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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

INTERLOCUTORY APPLICATION NOs.5 AND 6 OF 2012

Cine Exhibition Pvt. Ltd. .... Applicant(s)

Versus

Collector, District Gwalior and others         ....Respondents

IN

CIVIL APPEAL NOS.281-282 OF 2012

Collector, District Gwalior and another .....Appellants

Versus

Cine Exhibition Pvt. Ltd. & Another  .....Respondents

O R D E R

1. These applications  have been preferred  under  Order  XVIII  

Rule 5 of the Supreme Court Rules, 1966 (for short ‘the Rules)  

against the order of the Registrar dated 28.8.2012, alleging that

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the applications under Order XVIII Rule 5 of the Rules lodging the  

applications for  clarification/modification of  the Judgment dated  

11.1.2012  of  this  Court  in  Civil  Appeal  Nos.281-282  of  2012  

cannot  be  sustained  in  law.    Applications  for  

clarification/modification  were  filed  on  21.2.12  seeking  the  

following reliefs:

a) Clarify/modify  the  observations  contained  in  paragraphs  21  and  22  of  the  Judgment  dated  11.1.2012  in  view  of  the  Notifications  being  produced by the Applicant  herein  along with  the  present  application  specially  Notification  dated  20.9.1965  issued  by  the  State  Government  in  exercise of powers under Section 52 of the Madhya  Pradesh Town Improvement Trusts Act, 1960;     

b) Clarify/modify operative directions in the Judgment  dated 11.1.2012 by which it has been held that the  Gwalior  Development  Authority  did  not  have  authority or power to execute the lease in favour of  the applicant herein;

c) Direct the Appellant to produce before this Hon’ble  Court the official records in respect of Scheme 2-B  framed  by  the  then  Gwalior  Improvement  Trust  including the Notifications and orders issued by the  State Government in respect thereto photocopies

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of some of which are being produced along with  the present applications; and

d) Pass such other order or orders as may be deemed  fit and proper in the facts and circumstances of the  case.”

Applications were rejected holding those applications filed would  

amount to seeking review of the Judgment and order passed by  

this Court on 11.1.2012.  It  was noticed that on the pretext of  

application for clarification/modification, applicant, in fact, sought  

nothing but recalling of the Judgment and order dated 11.1.2012  

and  substitution  of  the  directions  contained  therein  which,  

according  to  the  Registrar,  would  amount  to  a  prayer  for  

reviewing the Judgment.   Applications were,  therefore,  rejected  

placing  reliance  on  the  Judgment  of  this  Court  in  Delhi  

Administration v.  Gurdip Singh Urban and others (2000) 7  

SCC 296.

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2. Dr. Rajeev Dhawan, learned senior counsel appearing for the  

applicants  submitted  that  the  respondent-State  of  Madhya  

Pradesh had suppressed various documents which had substantial  

bearing on the outcome of the appeals.  According to the learned  

senior counsel  the following are some of the documents which  

were suppressed from this Court:

i) “Gazette  Notification  dated  27th September,  1963  formulating Housing Scheme under Section 46 of the  Madhya Pradesh Town Improvement Trust Act, 1960  (Act of 1960).

ii) Gazette  Notification  dated  4th October,  1963  for  Housing Schemes

iii) Details  of  the  Acquisition  of  land  and  structure  of  village Ghospura and Mehra (Annexure R-1/3)

iv) Gazette Notification under Section 52(1)(s) of the Act  of 1960 sanctioning the Scheme”

3. Learned senior  counsel  submitted that  the  only  argument  

urged before the Bench was that since the property in question  

was Government land which had not  been transferred by it  to  

Gwalior  Development  Authority,  the  authority  could  not  have

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dealt  with  such  land  by  executing  a  lease  which  had  been  in  

favour of the applicants.  Learned senior counsel submitted that  

various statements made by the State were couched with malice,  

fraud and material  suppression of  facts.   Consequently,  it  was  

stated that the Registrar should have entertained the applications  

for modification/clarification and were wrongly lodged.

4. We fully endorse the view expressed by the Registrar that  

the  prayers  made  in  the  applications  would  clearly  fall  in  the  

realm of an application for review of the Judgment of this Court  

dated 11.1.2012 on the ground of fraud and material suppression  

of  documents  and  there  is  no  question  of  

clarification/modification  of  the  Judgment  of  this  Court  dated  

11.1.2012.

5. We  are  of  the  view  that  the  practice  of  overcoming  the  

provision  for  review  under  Order  XL  of  the  Rules  by  filing  an  

application  for  re-hearing/  modification/  clarification  has  to  be

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deprecated.  Registrar of this Court earlier in an application for re-

hearing  took  the  same  stand  in  the  year  1981.   This  Court  

dismissed  a  Criminal  Appeal  No.220  of  1974  on  3.4.1981.  

