MCD Vs. ANIL PRAKASH

JUDGEMENT

(1.) CM No.3393/2007 Allowed subject to all just exceptions. R.A. No.93/2007 and CM No.3392/2007 We had allowed the Appeal filed by the appellant vide Order dated 27th February, 2007 and vacated the Stay Order dated 31st January, 2007 granted by the learned Single Judge. These applications for Stay and Review have now been filed by the respondent, Mr. Anil Prakash.

(2.) Learned counsel for the applicant was heard at length for more than 30 minutes. Learned counsel wanted us to re-hear the matter on merits. However, this cannot be permitted and allowed in view of Order XLVII of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code, for short) and limited power of review which this Court has. We cannot re-examine and re-appreciate the contentions raised and decided in the original order, while deciding a review application. Power of this Court is circumscribed by the conditions specified in Order XLVII of the Code.

(3.) Learned Counsel relied upon Common Cause, a Registered Society versus Union of India and others, reported in (1999) 6 SCC 667. In this case the Supreme Court has held that where error or mistake is made by the Supreme Court or the High Courts in exercise of their plenary powers under Articles 32 and 226 of the Constitution of India, the mistake once pointed out should be corrected, as an error made by the court should not cause prejudice to any one. The said decision has no application to the present case as for applying the said principle there should be an error or mistake made by the court on erroneous assumption, which results in miscarriage of justice. Similarly, in Bhavnagar University versus Platina Sugar Mill (P) Limited and others reported in (2003) 2 SCC 111, the Supreme Court has clarified that facts or statement mentioned in any order or judgement is conclusive of what is stated and cannot be contradicted by filing affidavit or other evidence by parties. In case of error, the remedy available to a party is to file a review application before the same court. However, in some cases, a party may resile from the statement made and the appellate court can permit him to question the decision of non- appreciation of law, which had caused injustice. Certainly this Court has power to review its earlier decision in case any contention as raised has been ignored or there is a mistake apparent on the face of the record. However, the present case does not fall in the said exceptions. The contentions as raised had been noticed in the Order dated 27th February, 2007 and had been duly considered. There can also not be any dispute that power of the Court under Article 226 of the Constitution of India are not fettered by normal legal constraints and in a given case the Court may correct its own mistake. However, we do not feel that in the present case the said principle is required to be applied. Suffice it is to refer to the case of Meera Bhanja versus Nirmala Kumari Choudhury reported in (1995) 1 SCC 170. In this case the contention raised was that the power to review inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. The Supreme Court reversed the judgement of the Division Bench of the High Court and observed as follows: