Himachal Pradesh High Court
Reserved On: 28.3.2024 vs State Of H.P. And Another on 24 April, 2025
2025:HHC:10810
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Review Petition No. 11 of 2024
Reserved on: 28.3.2024
Date of Decision: 24.4.2025
Subhash Chand Mehendra (since deceased) through his LRs
…Petitioners
Versus
State of H.P. and another …Respondents
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.
For the petitioners : Mr. R.K. Bawa, Senior Advocate,
with Mr. Ajay Kumar Sharma,
Advocate,
For the Respondents/State : Mr. Lokender Kutlehria,
Additional Advocate General.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for
seeking review of the judgment dated 4.11.2023, passed by this
Court in RSA No. 323 of 2022, titled Subhash Chander Mahendra
(deceased through LRs) Vs. State of Himachal Pradesh. It has
been asserted that this Court concluded that petitioners/
appellants were seeking a decree of declaration based on the
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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revenue record, which cannot be granted. Reliance was placed
upon the judgment of the Hon’ble Supreme Court in State of H.P.
Vs. Keshav Ram 1996 (2) SCC 1957. This Court ignored the
pleadings of the parties. The petitioners gave the details of the
suit land and asserted that they had purchased the land in 1973-
74. This fact was not specifically denied in the written statement,
and the contents of para No. 1 were partly admitted. The admitted
facts need not be proved as per Section 58 of the Indian Evidence
Act, and there is an error in the findings recorded by this Court.
There was no dispute of title between the parties as the State of
H.P. never set up the title regarding the suit land. The declaration
could have been granted by the Court because of undisputed and
unrebutted revenue entries. The evidence of defendant No.1 was
closed by the order of the Court on 16.1.2014, and the defence
taken by the defendant in the written statement was not proved.
The petitioners had proved their case by presenting satisfactory
evidence. This Court ignored the fact that no evidence was led by
the defendants. The petitioners averred in para-1 that the
settlement operation in Mauja Shainal, Pargna Gothangi, Tehsil
and District Shimla was completed and a final certificate was
prepared. Defendant No.1 or any other person had no right to
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carry out a correction in the revenue record. The Settlement
Officer had no jurisdiction to pass an order. The record does not
suggest that the proceedings under Section 163 of the HP Land
Revenue Act were ever initiated against the petitioners. The
Settlement Officer had also ordered a change in the classification
of the land. The change in classification was without any basis
and violated the principles of natural justice. The land holding of
the plaintiffs was decreased from 17 biswas to 12 biswas, and the
land holding of the State was increased. The plaintiffs had not
made any encroachment upon the Government land. The First
Appellate Court held that the suit was barred by res judicata. This
Court held that the suit was not barred by res judicata. The matter
was required to be remitted to the First Appellate Court to enable
it to return findings on merits. The law propounded by the
Hon’ble Supreme Court in Santosh Hazari Vs. Purshotam Hazari
2001 (3) SCC 179 was not properly appreciated. It was wrongly
held that the injunction cannot be granted to the petitioners
against the true owner. The Court relied upon the case law not
cited by the parties. Therefore, it was prayed that the present
petition be allowed and the judgment passed by this Court be
reviewed.
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2. The petition is opposed by a filing reply by respondent
No.1, making a preliminary submission regarding the lack of
maintainability. The contents of the petition were denied on
merits except those regarding the judgment delivered by this
Court. It was asserted that there is no error apparent on the face
of the record. Review petition cannot be an appeal in disguise,
and the party cannot be permitted to argue the matter which was
addressed and answered by the Court. The power of review does
not extend to the re-examination of the evidence or
reappreciation of facts which were originally considered. It was
rightly held that the declaration cannot be granted based on the
revenue record. Manish Mahindra (PW3) stated that the suit land
was purchased by his father in the year 1973-74, but the sale
deed was not produced before the Court to show the extent of the
land purchased by him. There was a passage over Khasra Nos. 23
and 24, which was obstructed by the plaintiff. Settlement Officer
reviewed the matter and found that Khasra Nos. 27, 29, 30 and 32
were prepared from Khasra Nos. 28 and 29 min which were in the
ownership and possession of the State. The plaintiffs failed to
prove their case. The Settlement Collector had made a proper
inquiry after visiting the spot in the presence of the parties. This
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order was upheld by the Commissioner, and the Revision was
dismissed by the learned Financial Commissioner. This Court
had rightly rejected the plea taken by the petitioners that the
Settlement Officer had no jurisdiction to pass the order. The
Court had rightly held that the plea of res judicata does not apply
to the present case. Revenue authorities never determined the
title of the petitioner. Therefore, it was prayed that the present
petition be dismissed.
3. A rejoinder denying the contents of the reply and
affirming those of the petition was filed.
