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TMI Blog2015 (10) TMI 2608X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.02.2015 passed by this Court in W.P.No.32237, M/s.Himachal Exim, who had the benefit of the order dated 24.10.2014 passed by the Commissioner of Appeals (Appeals-II), Chennai, has come up with the Contempt Petition seeking to punish the respondents/Customs Department for disobedience of the above order dated 03.02.2015 of 2014, wherein, this Court observing that the order of the Appellate Authority has become final, directed the respondents/Customs Department to release the goods covered under the Bills of Entry, dated 07.01.2013. 3. For the sake of convenience, the parties are hereinafter referred to as 'M/s.Himachal Exim' and 'Customs Department'. 4. The order dated 03.02.2015 passed by this Court in W.P.No.32237 of 2014, which is under challenge, would read thus: ''2. It is not in dispute that the order has become final and no further appeal has been filed against the said order by the Department. Since the order has become final, the respondents are directed to release the goods covered under Bills of Entry No.8060783 and 8960784 both dated 07.01.2013 in terms of the order of Commissioner (Appeals-II), Chennai, vide Order in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e conditions laid down under Order 47 of the Code of Civil Procedure. But this cannot be a case of review on the ground of discovery of new and important matter, for such matter has to be something which exist at the date of the order and there can be no review of an order which was right when made on the ground of the happening of some subsequent event . Section 29(5) further gives power to the Controller to act under Section 151 or Section 152 of the Code of Civil Procedure. Section 152 has no application in the present case for there is no clerical or arithmetical mistake here. Nor can the Controller in our opinion set aside an order which was right when it was made, under Section 151 of the Code of Civil Procedure as there is no question in such circumstances of subserving the ends of justice or preventing the abuse of the process of the court. We are therefore of opinion that the Controller had no power to set aside the order that had been made on August 9, 1956 for it was right when it was made. The view taken by the High Court in this connection is correct." (ii) G.S.Gupta v. Basheer Ahamed and others [AIR 1977 Karnataka 193] "3. ... While answering that preliminary obje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a miscarriage of justice nothing would preclude the Court from rectifying the error. This Court in S. Nagaraj v. State of Karnataka18 held: (SCC pp. 619-20, para 19) 19. Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice. In Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai19 the Court observed that even though no rules had been framed permitti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice. (v) Ahmedabad Electricity Co. Ltd. v. State of Gujarat and others [AIR 2003 Gujarat 157] ''14. The scope of powers of review, which the High Court can exercise, have been succinctly stated by the Apex Court in the case of Smt. Meera Bhanja v. Smt. Nirmala Kumari Choudhury, (1995) 1 SCC 170 : (AIR) 1995 SC 455) in the following terms: "The review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of O.47, R. 1 of C.P.C. The review petition has to be entertained only on the ground of error apparent on the face of record and not on any other ground. An error apparent on the face of record must be such an error which must strike one on mere looking at the record and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writ petitions after the copy application was received. As in that event, our order would be completely reversed. 8. In reply, Mr.Rajnish Pathiyil, learned Senior Central Government Standing Counsel appearing for the Customs Department, would submit that the order dated 24.10.2014 passed by the Appellate Authority has been received by the department on 18.11.2014 and that the Department had time till 17.2.2015 to prefer an appeal; that they have preferred an appeal before the Tribunal within time and that the original interim order granted was subsequently withdrawn taking note of the order passed by this Court in W.P.No.32237 of 2014, in which the Department is facing contempt proceedings. He further submitted that the Customs Department has preferred a Review Petition of the order dated 03.02.2015 made in W.P.No.32237 of 2014. He would further contend that the order, dated 3.2.2015 is misconceived since it has been passed by this Court with an observation that the order of the Commissioner (Appeals-II) has become final as no appeal was preferred by the department, however, this Court has not considered the fact that there was still appeal time till 17.2.2015 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.", b) State of Rajasthan Vs Surendra Mohnot reported in AIR 2014 SC 2925 It is true as observed by this Court in Shivdeo Singh v. State of Punjab, there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. The power of review may be exercised of the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew 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." 