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TMI Blog2013 (12) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... , vesting the High Court with the power to review its decision rendered under section 260A, is it permissible for the High Court to review its order by taking resort to its inherent power or in exercise of its plenary jurisdiction, because the High Court is a court of record and the court of record has a duty to keep, for posterity, its record correct, clear and in accordance with law, so far as, at least, procedural aspect of hearing of appeal, under section 260A, is concerned ? When a review petition is pending in the High Court, which has passed the order disposing of an appeal under section 260A, whether it is possible by the other party to file special leave petition to the Supreme Court and if the special leave is allowed and regular appeal comes into existence, will pendency of appeal, in the Supreme Court, render the review petition, invariably, incompetent and infructuous or is there any situation, wherein the High Court can hear the review petition despite the fact that an appeal is pending in the Supreme Court and if the review petition is allowed by the High Court, will the appeal, pending in the Supreme Court, become legally incompetent and infructuous? Is there a diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stions of law, as set forth in the memorandum of appeal. While the learned counsel for the respondent contended that the substantial questions of law did arise, the counsels for the review petitioner submitted that such questions did not arise out of the order of the Tribunal. Referring to the concurrent finding of facts recorded by both the appellate authorities below, the counsels for the review petitioner submitted that there being no question of perversity in such findings, no substantial question of law, as set forth in the memorandum of appeal, arose out of the order of the Tribunal, as the said authority correctly applied the settled positions of law on the factual matrix of the case. 9. That this hon'ble court after hearing the counsel on this limited issue on September 9, 2010, as to whether the case involved any substantial questions of law, was satisfied that no substantial question of law, which was mentioned as question No. 2 in the memorandum of appeal, arose in respect of Central excise refund. However, this hon'ble court, on that day, reserved its view regarding question No. 1, as mentioned in the memorandum of appeal, in respect of transport subsidy and interest s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e substantial question or questions of law, which, according to the court, the appeal involves. Without adhering to the mandatory procedure, as prescribed by section 260A, the court is not empowered, according to Mr. Bhattacharjee, to decide an appeal. Mr. Bhattacharjee has also submitted that a primary duty is cast by section 260A on the appellant to mention, in his memorandum of appeal, as to what substantial question or questions of law the appeal has raised and the High Court has the power to dismiss an appeal if it finds, without even giving notice to the respondent, that no substantial question of law is involved. The scheme, as embodied in section 260A, clearly shows, contends Mr. Bhattacharjee, that the court cannot proceed to hear an appeal on merit until the time it is "satisfied" that the appeal involves substantial question or questions of law for adjudication ; but this satisfaction, submits Mr. Bhattacharjee, is not sufficient for hearing of the appeal inasmuch as it is a duty cast on the court to, first, formulate the substantial question or questions of law involved in a given appeal and, thereafter, to invite the parties to have their say in the matter. As there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the memorandum of appeal had mentioned, were the ones, which had really arisen for determination, then, it (court) ought to have admitted the appeal for hearing on the said two substantial questions of law and it was, thereafter, that the appeal could have been heard not on the basis of the substantial questions of law, which the appellant had framed, but on the basis of the substantial questions of law, which the High Court would have formulated. The entire concept and scheme, as envisaged by section 260A, according to Mr. Bhattacharjee, escaped the attention of this court and this court fell into error in hearing both the parties to the appeal before the appeal was admitted and, then, dispose of the appeal without formulating any substantial question of law for adjudication. This approach, humbly submits Mr. Bhattacharjee, was completely wrong inasmuch as the same is wholly contrary to the scheme of hearing of an appeal under section 260A. It is noteworthy, submits Mr. Bhattacharjee, that at the stage of hearing of the present appeal on the question of its admission, this court did not even faintly indicate to the parties concerned that the appeal would be disposed of on the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n though the statute may not have specifically conferred, on the High Court, the power of review. In support of his above submissions, Mr. Bhattacharjee has placed reliance on Grindlays Bank Ltd. v. Central Government Industrial Tribunal reported in [1980] Supp SCC 420, India Carbon Ltd. v. CIT reported in [2007] 3 GLT 339 and CIT v. Williamson Tea (Assam) Ltd. (No. 2) (Misc. Case No. 1914 of 2010 in I. T. A. No. 4 of 2012)-since reported in [2012] 346 ITR 436 (Gauhati) too. Otherwise, also, according to Mr. Bhattacharjee, every court has the power to correct the order, which it has passed on wrong assumptions or on being misled on facts or in misconception of law contained in that behalf. For this