4. I have heard Mr. R.K. Bawa, learned Senior Counsel,
assisted by Mr. Ajay Kumar Sharma, learned counsel for the
petitioners and Mr. Lokender Kutlehria, learned Additional
Advocate General for the respondent-State.
5. Mr. R.K. Bawa, learned Senior Counsel for the
petitioners/plaintiffs, submitted that this Court erred in holding
that the petitioners/plaintiffs were required to prove the sale
deed to seek the declaration. The title was never in dispute. The
settlement authorities had no jurisdiction. The learned Appellate
Court had not given any finding on merit, and once the
conclusion of the learned Appellate Court that the suit was barred
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by res judicata was set aside, the matter was required to be
remanded to the learned Appellate Court for giving a fresh
finding on merits. Therefore, he prayed that the present petition
be allowed and the judgment passed by this Court be reviewed.
6. Mr. Lokender Kutlehria, learned Additional Advocate
General, for the respondent-State, submitted that there is no
error apparent on the face of the record. All the pleas taken by the
petitioners/plaintiffs were adjudicated by this Court, and if they
are aggrieved by the findings of the Court, their remedy lies in
filing an appeal and not in filing a review petition. A review
cannot be an appeal in disguise. Therefore, he prayed that the
present petition be dismissed.
7. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
8. The scope of the review was explained by the Hon’ble
Supreme Court in State (NCT of Delhi) v. K.L. Rathi Steels Ltd.,
(2024) 7 SCC 315: 2024 SCC OnLine SC 1090, and it was observed at
page 342:
37. Read in conjunction with Section 114CPC, Order 47 Rule
1 thereof has three broad components which need to be
satisfied to set the ball for a review in motion — (i) “who”
means the person applying must demonstrate that he is a
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person aggrieved; (ii) “when”, means the circumstances a
review could be sought; and (iii) “why”, means the
grounds on which a review of the order/decree ought to be
made. Finally comes the “what”, meaning thereby the
order the court may make if it thinks fit. Not much
attention is generally required to be paid to components
(i) and (ii) because of the overarching difficulties posed by
component (iii). However, in deciding this reference,
component (i) would also have a significant role apart
from the Explanation inserted by way of an amendment of
CPC.
38. Let us now briefly attempt a deeper analysis of the
provision. We are conscious that the provisions relating to
review have been considered in a catena of decisions, but
the special features of these RPs, coupled with the fact that
two Hon’ble Judges of this Court have delivered a split
verdict, make it imperative for us not to miss any
significant aspect.
39. A peep into the legislative history would reveal that
Rule 1 of Order 47CPC, which is part of the First Schedule
appended thereto, bears a very close resemblance to its
predecessor statutes, i.e. Section 623 of the Codes of Civil
Procedure of 1877 and 1882. The solitary legislative change
brought about in 1976 in Order 47CPC resulted in the
insertion of an Explanation at the foot of Rule 1, which is
at the heart of the controversy here.
40. The first and foremost condition that is required to be
satisfied by a party to invoke the review jurisdiction of the
court, whose order or decree, as the case may be, is sought
to be reviewed, is that the said party must be someone who
is aggrieved by the order/decree.
41. The words “person aggrieved” are found in several
statutes; however, the meaning thereof has to be
ascertained about the purpose and provisions of the
statute. In one sense, the said words could correspond to
the requirement of “locus standi” about judicial remedies.
The need to ascertain the “locus standi” of a review
petitioner could arise if he is not a party to the proceedings
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but claims the order or decree to have adversely affected
his interest. In terms of Order XLVII of the 2013 Rules read
with Order 47CPC, a petition for review at the instance of a
third party to the proceedings too is maintainable, the
quintessence being that he must be aggrieved by a
judgment/order passed by this Court. This is what has
been held in Union of India v. Nareshkumar Badrikumar
Jagad [Union of India v. Nareshkumar Badrikumar Jagad,
(2019) 18 SCC 586]. That is, of course, not the case here.
Normally, in the context of Rule 1 of Order 47CPC, it is that
person (being a party to the proceedings) suffering an
adverse order and/or decree who, feeling aggrieved
thereby, usually seeks a review of the order/decree on any
of the grounds outlined therein. The circumstances where
a review would lie are spelt out in clauses (a) to (c).
42. Order 47 does not end with the circumstances as
Section 114CPC, the substantive provision, does. Review
power under Section 114 read with Order 47CPC is
available to be exercised, subject to fulfilment of the above
conditions, on setting up by the review petitioner any of
the following grounds:
(i) discovery of new and important matter or evidence;
or
(ii) mistake or error apparent on the face of the record;
or
(iii) any other sufficient reason.