22. Order 47 permits the aggrieved to file a review on account of discovery of new and important matter or evidence which was not within his knowledge, in spite of due diligence. It also provides for review on account of some mistake or error apparent on the face of the record. The third ground permits the aggrieved to file a review 'for any other sufficient reason'. 23. There is no definition for the term 'for any other sufficient reason'. The Court has to consider the grounds raised by the applicant to decide as to whether those reasons would constitute "sufficient reason" for the purpose of exercising review jurisdiction. d) Secretary to Government of India, Ministry of Human Resource Development, Department of School Education and literacy and Ors Vs. The Central Administrative Tribunal and Ors. reported in MANU/TN/1358/2015, (para 34 and 37 to 40) 34. The view expressed in Amarjeet Singh was followed by the Supreme Court in Pawan Pratap Singh v. Reevan Singh, MANU/SC/0108/2011 : (2011) 3 SCC 267. Supreme Court on Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel, by giving liberty, the Supreme Court has not conferred any special right on the petitioners. The learned Additional Solicitor General in his reply submitted that an order dismissing the Special Leave Petition in limine would not constitute a decision on merits and as such, review is maintainable even after such dismissal. According to the learned Additional Advocate General, the petitioners are in a better position, in view of the liberty granted by Supreme Court. The Supreme Court has thus made the law clear that review petition is maintainable even after dismissal of Special Leave Petition. In the present case, the Supreme Court granted liberty to the petitioners to file a review petition. The review would come within the four corners of Order 47 Rule 1 of Code of Civil Procedure and the parameters indicated by the Supreme Court. We are therefore of the view that this is a fit case to exercise the review jurisdiction, as otherwise, it would result in injustice not only to the petitioners but also to the Language Teachers, who are not before us. e) Pannalal Ghosh and Ors Vs. Iresh Das and Ors, reported in 2008(4)GLT857 17. A survey of the authorities with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcise of due diligence, the same could not be produced before the Court earlier. 15. The term 'mistake or error apparent' by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the Court/Tribunal on a point of fact or law. In any case, while exercising the power of review, the concerned Court/Tribunal cannot sit in appeal over its judgment/decision." 24. In the light of the above decisions, the common order made in W.P. Nos. 23141 and 34581 of 2004, dated 24.07.2012, requires to be reviewed. W.P. No. 34581 of 2004 is dismissed. As the impugned order, dated 01.07.2004 was only temporary in nature, subject to the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power of review is available only when there is an error apparent on the face of the record and not on erroneous decision. The review cannot be allowed to be 'an appeal in disguise'. 11. Before dealing with the review, this Court feels it appropriate to first deal with the contempt proceedings. In the given facts and circumstances, it has to be decided as to whether the failure of the customs department to comply with the order, dated 3.2.2015 passed by this Court would amount to contempt. 12. At the out set, it is to be noted that there is no apparent error on the face of the record since order passed by this Court, dated 3.2.2015 does not suffer from any infirmity. It has been passed solely taking note of the fact that as on the date of the order, there was no appeal preferred by the customs department against the order of the Commissioner (Appeals) and thus, it had become final, which, as rightly contended by the learned counsel for the customs department, was virtually misconceived since, though there was no appeal by the department, but, it has to be noted that for the department, still there was time to prefer the appeal and when the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontempt proceedings against the customs department. 13. As regards the review, though there is no apparent error on record since the order does not suffer from any infirmity, however, taking note of the fact that it has been passed solely with the observation that there was no appeal preferred by the department on the date of the order under review and thereby the impugned order has become final, which as rightly contended by the learned counsel for the customs department, is virtually misconceived and cannot be sustained. Further, it is to be noted that even the statute has prescribed time limit for preferring the appeal, which admittedly, is available to the customs department till 17.2.2015, however, the order under review has been passed as if the order impugned in the writ petition has become final since there was no appeal by that time, which is factually incorrect and further, the period prescribed for filing appeal in the statute is still available to the customs department. It is to be noted that on several occasions, taking note of the fact that the writ petitions are pending without exhausting the appeal remedy, this Court has passed orders directing the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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