Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8525 OF 2011

[Arising out of SLP [C] No.19954/2010]

Malthesh Gudda Pooja … Appellant

Vs.

State of Karnataka & Ors. … Respondents

J U D G M E N T

R.V.RAVEENDRAN, J.

Leave granted.

2.By an order dated 8.11.2006, the Government of Karnataka appointed

the Assistant Commissioner, Haveri District as the Administrator of the

Malathesh (Sri Mylara Linga) Temple, Devara Gudda, till the formation of a

Managing Committee. The appellant along with one Guddanna Gowda

claiming to be Panchas (Trustees) filed Writ Petition No.16158/2006 in the

1

High Court of Karnataka challenging the said notification dated 8.11.2006.

The third respondent herein got himself impleaded in the said writ petition,

as a devotee of the temple. The said writ petition was allowed in part by a

learned Single Judge, by order dated 22.12.2006 and the said notification

dated 8.11.2006 was quashed, reserving liberty to the State to pass

appropriate orders after affording an opportunity to the writ petitioners. The

writ petitioners filed an appeal (Writ Appeal No.169/2007) at the Dharwad

Circuit Bench challenging that part of the order reserving liberty to

respondents 1 and 2 to pass fresh orders. By judgment dated 31.1.2009, a

Division Bench of the High Court (V.Gopala Gowda and L.Narayana

Swamy, JJ) dismissed the writ appeal.

3.The appellant filed a review petition (R.P.No.1513/2009) for review

of the said order, at the Dharwad Circuit Bench. The said review petition

was placed before a Division Bench consisting of K.Sreedhar Rao and Ravi

Malimath, JJ., at the Dharwad Circuit Bench. The third respondent objected

to the hearing of the review petition by the said Bench on the ground that the

writ appeal was heard and disposed of by the Division Bench consisting of

V.Gopala Gowda and L.Narayana Swamy, JJ. and the review petition should

therefore be heard and decided by the same Bench. He also contended that

the notification dated 29.12.2008 of the High Court notifying that the review

2

petitions relating to judgments passed by a Division Bench or Single Bench

in respect of Circuit Bench, Dharwad will be posted as per the roster existing

in the Circuit Bench, Dharwad, was contrary to Rule 5 of the Karnataka

High Court Rules, 1959.

4.A Division Bench consisting of K.Sreedhar Rao and Ravi Malimath,

JJ. heard the said review petition and allowed it by judgment dated

17.12.2009 and directed that the appeal should be heard afresh for disposal

in accordance with law. With reference to the objection of the third

respondent that the learned Judges who disposed of the appeal alone should

hear the review petition, it was held as follows :

“3. Rule 5 is not a rigid mandate. The exception to the rule is provided in

the rule itself. In the case of death or non-availability of the judge, the

review petition is permitted to be heard by the Bench other than the one,

which passed the order. The experience has shown that for correcting

trivial mistakes in the judgment, the review jurisdiction is invoked by the

parties. In the scheme of sitting arrangement for the Circuit Benches, it is

difficult to obtain the same combination to hear the review within a

reasonable time. Therefore, in order to obviate the hardship to the litigants,

the above notification is issued. Even on merits when a judgment or an

order is to be reviewed, the similar difficulty of non-availability of the

Bench, which passed the order within a reasonable time, is very much felt.

4. The exercise of power of allotment of subjects and cases is the

prerogative of the Hon’ble Chief Justice.

5. Keeping in view the practical considerations the above notification is

issued. Therefore the notification cannot be termed as arbitrary and

illegal.”

3

5.The appellant thereafter filed a memo dated 25.3.2010 for listing the

writ appeal (restored by order dated 17.12.2009) for fresh hearing. The said

memo came up for orders before a Division Bench consisting of D.V.

