensed with.
14.
When
the provision for review by the same Judge/s was made, it was made on the
assumption that the Judges will be available at the same place. The Rules did
not contemplate the court having Benches outside the main seat or Circuit
Benches and Judges moving from Bench to Bench or Judges and coming back after three
months or six months. A Judge who sits and hears a matter in a Circuit Bench away
from the main seat, may not be available in that particular Circuit Bench for a
considerable time which may vary from three to six months or even more.
Further, when two Judges heard the matter at a Circuit Bench, the chances of
both Judges sitting again at that place at the same time, may not arise.
But the question is
in considering the applications for review, whether the wholesome principle
behind Order 47 Rule 5 of the Code and Rule 5 of Chapter 3 of the High Court Rules
providing that the same Judges should hear it, should be dispensed with merely
because of the fact that the Judges in question, though continue to be attached
to the Court are sitting at the Main bench, or temporarily at another bench. In
the interests of justice, in the interests of consistency in judicial pronouncements
and maintaining the good judicial traditions, an effort should always be made
for the review application to be heard by the same Judges, if they are in the
same court.
Any attempt to too
readily provide for review applications to be heard by any available Judge or
Judges should be discouraged. With the technological innovations available now,
we do not see why the review petitions should not be heard by using the medium
of video conferencing. Or an appropriate rule can be made, if such a rule is
not already available, for consideration of the application written submissions
alone. For example Order XL Rule 3 of the Supreme Court Rules provides that
unless otherwise ordered by the court, an application for review shall be
disposed of by circulation without any oral arguments but with written
arguments. That will not in any way violate section 114 of the Code providing
for review.
The solution may not
be to send the review petition to the place where the concerned Judges are
holding their sitting in view of the fact that would involve travel, engaging
of new counsel, additional cost etc. and defeat the very purpose of having
circuit benches. Every effort should be made to achieve the object of review by
ensuring that the matter is considered by the Judge or the Bench which rendered
the judgment. Be that as it may. Finality of decisions
15.
But
the crucial question is this: The review application having been placed before
the bench holding the roster, as per the standing instructions of the Chief
Justice, and the said bench having heard and granted the review application, whether
before another bench a request is made for early hearing can say it will ignore
the order granting review as it is a nullity?
16.
In
this case, the review petition was placed before different bench (bench holding
the roster for hearing writ appeals) as per the Notification dated 29.12.2008 issued
by the High Court under the directions of the learned Chief Justice requiring the
review petition to be placed before a bench assigned to hear writ appeals as per
the then existing roster. As on 17.12.2009, when another bench heard and
decided the matter, the listing of the case before that bench and hearing by
that bench was valid as per rules.
The Judges
constituting the original bench were not sitting at Dharwad. The review petition
was filed on 2.3.2009 and for more than six months, the original Bench either
did not sit or dispose of the review petition. When the review petition was placed
for hearing before the roster bench, it was possible that for six more months there
was no likelihood of the Judges constituting original bench being together at Dharwad.
The bench before which the review application was placed held the writ appeal
roster. The said bench considered and rejected the contention that the same bench
which passed the order should hear the review application, in view of the
Notifications dated 29.12.2008 and that bench also held that the Chief Justice had
the power and authority to issue the notification dated 29.12.2008. The order
dated 17.12.2009 was therefore neither a nullity nor one lacking of inherent
jurisdiction, nor obtained by fraud. Even assuming it to be erroneous, it was
final as it was not challenged.
17.
Once
the application for review was granted on 17.12.2009, the order reviewed stands
recalled. Consequently the review appeal stood revived and restored. Therefore when
the appellant filed a memo for listing the writ appeal for hearing, he was not
really seeking a judicial order for restoration but only a direction for fixing
a date for hearing the writ appeal. When an application or memo is filed in a
matter where review has been granted, the Bench dealing with such memo or application
is bound to proceed on the basis of the said order granting review, in view of
the principles of finality and res judicata.
Even a wrong decision
between parties which has attained finality is binding and cannot be re-agitated
or re-opened at a later stage. As noticed above, the review order dated 17.12.2009
considered the statutory provisions relating to review and consciously arrived
at a decision that the provisions thereof did not prevent it from hearing the
application for review. It should be noted that neither party was aggrieved by
it and the order dated 17.12.2009 was not under challenge. Therefore when the
memo for posting was filed by one of the parties, the court, being bound by its
final decision rendered on 17.12.2009 ought to have listed the writ appeal for
hearing and could not have examined the correctness or validity of review order
dated 17.12.2009.
18.
We
therefore allow this appeal, set aside the impugned order dated 23.4.2010 and direct
the Writ Appeal No.169/2007 be listed for final hearing. Our observations as to
who should hear review applications, will not affect the validity of orders made
on review applications by roster benches as per notification dated 29.12.2008 and
which have attained finality.
...............................J.
(R V Raveendran)
...............................J.
(H L Gokhale)
October
11, 2011.
New
Delhi;
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