43. Insofar as (i) (supra) is concerned, the review
petitioner has to show that such evidence (a) was available
on the date the court made the order/decree, (b) with
reasonable care and diligence, it could not be brought by
him before the court at the time of the order/decree, (c) it
was relevant and material for a decision, and (d) because
of its absence, a miscarriage of justice has been caused in
the sense that had it been produced and considered by the
court, the ultimate decision would have been otherwise.
44. Regarding (ii) (supra), the review petitioner has to
satisfy the court that the mistake or error committed by it
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is self-evident and such mistake or error can be pointed
out without any long-drawn process of reasoning, and, if
such mistake or error is not corrected and is permitted to
stand, the same will lead to a failure of justice. There
cannot be a fit-in-all definition of “mistake or error
apparent on the face of the record”, and it has been
considered prudent by the courts to determine whether
any mistake or error does exist, considering the facts of
each case coming before it.
45. With regard to (iii) (supra), we can do no better than
refer to the traditional view in Chhajju Ram [Chhajju
Ram v. Neki, 1922 SCC OnLine PC 11: AIR 1922 PC 112], a
decision of a Bench of seven Law Lords of the Judicial
Committee of the Privy Council. It was held there that the
words “any other sufficient reason” means “a reason
sufficient on grounds at least analogous to those specified
immediately previously”, meaning thereby (i) and (ii)
(supra). Notably, Chhajju Ram [Chhajju Ram v. Neki, 1922
SCC OnLine PC 11: AIR 1922 PC 112] has been consistently
followed by this Court in a number of decisions starting
with Moran Mar Basselios Catholicos v. Mar Poulose
Athanasius [Moran Mar Basselios Catholicos v. Mar Poulose
Athanasius, (1954) 2 SCC 42: AIR 1954 SC 526].
46. There are recent decisions of this Court which have
viewed “mistake” as an independent ground to seek a
review. Whether or not such decisions express the correct
view need not detain us since the review here is basically
prayed in view of the subsequent event.
xxxxx
J. Other precedents on review
59. Precedents on the aspect of review are legion, and we
do not wish to burden this judgment by tracing all the
decisions. However, only a few that were considered in the
split verdict, some of which were cited by the parties
before us and some that have emerged from our research
on the subject and are considered relevant, are
discussed/referred to here.
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60. Two of these decisions, viz. A.C. Estates v. Serajuddin &
Co. [A.C. Estates v. Serajuddin & Co., 1965 SCC OnLine SC
295 : (1966) 1 SCR 235: AIR 1966 SC 935]
and Shatrunji v. Mohd. Azmat Azim Khan [Shatrunji v. Mohd.
Azmat Azim Khan, (1971) 2 SCC 200] were rendered prior to
the introduction of the Explanation in Rule 1 of Order
47CPC. Significantly, even without the Explanation,
substantially the same view was expressed.
61. In A.C. Estates [A.C. Estates v. Serajuddin & Co., 1965 SCC
OnLine SC 295 : (1966) 1 SCR 235: AIR 1966 SC 935], a Bench
of three Hon’ble Judges of this Court, while dismissing the
civil appeal and upholding the order of the High Court of
Calcutta, held as follows : (SCC OnLine SC para 16)
“16. … Our attention in this connection is drawn to
Section 29(5) of the Act, which gives power to the
Controller to review his orders and the conditions laid
down under Order 47 of the Code of Civil Procedure. But
this cannot be a case of review on the ground of discovery
of new and important matter, for such matter has to be
something which exists at the date of the order and there
can be no review of an order which was right when made
on the ground of the happening of some subsequent
event (see Kotagiri Venkata Subbamma Rao v. Vellanki
Venkatrama Rao [Kotagiri Venkata Subbamma
Rao v. Vellanki Venkatrama Rao, 1900 SCC OnLine PC 12 :
(1899-1900) 27 IA 197] ).” (emphasis supplied)
62. The next is the decision of a Bench of two Hon’ble
Judges of this Court in Shatrunji [Shatrunji v. Mohd. Azmat
Azim Khan, (1971) 2 SCC 200] . While dismissing an appeal
and upholding the order [Mohd. Azamat Azim
Khan v. Shatrunji, 1963 SCC OnLine All 50] of the Allahabad
High Court, reference was made to “any other sufficient
reason” in Rule 1 of Order 47CPC and the decision
in Kotagiri Venkata Subbamma Rao [Kotagiri Venkata
Subbamma Rao v. Vellanki Venkatrama Rao, 1900 SCC
OnLine PC 12 : (1899-1900) 27 IA 197] whereupon it was
held : (Shatrunji case [Shatrunji v. Mohd. Azmat Azim Khan,
(1971) 2 SCC 200], SCC pp. 203-204, para 13)
11
2025:HHC:10810“13. … the principles of review are defined by the Code,
and the words “any other sufficient reason” in Order
47 of the Code would mean a reason sufficient on
grounds analogous to those specified immediately
previously in that order. The grounds for review are the
discovery of new matters 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 the review is asked
for on account of some mistake or error apparent on
the face of the record. In Kotagiri Venkata Subbamma
Rao v. Vellanki Venkatrama Rao [Kotagiri Venkata
Subbamma Rao v. Vellanki Venkatrama Rao, 1900 SCC
OnLine PC 12 : (1899-1900) 27 IA 197] Lord Davey at IA p.