Shailendra Kumar and N.Ananda, JJ., at Dharwad Circuit Bench. After

hearing the parties on the said memo, the said Division Bench passed the

impugned order dated 23.4.2010 holding that the judgment dated 17.12.2009

in Review Petition No.1513/2009 allowing the petition in exercise of the

review jurisdiction under Order 47 Rule 1 CPC was nothing short of a

nullity in the eye of law and was without jurisdiction, having regard to the

fact that the Bench which rendered the judgment in writ appeal No.169/2007

(V.Gopala Gowda and Narayana Swamy, JJ) were still Judges in the High

Court and were available for hearing; and that therefore a different Division

Bench had no jurisdiction to take up a review petition, grant a review and

reverse the order made in the writ appeal. Consequently the memo filed by

the appellant for listing of restored Writ Appeal No.169/2007 for hearing

was dismissed. The Division Bench relied upon the provisions of Order 47

Rules 1 and 5 of Code of Civil Procedure (for short the ‘Code’) and Rule 5

of the High Court of Karnataka Rules, 1959 (‘High Court Rules’ or ‘Rules’

for short) in passing the order dated 23.4.2010. It held :

4

(i)The Division Bench which heard the review petition had no

jurisdiction to take up the review petition as the learned Judges

who constituted the Bench which heard and disposed of the writ

appeal on 31.1.2009 continued to be the Judges of the court.

(ii)The review proceedings are not by way of appeal and have to be

strictly confined to the ambit of order 47 Rule 1 CPC.

(iii)The Division Bench which heard the review petition instead of

confining itself to the ambit of Order 47 Rule 1 had dealt with the

merits of the judgment dated 31.1.2009 as if it was sitting in appeal

over the said judgment and allowed the review petition which was

contrary to law.

The effect of the impugned order dated 23.4.2010 was to declare that the

review judgment dated 17.12.2009 was non est and a nullity and

consequently the earlier judgment dated 31.1.2009 passed in the writ appeal

continued to be in effect. The said order is challenged in this appeal by

special leave.

Question for consideration

6.The question for consideration is whether a Division Bench of the

High Court, while considering a memo for listing an appeal restored for

fresh hearing, on grant of application for review by a co-ordinate bench

could refuse to act upon the order of review on the ground that the said order

made by a bench different from the bench which passed the original order,

granting review is a nullity and that the original order stands.

5

Who can hear applications for review?

7.Order 47 of the Code relates to review. The relevant portions of Rules

1(1), 4, 5, and 8 are extracted below :

“1. Application for review of judgment.—(1) Any person considering

himself aggrieved –

(a)by a decree or order from which an appeal is allowed, but from

which no appeal has been preferred,

(b)by a decree or order from which no appeal is allowed, or

(c)by a decision on a reference from a Court of Small Causes,

and who, from the discovery of new and important matter or evidence

which, after the exercise of due diligence was not within his knowledge

or could not be produced by him at the time when the decree was passed

or order made, or on account of some mistake or error apparent on the

face of the record, or for any other sufficient reason, desires to obtain a

review of the decree passed or order made against him, may apply for a

review of judgment to the Court which passed the decree or made the

order. X x x x x

4. Application where rejected.—(1) Where it appears to the Court that

there is not sufficient ground for a review, it shall reject the application.

(2) Application where granted.—Where the Court is of opinion that

the application for review should be granted, it shall grant the same:

Provided that –

(a)no such application shall be granted without previous notice to the

opposite party, to enable him to appear and be heard in support of

the decree or order, a review of which is applied for; and x x x x

x

5. Application for review in Court consisting of two or more judges.

—Where the Judge or Judges, or any one of the Judges, who passed the

decree or made the order, a review of which is applied for, continues or

continue attached to the Court at the time when the application for a

6

review is presented, and is not or are not precluded by absence or other

cause for a period of six months next after the application from

considering the decree or order to which the application refers, such

Judge or Judges or any of them shall hear the application, and no other

Judge or Judges of the Court shall hear the same. x x x x

8. Registry of application granted, and order for re-hearing.—

When an application for review is granted, a note thereof shall be made

in the register and the Court may at once re-hear the case or make such

order in regard to the re-hearing as it thinks fit.”

(emphasis supplied)

8.Section 122 of the Code relates to power of the High Courts to make

rules. The said section empowers the High Court from time to time, after

previous publication to make rules regulating their own procedure, and may

by such rules annul, alter or add to all or any of the rules in the First

Schedule to the Code. The High Court, in exercise of the powers conferred

under Article 225 of the Constitution, section 122 of the Code and other

relevant provisions, with the previous approval of the Government of

Karnataka promulgated and issued the High Court of Karnataka Rules, 1959

in regard to the practice and procedures to be followed by the High Court.

