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TMI Blog1973 (6) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... independent existence after the implied repeal of the Tobacco Act by the Central Excise and Salt Act, 1944. Thereupon, the Kerala State Legislature passed the Validation Act 9 of 1964 (called Luxury Tax Act, for short) validating the levy and collection of the tax, as a tax on luxuries. The Validation Act was challenged in this Court. It was sustained by a learned Judge, in the first instance. On appeal, a Division Bench by judgment in Writ Appeal No. 5070 of 1965 etc. dated 3-10-1966, held that it violated the provisions of Art.301 of the Constitution. On further appeal by the State to the Supreme Court, the decision of the Division Bench was set aside and the matter was remanded back to this Court, for fresh investigation before pronounc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... civil proceedings', for the purposes of Art.133 of the Constitution, and this would attract Order 47. That the said provision would be attracted was expressly ruled in Chenchanna Naidu v. Praja Seta Transports Ltd. (AIR 1953 Mad. 39) which was referred to and followed in Dilip Nath Sen v. Certificate Officer and Others (AIR 1962 Cal. 346)' and again in Income Tax Officer, Masulipatnam v. K. Srinivasa Rao (AIR 1969 And. P. 441). The Calcutta decision refers to a judgment of Chagla C. J. in S. P. Awate v. C. P. Fernandez (AIR 1959 Bomb. 466). But the Bombay decision assumed that the Court bad power to review its order passed on an application under Art.226, and stated that the same could be only on the ground of an error apparent on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to agree that assuming Order 47, Rule 1 is applicable to the case, a subsequent binding decision in this case the pronouncement of the Supreme Court on 30-7-1969, and certainly, of the Division Bench on 15-10-1970 would constitute either the discovery of a new and important matter or an error apparent on the of the record . There is the early authority of a Division Bench of the Bombay High Court in Wa'ghela Ra'isang ji Shivsang ji v. Shaik Masludin (ILR 13 Bom. 330) that a decision of the Privy Council reversing that of the High Court is a new and important matter , within the meaning of Sec. 623 and 624 of the Code of 1882. The authority of this decision has been shaken by the pronouncement of the Privy Council in Rajah Kot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt change in the law a ground for review unless it is retrospective in its operation. But it is claimed by the Government Pleader that a subsequent binding decision proclaims and declares the law as it ever was, and therefore with retrospective effect, and that it stands on the same footing as a subsequent legislation with retrospective effect, This reasoning found favour with Raman Nayar J. in the decision in Pathrose's case (1969 KLT 15). We are unable to accept the reasoning as correct. In the case of a legislation passed subsequently, but with retrospective effect from the time when the decision sought to be reviewed was rendered, the position is, that if the legislation is projected back to the date of the delivery of the judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t law. It is the law which all along was there from 1952. The deeming provision is fully effective and operative as from 25 May 1953, when the 1952 Act came into force. The result is that the Court is to apply the legal provision as it always stood. It would, therefore, be error on the face of the record. The error would be that the law that was applied was not the law which is applicable. Secondly. Sec. 4 of the 1952 Act confers power on the court to apply the law notwithstanding any provision contained in the Code of Civil Procedure. Therefore the application though instituted as an application for review was not so. The substance and not the form of the application will be decisive. In the AIR Commentaries, on the Constitution o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight of the authorities discussed, we cannot accept the decisions in Pathrose's case (1969 KLT 15), and in Chandrasekharan Nair v. Purushothaman Nair (1969 KLT 687), as laying down correct law. The only other ground for review under Order 47, Rule 1 is other sufficient cause . It is well settled that these words should be understood ejusdem generis with the two grounds immediately proceeding them. Being so, it is enough for us to state that no other sufficient reason has been disclosed for review. The result is, even if Order 47, Rule 1 of the CPC. is applicable to the case, as to which we need not venture a final opinion none of the grounds contemplated by it are made out. The position is no better if the application is treated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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