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  

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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  

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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.”

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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 :  

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(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.  

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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   

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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.”

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(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  

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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.”  

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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  

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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  

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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.  

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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  

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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  

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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.

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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  

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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  

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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  

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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  

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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)        

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