205 of the Report said that ‘the section does not authorise
the review of a decree which was right when it was made
on the ground of the happening of some subsequent
event’.” (emphasis supplied)
63. What was laid down in Netaji Cricket Club [BCCI v. Netaji
Cricket Club, (2005) 4 SCC 741], upon reading Order 47CPC,
can be better understood in the words of the Hon’ble Judge
authoring the judgment. The relevant passages are quoted
hereunder : (SCC pp. 764-65, paras 88-90)
“88. … Section 114 of the Code empowers a court to
review its order if the conditions precedent laid down
therein are satisfied. The substantive provision of law
does not prescribe any limitation on the power of the
court except those which are expressly provided in
Section 114 of the Code, in terms whereof it is
empowered to make such order as it thinks fit.
89. Order 47 Rule 1 of the Code provides for filing an
application for review. Such an application for review
would be maintainable not only upon discovery of a
new and important piece of evidence or when there
exists an error apparent on the face of the record, but
also if the same is necessitated on account of some
mistake or for any other sufficient reason.
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90. Thus, a mistake on the part of the court, which
would include a mistake in the nature of the
undertaking, may also call for a review of the order. An
application for review would also be maintainable if
there exists sufficient reason therefor. What would
constitute sufficient reason would depend on the facts
and circumstances of the case. The words “sufficient
reason” in Order 47 Rule 1 of the Code are wide enough
to include a misconception of fact or law by a court or
even an advocate. An application for review may be
necessitated by way of invoking the doctrine “actus
curiae neminem gravabit”.”
In the next paragraph, their Lordships quoted a portion of
para 35 from the larger Bench decision in Moran Mar
Basselios Catholicos [Moran Mar Basselios Catholicos v. Mar
Poulose Athanasius, (1954) 2 SCC 42: AIR 1954 SC 526] but
held that “the said rule is not universal”.
64. Netaji Cricket Club [BCCI v. Netaji Cricket Club, (2005) 4
SCC 741] was followed in Jagmohan Singh v. State of
Punjab [Jagmohan Singh v. State of Punjab, (2008) 7 SCC
38]. It was held there that Rule 1 of Order 47CPC does not
preclude the High Court or a court from taking into
consideration any subsequent event, and that if imparting
justice in a given situation is the goal of the judiciary, the
court may take into consideration (of course on rare
occasions) the subsequent events.
65. This Court, in para 20 of the decision in Kamlesh
Verma v. Mayawati [Kamlesh Verma v. Mayawati, (2013) 8
SCC 320 : (2013) 3 SCC (Civ) 782 : (2013) 4 SCC (Cri) 265 :
(2014) 1 SCC (L&S) 96], after surveying previous
authorities and following Chhajju Ram [Chhajju
Ram v. Neki, 1922 SCC OnLine PC 11: AIR 1922 PC 112]
and Moran Mar Basselios Catholicos [Moran Mar Basselios
Catholicos v. Mar Poulose Athanasius, (1954) 2 SCC 42: AIR
1954 SC 526] summarised the principles of review and
illustrated when a review would be and would not be
maintainable. Despite the observation in Netaji Cricket
Club [BCCI v. Netaji Cricket Club, (2005) 4 SCC 741]
13
2025:HHC:10810limiting Moran Mar Basselios Catholicos [Moran Mar
Basselios Catholicos v. Mar Poulose Athanasius, (1954) 2 SCC
42: AIR 1954 SC 526], Kamlesh Verma [State (NCT of
Delhi) v. Kartar Singh, 2016 SCC OnLine SC 1525] thought it
fit to agree with the latter decision.
66. Recently, in S. Madhusudhan Reddy v. V. Narayana
Reddy [S. Madhusudhan Reddy v. V. Narayana Reddy, (2022)
17 SCC 255: 2022 SCC OnLine SC 1034], a Bench of three
Hon’ble Judges has accepted the meaning of the ground
“for any other sufficient reason” as explained in Chhajju
Ram [Chhajju Ram v. Neki, 1922 SCC OnLine PC 11: AIR 1922
PC 112], Moran Mar Basselios Catholicos [Moran Mar
Basselios Catholicos v. Mar Poulose Athanasius, (1954) 2 SCC
42: AIR 1954 SC 526] and Kamlesh Verma [State (NCT of
Delhi) v. Kartar Singh, 2016 SCC OnLine SC 1525].
