Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK RVWPET No.220 of 2024 (Arising out of judgment dated 15.05.2024 passed in W.A. No.2265 of 2023 directed against judgment dated 09.08.2023 in W.P.(C) Nos.29187 of 2019 and 18128 of 2009) AND IA No.301 of 2024 In the matter of an Application under Section 5 of the Limitation Act, 1963 for condonation of delay in filing review petition under Section 114 read with Order LXVII, Rule 1 of the Code of Civil Procedure, 1908 Petitioner *** Sri Purusottam Swain. Aged about 51 years, Son of Khetra Mohan Swain, At: Kasigada, PO/Via: Oupada, … District: Balasore. -VERSUS- 1. State of Odisha, Represented through its Commissioner-cum-Secretary to Government, School and Mass Education Department, Secretariat Building, Bhubaneswar, District: Khordha. 2. The Director of Elementary Education, Odisha, Bhubaneswar, District: Khordha. RVWPET No.220 of 2024 Page 1 of 23 3. The District Education Officer, Balasore, At/PO: Balasore, District: Balasore. 4. Managing Committee, Represented through its Secretary, Nanda Kishore High School, Tilada, At: Tilada, PO: Sarugaon, Via: Oupada, District: Balasore. 5. The Headmaster, Nanda Kishore High School, Tilada, At: Tilada, PO: Sarugaon, Via: Oupada, District: Balasore. 6. Gayadhar Nayak, Aged about 60 years, Son of Arjuna Nayak, At: Tilada, P.O.: Sarugaon, Via: Oupada, District: Balasore. … Opposite Parties Counsel appeared for the parties: For the Petitioner : M/s. Bini Mishra, P. Nayak and A. Mishra, Advocates For the Opposite Parties : Mr. Sanjay Rath, Additional Government Advocate P R E S E N T: RVWPET No.220 of 2024 Page 2 of 23
Legal Reasoning
HONOURABLE CHIEF JUSTICE MR. HARISH TANDON AND HONOURABLE JUSTICE MR. MURAHARI SRI RAMAN Date of Hearing : 05.12.2025 :: Date of Judgment : 05.12.2025 JUDGMENT I.A. No.301 of 2024 1. 2. This is an application for condonation of delay of 75 days in preferring the instant review petition beyond the period of limitation. Learned counsel appearing for the opposite parties raised no serious objection to the prayer for condonation of delay in preferring the instant review petition. 3. After perusal of the averments made in the instant application and upon hearing the learned counsel for the parties, we find that explanation offered is satisfactory and constitute sufficient cause which prevented the review petitioner from filing the review petition within period specified. 4. Accordingly, the Interlocutory Application is allowed. The delay in filing the instant review petition is condoned. 5. On the consent of the parties, this Court proceeded to hear the review petition on merit. RVWPET No.220 of 2024 Page 3 of 23 RVWPET No.220 of 2024 6. Review of judgment dated 15th May, 2024 rendered in Writ Appeal No.2265 of 2023 is sought for by the petitioner by way of the present Petition styled as “an application under Section 114 read with Order 47, Rule-1 of the Code of Civil Procedure, 1908”. 7. The Synopsis appended to the writ petition reveals that the review of the aforesaid judgment is sought for on the ground that “some of the important material facts, which has transpired during the pendency of the writ appeal and the same was already available on the record had not been brought to the notice”. 8. Ms. Bini Mishra, learned counsel appearing for the petitioner drew attention of this Court to paragraphs-9.13 and 9.17 of the judgment, which reads as follows: “9.13. The learned Single Judge also has taken note that Gayadhar Nayak, being senior to the appellant, is entitled to the second post (Science Attendant) and thereby the appellant has no right to claim the said post. 9.17. It remained factually undisputed that the appellant was junior to the respondent No.6. It is seen that although the services of the appellant in the post of “Peon” at Nanda Kishore High School, Tilada, were approved on 28.03.2009, the same was later modified by of Schools by appropriately positioning the respondent No.6 by an Inspector the RVWPET No.220 of 2024 Page 4 of 23 Order dated 13.10.2009. Consequently, the services of the respondent No.6 Gayadhar Nayak, Peon was approved as “Science Attendant” and the services of appellant-Purusottam Swain as (Night Watchman-cum-Sweeper) from 01.04.2008.” “Peon” effect with 8.1. It is submitted that unless such finding is interfered with by this Court at this stage, the petitioner would not be given the 2nd post of Peon in Nanda Kishore High School, Tilada. She submitted that unless indulgence is shown by directing the opposite parties “to give an appointment to the present petitioner in the said post”, the petitioner would not be allowed to join the said post, inasmuch as Sri Gayadhar Nayak arraigned as Respondent No.6 in the writ appeal, has retired in the meantime. It is submitted that the retirement of Gayadhar Nayak left the post of second peon vacant to which the petitioner is entitled to being the senior. She submitted that such fact was not brought to the notice at the time of hearing. Therefore, the judgment dated 15th May, 2024 requires revisit and modification. 