Rule 5 of chapter 3 of the said Rules provides as under :

“5. Every petition or application for review, reconsideration or correction

of a judgment, decree, order or sentence shall be posted before the original

Bench which pronounced, made or passed such judgment, decree, order or

sentence or if the Judge or any of the Judges who constituted the said

Bench is not available by reason of death, retirement or absence, before

any other Bench constituted in the same manner as the original Bench.”

7

(emphasis supplied)

The Rules made under Rule 122 cannot be inconsistent with the body of the

Code (that is sections in the Code), but can be inconsistent with any of the

Rules in the First Schedule to the Code. As the Rules under section 122 can

alter or add any rule in the First Schedule to the Code, the provisions of Rule

5 of Chapter 3 of the High Court Rules will prevail over Rule 5 of Order 47

of the Code.

9.After the Circuit Bench of the High Court started functioning at

Dharwad and Gulberga in July 2008, the Registry faced difficulties in listing

the review petitions before the Bench which heard and disposed of the

matters due to the fact that both or one of the Judges of the Bench will not

be available at the Circuit Bench. Certain number of Judges from the main

Bench chosen by the Chief Justice as per a broad roster, hold sittings for 5 to

6 weeks in the circuit benches followed by other batches of Judges and many

a time a Judge who had sat during a particular session of 5 to 6 weeks may

not sit again in the same circuit Bench for more than six months to one year.

Further in case of decisions rendered by division benches, the two learned

Judges who constituted the Bench may not sit together in the circuit Bench

again as they may be posted during different periods before the Circuit

Bench. Therefore the Registry submitted a note dated 19.12.2008 to the

8

learned Chief Justice seeking directions in that behalf. The relevant portions

of the said note are extracted below :

“………..in case of the Review Petitions relating to judgment, decree,

order or sentence pronounced, made or passed by the Division Bench out

of which one of the Hon’ble Judge is not available for the reasons stated in

Rule 5, it may not be permissible to post the said Review Petition before

the Division Bench assigned with the respective subjects at this Circuit

Bench even if one of the Hon’ble Judge having sittings at this Circuit

Bench was a member of the Division Bench original constituted. X x x x x

Because, having regard to Rule 5 of the High Court of Karnataka Rules

1959, it may not be permissible to post such of the Review Petitions

before other Single Bench constituted at this Circuit Bench assigned with

the concerned subjects. Consequently, either such Review Petitions shall

have to be kept pending at this Circuit Bench for being posted before the

original Bench, which pronounced, made or passed such judgment, decree,

order or sentence as and when it is constituted at this Circuit Bench or

such Review Petitions may have to be transferred to the Principal Bench

for being posted before the original Bench.

In view of the above said Rule 5 of the Karnataka High Court Rules, 1959,

kind orders are solicited as to what norms are to be followed, if a Review

Petition is filed against the order of Division Bench or a Single Bench on

merits before the High Court Circuit Bench, Dharwad.”

On the said note, the learned Chief Justice made an order that the review

petition may be posted as per the roster. In pursuance of it, the High Court

issued a notification No.HCBB.CBD.01/2008 dated 29.12.2008 reading as

follows :

“It is hereby notified that the Review Petitions relating to Judgments,

Decree, Order or sentence pronounced, made or passed by the Division

Bench or Single Bench in respect of Circuit Bench, Dharwad, will be

posted as per the roster existing in the Circuit Bench, Dharwad.”

9

It is in view of the said notification, instead of listing the review petitions

before the Judges who passed the order, the review petitions were being

listed before the Bench which was currently assigned the subject roster.