9. A perusal of the judgment passed by the learned
Appellate Court shows that the learned Appellate Court had
recorded the findings in paras 13 to 16 on the merits of the
dispute by holding that there was no evidence to show that an
opportunity of hearing was not granted to the plaintiffs,
plaintiffs were found to be in possession of the land belonging to
the State, proceedings for correction were carried out, the
plaintiffs were aware of the proceedings, they had participated in
the proceedings, and the collector was fully competent to remove
the encroachment on the Government land. It was held that the
judgment of the learned Trial Court was consistent with these
findings. It was held in paragraphs 17 to 20 of the judgment that
the suit was barred by the principle of res judicata. This Court
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reversed the findings regarding the suit being barred by res
judicata. This Court also held that the learned First Appellate
Court had affirmed the judgment and decree of the learned Trial
Court, and a general agreement with the findings of the learned
Trial Court was sufficient. Reliance was placed upon the
judgment of the Hon’ble Supreme Court in Santosh Hazare Vs.
Purshotam Tiwari 2001 (3) SCC 179. Thus, the plea taken by the
petitioners/plaintiffs in the review petition is not correct that no
finding was recorded by the learned Appellate Court, and this
Court should have remanded the matter to the learned Appellate
Court to record fresh findings on the merits. The learned
Appellate Court had upheld the findings of the learned Trial
Court on merit, and this Court had indicated its reasons for
upholding the findings of learned Appellate Court. It was rightly
submitted on behalf of the respondent-defendant that review
cannot be an appeal in disguise, and if the plaintiffs are
aggrieved by the reasoning of this Court, their remedy lies
elsewhere and not in the review.
10. It was submitted that the title of the plaintiffs was
never in dispute, as the plea regarding the ownership contained
in paragraph 1 of the plaint was not specifically denied. It was
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submitted that an admitted fact needs not be proved and the
Court should have granted the decree of declaration based on the
admission. This submission is not acceptable. It was laid down by
the Kerala High Court in Mani v. Madhavi, 2017 SCC OnLine Ker
41820 that the admission does not confer a title upon a person. It
was observed:
27. We shall the examine merit of the contention
regarding admission first. Principle that an admission by
itself cannot confer title to a property is well settled. S. 17
of the Evidence Act defines “admission” and S. 18 of the
said Act deals with admission by party to proceeding or his
agent. S. 21 of the Evidence Act speaks about proof of
admissions against persons making them, and by or on
their behalf. S. 58 of the Evidence Act says that an
admitted fact need not be proved. Although an admission
is the best piece of evidence against the person making it,
he can rebut the same. It is fundamental that admissions
can be explained and proved to be erroneous.
28. Supreme Court in Ambika Prasad Thakur v. Ram Ekbal
Rai; (AIR 1966 SC 605) has considered inter alia the effect of
admission by a party in respect of title. It is held that title
cannot pass by a mere admission. Principle that an
admission by itself cannot confer title to property has
been laid down by this Court also.
29. In view of the above principles, we are of the opinion
that merely because DW 1 had admitted that his mother
enjoyed the property for and on behalf of the plaintiffs as
well, it will not create any title on the plaintiffs or their
successors-in-interest, if they actually had none.
11. Therefore, no decree could have been granted to the
plaintiffs based on the admissions.
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12. It was submitted that the defendant did not lead the
evidence, and the suit should have been decreed. This submission
is only stated to be rejected. The plaintiff has to stand on his legs,
and he cannot take advantage of the weakness of the defendant’s
case. The plaintiff had to prove his title to get the declaration and
no declaration can be granted to him on failure to lead evidence
by the defendant.
13. It was submitted that this Court wrongly held that an
injunction cannot be issued against the true owner because the
title never vested with the State of H.P. This submission is not
correct. It was held in para 29 of the judgment that the plaintiff
was held to be an encroacher on the Government land, and the
revenue authority had the jurisdiction to take action against him
for removal of the encroachment. He could not seek any
injunction against the true owner because the encroacher cannot
seek an injunction against the true owner.
14. It was submitted that the judgments not cited at the
bar were applied by this Court. It is unfortunate that this
submission has been made by a counsel who had not argued the
matter originally before the Court and does not contain any
affidavit of the learned counsel who had originally argued the
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matter. Hence, the subsequent counsel is not in a position to say
whether the judgment was cited at the bar or not. It was laid
down by the Allahabad High Court in Jag Mohan Agarwal v.