Appellant therein filed an application for re-hearing of the appeal  

on 20.4.1981.  The counsel  was informed by the Registry that  

since appeal had been disposed of after hearing the counsel for  

the parties, no application for re-hearing would lie and, if he so  

advised,  could  file  a  review  petition  under  the  Rules.  

Consequently, the application was not registered.  The order of  

the Registrar is reported in  Sone Lal and others v.  State of  

Uttar Pradesh (1982) 2 SCC 398.

6. The  above  mentioned  order  of  the  Registrar  was  later  

endorsed  by  this  Court  in  Delhi  Administration v.  Gurdip  

Singh Uban and others (2000) 7 SCC 296.  In that case Civil  

Appeal Nos.4656-57 of 1999 were allowed by a two Judge Bench  

Judgment  of  this  Court  reported  in  Delhi  Administration v.  

Gurdip Singh Uban (1999) 7 SCC 44 and the appeals of Delhi

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Administration  and  Delhi  Development  Authority  were  allowed.  

The  appellant  in  Civil  Appeal  No.4656  of  1999  was  the  Delhi  

Administration while  the appellant  in  CA No.4657 of  1999 was  

Delhi Development Authority.  After the appeals were allowed by  

this  Court  on  20.8.1999,  Review Petition  Nos.1402-03  of  1999  

were filed in the two appeals by Gurdip Singh Uban and they were  

dismissed  in  circulation  by  a  reasoned  order  on  24.11.1999.  

Another Review Petition No.21 of 2000 filed by another person  

was not listed on that date.  IA No.3 of 1999 was later listed along  

with  IA  Nos.4  &  5  filed  by  Gurdip  Singh Uban on  23.12.1999.  

Gurdip Singh Uban, it may be noted had filed IA Nos.4 & 5 in spite  

of dismissal of his review petition on 24.11.1999.  IA Nos.4 & 5  

were  listed  before  the  Court  and  a  preliminary  objection  was  

raised stating that the applications couched as applications for  

“clarification”,  modification”  or  for  “recall”  could  not  be  

entertained once the review petitions filed by the applicant were  

dismissed.  This Court examined the question in detail in Gurdip  

Singh Uban (supra) and held as follows:

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 “16.  At the outset, we have to refer to the practice of  filing  review  applications  in  large  numbers  in  undeserving cases without properly examining whether  the cases strictly come within the narrow confines of  Rule XL of the Supreme Court Rules. In several cases, it  has  become almost  everyday  experience that  review  applications  are  filed  mechanically  as  a  matter  of  routine  and  the  grounds  for  review  are  a  mere  reproduction of the grounds of special leave and there  is no indication as to which ground strictly  falls within  the narrow limits of Rule XL of the Rules. We seriously  deprecate this practice. If  parties file review petitions  indiscriminately, the time of the Court is unnecessarily  wasted,  even  it  be  in  chambers  where  the  review  petitions  are  listed.  Greater  care,  seriousness  and  restraint is needed in filing review applications.

17.  We  next  come  to  applications  described  as  applications for “clarification”, “modification” or “recall”  of judgments or orders finally passed. We may point out  that under the relevant Rule XL of the Supreme Court  Rules, 1966 a review application has first to go before  the learned Judges in circulation and it will be for the  Court  to  consider  whether  the  application  is  to  be  rejected  without  giving  an  oral  hearing  or  whether  notice is to be issued. Order XL Rule 3 states as follows:

“3.  Unless  otherwise  ordered  by  the  Court,  an  application for review shall be disposed of by circulation  without  any  oral  arguments,  but  the  petitioner  may  supplement  his  petition  by  additional  written  arguments. The Court may either dismiss the petition or  direct notice to the opposite party....”

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In case notice is issued, the review petition will be listed  for  hearing,  after  notice  is  served.  This  procedure  is  meant to save the time of the Court and to preclude  frivolous review petitions being filed and heard in open  court. However, with a view to avoid this procedure of  “no hearing”, we find that sometimes applications are  filed  for  “clarification”,  “modification”  or  “recall”  etc.  not  because  any  such  clarification,  modification  is  indeed necessary but because the applicant in reality  wants a review and also wants a hearing, thus avoiding  listing of the same in chambers by way of circulation.  Such  applications,  if  they  are  in  substance  review  applications,  deserve  to  be  rejected  straight  away  inasmuch as the attempt is obviously to bypass Order  XL Rule 3 relating to circulation of  the application in  chambers  for  consideration  without  oral  hearing.  By  describing an application as  one for  “clarification”  or  “modification”, — though it is really one of review — a  party cannot be permitted to circumvent or bypass the  circulation procedure and indirectly obtain a hearing in  the open court. What cannot be done directly cannot be  permitted to be done indirectly. (See in this connection  a detailed order of the then Registrar of this Court in  Sone Lal v. State of U.P. deprecating a similar practice.)

