Aribam Tuleshwar Sharma v Aribam Pishak Sharma (1979)

This is the short, clean statement of the outer boundary of the power of review, and it is the passage that every later decision on Order XLVII Rule 1 quotes. In four sentences the Court sets out what review is for, and then states the one thing it is emphatically not for: correcting a decision thought to be wrong on the merits.

It is also the case that establishes the point structurally rather than merely rhetorically. The judge who allowed the review was not the judge who had decided the matter; he was his successor in office. The Court's answer is that a successor sitting in review is not sitting in appeal, and that a review order passed on appellate reasoning is passed without jurisdiction — not merely erroneously, but beyond power.

The appellant filed a writ petition under Article 226 in the Court of the Judicial Commissioner, Manipur, challenging orders of the Chief Commissioner of Manipur dated 11 August 1961 and 30 September 1961. His complaint in substance was that by those orders the Chief Commissioner had permitted the settlement of part of a public road on respondents 1 to 4, thereby preventing the petitioner's free access to the public road from his adjoining land, on which his homestead stood.

By judgment dated 25 May 1965, the Judicial Commissioner, Shri Rajvi Roop Singh, allowed the writ petition, holding that the settlement of land forming part of a public road was prohibited by the Manipur Land Revenue and Land Reforms legislation.

On 2 July 1965 respondents 1 to 4 filed an application for review purporting to be under Order 47 Rule 1 and Section 151 of the Code. That application was allowed by Shri C. Jagannadhacharyulu, who had succeeded Shri Rajvi Roop Singh as Judicial Commissioner: the order of 25 May 1965 was set aside and the writ petition was dismissed.

The appellant obtained a certificate under Article 133(1)(c) from Shri R.S. Bindra, the next Judicial Commissioner, and appealed to the Supreme Court.

Counsel for the appellant put it as a pure question of jurisdiction: the Judicial Commissioner acted entirely without jurisdiction in reviewing the order made by his predecessor. In reviewing that order as he did, he exercised appellate powers which he did not possess. He was not entitled to sit in appeal over the judgment of his predecessor.

The Judicial Commissioner had given two reasons for reviewing his predecessor's order. First, that his predecessor had overlooked two important documents, exhibits A/1 and A/3, which showed that the respondents were in possession of the sites even in the years 1948 and 1949, so that the grants must have been made even by then. Secondly, that there was a patent illegality in permitting the appellant to question, in a single writ petition, settlements made in favour of different respondents. The Supreme Court held that neither reason constituted a ground for review.

The Court begins by conceding the existence of the power. Following Shivdev Singh v State of Punjab (AIR 1963 SC 1909), there is nothing in Article 226 to preclude a High Court from exercising the power of review, which is inherent in every court of plenary jurisdiction, to prevent miscarriage of justice or to correct grave and palpable errors committed by it.

Then comes the limitation. The Court says that "there are definitive limits to the exercise of power of review", and defines them:

- the power may be exercised on 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"; - but "it may not be exercised on the ground that the decision was erroneous on merits."

The reason follows in two sentences that should be reproduced verbatim in an answer: "That would be the province of a Court of appeal." And: "A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court."

Note the phrase any analogous ground. This is the Supreme Court's gloss on the words any other sufficient reason in Order XLVII Rule 1, and it is the reason those words do not open the door to a general rehearing: a sufficient reason must be one analogous to the two specified grounds.

On the overlooked documents. That two documents which were part of the record were not considered by the Court at the time of issue of a writ under Article 226 cannot be a ground for review — and the Court adds a decisive qualification: especially when the two documents were not even relied upon by the parties in the affidavits filed before the Court in the Article 226 proceeding. The first ground under Order XLVII Rule 1 is the discovery of new matter, not a second look at material already on the file which nobody invoked.

On the misjoinder point. That several writ petitions instead of one should have been filed is a mere question of procedure, which certainly would not justify a review.

The Judicial Commissioner acted without jurisdiction in allowing the review. His order dated 7 December 1967 was set aside and the order dated 25 May 1965 restored. The appeal was allowed, but without costs.

The vice here was not that the successor Judicial Commissioner reached the wrong answer. It was that he entertained the application at all on grounds that were not review grounds. Candidates who write that the review was wrongly allowed have understated the holding: it was allowed without jurisdiction, and an order passed without jurisdiction falls whether or not the conclusion it reached was attractive. That is also why the successor's identity matters. Order XLVII Rule 1 permits review by the court, and a successor in office is that court; what he may not do is convert the power into an appeal against his predecessor.