REVIEW PETITION

Art.137. of the Constitution reads as:-

Review of judgments or orders by the Supreme Court. — Subject to the provisions of any law
made by Parliament or any rules made under article 145, the Supreme Court shall have power to
review any judgment pronounced or order made by it.

Under Supreme Court Rules, 1966 such a petition is to be filed within thirty days from the date of
judgment or order and as far as practicable; it is to be circulated, without oral arguments, to the
same Bench of Judges who delivered the judgment or order sought to be reviewed.

The Apex Court has clarified that a review is by no means an appeal in disguise. The court has
justified review of its own judgement with the following remarks:

“Review literally and even judicially means re examination or re consideration. Basic Philosophy
inherent in it is the universal acceptance of human fallibility...Rectification of an order thus stems
from the fundamental principle that justice is above all. It is exercised to remove the error and not
for disturbing finality.”1

Review is a serious matter; it is not rehearing of the appeal all over again. A Judgement once
delivered is final. A departure from that principle can be justified only when circumstances of a
substantial and compelling character make it necessary to do so.2

Since the Power given under the Article is subject to the any law made by the Parliament or any
other rules made there under by the Apex Court, the Power is to be exercised under the rules made
by the court in pursuance of Art.145 of the Constitution on the grounds mentioned under Or.
XLVII, Rule 1 of the Civil Procedure Code, 1908. Therefore, the review will lie in the Supreme
Court on:

1. Discovery of new and important matter or evidence: - Since review of the judgment is neither
an appeal nor a second inning to the Party who has lost the case because of his negligence or
indifference, the Party seeking review on this ground must show that there was no remission on

1
S.Nagraj vs State of Karnataka (1993)
2
Northern indian carters vs Lt. Governor of Delhi, 1980
his part in adducing all possible evidence at the trail. In addition to this the evidence upon which
the review is sought must be relevant and of such a character that if it would have been brought
into the notice of the court, it might have possibly altered the judgment.

2. Error apparent on record: - Since the word “Error apparent on the face of record has not been
defined anywhere under the Code or the Constitution, it has to be determined sparingly and with
great caution by the judiciary. However, it is to be mentioned that no error could be said to be an
error apparent on the face of record where one has to travel beyond the record to see the correctness
of the judgment. Therefore, the error must be self evident and should not require an examination
or argument to establish it.

3. Other Sufficient reason:- Since the “Other sufficient reason” has to be decided by the court, the
apex court in order to prevent the misuse of this clause and relying on the judgment of Privy
Council3 and Federal Court4 has held that “……. a reason sufficient on grounds should be at least
analogous to those specified in the rule above…”

DISCOVERY OF NEW AND IMPORTANT MATTER OF EVIDENCE

The court will review its judgement if its attention was not drawn to a material statutory provision
during the first hearing, or if a manifest wrong has been done and it is necessary to pass an order
to do full and effective justice.5 A review proceeding cannot be equated with the original hearing
of the case and finality of the judgement delivered by the court will not be considered except where
a glaring omission or a patent mistake or like grave error has crept in earlier by judicial fallibility.

Thus review of a judgement or order has been allowed if the order sought to be reviewed is based
on a decision per incuriam , or an incorrect facts or assumption of law or a non consideration of a
contention made or if the judgement is inconsistent with the operative portion or an interim order
which was granted subject to the outcome of the appeal or to clarify an ambiguity.

Discovery of new evidence must contain:-

1. The relevancy of the same and

3
Chhaju Ram V Neki AIR 1922 PC 112
4
Hari Shankar V Anath Nath AIR 1949
5
O N Mohindroo vs Dist Judge, Delhi, 1971
2. Be such of a character that, if it had been given in a suit it would have altered the judgment.

It must at least be such as presumably to be believed and if so, it would be conclusive. The
discovery afore stated is not only a discovery of new and important materials or evidence, that
would entitle a party to apply for review, but the discovery of any new materials or evidence; and
important matter must be one which was not within the knowledge of the party when the decree
was made. The person seeking the review should prove strictly the diligence as clearly spelt out in
the above rule which he claims to have exercised and also that the matter or evidence to which he
wishes to have access to is, if not absolutely conclusive, at any rate, nearly conclusive. It is not
only the discovery of new and important evidence that entitles a party to apply for a review, but
the discovery of any new and important matter which was not within the knowledge of the party
when the decree was made. The party seeking a review should prove strictly the diligence he claims
to have exercised and also that the matter or evidence which he wishes to have access to is, if not
absolutely conclusive, at any rate, nearly conclusive. A bare assertion in the affidavit that the party
could not trace the documents earlier will not do. It is not the proper function of a review
application to supplement the evidence or to make it serve the purpose of merely introducing
evidence which might possibly have had some effect upon the result." As was held in the case of
n Ramaswami Padayachi v. Shanmuga Padayachi6

In a review application a party cannot be allowed to introduce fresh documents merely to

supplement evidence which might possibly have had some effect on the result. A review cannot
be sought merely for fresh hearing or arguments or correction of an erroneous view taken earlier.
The power of review can be exercised only for correction of a patent error of law or fact which
stares in the face, without any elaborate argument being needed for establishing it.