9. Sri Sanjaya Kumar Rath, learned Additional Government Advocate representing the opposite party nos.1, 2 and 3 submitted that the Review petition is not maintainable as the learned counsel seeks to re-argue the matter on merits. It is emanated from the aforesaid paragraphs, upon which the learned counsel laid much stress, that RVWPET No.220 of 2024 Page 5 of 23 the factual observation made by the learned Single Judge was taken cognizance of by the Division Bench and seemly disposed of the matter without intervening with the judgment of the learned Single Judge. Hence, the judgment does not invite review. 10. Though this Court is not strictly guided by the provisions of the Code of Civil Procedure, 1908 (“CPC”), the principles akin Order XLVII, Rule 1 thereto is ingrained and inhered while invoking such jurisdiction. The parameters concerning Order XLVII of the CPC becomes applicable. The power of review is primarily founded to remove patent error apparent on the record and it is not meant for rehearing, re-visitation and/or rewriting of the judgment. 10.1. In an adversarial system of adjudication, the importance of pleading is inevitable as the other side cannot be put on surprise at the time of argument, when a new point de hors the pleading is taken before the Court. The importance of pleading the facts is imbibed into the adversarial system of jurisdiction to advance the justice oriented approach by providing adequate opportunity to the adversary to meet the same and be not put on surprise at the time of argument. Even while exercising the review jurisdiction, the grounds for review must be explicitly, lucidly and with precision be pleaded. It would invite an anomalous situation if the Court RVWPET No.220 of 2024 Page 6 of 23 permits the parties to argue a point de hors the pleading; in this regard, the importance of pleading assumes a pivotal role in adjudicatory process. The Court should not encourage the argument by making a case at the Bar in absence of any foundation laid in the pleading. 10.2. It is to be remembered that there is a vast distinction between the order suffering from patent error and the order which may be termed as erroneous and/or infirm. In former case, the Court may exercise the review jurisdiction as the error apparent on the face of the record should not be permitted to remain on record; on the other hand, in the latter case, such judgment and order is susceptible to be challenged before the higher forum where the entire issue shall remain writ at large. 10.3. The review can also be made on discovery of a new and important document which despite due diligence was not within the knowledge of the applicant provided such new and important document has a material bearing on the issue so decided. Any fringe material having no material bearing on the decision or may add something into the judgment without disturbing the core fabric of the ultimate decision, may not be permitted to be taken on record as it would simply invite the Court to articulate the judgment with a new get up. RVWPET No.220 of 2024 Page 7 of 23 10.4. Mere discovery of a new and important fact does not absolve the onerous duty cast upon the applicant to satisfy the Court on the concept of due diligence; the duty cast upon the applicant under Order XLVII, Rule 1 of the CPC. It is a fundamental policy of the country that every litigation must attain finality and to achieve such principles not only the Limitation Act, 1963 is promulgated so that the lethargic and dormant litigant should not be allowed to approach the Court after a considerable period of time but various forms of estoppel have also been imbibed within the legal parlance. If no restriction is imposed in pursuing the remedy after a considerable period of time, it would permeate the sense of uncertainty into the citizenry and no litigation would be treated to have been finally decided. Though the review is a statutory remedy, yet circumscribed by the conditions so recognized in order to bring it within the limited compass and to avoid rehearing and/or re-visitation of the case. 10.5. The consideration which needs in this regard is whether the petitioner is able to satisfy by making adequate pleading on its discovery despite due diligence. The review petition does not contain a single averment on the discovery of the fact sought to be placed now could not be traced out despite due diligence. RVWPET No.220 of 2024 Page 8 of 23 10.6. In the case of Malleeswari Vrs. K. Suguna and Another, reported in 2025 INSC 1080, it has been succinctly jotted down the following grounds which come within the ambit of the review: “17. Having noticed the distinction between the power of review and appellate power, we restate the power and scope of review jurisdiction. Review grounds are summed up as follows: 17.1 The ground of discovery of new and important matter or evidence is a ground available if it is demonstrated that, despite the exercise of due diligence, their knowledge or could not be produced by the party at the time, the original decree or order was passed. this evidence was not within 17.2 Mistake or error apparent on the face of the record may be invoked if there is something more than a mere error, and it must be the one which is manifest on the face of the record Hari Vishnu Kamath Vrs. Syed Ahmad Ishaque, (1955) 1 SCR 1104. Such an error is a patent error and not a mere wrong decision T.C. Basappa Vrs. T. Nagappa, AIR 1954 SC 440. An error which has to be established by a long- drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record Vrs. Laxminarayan Satyanarayan Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137. Hegde 17.3 Lastly, the phrase ‘for any other sufficient reason’ means a reason that is sufficient on grounds at least analogous to those specified in the other two RVWPET No.220 of 2024 Page 9 of 23 categories Chhajju Ram Vrs. Neki, 1922 SCC OnLine PC 11 and approved in Moran Mar Basselios Catholicos Vrs. Mar Poulose Athanasius, (1954) 2 SCC 42.” 