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2007(1) Supreme 471
SUPREME COURT OF INDIA
(From Andhra Pradesh High Court)
Dr. Arijit Pasayat and H.K. Sema, JJ.
A.P.S.R.T.C. & Ors.—Appellants
versus
Abdul Kareem—Respondent
I.A. 3 of 2006
In
Civil Appeal No. 7797 of 2003
Decided on 12-1-2007
Counsel for the Parties :
For the Appellants : Ms. K. Radha Rani, P. Vijay Kumar and D. Mahesh Babu, Advocates.
For the Respondent : P.S. Narasimha (for M/s. P.S.N.& Co.) Advocate.
IMPORTANT POINT
Court should not permit hearing of an application for clarification, “modification” or “recall” if application was in substance a clever move for review.
Act
Referred
:CONSTITUTION OF INDIA : Art.137
SUPREME COURT RULES : O.40 R.3
(A) The provisions of Article 137 of the Constitution read with Order XL, Rule 3 of the Supreme Court Rules, 1966, govern the procedure for filing an application for review of a judgment. These provisions establish that a review application must be circulated to the same Judge or Bench that delivered the judgment and may be disposed of without oral arguments unless the Court directs otherwise. The scope of such an application is strictly limited to seeking a review of the original order and does not permit a rehearing or reconsideration of the merits. When an application is presented in a disguised form, such as a prayer for clarification, the Court must examine its true nature and substance to determine whether it is a veiled attempt to circumvent the review procedure. The Court in Delhi Administration v. Gurdip Singh Uban and Ors. has held that describing an application as one for clarification or modification does not permit a party to indirectly obtain a hearing if the underlying intent is to seek a review, as the method of approach cannot be used to achieve what cannot be done directly.
(B) Key legal principles include that an application for clarification cannot be used as a surrogate for a review application, the procedure for review is strictly regulated and must follow the circulation process, and the Court must look past the nomenclature of the application to its substance to prevent abuse of process.
Facts of the case:
The respondent, who is in penury and has a pension that is already attached, filed an application seeking clarification of an order directing recovery of amounts due. The appellant-Corporation contended that the application was in substance a review petition and that the respondent was aware of the procedure prohibiting such review under the guise of clarification.
Findings of Court:
The Court found that the application was a disguised attempt to seek review after the opportunity to do so had passed, that it was an abuse of process, and that the relief sought amounted to a rehearing of the original judgment without any apparent error on record.
Issues:
Whether an application filed under the pretext of clarification can be used to indirectly obtain a review of the judgment and whether such an application can be permitted to re-hear the merits of the case.
Ratio Decidendi:
An application that is in substance a review petition but filed under the name of clarification or modification is not maintainable, as the procedure for review is distinct and cannot be bypassed, and the Court must reject such an application to prevent abuse of process.
Result:
The application for clarification was dismissed as being a disguised review petition and an abuse of process.
(A) The provisions of Article 137 of the Constitution read with Order XL, Rule 3 of the Supreme Court Rules, 1966, govern the procedure for filing an application for review of a judgment. These provisions establish that a review application must be circulated to the same Judge or Bench that delivered the judgment and may be disposed of without oral arguments unless the Court directs otherwise. The scope of such an application is strictly limited to seeking a review of the original order and does not permit a rehearing or reconsideration of the merits. When an application is presented in a disguised form, such as a prayer for clarification, the Court must examine its true nature and substance to determine whether it is a veiled attempt to circumvent the review procedure. The Court in Delhi Administration v. Gurdip Singh Uban and Ors. has held that describing an application as one for clarification or modification does not permit a party to indirectly obtain a hearing if the underlying intent is to seek a review, as the method of approach cannot be used to achieve what cannot be done directly.
(B) Key legal principles include that an application for clarification cannot be used as a surrogate for a review application, the procedure for review is strictly regulated and must follow the circulation process, and the Court must look past the nomenclature of the application to its substance to prevent abuse of process.
Facts of the case:
The respondent, who is in penury and has a pension that is already attached, filed an application seeking clarification of an order directing recovery of amounts due. The appellant-Corporation contended that the application was in substance a review petition and that the respondent was aware of the procedure prohibiting such review under the guise of clarification.
Findings of Court:
The Court found that the application was a disguised attempt to seek review after the opportunity to do so had passed, that it was an abuse of process, and that the relief sought amounted to a rehearing of the original judgment without any apparent error on record.
Issues:
Whether an application filed under the pretext of clarification can be used to indirectly obtain a review of the judgment and whether such an application can be permitted to re-hear the merits of the case.
Ratio Decidendi:
An application that is in substance a review petition but filed under the name of clarification or modification is not maintainable, as the procedure for review is distinct and cannot be bypassed, and the Court must reject such an application to prevent abuse of process.
Result:
The application for clarification was dismissed as being a disguised review petition and an abuse of process.
JUDGMENT
Dr. Arijit Pasayat, J.—By this application, the applicant who was the respondent in the appeal has prayed for clarification of the order dated 2.8.2005 in the concerned Civil Appeal No. 7797 of 2003.
2. It is stated that the applicant (respondent in the civil appeal) is living in penury, has no means to pay back the amount which is sought to the recovered. The pension amount has already being attached and the balance is now being sought to be recovered.
3. Learned counsel for the appellant-Corporation on the other hand submitted that in the guise of application for clarification, review of the judgment is being sought for.
4. By order dated 2nd August, 2005 it was held that the learned Single judge and the Division Bench had erroneously granted the benefits of increment notionally to the applicant during the period when he was out of service.
5. The petition is in essence and substance seeking for a review under the guise of making an application for clarification apparently being fully aware of the normal procedure that such applications for review are not, unless Court directs, listed for open hearing in court, at the initial stage at least, before ordering notice to the other side and could be summarily rejected, if found to be of no prima facie merit. The move adopted itself is unjustified, and could not be countenanced also either by way of review or in the form of the present application as well. The nature of relief sought, and the reasons assigned are such that even under the pretext of filing a review such an exercise cannot be undertaken, virtually for re-hearing and alteration of the judgment because it is not to the liking of the party, when there is no apparent error on record whatsoever to call for even a review. The said move is clearly misconceived and nothing but sheer abuse of process, which of late is found to be on the increase, more for selfish reasons than to further or strengthen the cause of justice. The device thus adopted, being otherwise an impermissible move by mere change in nomenclature of the applications does not change the basic nature of the petition. Wishful thinking virtually based on surmises too, at any rate is no justification to adopt such undesirable practices. If at all it should be for weighty and substantial reasons.
6. It is to be noted that a review application can be filed under Article 137 of the Constitution read with Order XL of the Supreme Court Rules, 1966 (in short the Rules). Rule 3 of Order XL is significant. It reads as follows:-
“Rule 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.”
7. In Delhi Administration v. Gurdip Singh Uban and Ors. (2000 (7) SCC 296), it was held that by describing an application 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. The court should not permit hearing of such an application for “clarification”, “modification” or “recall” if the application is in substance a clever move for review.
8. The application cannot be maintained and is rejected.
Application dismissed.