The discovery of new evidence or material by itself is not sufficient to entitle a party for review of
a judgment or order. It has to be established that due diligence was exercised and despite that, the
evidence or material sought to be produced at the stage of review could not be produced before
the order was passed. It is not the case of the review petitioner that these documents were not
within the knowledge of the Petitioner.

6
[(1959) 2 Mad LJ 20
In G.L.Gupta vs D.N. Mehta7, the supreme court reviewed its earlier decision in a criminal appeal
because a statutory provision of the foreign exchange act which had a vital bearing on the case,
was not brought to its notice. The court modified its sentence to imprisionment.

ERROR APPARENT ON RECORD

The expression “error apparent on the face of the record “ is an error which is based on clear
ignorance or disregard the provisions of the law. The error should be something more than a mere
error; it must be one manifest on the face of the record. An error is not apparent of the record if it
is not self evident and if it requires an examination or argument to establish it.8

A patent, manifest and self evident error which does not require elaborate discussion of evidence
or argument to establish it, it can be said to be an error apparent on the face of record.

In the case of Sarala Mudgal vs Union of India9, the court refused to review its earlier judgement
as there was no error apparent on the face of the record, no new material had come into light after
the judgement. The earlier judgement was not violative of any of the fundamental rights guaranteed
to the citizens. Review petition cannot be exercised merely because there is a possibility of taking
a different view.

In case of Tungabhadra Industries(Pvt.) ltd V. Government of Andhra Pradesh10 has observed:

“ ….. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and
corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion
for dealing with this difference exhaustively or in any great detail, but it would suffice for us to
say that where without any elaborate argument one could point to the error and say here is a
substantial point of law which stares one in the face, and there could reasonably be no two opinions
entertained about it, a clear case of error apparent on the face of record would be made out.”

Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or
an error apparent on the face of the record. An error which is not self evident and has to be detected
by a process of reasoning, can hardly be said to be an error apparent on the face of the record

7
AIR 1971 SC 2162
8
M.P. jain pg 382, volume 1
9
Ibid
10
AIR 1964 SC1372
justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the
jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be heard
and corrected. A review petition, it must be remembered has a limited purpose and cannot be
allowed to be appeal in disguise. An error which is not self evident and has to be dictated by a
process of reasoning can hardly be said to be an error apparent on the face of the record.

Not considering the Law laid down by Supreme Court will amount to an error apparent on face of
record11 and is a ground for Review. The term ‘Sufficient reason’ is wide enough to include a
misconception of fact or law by a court.12The objective of Review is to do away with quickly the
Injustice which may be necessitated by way of invoking the doctrine “actus curie neminem
gravabit’13which means that no act of court should harm a litigant and it is the bounden duty of the
courts to see that if a person is harmed by mistake of the court, he should be restored quickly to
the position he would have occupied but for the mistake. Hon’ble Supreme Court has stated “basic
philosophy is universal acceptance of human fallibility”14

In the case of Smti meera bhanja vs. smti nirmala kumari (choudhury)15, it was held by the learned
single judge that “The Supreme Court further pointed out that ‘error apparent on the face of record’
means an error which strikes one on mere looking at record and would not require any long drawn
process of reasoning on points where there may conceivably be two opinions.

The Supreme Court also pointed out that review court should not reappreciate the evidence and
arrive at different findings and if it is done, the review court must be deemed to exceed its
jurisdiction.”

OTHER SUFFICIENT REASONS

The expression ‘any other sufficient reason’ in Order XLVII Rule 1of the C.P.C. has been given
an expanded meaning, and a decree or order passed under misapprehension of true state of
circumstances has been held to be sufficient ground to exercise the power.