10.7. In this respect Hon’ble Supreme Court has in the case of Sow Chandra Kante Vrs. Sk. Habib, (1975) 1 SCC 674 observed as follows: “Mr Daphtary, learned counsel for the petitioners, has argued at length all the points which were urged at the earlier stage when we refused special leave thus making out that a review proceeding virtually amounts to a re- hearing. May be, we were not right is refusing special leave in the first round; but, once an order has been passed by this Court, a review thereof must be subject to the rules of the game and cannot be lightly entertained. A review of a Judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition, through different counsel, of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. The very strict need for compliance with these factors is the rationale behind the insistence of counsel’s certificate which should not be a routine affair or a habitual step. It is neither fairness to the Court which decided nor awareness of the precious public time lost what with a huge backlog of dockets waiting in the queue for disposal, for counsel to issue easy certificates for entertainment of review and fight over again the same battle which has been fought and lost. The Bench and the Bar, we are sure, are jointly concerned in the conservation of judicial time for maximum use. We regret to say that this RVWPET No.220 of 2024 Page 10 of 23 case is typical of the unfortunate but frequent phenomenon of repeat performance with the review label as passport. Nothing which we did not hear then has been heard now, except a couple of rulings on points earlier put forward. May be, as counsel now urges and then pressed, our order refusing special leave was capable of a different course. The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality.” 10.8. It, thus, can be gainsaid that under the garb of review, a party cannot be permitted to reopen the case and to gain a full-fledged inning for making submissions, nor review lies merely on the ground that it may be possible for the Court to take a view contrary to what had been taken earlier. This Court is fortified with the view expressed by the Hon’ble Supreme Court in the case of High Court of Madhya Pradesh Vrs. Mahesh Prakash, AIR 1994 SC 2595 = (1995) 1 SCC 203. 10.9. Error apparent on the face of the record is a condition precedent for exercise of review power. Following observation made in the case of Rajender Kumar Vrs. Rambhai, AIR 2003 SC 2095 may be relevant: “*** The limitations on exercise of the power of review are well settled. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached judgment/order cannot be disturbed.” the to RVWPET No.220 of 2024 Page 11 of 23 It is not inept to note that the Supreme Court has cautioned in the very same judgment that “*** for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by “error apparent”. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. ***” 10.10. Regard can be had to Thungabhadra Industries Ltd. Vrs. Government of Andhra Pradesh, (1964) 5 SCR 174 = 1963 INSC 213 = AIR 1964 SC 1372, wherein it is stated thus: “*** The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an ‘error apparent on the face of the record’, for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by ‘error apparent’. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected. but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained RVWPET No.220 of 2024 Page 12 of 23 about it, a clear case of error apparent on the face of the record would be made out. ***” 10.11. The factual errors, if any, as being canvassed arduously by the learned counsel for the petitioner cannot be the basis for exercise of review jurisdiction. The position has been well established. Regard may be had to the following observation made in the case of Asharfi Devi Vrs. State of Uttar Pradesh and others, (2019) 5 SCC 86: “It is settled law that every error whether factual or legal cannot be made subject-matter of review under Order 47 Rule 1 of the Code though it can be made subject-matter of appeal arising out of such order. In other words, in order to attract the provisions of Order 47 Rule 1 of the Code, the error/mistake must be apparent on the face of the record of the case.” 10.12. As the learned counsel for the review petitioner sought to reargue the matter or reagitate the factual matrix, this Court keeping abreast of aforesaid parameters for entertaining review petition repels the contention that the fact, though within the knowledge of the review petitioner, which could not be brought to the notice of this Court at the stage of hearing of writ appeal is required to be considered by recalling the impugned order and rehearing the matter on merit. 