J G SINKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is a petition for review of judgment made by this Bench on 7th Feb., 1980 in Special Civil Application No. 1884 of 1975. When this petition was admitted and rule was issued to the respondents, both the learned counsel now appearing before us were present. Advocate Shri Keswani represented respondents Nos. 1 and 2, who were also original respondents Nos. 1 and 2 in the writ petition. Shri Angel, Advocate, was present on behalf of respondents Nos. 3 to 10, who were the original respondents Nos. 3 to 10 in the writ petition. The learned counsel accepted the notice on behalf of the respective respondents and the hearing was fixed on 11th August, 1980. It was made clear that it will be open to the respondents to point out that the petition for review does not lie as this Court has no right of review at all. If the review petition lay, it would still be open to the respondents to argue that this is not a fit case for exercising the powers of review. Accordingly we have heard the learned counsel on either side.

(2.) The learned counsel for the respondents have pointed out that the High Court hearing the petitions under Article 226 of the Constitution has no right of review at all. It was argued that the Constitution provides for a right of review of the judgments and orders passed by the Supreme Court of India. Article 137 of the Constitution lays down that 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. By contrast, it is contended, no such provision has been made anywhere regarding the powers or right of review of the High Courts in India.

(3.) Several judgments have been cited before us on either side. However, the proposition does not seem to admit much of arguments in view of authoritative and categorical declaration in that behalf by the Supreme Court of India. Long before a constitutional question arose in this Court whether apart from the right of review the Courts have rights at all to rectify mistakes committed by them or to redress injustice which is caused by the Court being misled into making some judgment or some order. In other words, have the High Courts inherent powers to review their decisions, orders and judgments in the interest of justice ? It may be that the grounds on which or the circumstances under which powers will be exercised will be restricted. The question first considered by this Court was whether there is any such inherent right at all in the High Court. That question was answered in the affirmative by the Division Bench of this Court in Basangowda Hanmantgowda Patil v. Churchigirigowda Yogangowda, reported in (1910) ILR 34 Bom 408. The facts before the Court were that the suit was compromised on behalf of the defendant by his (defendant's) pleader who had no specific authority in that behalf. The Court passed a decree in terms of the compromise. The defendants then applied to the Court to set aside the decree on the ground that he did not engage the pleader and that he had not authorised the pleader to compromise the suit. The Court set aside the decree and set down the suit for hearing. When the plaintiffs approached the High Court by way of civil extraordinary application, the Bench held that it is the inherent power of every Court to correct its own proceedings where it has been misled. The Division Bench further held that under the circumstances the compromise was not binding upon the defendant and the decree passed upon it was void as to him. This is the pronouncement of Civil Court's inherent power of review. When the Constitution came into force it vested the High Court with special jurisdiction under Article 226 of the Constitution to issue various kinds of writs. Various questions arose with regard to writ jurisdiction of the High Court as it seems to have become most popular part of its jurisdiction. The reason is obvious. It is a remedy which is quicker and cheaper than any other remedy and capable of yielding effective result in a short time. What is the nature of the proceeding before the Court? Is it civil, criminal or something entirely different ? Whether the Code of Civil Procedure applies to the proceeding before this Court? It appears that Section 141 of the Code of Civil Procedure was applied in view of the stand taken that the proceedings under Article 226 of the Constitution are of civil nature. Some doubt is now being raised in view of the fact that Section 141, Civil P. C. has been amended by Act 104 of 1976 with effect from 1-2-1977. The section is retained intact but an Explanation has been now added to it. It says that, "In this section, the expression "proceedings" includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution". The effect obviously is that the procedure laid down by the Code of Civil Procedure for a suit even with its variation according to the situation is not now available for proceedings under Article 226 of the Constitution. So long as procedure applicable to a suit was available, it was being assumed that the provisions of Order 47 relating to review will be available for High Court in relation to proceedings under Article 226. Even if the provisions of that order could not bodily be applied, the principles incorporated in it were always found handy for the purpose of entertaining review on limited ground.