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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 ..... 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 the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. Mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justitiae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the Court earlier. 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. When this Court comes to a conclusion that there is no contempt of Court committed by the customs department, it is not appropriate to proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The writ petition is ordered accordingly. No costs. The connected miscellaneous petition is closed. 5. Mr.B.Satish Sundar, learned Counsel for the Contempt Petitioner, i.e. M/s.Himachal Exim would submit that the order of the Appellate Authority viz. The Commissioner of Customs (Appeals-II), Chennai, dated 24.10.2014 was received by M/s.Himachal Exim on 28.10.2015. He would contend that when the Customs Department has not preferred any appeal on the said order within the period of preferring an appeal, naturally, they ought to have implemented the said order and that they have committed contempt of court by not implementing the order dated 03.02.2015 passed by this Court in W.P.No.32237 of 2014. It is his further submission that without making any reference about the said order made in W.P.No.32237 of 2014, the Customs Department preferred an appeal before the Tribunal and the Tribunal has granted an interim order; thereafter, when it was brought to the notice of the Tribunal that there is an order of this Court in W.P.No.32237 of 2014, the interim order passed by the Tribunal was recalled and the matter was kept in abeyance. 6. It is the further contention of the learned couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore was in a position always to prevent miscarriage of justice or to correct grave and palpable errors committed by it. No one can quarrel with this proposition. The High Court may have power and jurisdiction to correct its own error and perhaps the plea may not be sustainable that a decision of the High Court in a revision under S.50 of Karnataka House Rent Control Act, 1961, was not per se subject to review." (iii) Hem Narain Singh and others v. Ganesh Singh and others [AIR 1995 Patna 5] 8. Learned counsel in support of the review application has placed reliance on the decision of Moran Mar Basselios Catholicos v. The Most. Rev. Mar Poulose Athanasius reported in AIR 1954 SC 526 which is also reported in 1955 SC 520. In that case, the expression "errors apparent on the face of the record" have been construed to mean that it is an error apparent oh the face of the record, if the judgment under review does not deal effectively and determine an important issue in the case on which depends the title of the plaintiffs and the maintainability of the suit. In the instant case, the said analogy cannot be applied inasmuch as the learned Judge dismissing the second appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roved the principle laid down by the Privy Council in Rajunder Narain Rae v. Bijai Govind Singh that an order made by the Court was final and could not be altered: nevertheless, if by misprision in embodying the judgments, errors have been introduced, these courts possess, by common law, the same power which the courts of record and statute have of rectifying the mistakes which have crept in. The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies. Basis for exercise of the power was stated in the same decision as under: It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a court of last resort, where by some accident, without any blame, the party has not been heard and an order has been in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P.C. is similar to the jurisdiction available to the High Court while seeking review of the orders under Article 226." Therefore, it is well settled there a mere erroneous decision per se does not permit the Court to undertake review. The review jurisdiction can be exercised only on the ground of error apparent on the face of the record and not on any other ground. Thus, applying the said principles. It is not possible to accept the contention raised in this application." (vi) B.Dhanalakshmi v. M.Shajahan and others [AIR 2004 Madras 512] 11. From the above judgments, it is seen that the law is well settled inasmuch as the power of review is available only when there is an error apparent on the face of the record and not on erroneous decision. If the parties aggrieved by the judgment on the ground that it is erroneous, remedy is only questioning the said order in appeal. The power of review under Order 47, Rule 1, CPC may be opened inter alia, only if there is a mistake or an error apparent on the face of the record. The said power cannot be exercised as is not permissible for an erroneous decision to be ''reheard and corrected". A review application also c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the order of the Commissioner (Appeals-II) has virtually not become final. He would point out that in the mean time, the department has filed the appeal on 17.2.2015 and since it was well within the time, the said appeal was taken on file by the Tribunal and the Tribunal has passed the interim order, however, later it was recalled pursuant to the contempt proceedings. It is also his contention that since appeal is pending before the Tribunal, M/s.Himachal Exim will have to face the proceedings before the Tribunal and that the time to prefer an appeal was still available was not brought to the notice of this Court and the Review is maintainable in view of Order 47 Rule 1 C.P.C. He would further contend that