Review of an order or judgement by Civil Court:
What is Review:
The dictionary meaning of the word “review” is “the act of looking; offer something again with a view to correction or improvement. It cannot be denied that the review is the creation of a statute.
The power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. If cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of Justice. Law has to bend before Justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error.
[Source: Lily Thomas v. Union of India. (Supreme Court of India)]
Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice.
[Source: S. Nagaraj v. State of Karnataka, 1993 Supp.(4) SCC 595. (Supreme Court of India)]
Power of review in writ jurisdiction:
All proceedings in a civil Court terminate in a decision being given by the Judge and that decision constitutes the order of the Court. It is an order within the meaning of Section 2(14) which defines “order” as the formal expression of any decision of a civil Court which is not a decree. This is not a decree because it is not the formal expression of an adjudication in a suit. If it be the formal expression of the adjudication by the Court in a civil proceeding, the formal expression must take the shape of an order, and, therefore, it is clear beyond doubt that the decision of this Court on the writ application was an order within the meaning of the Civil Procedure Code. If that is so, let us turn to Section 114 to see what the effect of this view is with regard to the power of the High Court to review an order made on a writ application.
A review lies under Section 114 from a decree or order from which an appeal is allowed by the Court, but from which no appeal has been preferred. When we turn to Section 109, an appeal is allowed against an order if the High Court certifies the order to be a fit one for appeal, and although an appeal is allowed no appeal admittedly has been preferred from this order and therefore if the other conditions laid down by Order XLVII are satisfied, then it is difficult to understand why the High Court has no power to review an order passed on a writ application. Such an order is one which clearly falls under Section 114(a).
[Source: Appa Ramgonda Patil v. Dattatraya Vinayak Tengshe, (1958) 60 Bom LR 1312]
Scope of Review and distinction with correction of mistake:
Relevant Code: Civil Procedure Code, 1908, Section 114, 151, 152,153 read with Order 47 Rule 1.
[R]eview of a judgment or decree lies inter alia where a mistake or an error apparent on the face of the record can be shown or where some new and important evidence has been uncovered. From a bare reading of the aforesaid provisions, it is clear that a review would lie where a party is able to show that the court has failed to consider a plea made by it or record a finding on the same or where the court has omitted to consider a relevant piece of evidence or new evidence has arisen subsequently which was not before the court at the time of hearing, inspite of due diligence on the part of such a party. It is evident that the court’s power of review envisages an enquiry into the merits of the case, which the court has omitted to take notice of in the first instance. The said power of review is quite distinct from the inherent powers of the court under Section 152 and 153 read with Section 151 to correct an accidental arithmetic or clerical mistake or error. It is relevant to note that both the powers are mutually exclusive, and cannot tread into each other’s realm. Any other interpretation would amount to overstepping the parameters laid down in the provisions. It is settled law that in the garb of correction of mistakes arising out of accidental slips or typographical errors, the judgment itself cannot be altered or modified by a Court in exercise of its inherent power.
The Federal Court which preceded the Supreme Court of India, prior to independence, had no express power of review. Federal Court however, observed that even though no rules had been framed permitting the highest Court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords.
[Source: Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai (AIR 1941 FC 1,2 : 1940 FCR 78 : (1941) 1 MLJ Supp 45)]
An order made by the Court was final and could not be altered …neverthless, if by misprision in embodying the judgments, by errors have been introduced, these Courts possess, by Common Law, the same power which the Courts of record and statute have of rectifying the mistakes which have crept in….The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies.
[Source: Rajunder Narain Rae v. Bijai Govind Singh (1836) 1 Moo PC 117]
It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard.
[Source: R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No.2)’s case, 1999 (1) All ER 5770]
The role of judiciary merely to interpret and declare the law was the concept of bygone age. It is no more open to debate as it is fairly settled that the courts can so mould and lay down the law formulating principles and guidelines as to adapt and adjust to the changing conditions of the society, the ultimate objective being to dispense justice. In the recent years there is a discernable shift in the approach of the final courts in favour of rendering justice on the facts presented before them, without abrogating but by-passing the principle of finality of the judgment.
Almighty alone is the dispenser of absolute justice – a concept which is not disputed but by a few. We are of the view that though Judges of the highest Court do their best, subject of course to the limitation of human fallibility, yet situations may arise, in the rarest of the rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of. In such case it would not only be proper but also obligatory both legally and morally to rectify the error. After giving our anxious consideration to the question we are persuaded to hold that the duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty of judgment as though it is essentially in public interest that a final judgment of the final court in the country should not be open to challenge yet there may be circumstances, as mentioned above, wherein declining to reconsider the judgment would be oppressive to judicial conscience and cause perpetuation of irremediable injustice.