Thungabhadra Industries Ltd v Government of Andhra Pradesh (1963)

This is the case every answer on review should quote. Order 47 Rule 1 allows review for "an error apparent on the face of the record", and the perennial difficulty is that every litigant who has lost believes the court made an obvious mistake. The judgment draws the line in one sentence that has been followed ever since:

"A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error."

And it supplies the working test for when an error is patent: where, without any elaborate argument, one can 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 about it.

Learn the distinction it rests on — "a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by error apparent." A wrong decision is not by itself a reviewable one.

The appellant sold oil, including hydrogenated groundnut oil. For assessment year 1949–50 it claimed a deduction under rule 18 of the Turnover and Assessment Rules for the value of the groundnuts converted into hydrogenated oil, on which purchase tax had already been paid. The sales tax authorities refused, holding that hydrogenated groundnut oil was not groundnut oil within the rule. The High Court upheld that on 11 February 1955 in T.R.C. 120 of 1953 — but then granted a certificate of fitness under Article 133(1) on the footing that substantial questions of law arose.

For 1950–51, 1951–52 and 1952–53 the identical question arose and was again decided against the appellant. This time, when the appellant applied for a certificate, the High Court refused it on 4 September 1959, saying: "The judgment sought to be appealed against is one of affirmance. We do not think that it involves any substantial question of law ... nor do we regard this as a fit case for appeal to the Supreme Court."

On 23 November 1959 the appellant applied under Order 47 Rule 1 to review that refusal, pointing to the Court's own earlier order which had identified the very questions of law as substantial. The review applications were dismissed. The appellant obtained special leave under Article 136 against the dismissal of the review applications, leave being granted after notice to the respondent.

At the hearing the respondent took a preliminary objection that the special leave should be revoked — grounds that had not been urged when the Article 136 applications were heard, nor set out in the respondent's statement of case.

1. Was the High Court's statement that the case involved no substantial question of law an "error apparent on the face of the record" within Order 47 Rule 1?
2. What distinguishes a merely erroneous decision from one vitiated by error apparent?
3. May a respondent, after special leave has been granted following notice, object to the maintainability of the appeal at the hearing?

On review — the central holding. The Court accepted that the earlier certificate was not conclusive: "The fact that on the earlier occasion the court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous." Nor does mere wrongness suffice: "even if the statement was wrong, it would not follow that it was an 'error apparent on the face of the record', for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by 'error apparent'."

Then the passage to memorise: "A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error."

The test: "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 the record would be made out."

Applied to these facts, the error was patent. No questions of fact were involved; the controversy was entirely one of law, and the questions were identical to those on which the same Court, a Bench composed in part of the same judges, had earlier granted a certificate. The earlier order had been placed before the Court "not as a binding precedent to be followed but as setting out the particular substantial questions of law that arose" — to demonstrate the failure to appreciate that those questions existed. Reading the appellant's argument as a claim that the earlier order bound the Court was to miss its substance.

On the preliminary objection. The respondent, having had notice of the special leave applications and not having urged the grounds then or in its statement of case, could not raise them to defeat maintainability at the hearing.

Review under Order 47 Rule 1 lies for patent error, not for error simpliciter: an error is apparent on the face of the record where it can be shown without elaborate argument, stares one in the face, and admits of no two reasonable opinions. A review is not a rehearing, and the power cannot be used to correct a decision merely because it is wrong.

• Direct question: Discuss the grounds for review under Order 47 Rule 1 CPC. State the three statutory grounds — discovery of new and important matter or evidence, mistake or error apparent on the face of the record, and any other sufficient reason — then spend the marks on "error apparent", with this case's sentence and test.
• Problem question pattern: a party applies for review because the judgment is wrong on a point of law. Refuse it unless the error is patent on the face of the record; quote "appeal in disguise".
• Contrast to draw: review (Order 47) against appeal (s. 96, s. 100) and revision (s. 115). Review goes back to the same court; appeal is a rehearing by a higher court; revision is confined to jurisdictional error. This case polices the boundary between the first and the second.
• Second point, often missed: an objection to maintainability that could have been taken when special leave was sought, with notice, cannot be sprung at the hearing.
• Read with: the "substantial question of law" material — Guran Ditta v Ram Ditta and Rimmalapudi Subba Rao v Noony Veeraju — since the reviewable error here was precisely a wrong statement that no substantial question of law arose.