Several years ago, a promising Advocate of Madras High Court filed a
Petition to review an Order passed in a Writ Petition. Unfortunately it was
beyond 30 days, being the period of limitation for filing a review of an Order
of a Court, other than the Supreme Court under Article 124 of the Limitation
Act. Hence he moved a Civil Miscellaneous Petition to condone the delay under
Sec 5 of the said Act. The Learned Judge stating such application was not
maintainable in a review against the order passed in a Writ Petition, rejected
the same but directed the office to number the review. Many years later, the
same Advocate moved another review, beyond 30 days but this time without a CMP
to condone the delay and to his horror, this Judge wondered how he could file a
review beyond time, without an application to condone the delay. The usually
persuasive Advocate could not convince the Judge, who insisted an application
but indicated that the same would be favourably considered.
In the words of the said Advocate, now presiding as a Judge in Second
Court of Madurai Bench that ‘he had to choose between the interest of his
client and the interest of law’. The interest of his client prevailed and he
filed a CMP under Sec.5 of the Limitation Act
It is indeed a delight to follow the proceedings in Justice V
Ramasubramaniyam’s Court. One will never know, where he has his surprises and
one requires to fine tune the mind to match his wavelength, else will miss the
subtexts loaded in his words and the subtle humour!
We learn law too…
That
made me to make further research and I find that in Shivdev Singh Vs State of
Punjab reported in AIR 1963 SC 1909 the Supreme Court held that the High Court
is having the power of plenary jurisdiction has the inherent power to review
its Order to prevent miscarriage of justice or to correct grave and palpable
errors committed by it. Besides in M.M.Thomas Vs State of Kerala reported in
2000 (1) SCC 666 the Supreme Court held that Power
of review conferred on the Supreme Court under Article 135 of the Constitution
is not specifically made applicable to the High Courts. Does it mean that the
High Court has ao power to correct its own orders, even if the High Court is
satisfied that there is error apparent on the face of the record? High Court as
a Court of Record, as envisaged in Article 215 of the Constitution, must have
inherent powers to correct the records. Hence
Petition to review an Order passed in Writ Petition is to be filed under
Article 226 of the Constitution only.
Though the Judgements do not deal the question of limitation, in State
of Madhya Pradesh Vs G.L.Patel reported in AIR 1997 MP 74, the Madhya Pradesh
High Court held that the High Court can refuse to exercise its review
jurisdiction on the ground of latches but can entertain the Review even after
the time prescribed under Article 124 of the Limitation Act, if sufficient
cause is shown. This Judgment denotes that it is unnecessary to file a separate
Miscellaneous Petition to condone delay.
In State of UP Vs Jawaharlal Bhargava reported in AIR 1975 All 101 the
Full Bench of the Allahabad High Court without answering the question straight,
considered the Review on merits and dismissed it, though holding that the
Review can be otherwise dismissed on the ground of delay.
Lastly in Ahmedabad Electricity Company Vs Municipal Corporation decided
on 05/08/02 the Division Bench of Gujarat High Court taking cue, that no such
limitation was provided for Writ Petition held, “same principle in our opinion
would apply in case of application seeking review of order passed under Article
226 of the Constitution”
A day before I moved an application to recall an
Order passed in Writ Petition as no notice was issued to my client and even
before I complete my first sentence, I heard, ‘Yeah, we will withdraw the
order’
Madurai
07/03/14
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