submission, Mr. Bhattacharjee seeks to derive support from Lily Thomas v. Union of India reported in [2000] 6 SCC 224. Submissions on behalf of the respondents Resisting the review petitions, Mr. Pathak, learned Additional Solicitor General, has not disputed the scheme, which section 260A envisages for the purpose of hearing of an appeal and disposal thereof. What, however, Mr. Pathak submits is that in the case at hand, notice was given to the review petitioners as respondents in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There is no pleading, points out the learned Additional Solicitor General, that any prejudice has been caused to the review petitioners and, hence, in the absence of any prejudice having been caused to the review petitioners, the non-framing of the substantial questions of law before the appeal was heard cannot be made a ground for review of the impugned judgment and order. Reliance, in this regard, is placed by Mr. Pathak on the case of Kannan (Decd.) v. V. S. Pandurangam reported in [2007] 15 SCC 157. It is submitted by Mr. Pathak, learned Additional Solicitor General, that the court has decided the appeal on the substantial questions of law, which were suggested by the appellants in the memorandum of appeal, and, hence, it cannot be contended by the respondents-review petitioners that they were not given any opportunity to address the court on the substantial questions of law, which the court has, eventually, chosen to answer. The review petitioners, in fact, submits Mr. Pathak, seek, with the help of the present review petitions, fresh adjudication of the issues on the merits, which the court has answered against the assessees. It is also submitted by Mr. Pathak that the rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing the Special Leave Petition and granted the leave. Following the leave, so granted, further points out Mr. Pathak, an appeal, bearing No. Civil Appeal No. 1619 of 2012, has been registered. According to Mr. Pathak, when the Supreme Court is in seisin of the legality and correctness of the impugned order, dated September 16, 2010, this court's review jurisdiction, as against the impugned judgment and order, dated September 16, 2010, stands ousted due to doctrine of merger as explained by the Supreme Court, in Kunhayammed v. State of Kerala reported in [2000] 245 ITR 360 (SC). Referring to clause (vii), which appears at paragraph 44, in Kunhayammed (supra), Mr. Pathak submits that in clause (vii) of paragraph 44, in Kunhayammed (supra), the Supreme Court has lifted the veil from the controversy on the question as to whether a review petition shall survive if leave is granted in a special leave petition arising out of the same subject matter. Reply on behalf of the review petitioners Repelling the submissions, made on behalf of the opposite party, Mr. Bhattacharjee, learned senior counsel, has submitted that the crux of the matter is that the learned Additional Solicitor Gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... granted and regular appeal has come into existence, files an application for review. In such a given situation, clause (vii) of paragraph 44 makes it clear, submits Mr. Bhattacharjee, that the person, who has already filed an appeal to the Supreme Court, loses his right to file review. On the other hand, points out Mr. Agarwalla, para 37 of Kunhayammed (supra) deals with a case, where a person, aggrieved by an order, filed a review petition and the other party files a special leave petition in the Supreme Court and leave having been granted, a regular appeal comes into existence. In such a case, since the review petition was already filed before the special leave petition was converted into appeal, the High Court does not loose its right to decide the review petition and this is precisely what, contends Mr. Agarwalla, the observations made in paragraph 37 of Kunhayammed (supra) seek to convey. Deductions and inferences : In substance, the grievance of the review petitioners, who were respondents in the appeal, is that an order was passed, on August 9, 2010, in the appeal, by this court directing issuance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs' affidavit, show that the appeal was heard by this court only once for the purpose of admission and there was no order admitting the appeal ; rather, on hearing the appeal, at the stage of admission, the appeal was, suddenly, listed for judgment and the judgment was pronounced ; whereas the order, dated September 16, 2010, which is sought to get reviewed, shows that the appeal was admitted and, then, the appeal was decided on the substantial question of law, which, according to the court, had arisen for determination. Clearly, therefore, there was no hearing of the appeal on substantial questions of law, which the High Court formulated for the purpose of adjudication ; whereas the substantial questions of law ought to have been formulated by this court before the appeal was heard. This position, in fact, cannot be disputed, because one of us (hon'ble Anima Hazarika J.) was a party to the judgment and the procedure followed was that the appeal was heard, at the admission stage, for the purpose of admission and, then, while delivering the judgment, the appeal was shown to have been admitted ; whereas, as indicated hereinbefore, there was no order admitting the appeal and no order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubstantial questions of law arise for consideration out of the order appealed against passed by the Income-tax Appellate Tribunal (for short, hereinafter called as 'the Tribunal') : '(i) Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified and correct in law in holding that the assessee is entitled to a deduction under section 80-IB of the Income-tax Act, 1961, on the