2008 (7) TMI 1088 - HC - Indian Laws

Summary

Issues Involved:
1. Whether a Review Petition u/s 114 read with Order 47 of the Code of Civil Procedure, 1908 is maintainable only before the Judge who has passed the order.
2. Whether the Review Petition can be heard by any other Judge in accordance with Rule 3 of Chapter XXX of the High Court Appellate Side Rules.

Summary:

Issue 1: Maintainability of Review Petition before the Original Judge
The Court considered whether a Review Petition u/s 114 read with Order 47 of the Code of Civil Procedure, 1908 must be heard only by the Judge who passed the original order. The judgment referenced the Supreme Court's decision in Devaraju Pillai v. Sellayya Pillai, which emphasized that a review should not be used to re-appreciate or re-construe findings on the same facts by a different Judge. However, the Court clarified that this does not imply that a review cannot be heard by another Judge if the original Judge is unavailable due to ceasing to hold office or being absent from the Bench. The Court concluded that the judgment in Devaraju Pillai does not establish a legal proposition that a review must be heard only by the original Judge.

Issue 2: Hearing of Review Petition by Another Judge
The Court examined Rule 3 of Chapter XXX of the High Court Appellate Side Rules, which allows for a Review Petition to be placed before another Judge if the original Judge is no longer available. The rule specifies that if the Judge who passed the order has ceased to be a Judge or is not sitting at the particular Bench, the application can be placed before the regular Court of the Single Judge dealing with the relevant category of matters. The Court noted that these procedural rules are not under challenge and must be followed, thereby affirming that another Judge has jurisdiction to hear the review application under the circumstances outlined in Rule 3.

Additional Considerations:
The Court also addressed Order 47 Rule 5 of the Code of Civil Procedure, as substituted in Maharashtra, which stipulates that the same Judge should hear the review if available. However, if the Judge is not available, another Judge assigned by the Chief Justice can hear the matter. The Court emphasized that procedural rules should advance the cause of justice and not result in delays.

Conclusion:
The Court answered Question No. 1 in the negative, indicating that a Review Petition is not maintainable only before the Judge who passed the original order. Question No. 2 was answered in the affirmative, confirming that a Review Petition can be heard by another Judge in accordance with Rule 3 of Chapter XXX of the High Court Appellate Side Rules. The matter was directed to be placed before the Judge assigned to take up Review Petitions.