11. Another aspect which has relevance in the present context as noticed from the record does require consideration. RVWPET No.220 of 2024 Page 13 of 23 11.1. At the commencement of hearing of the present review petition, the learned counsel appearing for the petitioner in order to meet the query posed by this Court as regards maintainability of review petition being filed by different lawyer than who appeared and participated in the final hearing of writ appeal, she conceded that at the time of hearing of the writ appeal, she was not the conducting counsel. She also submitted that by executing fresh Vakalatnama, the review petitioner has engaged her to plead and argue this Review petition. 11.2. While considering the scope of acceptance of review petition being filed and argued by change of lawyer, the Hon’ble High Court of Patna in Rishi Kesh Kumar Vrs. Minakshi Kumari, 2019 SCC OnLine Pat 587 observed as follows: “11. In the case of Usha International Ltd. (supra)1 while relying upon the earlier Division Bench of this Court in the case of Rotary Club, Begusarai (supra)2 the Hon’ble Division Bench of this Court had occasion to consider the review application which was filed by a change of lawyer. The Hon’ble Division Bench reiterated its views expressed in Rotary Club, Begusarai (supra) as under: ‘*** Recourse to review by change of lawyers is normally deprecated by Courts. The practice becomes all the more reprehensible when review is 1 2 Usha International Ltd. Vrs. The Commissioner of Commercial Taxes, Bihar, 2019 (1) PLJR 872. Rotary Club, Begusarai Vrs. State of Bihar, AIR 2001 Patna 115. RVWPET No.220 of 2024 Page 14 of 23 sought on grounds pertaining to the previous conduct of the case or other grounds of fact normally within the knowledge of the previous lawyer(s). To my mind a lawyer must be very reluctant to take up a brief of review unless he had appeared in the case, the order passed in which is the subject of review. In case for some reasons a change of lawyer is unavoidable, the newly engaged lawyer would owe it to himself and to the profession to have the statement of facts duly verified by the lawyer earlier conducting the case. In case a review is filed by a new lawyer a certificate ought to be appended to the review petition, preferably by the previous counsel, stating that the facts stated in the petition were correct or alternatively by the newly engaged lawyer testifying that he had got the facts stated in the review petition verified by the previous lawyer. ***’ 12. In the review application what is important to be seen is that if an error has occurred because of mistake of the Court or for any other reason which is likely to cause injustice to a party, the same is required to be corrected. 13. This Court is of the considered opinion that this review application by a change of lawyer is liable to be rejected in view of the Division Bench judgment of this Court in the case of Usha International (Supra). After following the basic principle of review, this Court is of the considered opinion that in the nature of the present proceeding no injustice has been caused to the present petitioner by directing transfer of the records of the matrimonial case from the court at Patna to RVWPET No.220 of 2024 Page 15 of 23 if he in the matter, the court at Muzaffarpur where the maintenance case is also pending. The only ground on merit for review of the order passed by this Court is that the petitioner is presently posted at Mumbai and while it will be convenient for him to visit Patna on the date is required to go fixed Muzaffarpur he will be required to take one more day of leave. It is to be remembered that the petitioner has filed the application for restitution of conjugal rights, if it is the ultimate intention of petitioner to restore the relationship, the kind of plea which has been now sought to be raised in the review application to avoid visiting Muzaffarpur cannot be taken as a bona fide plea. The kind of hardship being faced by the wife of the petitioner has already been taken note of hereinabove.” 11.3. In the case of Tamil Nadu Electricity Board Vrs. N. Raju Reddiar, (1997) 9 SCC 736, it has been laid down by the Hon’ble Supreme Court of India as follows: “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, 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 24.04.1996. 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 RVWPET No.220 of 2024 Page 16 of 23 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 the healthy practice of responsibility to maintain the salutary practice of profession. the Bar which has 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, had held as under: the Advocate-on-Record when ‘The record of the appeal indicates that Shri Sudarsh Menon was 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 review. It would not be in the interest of the profession to permit such practice. That apart, he has not obtained ‘No Objection Certificate’ from the Advocate-on- RVWPET No.220 of 2024 Page 17 of 23 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.