transport subsidy and interest subsidy received by it ? (ii) Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified and correct in law in holding that the assessee is entitled to a deduction under section 80-IB of the Income-tax Act, 1961, on the Central excise duty refund received by it ?'" A bare reading of what has been reproduced above shows that the appeal was admitted and it was, then, that the appeal was decided on the substantial questions of law, which, according to the High Court, had arisen for determination in the appeal. In fact, it is not in dispute before us that no substantial questions of law was formulated by the High Court before the appeal was heard at the stage of admission and disposed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne any issue which- (a) has not been determined by the Appellate Tribunal ; or (b) has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in subsection (1). (7) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section." A bare reading of section 260A shows that an appeal shall lie to the High Court from every order passed by an Appellate Tribunal provided that the High Court is satisfied that the case involves a "substantial question of law". Thus, an appeal, under section 260A, is a qualified appeal and not an absolute and/or unqualified and/or unrestricted appeal. Unless, therefore, an appeal involves a substantial question of law, no appeal would lie to the High Court from the order passed, in an appeal, by an Appellate Tribunal. It follows, therefore, that the satisfaction of the High Court that the appeal involves substantial question of law is a sine qua non for the appeal to be admitted for hearing. This position of law will not remain in doubt, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmulated in the appeal, the respondents shall be allowed to argue, at the time of hearing of the appeal, that no such substantial question or questions of law, as formulated by the High Court, has or have arisen for being answered in the appeal. What further follows from a close reading, as a whole, of section 260A is that if the High Court decides to give notice to a respondent, in an appeal, before formulating the substantial question or questions of law, the respondent, in the appeal, shall have the right to satisfy the High Court that the substantial question or questions of law, as contended by the appellant, is, or are, not really involved ; or else, there would be no meaning and purpose in giving notice to the respondent, in the appeal, before the appeal is admitted by formulating the substantial question or questions of law on which, in the view of the High Court, the appeal needs to be heard. In other words, if a respondent, in appeal, made under section 260A, is given notice before admission of the appeal, it necessarily follows that the respondent has been given an opportunity by the High Court to satisfy the High Court that no substantial question or questions of law, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d/or formulated by the High Court), does not really arise. In short, hearing of an appeal, under section 260A, can, in a given case, be in two different stages-once, before admission of the appeal, and, once again, after admission of the appeal. We may, however, hasten to add that there is no impediment, on the part of the High Court, to admit an appeal without giving notice to the respondent ; but if the High Court decides to give a notice before admitting the appeal and if it decides to hear the respondent on the admission of the appeal, the High Court cannot straightaway allow the appeal on the basis of the substantial question or questions of law, which the appellant may have formulated inasmuch as section 260A provides that if the High Court finds that the appeal needs to be heard, the High Court is legally bound to formulate the substantial question or questions of law, which, according to the High Court, has or have arisen for determination. Put shortly, an appeal, under section 260A, can be heard subsequent to the formulation of the substantial question or questions of law, which, according to the High Court, has or have arisen for determination. We may hastily add that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court and that in terms of section 260A(4), the respondent, in appeal, has to be allowed to argue, at the time of hearing of the appeal, (wherein the substantial question or questions of law stands or stand already formulated by the High Court), that the appeal does not involve a substantial question or questions of law as has been, or have been, formulated by the High Court. In M. Janardhana Rao (supra), the Supreme Court has also clarified, at paragraph 11, that the proviso to section 260A(4) lays down that nothing in section 260A(4) shall be deemed to take away the power of the High Court to hear, for reasons to be recorded, an appeal on any substantial question or questions of law not formulated by it provided that the High Court is satisfied that the case involves such a question. In no uncertain words, the Supreme Court has held, at paragraph 11, in M. Janardhana Rao (supra), that the High Court cannot, but decide the substantial question of law, as formulated by it under section 260A, and deliver judgment thereon containing the grounds on which its decision is founded. The observations, appearing at paragraph 11, in M. Janardhana Rao (supra), read as under (page 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court, to dismiss the appeal without even admitting the appeal. Logically extended, it would mean that if the respondent has been given notice before the High Court decides to admit an appeal, it would remain open to the respondent to show that no substantial question of law has arisen and in order to show