18. We,  therefore,  agree  with  the  learned  Solicitor  General  that  the  Court  should  not  permit  hearing  of  such an application for “clarification”, “modification” or  “recall” if the application is in substance one for review.  In  that  event,  the  Court  could  either  reject  the  application  straight  away  with  or  without  costs  or  permit withdrawal with leave to file a review application  to be listed initially in chambers.

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19. What we have said above equally applies to such  applications filed after rejection of review applications  particularly  when a  second  review is  not  permissible  under  the  Rules.  Under  Order  XL  Rule  5 a  second  review is not permitted. The said Rule reads as follows:

“5.  Where an application for  review of  any judgment  and order has been made and disposed of, no further  application for review shall be entertained in the same  matter.”

20. We should not however be understood as saying  that  in  no  case  an  application  for  “clarification”,  “modification” or “recall” is maintainable after the first  disposal  of  the matter.  All  that we are saying is  that  once such an application is listed in Court, the Court will  examine whether it  is,  in substance, in the nature of  review and is to be rejected with or without costs or  requires  to  be  withdrawn with  leave to  file  a  review  petition to be listed in chambers by circulation. Point 1  is decided accordingly.

7. We are of the view that the ratio laid down in the above-

mentioned Judgment squarely applies to the facts of this case as  

well.   Generally an application for correction of a typographical  

error or omission of a word etc. in a Judgment or order would lie,  

but a petition which is intended to review an order or Judgment

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under Order XLVII Rule 1 of the Code of Civil Procedure and in  

criminal proceedings except on the ground of an error apparent  

on  the  face  of  the  record,  could  not  be  achieved by  filing  an  

application  for  clarification/modification/recall  or  rehearing,  for  

which a properly constituted review is the remedy.  Review power  

is provided under Order XL of the Rules, which reads as follows:

“1. The Court may review its judgment or order, but no  application  for  review  will  be  entertained  in  a  civil  proceeding except on the ground mentioned in Order  XLVII, Rule 1 of the Code, and in a criminal proceeding  except on the ground of an error apparent on the face  of the record. 2. An application for review shall be by a petition, and  shall  be filed within thirty  days from the date of  the  judgment or order sought to be reviewed.  It shall set  out clearly the grounds for review. 3. Unless otherwise ordered by the Court an application  for  review shall  be disposed of by circulation without  any oral arguments, but the petitioner may supplement  his petition by additional written arguments.  The Court  may either dismiss the petition or direct notice to the  opposite party.  An application for review shall as far as  practicable be circulated to the same Judge or Bench of  Judges that delivered the judgment or order sought to  be reviewed. 4.  Where  on  an  application  for  review  the  Court  reverses or modifies its former decision in the case on

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the ground of mistake of law or fact, the Court, may, if  it thinks fit in the interests of justice to do so, direct the  refund to  the  petitioner  of  the  court-fee  paid  on the  application in whole or in part, as it may think fit. 5. Where an application for review of any judgment and  order  has  been  made  and  disposed  of,  no  further  application for review shall be entertained in the same  matter.”

8. Under Order XL of the Rules a review application has first to  

go before learned Judges in circulation and it will be for the Court  

to consider whether the application is to be rejected without an  

order giving an oral hearing or whether notice is to be issued to  

the  opposite  party.   Many  a  times,  applications  are  filed  for  

clarification/modification/recall  or  rehearing not  because of  any  

clarification/modification  is  found  necessary  but  because  the  

applicant  in  reality  wants  a  review and also  wants  hearing  by  

avoiding circulation of the same in Chambers.  We are of the view  

that a party cannot be permitted to circumvent or by-pass this  

circulation procedure and indirectly obtain a hearing in the open

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Court, what cannot be done directly, cannot be permitted to be  

done indirectly.

9. We are, therefore, of the view that the Registrar has rightly  

ordered for lodgment of the applications.  However, we make it  

clear that the dismissal of these applications would not stand in  

the way of the applicants in filing review petitions with additional  

documents, stated to have been suppressed by the opposite side,  

which  would  be  dealt  with  in  accordance  with  law.   The  

interlocutory applications are dismissed.

………………………..J. (K.S. Radhakrishnan)

……………………….J. (Dipak Misra)

New Delhi, January 4, 2013