11
[2004(2) MPLJ 492 (498 para 10)]
12
[AIR 2005 Supreme Court 592 (605-para 88-90)].
13
AIR 2005 Supreme Court 592 (605-para 88-90)]
14
[1993 Supp (4) SCC 595 (619-para 19)].
15
1995 SC 455
The court has emphasized that the basic fundamental of the administration of justice is that no man
should suffer because of the mistake of the court. Ex Debito Justitiate , the court must do justice
to him. If a man has been wronged, so long as it lies within the human machinery of administration
of justice, the wrong must be remedied. Some of the situations where the court may exercise such
a power are:-

1. Violation of a fundamental right 2. Violation of the principles of natural justice 3. Mistake of

the court 4. Judgement was obtained by fraud 5. The court made the earlier order without
jurisdiction

It is now well settled that the words "any other sufficient reason" in Order 47, Rule 1, Civil
Procedure Code, should be interpreted as amounting to a reason sufficient on grounds, at least
analogous to those specified immediately previously. It is loosely said that this means that the
sufficient reason must be ejusdem generis to the reasons previously stated. The words "analogous
reason" are however wider and mean a reason having resemblance or similar in certain
circumstances to the reasons previously stated. Thus, an excusable failure to bring to the notice of
the Court the relevant material is covered by the terms of Order 47, rule, 1 Civil Procedure Code.
The mistake of the counsel would be a sufficient ground for granting review as "any other
sufficient cause.

Board of Control for Cricket in India v. Netaji Cricket Club16, wherein it has been held that the
words ‘sufficient reasons’ in Order 47, rule 1, Civil Procedure Code are wide enough to include a
misconception of fact of law or by a court or even by an advocate and an application of review
may be necessitated by way of invoking the doctrine actus curiae neminem gravabit which means
an act of court shall prejudice no man. The reason behind this law is that law has to bend before
justice.

Reference has been made to decision of the Supreme Oriental Insurance Co. Ltd. v. A.J.
Thomas17Court in Lily Thomas v. Union of India,18, wherein it has been observed that 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

16
AIR 2005 SC 592
17
ACJ 471
18
AIR 2000 SC 1650
perpetration shall result in miscarriage of justice, nothing would preclude the court from rectifying
the error.

The court has described its review power as follows in LILY THOMAS CASE19 :-

“…the power to review can be exercised for correction of a mistake and to substitute a view. Such
Powers can be exercised within the limits of the statue dealing with the exercise of power. The
mere possibility of two views on the subject is not a ground for review.”

C:

Curative Petition is a case of old wine in a new bottle. Perhaps I personally feel that it could be
brought under Art 137 of Indian Constitution "Review petition" Review should not be consider as
a single review. This power of review as per Article 137 is not restricted to only one time use in
relation to a final Supreme Court decision. Amending Order 40 of the Supreme Court Rules, 1966
cold also be considered as one of the solution for it. The Birth of curative Petition is for single
reason that there should not be Miscarriage of Justice and a step to bring judiciary under the ambit
of Art 12 though not directly but indirectly so that no citizens fundamental Rights gets violated.

To prevent the miscarriage of justice the constitutional framers while keeping in mind possible
human mistakes even by the Judges of the highest Court, have provided scope of rehearing of a
case by the same judge who has decided it under Art.137 of the Constitution. However, it is to be
noted that the power of review is not an inherent power of the Court; it must be conferred by law
either specially or by necessary implication. However, at the same time, it must be remembered
that the power of review inheres in every court to prevent miscarriage of justice or correct grave
and palpable errors committed by it.

Doctrine of curative approach laid down by the apex court to prevent miscarriage of justice may
not be in consonance with the Constitution and violates the Doctrine of Separation of Powers
which is the basic structure of the Constitution.

19
(2000) 6 SCC 224
Further, it is necessary to mention here that the Constitution also provides the mechanism for
constitutionalism. The Supreme Court being the apex Court of the country is obliged to interpret
and implement the law made by the legislature. However, the court under Art.142 of the
Constitution can fill in the gaps of law and declare the law in its absence to meet the end of the
Justice i.e. Under the impugned article though the court has an inherent power to pass any order to
meet the end of the Justice, it should be exercised either in the absence of law and in the
circumstances where the situation so demands or where any law made by the Parliament or other
authorities is in derogation of the spirit of the Constitution. Therefore, under the guise of “Interest
of Justice” the court should not step into the arena of COLORABLE LEGISLATION i.e. indirectly
doing something which cannot be done directly.

Hence, it is necessary to mention here that since the Constitution already provides the scope of
review under Art.137 it may not seem to be reasonable to lay down the formulae for second review
particularly when there is no eminent necessity or demand to do so.