that no substantial question of law has arisen, it would be, ordinarily, necessary for the respondent to make his submission on the merits if the respondent seeks to satisfy the High Court that no substantial question of law for determination has arisen in the appeal. The relevant observations, appearing in this regard, in M. Janardhana Rao (supra), read as under (page 55) : "Without insisting on the statement of substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Court is not empowered to generally decide the appeal under section 260A without adhering to the procedure prescribed under section 260A. Further, the High Court must make every effort to distinguish between a question of law and a substantial question of law. In exercise of powers unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s indicated above, the Supreme Court, in M. Janardhana Rao (supra), interfered with the order, which had been passed, in appeal, by the High Court. In the case at hand, too, if this court finds, in the light of the clearly laid down position of law, in M. Janardhana Rao (supra), that this court formulated the substantial question or questions of law for adjudication subsequent to the admission of the appeal, as is contended by the respondent-opposite party, then, such a breach by the High Court would make its judgment and order open to review if the power of review is, otherwise, found to be available to the High Court in a case of present nature. The relevant observations, appearing at paragraph 16, in M. Janardhana Rao (supra), read as under (page 56): "On a reading of the impugned judgment of the High Court it is clear that no substantial question of law was formulated at the time of admission of the appeal. Obviously, the High Court has formulated questions subsequently after conclusion of arguments for the purpose of adjudication. That is clearly against the scheme of section 260A. Additionally, grievance that certain points w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, of prejudice having been caused or not does not arise. This apart, in the case at hand, it is the grievance of the review petitioners that as substantial questions of law had not been formulated for the purpose of hearing of the appeal, the review petitioners could not make their submissions on the merits of the substantial questions of law, which the High Court has, subsequent to the admission hearing, ultimately, decided inasmuch as one of the issues in the appeal has been decided against the review petitioners without, according them, an opportunity to have their say after making it clear to them that the substantial questions of law, which the memorandum of appeal had mentioned, were the substantial questions of law, which, even according to the High Court, had arisen for determination and these were the questions, which would be finally taken up for adjudication by the court. Coupled with the above, the decisions, which have been referred to in Kannan (Decd.) v. V. S. Pandurangam reported in [2007] 15 SCC 157, are not on substantial questions of law, but on the question of issues. It is trite that even if an issue was not framed, it would not disable the court from r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on the face of the record or when such an order has been passed in ignorance of relevant facts, which could not be placed before the court by either of the parties, it is an acknowledged proposition of law that re-call/correction of such an order can be made by the High Court in exercise of its inherent powers. The observations, so made, appearing at paragraph 8 of India Carbon Ltd. (supra), read as under : "8. The provisions of the Act have not vested in the High Court any power to review its own orders as conferred by Order 47 of the Code of Civil Procedure. An order passed under section 260A of the Act, therefore, cannot be corrected by us even if it discloses an error apparent on the face of the order itself or if such an order has been passed in ignorance of relevant facts which could not be placed before the court by either of the parties, notwithstanding the exercise of due diligence and reasonable care. At the same time it has been acknowledged that recall/correction of such an earlier order can be made in the exercise of inherent power. The moot question, therefore, will be the dimensions of the said inherent power." Fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arbon Ltd. (supra), that when error is self-evident in an order passed contrary to a fundamental judicial principle thereby occasioning a failure of justice, an order can, undoubtedly, be corrected in exercise of the High Court's inherent power. The relevant observations, appearing, in this regard, at paragraph 9, in India Carbon Ltd. (supra), read as under : "9. Inherent power inheres in every court by virtue of the fact that it is the court whose primary duty is to do justice between the parties in the given facts of a case. It is an in-built reserve power and not a matter of expressed conferment. Inherent power has also been understood to be in the nature of a power to do ex debito justitiae. The court, while exercising its inherent power, naturally, cannot extend the same to cover other areas of corrective jurisdiction, e.g., appeal, revision, review etc. Inherent power which this court or for that matter any other court possesses also cannot be exercised to correct mere apparent errors as that would amount to exercise of the review jurisdiction. It is, therefore, a power more circumscribed than the revie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting to its plenary jurisdiction or inherent power, where no specific statutory provisions exist ; rather, the question would be whether, in the facts and attending circumstances of a given case, the