10.The validity of the circular dated 29.12.2008 was considered by

another Division Bench of the High Court in Sri Balachandra Vigneshwara

Dixit v. H.S. Srikanta Babu [C.C.C. No.2020 of 2009 (Civil) decided on

26.3.2010]. The said decision held that the circular dated 29.12.2008

directing that the review petitions relating to judgments, decree and orders

made by a Division Bench or a Single Bench at Circuit Bench, Dharwad be

posted as per the roster existing in the Circuit Bench, Dharwad is ultra vires

Rule 5 of the Karnataka High Court Rules, 1959 and quashed the said

circular. In that behalf, the Division Bench observed as follows :

“45. In this context, if a review petition is filed and the judges who passed

the order are not sitting at the Circuit Benches, then it is open to the parties

to file a review petition either at the Circuit Bench where the original

order was passed, or at the Principal Bench. Then it is open to the Chief

Justice to constitute the bench in accordance with Rules, arrange roster

and have the said review petition heard and decided either at the Circuit

Bench or at the Principal Bench. The party had the opportunity of full

hearing of the case. If the order is against him, without availing the

remedy of appeal, if he wants to avail the remedy of review, he cannot

plead that his convenience alone should be taken into consideration in

arranging hearing of the review petition. If he is really aggrieved, wants

review, it should not be difficult for him even to appear before the

Principal Bench and argue his case for review.

46. In that view of the matter, the contention that a review petition cannot

be heard by the Principal Bench at Bangalore when the original order is

passed at the Circuit Benches at Dharwad/Gulbarga, is without any

10

substance. It would be better if those review petitions are also heard at the

Circuit Benches, and that is possible only when the original Bench which

passed the order, is functioning in the Circuit Benches. If the original

Bench is not functioning in those Circuit Benches, and if there is difficulty

to constitute such Bench for the purpose of hearing the review petition, it

is open to the learned Chief Justice to constitute the Bench at the Principal

Bench at Bangalore, and the parties can prosecute the same at Bangalore.”

The said order was challenged by the High Court in SLP [C] No.14337/2010

and this court on 13.5.2010 stayed the operation of the said order. Be that as

it may. The validity of the order dated 29.12.2008 does not arise for our

consideration in this case. It is relevant to note that the impugned order dated

23.4.2010 was made after the decision of the High Court in Sri Balachandra

Vigneshwara Dixit and before the stay of that decision by this Court.

11.We may now examine the scope of Rule 5 of Chapter 3 of the High

Court Rules and Rule 5 of Order 47 of the Code. At the outset it should be

noticed that there is no inconsistency between the two provisions. As noticed

above Rule 5 of Chapter 3 of the High Court Rules provides that every

petition for review of a judgment shall be posted before the original Bench

which pronounced the judgment or if the Judges who constituted the such

Bench constituted are not available by reason of death, retirement or

absence before any other Bench in the same manner as the original Bench.

The word ‘absence’ is not defined and the duration of absence is not

11

indicated in the said Rule. The ordinary meaning of the word ‘absence’ is

“the state of being away from one’s usual place”. Order 47 Rule 5 of the

Code, provides that the review petition shall be heard only by the Judges

who passed the order if the said Judges continues or continue attached to the

Court (at the time when the application for review is made) and are not

precluded by absence or other cause from considering the application for a

period of six months. The words “continue attached to the Court” mean

available to perform normal duties and has not been transferred or away on

deputation. The words ‘absence or other cause for a period of six months’ in

Rule 5 of Order 47 of the Code and the words ‘by reason of death,

retirement or absence’ in Rule 5 of Chapter 3 of the High Court Rules, in

essence refer to the same causes, due to which the review application cannot

be heard by the same bench which passed the original order. As Rule 5 of

Chapter 3 of High Court Rules does not specify the period of ‘absence’ but it

is clear from the context that it does not refer to casual absence. Therefore, it

is appropriate to interpret the said words as ‘absence for a period of six

months next after the application’ by taking guidance from Rule 5 of Order

47 of the Code.

12

12.This court in Reliance Industries Ltd. vs. Pravinbhai Jasbhai Patel &

Ors. [1997 (7) SCC 300] explained the object and scope of review

applications as under:

“It has to be kept in view, that review petitions are not by way of appeals

before the superior Court but they are by way of requests to the same

Court which decided the matter, for persuading it to recall or reconsider its

own decision on grounds which are legally permissible for reviewing such

orders. As laid down by O. XLVII R. 5, CPC as far as possible the same

two learned Judges or more Judges who decided the original proceedings

have to hear the review petition arising from their own judgment. Thus in

substance a review amounts to reconsideration of its own decision by the

very same Court. When the Court sits to review its own order, it obviously

is not sitting in appeal over its judgment but is seeking to have a fresh look

at its own judgment of course within the limits of review powers, but still

invoking for that limited purpose the very same jurisdiction which it

exercised earlier. It is axiomatic that if a Division Bench of two learned

Judges deciding the appeal had exercised appellate powers and when its

decision is sought to be reviewed it can be said to be required to

reconsider its own decision within the limits of review jurisdiction but still

in exercise of the same appellate jurisdiction which it earlier exercised.