Kanchan Kumari Jain, 2023 SCC OnLine All 3965 that the review at
the instance of the subsequent counsel is not maintainable. It
was observed:
9. Learned counsel for applicant has placed reliance upon
the judgment of this Court in the matter of Sharda Prasad
Mishra v. State of U.P. (Writ-A No. 60191 of 2006) decided on
10.10.2013. From the perusal of the said judgment, it is
apparently clear that it is not in favour of applicant rather
against him. The only fact which is pointed out by learned
counsel for applicant is about “No Objection Certificate”.
In the present case, there is no “No Objection Certificate”
in favour of applicant from earlier counsel. Even
otherwise, mere obtaining of “No Objection Certificate” is
not suffice for filing of review application by a subsequent
counsel. Relevant parts of the said judgment is quoted
below:–
“When the case was initially heard one Sri. S.K. Singh
had appeared for the respondent nos. 2 to 7. This review
application has been filed by the learned counsel, who
was not the counsel for the respondent when the
judgment was passed.
The Supreme Court in the case of Tamil Nadu Electricity
Board v. N. Raju Reddiear, (1997) 9 SCC 736 : AIR 1997 SC
1005 has held that review petition cannot be
entertained at the behest of a counsel or a person, who
had not appeared before the Court or was not party in
the main case. Para-1 of the judgment reads as under:
“1. It is a sad spectacle that a new practice
unbecoming and not worthy of or conducive to
the profession is cropping up. Mr. Mariaputham,
18
2025:HHC:10810Advocate-on-Record had filed vakalatnama for
the petitioner-respondent when the special leave
petition was filed. After the matter was disposed
of, Mr. V Balachandran, Advocate had filed a
petition for review. That was also dismissed by
this Court on 24-4-1996. Yet another advocate,
Mr. S.U.K. Sagar, has now been engaged to file the
present application styled as “application for
clarification”, on the specious plea that the order
is not clear and unambiguous. When an
appeal/special leave petition is dismissed, except
in rare cases where error of law or fact is
apparent on the record, no review can be filed;
that too by the Advocate-on-Record who neither
appeared nor was party in the main case. It is
salutary to note that the court spends valuable
time in deciding a case. Review petition is not,
and should not be, an attempt for hearing the
matter again on merits. Unfortunately, it has
become, in recent time, a practice to file such
review petitions as a routine; that too, with
change of counsel, without obtaining consent of
the Advocate-on – Record at earlier stage. This is
not conducive to healthy practice of the Bar
which has the responsibility to maintain the
salutary practice of profession. In Review
Petition No. 2670 of 1996 in CA No. 1867 of 1992,
a Bench of three Judges to which one of us, K.
Ramaswamy, J., was a member, has held as
under:
“The record of the appeal indicates that Shri Sudarsh
Menon was the Advocate-on-Record when the appeal
was heard and decided on merits. The review petition
has been filed by Shri Prabir Chowdhury who was
neither an arguing counsel when the appeal was heard
nor was he present at the time of arguments. It is
unknown on what basis he has written the grounds in
the review petition as if it is a rehearing of an appeal
against our order. He did not confine to the scope of
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2025:HHC:10810review. It would not be in the interest of the profession
to permit such practice. That part, he has not obtained
“No Objection Certificate” from the Advocate-on-
Record in the appeal, in spite of the fact that Registry
had informed him of the requirement for doing so.
Filing of the “No Objection Certificate” would be the
basis for him to come on record. Otherwise, the
Advocate-on-Record is answerable to the Court. The
failure to obtain the “No Objection Certificate” from
the erstwhile counsel has disentitled him to file the
review petition. Even otherwise, the review petition has
no merits. It is an attempt to reargue the matter on
merits. On these grounds, we dismiss the review
petition”.
The review application is, therefore, not maintainable.”
Xxxxx
12. Sri. Harkauli has relied upon the judgment of this Court
in Ram Prasad Shukla v. Suraj Lal; (2017) 122 ALR 144, in which
Court has clearly held that review application filed by a new
counsel who had not argued the writ petition is not
maintainable. Relevant parts of the said judgment is quoted
below:–
“I also find substance in the submission of the learned
counsel for the opposite party that the review petition is
not maintainable in view of the fact that it has not been
filed by the counsel, who had argued the writ petition. I
also find substance in the submissions of the learned
counsel for the opposite party that the plea of deposit
under section 30(1) or 30(2) was not agitated before the
trial court in the written statements. Therefore, now the
petitioner cannot travel beyond the pleadings.”
13. The very same view is again taken by this Court in the
matter of Mohd. Kaleem v. Sumitra Devi; (2021) 144 ALR 651, in
which Court has taken specific view that a
review/recall/modification application filed by subsequent
counsel is not maintainable and it is nothing but an attempt
to delay the compliance of judgment, therefore, review
20
2025:HHC:10810
application is liable to be dismissed with exemplary cost.