power of review, which the High Court enjoys as a court of record, shall or shall not be exercised. Mr. Bhattacharjee, learned senior counsel, is also not incorrect, when he refers to, and relies upon, with regard to the above, the decision of the Patna High Court in D. N. Singh v. CIT reported in [2010] 325 ITR 349 (Patna) [FB]. In D. N. Singh (supra), the pointed question raised was : whether a High Court can entertain an application for review arising out of its judgment passed under section 260A of the Income-tax Act, when the statute has not made provisions for review under the Income-tax Act ? While answering the question, posed above, it may be pointed out that, in Bengali Singh (HUF) v. CIT [2010] 325 ITR 350 (Patna), a Division Bench of the Patna High Court had already taken the view that Income-tax Act is a code by itself and in the absence of any provision for review against an appellate order passed under section 260A, no power of review can be exercised by the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary jurisdiction of this court, the High Courts have unlimited jurisdiction, including the jurisdiction to determine their own powers (See Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1 ; [1966] 3 SCR 744. As stated in Halsbury's Laws of England. 4th edition, Vol. 10, para. 713: 'Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court.' 67. The observation of this court in Raja Soap Factory v. Shantharaj (S. P.) [1965] 2 SCR 800, that section 151 of the Code of Civil Procedure did not confer on the High Court jurisdiction which was not specifically vested was made in the context of section 105 of the Trade and Merchandise Marks Act (43 of 1958) which conferred a specific jurisdiction in respect of a passing off action. That observation is not relevant to the question regarding the inherent and plenary jurisdiction of the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty to itself to keep all its records correctly and in accordance with law. Hence, the High Court has not only the power, but a duty to correct any apparent error in respect of any order passed by it. This is the plenary power of the High Court." In fact, the Supreme Court has pointed out, in M. M. Thomas (supra), at para. 17, that if the power to correct its own record is denied to the High Court, even when the High Court notices the apparent error, then, the consequence would be that the status of the High Court, as a superior court, will dwindle down and it is, therefore, appropriate that the plenary power of the High Court be treated to include the power of review relating to errors apparent on the face of the record. In emphatic terms, the Supreme Court has held, in M. M. Thomas (supra), that there can be no doubt that the High Court possesses all powers in order to correct the errors apparent on the face of the record. The observations, appearing at paragraph 17, in M. M. Thomas (supra), read as under : "17. If such power of correcting its own record is denied to the High Court, when it n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts unless a statute specifically provides for it. Obviously, therefore, observes the Supreme Court, when a review is sought due to a procedural defect, the inadvertent error committed by the court or tribunal must be corrected ex debito justitiae to prevent the abuse of its process and such power inheres in every court or tribunal. When, however, the review relates to merit of an order on the ground that the order suffers from an error apparent on the face of the record, a review is not possible, in the light of the decision in Patel Narshi Thakershi (supra), unless there is statutory provision for review. The case, at hand, is one, wherein the review petitioners are seeking interference, by way of review, with the procedural defect, which the disposal of the appeal, suffers from and not with the merit of the order passed in the appeal. The relevant observations, appearing at paragraph 13, in Grindlays Bank Ltd. (supra), read as under : "13. We are unable to appreciate the contention that merely because the ex parte award was based on the statement of the manager of the appellant, the order setting aside the ex parte aw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the absence of statute, the power of review cannot be exercised by taking recourse to the inherent power as already held in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji reported in [1971] 3 SCC 844, and that the power of review has to be conferred by law either specifically or by necessary implication. The Supreme Court has laid down, in no uncertain words, in Lily Thomas (supra), that the power of review can be exercised for correction of a mistake, but not to substitute a view. There can, thus, be no doubt, even in the face of the decision in Lily Thomas (supra), that a court must have magnanimity to acknowledge its mistake and correct the mistake, ex debito justitiae to prevent the abuse of its process, though review cannot be resorted to for substituting a view. The real theme of the Supreme Court's decision in Lily Thomas (supra), is that though the power of review cannot be exercised by a court unless the statute confers such a power and that a statutory power of review can be exercised subject to such limitations as the statute may impose, yet a court is not powerless, in an appropriate and exceptional case, to rectify its error, because "an act of court shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that some of the appellant political parties are not functioning in conformity with the provisions of section 29A is to be implemented, the result will be that a detailed enquiry has to be conducted where evidence may have to be adduced to substantiate or deny the allegations against the parties. Thus, a