Similarly when a decision rendered in exercise of original jurisdiction by a

Bench of two learned Judges is sought to be reviewed the learned Judges

exercising review jurisdiction subject to the limitations inhering in such an

exercise, can be said to be called upon to reconsider their decision earlier

rendered in exercise of the very same original jurisdiction. In that review

jurisdiction takes colour from the nature of the jurisdiction exercised by

the Court at the time when the main judgment, sought to be reviewed, was

rendered. Review jurisdiction, therefore, cannot be said to be some

independent jurisdiction sought to be exercised by the Court dehors the

nature of the jurisdiction exercised by it when the judgment sought to be

reviewed was rendered by it.”

13.Order 47 Rule 5 of the Code and Rule 5 of the Chapter 3 of the High

Court Rules require, and in fact mandates that if the Judges who made the

order in regard to which review is sought continue to be the Judges of the

court, they should hear the application for review and not any other Judges

13

unless precluded by death, retirement or absence from the Court for a period

of six months from the date of the application. An application for review is

not an appeal or a revision to a superior court but a request to the same court

to recall or reconsider its decision on the limited grounds prescribed for

review. The reason for requiring the same Judges to hear the application for

review is simple. Judges who decided the matter would have heard it at

length, applied their mind and would know best, the facts and legal position

in the context of which the decision was rendered. They will be able to

appreciate the point in issue, when the grounds for review are raised. If the

matter should go before another Bench, the Judges constituting that bench

will be looking at the matter for the first time and will have to familiarize

themselves about the entire case to know whether the grounds for review

exist. Further when it goes before some other Bench, there is always a

chance that the members of the new bench may be influenced by their own

perspectives, which need not necessarily be that of the Bench which decided

the case. Benjamin Cardozo’s celebrated statement in the Nature of Judicial

Process (page 12) is relevant in this context:

“There is in each of us a stream of tendency, whether you choose to call it

philosophy or not, which gives coherence to thought and action. Judges

cannot escape that current any more than other mortals. All their lives,

forces which they do not recognize and cannot name, have been tugging at

them – inherited instincts, traditional beliefs, acquired convictions; ……In

this mental background every problem finds its setting. We may try to see

14

things as objectively as we please. Nonetheless, we can never see them

with any eye except our own.”

Necessarily therefore, when a Bench other than the Bench which rendered

the judgment, is required to consider an application for review, there is every

likelihood of some tendency on the part of a different bench to look at the

matter slightly differently from the manner in which the authors of the

judgment looked at it. Therefore the rule of consistency and finality of

decisions, make it necessary that subject to circumstances which may make

it impossible or impractical for the original bench to hear it, the review

applications should be considered by the Judge or Judges who heard and

decided the matter or if one of them is not available, at least by a bench

consisting of the other Judge. It is only where both Judges are not available

(due to the reasons mentioned above) the applications for review will have

to be placed before some other bench as there is no alternative. But when the

Judges or at least one of them, who rendered the judgment, continues to be

members or member of the court and available to perform normal duties, all

efforts should be made to place it before them. The said requirement should

not be routinely dispensed with.

15

14.When the provision for review by the same Judge/s was made, it was

made on the assumption that the Judges will be available at the same place.