Relevant parts of the said judgment is quoted below:–
“12. In view of the above, I am of the considered opinion
that the review/recall/modification application by a
subsequent counsel is not maintainable. It is nothing but
to delay the compliance of the judgment, therefore,
exemplary cost is required to be imposed upon the
applicant for delaying the compliance of judgment.”
14. This issue again came before this Court in Ramesh Kumar
Sharma v. Gool Poput; (2021) 8 ADJ 123 in which this Court
relying upon the judgment of Apex Court, has held that
review application filed by a subsequent counsel is not
maintainable. Relevant parts of the said judgment is quoted
below:–
“30. The fact as emanates from the record reveals that Sri.
Radhey Shyam Dwivedi and Rajesh Dwivedi were counsels
representing the applicants. The Court noted the
submission advanced by the learned counsel for the
respondents in the judgment, therefore, in view of the
judgment of Apex Court in the case of (Tamil Nadu
Electricity Board) (supra), the review petition at the behest
of another counsel is not maintainable. Paragraph 1 of the
judgment is being extracted hereinbelow:
………………………
………………………
33. In the instant case, the matter was argued on behalf of
applicants by original counsel, and review was filed by Sri.
N.B. Nigam, Advocate who was not the original counsel of
the applicants, and even after filing the review, the
applicants have changed the counsel and engaged a new
counsel Sri. S.K. Chaturvedi. Therefore, this Court is of the
view that the review application is not maintainable.”
15. I have also perused the judgment passed in Kaniz
Fatma v. Additional District Judge, [(2008) 70 ALR 361], in
which Court has taken very same view that review application
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2025:HHC:10810
cannot be filed by subsequent counsel. Relevant paragraph 25
is quoted below:–
“25. I am therefore of the considered view that once the
writ petition has been decided on merits, the scope of
review is very limited and successive review applications
are not maintainable. The first review application has been
filed by a subsequent counsel Sri. Khalil Ahmad without
consent of the original counsel who IS alleged to have
given a wrong undertaking before the Court has neither
filed review application nor has appeared in the Court to
admit or deny the allegations made against him. It would
be laying down a bad precedent to allow successive review
applications by subsequent counsel by making allegations
against the original counsel engaged initially. In the first
review application the Court has considered all the aspects
of the matter in its judgment and order dated 20.3.2007 by
holding that the matter cannot be reopened by engaging
another counsel.”
16. Apex Court in the matter of Tamil Nadu Electricity
Board v. N. Raju Reddiar [(1997) 9 SCC 736 : AIR 1997 SC 1005]
has reiterated the same view that review application filed by a
subsequent counsel is not maintainable. Relevant paragraph 1
is quoted below:–
“1. It is a sad spectacle that new practice unbecoming of
worthy and conducive to the profession is cropping up.
Mr. Mariaputham, Advocate-on-Record had filed
vakalatnama for the petitioner-respondent when the
special leave petition was filed. After the matter was
disposed of, Mr. V. Balachandran, Advocate had filed a
petition for review. That was also dismissed by this
Court on April 24, 1996. Yet another advocate, Mr.
S.U.K. Sagar, has now been engaged to file the present
application styled as “application for clarification”, on
the specious plea that the order is not clear and
unambiguous. When an appeal/special leave petition is
dismissed, except in rare cases where error of law or
fact is apparent on the record, no review can be filed;
that too by the advocate on record who neither
22
2025:HHC:10810appeared nor was party in the main case. It is salutary
to not that court spends valuable time in deciding a
case. Review petition is not, and should not be, an
attempt for hearing the matter again on merits.
Unfortunately, it has become, in recent time, a practice
to file such review petitions as a routine; that too, with
change of counsel, without obtaining consent of the
advocate on record at earlier stage. This is not
conducive to healthy practice of the Bar which has the
responsibility to maintain the salutary practice of
profession. In Review Petition No. 2670/96 in CA No.
1867/92, a Bench of three Judges to which one of us, K.
Ramaswamy, J., was a member, has held as under:
“The record of the appeal indicates that Shri Sudarsh
Menon was heard and decided on merits. The Review
Petition has been filed by Shri Prabir Chowdhury who was
neither an arguing counsel when the appeal was heard nor
was he present at the time of arguments. It is unknown on
what basis he has written the grounds in the Review
Petition as if it is a rehearing of an appeal against our
order. He did not confine to the scope of review. It would
be not in the interest of the profession to permit such
practice. That part, he has not obtained “No Objection
Certificate” from the Advocate-on-Record in the appeal,
in spite of the fact that Registry had informed him of the
requirement for doing so. Filing of the “No Objection
Certificate” would be the basis for him to come on record.