there are ample fair chances available for the department to succeed in the appeal and merely based on the order of this Court, dated 3.2.2015 which was not on merits, but only with an observation as stated above, M/s.Himachal Exim cannot be permitted to take advantage to get rid of from the irregularties commited by it in the matter of consignments and when the matter was not decided on merits and pending before the Tribunal, absolutely no contempt would lie against the depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase at hand, as the factual score has uncurtained, the application for review did not require a long drawn process of reasoning. It did not require any advertence on merits which is in the province of the appellate court. Frankly speaking, it was a manifest and palpable error. A wrong authority which had nothing to do with the lis was cited and that was conceded to. An already existing binding precedent was ignored. At a mere glance it would have been clear to the writ court that the decision was rendered on the basis of a wrong authority. The error was self evident. When such self-evident errors come to the notice of the court and they are not rectified in exercise of review jurisdiction or jurisdiction of recall which is a facet of plenary jurisdiction Under Article 226 of the Constitution, a grave miscarriage of justice occurs. In appeal the Division Bench, we assume, did not think even necessary to look at the judgments and did not apprise itself the fact that an application for review had already been preferred before the learned Single Judge and faced rejection. As it seems, it has transiently and laconically addressed itself to the principle enshrined in Section 96(3) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;18. Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the Court." 35. .... 36. .... 37. The Supreme Court in State of Rajasthan vs. Surendra Mohnot, MANU/SC/0579/2014 : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en substantial case of miscarriage of justice is made out but at the same time the grounds laid down under Order 47 of Code of civil Procedure cannot be put in a straitjacket formula. There can be no wrangle on the legal position that a party cannot seek review of a judgment on merit or on the plea that the judgment is de-horse to the pleadings etc. In other words, review is permissible only if (i) there is discovery of new evidence; (ii) there is some mistake or error apparent on the face of the record and (iii) there is any other sufficient reason. The view taken by the Hon'ble Privy Council that the "sufficient reason" must have nexus with other grounds v. enumerated under Order 47 Rule 1 of of Code of Civil Procedure has also been approved in the case of Kamal Sengupta (supra). f) V.G.P Housing Pvt Ltd Vs. Nagarajan and Ors, reported in MANU/TN/2318/2015 (para 22 to 24) 22. In yet another decision in RAJINDERSINGH Vs. Lt. GOVERNOR reported in MANU/SC/2482/2005 : 2005 (13) SCC 289, at paragraph Nos. 15 and 16, the Supreme Court held that law is well settled that the power of judicial review of its own order by the High Court inheres in every Court of plenary jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suits, which ended in favour of M/s. V.G.P. Housing (P) Ltd., as stated supra. Directions issued in W.P. No. 23141 of 2004, to remove the alleged encroachment, is withdrawn. In view of the above, the present review petition is allowed. 25. As stated supra, it is the contention of the Tahsildar, Sholinganallur, on the application made by the review petitioner for separate patta, pattas have been issued in Survey Nos. 15/199B and 15/199C of Injampakkam Village, Sholinganallur Taluk and that there is no willful disobedience of the order of this Court. Accepting the statement, the present Contempt Petition is closed. g) G.S. Gupta vs- Basheer Ahamed and others, reported in AIR 1977 KARNATAKA 193, In my opinion, the principles set down in O.47R.I.C.P. code may be employed by way of analogy, and a case of review directly covered under the provision would nevertheless be considered a case of plenary jurisdiction for correction of grave palpable error committed by the court. With that point of view, one has to refer to the previsions contained in O.47, R.1, of the C.P. Code and the learned counsel for the respondents pointed out that in the present case, the petitioner neither discovere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -II) has passed the order on 24.10.2014 setting aside the findings of the Commissioner of Customs, which was admittedly received by the customs department on 18.11.2014. As per Section 129(a), the customs department has time till 17.2.2015 to file an appeal before the Tribunal and it is to be noted that even after expiry of the said period of three months, the Customs Department can invoke Section 129(a)(5) of the Act seeking to condone the delay and if it satisfies the Tribunal that there is sufficient cause in not presenting it within the prescribed appealable time, the Tribunal can condone the delay and take the appeal on file. Therefore, when the statute provided a right of preferring statutory appeal to the customs department, such right should not be deprived of by mere technicalities. In fact, right from the inception, the case of the customs department against the Ms/.Himachal Exim is that it had imported two consignment with grave irregularities and the importer in their statement dated 3.6.2013 and in their letter dated 17.6.2013 have categorically admitted that shoes are fake and not of original brands, viz., Adidas & Nike, but they are duplicate and likewise, as regar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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