The Rules did not contemplate the court having Benches outside the main

seat or Circuit Benches and Judges moving from Bench to Bench or Judges

and coming back after three months or six months. A Judge who sits and

hears a matter in a Circuit Bench away from the main seat, may not be

available in that particular Circuit Bench for a considerable time which may

vary from three to six months or even more. Further, when two Judges heard

the matter at a Circuit Bench, the chances of both Judges sitting again at that

place at the same time, may not arise. But the question is in considering the

applications for review, whether the wholesome principle behind Order 47

Rule 5 of the Code and Rule 5 of Chapter 3 of the High Court Rules

providing that the same Judges should hear it, should be dispensed with

merely because of the fact that the Judges in question, though continue to be

attached to the Court are sitting at the Main bench, or temporarily at another

bench. In the interests of justice, in the interests of consistency in judicial

pronouncements and maintaining the good judicial traditions, an effort

should always be made for the review application to be heard by the same

Judges, if they are in the same court. Any attempt to too readily provide for

review applications to be heard by any available Judge or Judges should be

16

discouraged. With the technological innovations available now, we do not

see why the review petitions should not be heard by using the medium of

video conferencing. Or an appropriate rule can be made, if such a rule is not

already available, for consideration of the application written submissions

alone. For example Order XL Rule 3 of the Supreme Court Rules provides

that unless otherwise ordered by the court, an application for review shall be

disposed of by circulation without any oral arguments but with written

arguments. That will not in any way violate section 114 of the Code

providing for review. The solution may not be to send the review petition to

the place where the concerned Judges are holding their sitting in view of the

fact that would involve travel, engaging of new counsel, additional cost etc.

and defeat the very purpose of having circuit benches. Every effort should be

made to achieve the object of review by ensuring that the matter is

considered by the Judge or the Bench which rendered the judgment. Be that

as it may.

Finality of decisions

15.But the crucial question is this: The review application having been

placed before the bench holding the roster, as per the standing instructions of

the Chief Justice, and the said bench having heard and granted the review

17

application, whether before another bench a request is made for early

hearing can say it will ignore the order granting review as it is a nullity?

16.In this case, the review petition was placed before different bench

(bench holding the roster for hearing writ appeals) as per the Notification

dated 29.12.2008 issued by the High Court under the directions of the

learned Chief Justice requiring the review petition to be placed before a

bench assigned to hear writ appeals as per the then existing roster. As on

17.12.2009, when another bench heard and decided the matter, the listing of

the case before that bench and hearing by that bench was valid as per rules.

The Judges constituting the original bench were not sitting at Dharwad. The

review petition was filed on 2.3.2009 and for more than six months, the

original Bench either did not sit or dispose of the review petition. When the

review petition was placed for hearing before the roster bench, it was

possible that for six more months there was no likelihood of the Judges

constituting original bench being together at Dharwad. The bench before

which the review application was placed held the writ appeal roster. The said

bench considered and rejected the contention that the same bench which

passed the order should hear the review application, in view of the

Notifications dated 29.12.2008 and that bench also held that the Chief

18

Justice had the power and authority to issue the notification dated

29.12.2008. The order dated 17.12.2009 was therefore neither a nullity nor

one lacking of inherent jurisdiction, nor obtained by fraud. Even assuming it

to be erroneous, it was final as it was not challenged.

17.Once the application for review was granted on 17.12.2009, the order

reviewed stands recalled. Consequently the review appeal stood revived and

restored. Therefore when the appellant filed a memo for listing the writ

appeal for hearing, he was not really seeking a judicial order for restoration

but only a direction for fixing a date for hearing the writ appeal. When an

application or memo is filed in a matter where review has been granted, the

Bench dealing with such memo or application is bound to proceed on the

basis of the said order granting review, in view of the principles of finality

and res judicata. Even a wrong decision between parties which has attained

finality is binding and cannot be re-agitated or re-opened at a later stage. As

noticed above, the review order dated 17.12.2009 considered the statutory

provisions relating to review and consciously arrived at a decision that the

provisions thereof did not prevent it from hearing the application for review.

It should be noted that neither party was aggrieved by it and the order dated

17.12.2009 was not under challenge. Therefore when the memo for posting

19

was filed by one of the parties, the court, being bound by its final decision

rendered on 17.12.2009 ought to have listed the writ appeal for hearing and

could not have examined the correctness or validity of review order dated

17.12.2009.

18.We therefore allow this appeal, set aside the impugned order dated

23.4.2010 and direct the Writ Appeal No.169/2007 be listed for final

hearing. Our observations as to who should hear review applications, will

not affect the validity of orders made on review applications by roster

benches as per notification dated 29.12.2008 and which have attained

finality.

………………………….J.

(R V Raveendran)

New Delhi; …………………………..J.

October 11, 2011. (H L Gokhale)

20