Otherwise, the Advocate-on-Record is answerable to the
Court. The failure to obtain the “No Objection Certificate”
from the erstwhile counsel has disentitled him to file the
Review Petition. Even otherwise, the Review Petition has
no merits, It is an attempt to reargue the matter on merits.
On these grounds, we dismiss the Review Petition.”
17. This Court in the matter of Sidheswar Mishra v. State of
U.P. [(2006) 9 ADJ 427] has also reiterated the settled
provisions of law and held that review application filed by a
subsequent counsel is not maintainable. Relevant paragraph
14 is quoted below:–
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2025:HHC:10810
14. The Court is not inclined to open ‘Pandora’s Box’ for
the following reasons-
Firstly : The law is well settled that recall or review
application can be filed only by the counsel who had
argued the case and not by a subsequent counsel who is
engaged after the decision.
Secondly : The recall application in the instant case is in
the nature of review application as the judgment has been
delivered on merits after hearing the counsels for the
parties and the prayer is to recall the judgment and hear
on merits again.
Thirdly : When the recall filed by Sri. Ranjeet Saxena was
listed Sri. Brij Lal Verma could not have been authorized by
Sri. Ranjeet Saxena to argue the application and the case
on merits, the following reasons.
(a) Sri. Ranjeet Saxena is appointed by the
Corporation on its panel to argue to argue its cases
and Sri. B.L. Verma. The U.P. Power Corporation is a
Estate within the meaning of Article 12 of
the Constitution and the position of a counsel on its
panel is Akur standing counsel appointed by the
Government.
(b) Along with standing counsels, brief holders are
also appointed by the State Government. If the
Corporation had not appointed any brief holders the
counsel on the panel cannot handover his
government brief to any counsel who is not on the
panel to argue government brief.
(c) In any event it was the duty of Sri. Ranjeet Saxena
to have been present to argue the recall application
filed by him in order to avoid excuse again by the
Corporation that case was argued by Sri. B.L. Verma
who is not on its panel and not by Sri. Ranjeet
Saxena who is on the panel of thue Corporation.
(d) It is very easy to allege by a subsequent counsel
that information to his client was not given. If that
24
2025:HHC:10810
be the case the recall application ought to have been
filed through Sri. R.D. Khare. Consequently the case
after the judgment has been allotted to Sri. Ranjeet
Saxena by the Corporation to get recall of order and
judgment dated 31.1.2006.”
18. Similar issue came before this Court in the matter
of Rajesh Kumar Tiwari v. UP Shiksha Parishad (Service
Single No. 7775 of 2005), in which after considering
different judgments, this Court has held that
review/recall/modification application filed by a
subsequent counsel is not maintainable. Relevant part of
the said judgment is quoted below:–
“4. On perusal of aforesaid judgments, it is evident that
review/recall/modification application by a subsequent
counsel is not maintainable.”
19. From the perusal of aforesaid judgments, intention of
the Courts are very much clear that in case such review
applications are entertained, it would be unending process
with permission to opening of new Pandora Box.
Undoubtedly, if the case is filed and argued by a counsel,
he is the only person to file review application for the
reasons that he is aware about the facts and grounds
argued before this Court. This cannot be agitated by a
subsequent counsel who has no concern with the matter
till the final disposal of the case. Therefore, such practice
of engagement of new counsel for filing
review/recall/modification must have been depreciated.
Further, granting such permission would be gross misuse
of process of law and an attempt to raise new arguments
for re-hearing of case on merits.
15. A similar view was taken in Yuvraj Singh vs. Harninder
Singh and Ors. (12.08.2024 – PHHC) : MANU/PH/2593/2024, Manoj
Kumar Sharma v. State of Chhattisgarh, 2025 SCC OnLine Chh 3459,
Arjun v. Dharamdas, 2024 SCC OnLine Bom 3539, Pushpalatha v.
25
2025:HHC:10810
Anandakrishnan, 2023 SCC OnLine Mad 2289 and Maya Sinha v.
Somendra Singh, 2018 SCC OnLine Cal 5829
16. In any case, the Court is not precluded from relying
upon the correct law even if it has not been cited on behalf of
either of the parties. Accepting the submission would mean that
the Court would have to follow the law brought to its notice by
the parties, even if incorrect. This would tend to the application
of incorrect law and unsettle the settled law.
17. No other point was urged.
18. Therefore, there is no error apparent on the face of
the record. The petitioners have the remedy of approaching an
appropriate forum in case they feel aggrieved by the judgment
rendered by this Court, but the judgment cannot be reviewed in
the absence of error apparent on the face of the record.
19. In view of the above, the present petition fails and the
same is dismissed, so also the pending miscellaneous
application(s), if any.
(Rakesh Kainthla)
Judge
24th April, 2025
(Chander)
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