lis would arise. Then there would be two contending parties opposed to each other and the Commission has to decide the matter of deregistration of a political party. In such a situation the proceedings before the Commission would partake the character of quasi-judicial proceeding. Deregistration of a political party is a serious matter as it involved divesting of the party of the statutory status of a registered political party. We are, therefore, of the view that unless there is express power of review conferred upon the Election Commission, the Commission has no power to entertain or enquire into the complaint for deregistering a political party for having violated the constitutional provisions." In CIT v. West Coast Paper Mills Ltd. reported in [2009] 319 ITR 390 (Bom) relied upon by Mr. Pathak, learned Additional Solicitor General, wherein the Bombay High Court has held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be rendered incompetent. An appeal cannot be preferred against a decree after a review against the decree has been granted because the decree reviewed gets merged into the decree passed in the review and the appeal to the superior court, preferred against the earlier decree, becomes infructuous. The relevant observations, appearing, in this regard, at paragraph 37, in Kunhayammed (supra), read as under (page 379) : "Let us assume that the review is filed first and the delay in the special leave petition is condoned and the special leave petition is ultimately granted and the appeal is pending in this court. The position then, under Order 47, rule 1 of the Code of Civil Procedure is that still the review can be disposed of by the High Court. If the review of a decree is granted before the disposal of the appeal against the decree, the decree appealed against will cease to exist and the appeal would be rendered incompetent. An appeal cannot be preferred against a decree after a review against the decree has been granted. This is because the decree reviewed gets merged in the decree passed on review and the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case, therefore, this review petition has not become infructuous and the same can still be decided and disposed of by this court in accordance with law. This is precisely what has been conveyed by the observations of the Supreme Court, made in paragraph 37 of Kunhayammed (supra), which we have reproduced above. In the case at hand, merely because the Revenue has, subsequent to the filing of the review petition, gone to the Supreme Court by way of special leave petition, and that leave having been granted, a regular appeal has come into existence, it would not render the present review petition filed by the respondents-review petitioners infructuous and incompetent in law ; or else, the principle, which has been enunciated by the Supreme Court in clear terms, at paragraph 37, in Kunhayammed (supra), becomes meaningless and otiose. Discussion on merit and reliefs, if any What needs to be borne in mind is that while resisting the substantial questions of law, which an appellant contends to have arisen in an appeal made under section 260A, it is open to the respondent to show that such a substantial question of law, which the appellant contends to have arisen, has, in fact, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... settled permanently as that it should be settled correctly. But there may be circumstances, where public interest demands that the previous decision be reviewed and reconsidered. The doctrine of stare decisis should not deter the court from overruling an earlier decision, if it is satisfied that such decision is manifestly wrong or proceeds upon a mistaken assumption in regard to the existence or continuance of a statutory provision or is contrary to another decision of the court". Confronted with a situation, similar in nature as the one that we have at hand, when correctness of an earlier view expressed by the court in Goodyear India Ltd. v. State of Haryana reported in [1990] 76 STC 71 (SC) ; [1990] 2 SCC 71, was doubted, S. Ranganathan J. who was a part to the decision in Goodyear India Ltd. (supra), observed in his concurrent decision, in Hotel Balaji v. State of A. P. reported in [1993] Supp (4) SCC 536, as under : "12. I am quite conscious that the conclusion I have expressed here as to the vires of the provision impugned is contrary to the conclusion I reached in Goodyear on somewhat analogous provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es to show as to what correct answer to the substantial questions of law, which this court may formulate, shall be. In the present case, since this court did not formulate the substantial questions of law for adjudication before hearing of the appeal on the merits, there can be no escape from the conclusion that hearing of the appeal prior to its admission has to be treated as a hearing on the admission of the appeal in order to determine if the substantial questions of law, as contended by the appellants, had or had not arisen and it was only upon having formulated the questions of law, which, according to the High Court, were the substantial questions of law for adjudication in the appeal that the appeal could or ought to have been heard. As the omission, on our part, to formulate the substantial questions of law and, then, invite the parties to have their say in the matter amount to denial of opportunity of effective hearing to the parties concerned, particularly, to the review petitioners, we must have the magnanimity and courage to acknowledge our mistake, recall the judgment and order, dated September 16, 2010, and, then, decide the appeal, on the merits, after having formu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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