Decision
On these grounds, we dismiss the review petition.’ 2. Once the petition for review is dismissed, no application for clarification should be filed, much less with the change of the Advocate-on-Record. This practice of changing the advocates and filing repeated petitions should be deprecated with a heavy hand for purity of administration of law and salutary and healthy practice. 3. The application is dismissed with exemplary costs of Rs.20,000/- as it is an abuse of the process of court in derogation of healthy practice. The amount should be paid to the Supreme Court Legal Aid Services Committee within four months from today. If the amount is not paid, it should be recovered treating this direction as decree of the Court by the Supreme Court Legal Services Committee. The Registry is directed to communicate this order to the Supreme Court Legal Services Committee.” 11.4. The decision of the Hon’ble Supreme Court of India in the case of M. Poornachandran Vrs. State of Tamil Nadu, (1996) 6 SCC 755 held that, RVWPET No.220 of 2024 Page 18 of 23 “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 review. It would be not in the interest of the profession to permit such practice. That apart, 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 re-argue the matter.” 11.5. This Court in Governing Body of Ispat College Vrs. State of Odisha, 2011 (I) ILR-CUT 307 = 113 (2012) CLT 657 after referring to N. Raju Reddiar (supra) observed as follows: “5. A similar question came up for consideration before the Allahabad High Court in the case of Mohan Lal Bagla Vrs. Board of Revenue, U.P., Lucknow and others, AIR 2005 All 308, wherein the Hon’ble Court while referring to the observations of the Apex Court RVWPET No.220 of 2024 Page 19 of 23 in Tamil Nadu Electricity Board (supra)3, proceeded to hold as under: ‘5. to *** The review petition appears to have been filed by new counsel mainly on the ground that some letters written by Mohan Lal Bagla to the Deputy Collector, Sales Tax and the Commissioner have not been taken note and bid sheet has not been considered by this Court in respect to which suffice it to say that it cannot be said by Sri Singh, who is new counsel for the purpose of arguing review petition that whether the aforesaid letters were referred in the argument and they were relied by the then counsel and whether any effort was made by lay emphasis on those documents as they have any relevance in the matter in issue and thus the question touching with the proceedings of the Court and discussion during course of argument by a new counsel who was neither arguing counsel nor assisting counsel at the initial stage, cannot be permitted. To argue some details as a question of fact in second inning of the matter cannot be permitted. ***’ learned advocate to *** 7. Coming to the question as to whether a plea which has not been taken or raised at the time of hearing of the original Writ Petition can be allowed to be raised while seeking review of the order passed in the said Writ Petition, it is now fairly well settled that if a Counsel has not raised a point or taken a 3 Tamil Nadu Electricity Board Vrs. N. Raju Reddiar, (1997) 9 SCC 736. RVWPET No.220 of 2024 Page 20 of 23 in the original proceeding, review plea is not maintainable, for the simple reason that such a mistake would not be apparent on the face of the record. Moreover, the expression “discovery of new and important matter of evidence” contained in the provisions of Order XLVII Rule 1 CPC means, discovery of an evidence or any material; which could not be produced at the initial stage, in spite of due diligence. The said expression cannot be expanded to take within its ambit an argument which could have been advanced by the Counsel, at the time of hearing of the original proceeding. ***