Review scope Patna High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL REVIEW NO.153 OF 2015
IN
CIVIL WRIT JURISDICTION CASE NO. 19862 OF 2010
WITH
CIVIL REVIEW NO. 154 OF 2015
IN
CIVIL WRIT JURISDICTION CASE NO. 21447 OF 2011
WITH
CIVIL REVIEW NO. 155 OF 2015
IN
CIVIL WRIT JURISDICTION CASE NO. 10185 OF 2010
WITH
CIVIL REVIEW NO. 156 OF 2015
IN
CIVIL WRIT JURISDICTION CASE NO. 10525 OF 2012
WITH
CIVIL REVIEW NO. 157 OF 2015
IN
CIVIL WRIT JURISDICTION CASE NO. 5831 OF 2012
===========================================================
THE HIGH COURT OF JUDICATURE AT PATNA THROUGH THE
REGISTRAR GENERAL
…. …. PETITIONER (IN CIVIL REVIEW NO. 153 OF 2015)
VERSUS
SRI K. K. CHAUBEY, SON OF SHRI PADMA NARAIN CHAUBEY,
RESIDENT OF HOUSE NO. 272, PATLIPUTRA COLONY, PATNA
…. …. RESPONDENT (IN CIVIL REVIEW NO. 153 OF 2015)
WITH
1. THE HONBLE PATNA HIGH COURT OF JUDICATURE AT PATNA
THROUGH THE REGISTRAR GENERAL PATNA HIGH COURT
2. THE REGISTRAR GENERAL, HON’BLE PATNA HIGH COURT OF
JUDICATURE AT PATNA
…. …. PETITIONERS (IN CIVIL REVIEW NO. 154 OF 2015)
VERSUS
1. YOGENDRA PRASAD AZAD, SON OF LATE RAMAVATAR
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 2
SWARNKAR @ RAMAVATAR PRASAD KHATRI, CHAMBER NO. 65,
BIHAR STATE BAR COUNCIL BHAWAN, PATNA HIGH COURT,
PATNA -800001, RESIDENT OF MOGALPURA PURANI CHOWKI,
PATNA CITY, PATNA-800008, POLICE STATION KHAJEKALAN,
DISTRICT PATNA
2. GIRIJA NANDAN PRASAD AZAD, SON OF LATE RAM AUTAR
PRASAD SWARNKAR @ RAM AUTAR PRASAD KHATRI, RESIDENT
OF RAM AUTAR PRASAD KHATRI PATH, GURHATTA, PATNA CITY-
800008, POLICE STATION KHAJEKALAN, DISTRICT PATNA
…. …. RESPONDENTS (IN CIVIL REVIEW NO. 154 OF 2015)
WITH
1. THE HONBLE PATNA HIGH COURT OF JUDICATURE AT PATNA
THROUGH THE REGISTRAR GENERAL PATNA HIGH COURT
2. THE REGISTRAR GENERAL, HON’BLE PATNA HIGH COURT OF
JUDICATURE AT PATNA
…. …. PETITIONERS (IN CIVIL REVIEW NO. 155 OF 2015)
VERSUS
CHAKRAPANI, SON OF S. S. SHARMA, CHAMBER NO. 137, BIHAR BAR
COUNCIL BHAWAN, PATNA HIGH COURT, PATNA, RESIDENT OF
SAKET, EAST B.S.I.D.C. COLONY, POLICE STATION S. K. PURI, DISTRICT
PATNA
…. …. RESPONDENT (IN CIVIL REVIEW NO. 155 OF 2015)
WITH
THE HIGH COURT OF JUDICATURE AT PATNA (THROUGH THE
REGISTRAR GENERAL ), BIHAR, PATNA
…. …. PETITIONER (IN CIVIL REVIEW NO. 156 OF 2015)
VERSUS
RAKESH KUMAR, SON OF SHRI JAGESHWAR PRASAD YADAV,
RESIDENT OF VILLAGE KASAHA, POST OFFICE SIMARIYA GHAT,
DISTRICT BEGUSARAI, STATE BIHAR, PIN CODE 851126
…. …. RESPONDENT (IN CIVIL REVIEW NO. 156OF 2015)
WITH
1. THE HONBLE PATNA HIGH COURT OF JUDICATURE AT PATNA
THROUGH THE REGISTRAR GENERAL PATNA HIGH COURT
2. THE REGISTRAR GENERAL, HON’BLE PATNA HIGH COURT OF
JUDICATURE AT PATNA
…. …. PETITIONERS (IN CIVIL REVIEW NO. 157 OF 2015)
VERSUS
ANJU MISHRA, DAUGHTER OF S. N. MISHRA, ADVOCATE, MEMBER OF
ADVOCATES ASSOCIATION, PATNA HIGH COAURT, RESIDENT OF
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 3
MAHABIR COLONY, ANISHABAD, BEUR, PATNA-2
…. …. RESPONDENT (IN CIVIL REVIEW NO. 157 OF 2015)
===========================================================
Appearance :
(In C. REV. No. 153 of 2015)
For the Petitioner/s : Mr. Bindhyachal Singh
For the Respondent/s : Mr. K. K. Choubey (in person)
(In C. REV. No. 154 of 2015)
For the Petitioner/s : Mr. Bindhyachal Singh
For the Respondent/s : Mr. Dr. Kumar Amitesh Chandra, Advocate
Mr. Yogendra Prasad Azad (in person)
(In C. REV. No. 155 of 2015)
For the Petitioner/s : Mr. Bindhyachal Singh
For the Respondent/s : Mr. Chakrapani (in person)
(In C. REV. No. 156 of 2015)
For the Petitioner/s : Mr. Bindhyachal Singh
For the Respondent/s : Mr. Rakesh Kumar (in person)
(In C. REV. No. 157 of 2015)
For the Petitioner/s : Mr. Bindhyachal Singh
For the Respondent/s : Ms. Anju Mishra (in person)
===========================================================
CORAM: HONOURABLE THE ACTING CHIEF JUSTICE
AND
HONOURABLE MR. JUSTICE SHIVAJI PANDEY
AND
HONOURABLE MR. JUSTICE SUDHIR SINGH
CAV JUDGMENT
(Per: HONOURABLE THE ACTING CHIEF JUSTICE)
Date: 30-09-2015
TO err is human. Being human beings, Judges may
also commit error. Having recognized this basic human
weakness, law provides for review. No wonder, therefore, that
Justice Robert Jackson remarked, in Brown v. Allan (1953)
344 US 443 at 540, “We are not final, because we are
infallible; we are infallible only because we are final”.
2. When a relevant statutory provision or a relevant
Constitutional provision escapes the attention of a Judge,
while deciding an issue or a lis, or when a Judge, while relying
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 4
on a binding precedent, fails to notice some relevant
observations made in the same very judicial precedent, which
the Judge is relying upon, or when a Judge, while interfering
with a statutory provision, fails to notice some other relevant
or inseverable provisions, causing thereby confusion or
miscarriage of justice, is a review legally permissible? The
present set of review petitions seeks answer to these crucial
questions.
3. Consequently, it is not uncommon for a Court to be
invited to decide if its order, decision or judgment suffers from
any such error, which calls for review of the order, decision or
judgment, as the case may be. If, therefore, any review
petition is made, the Court shall consider the review petition
gracefully and with open mind so that no miscarriage of
justice is caused.
4. Appropriate, therefore, it is, in our considered
view, that the broad parameters and power of review are
clearly spelled out by us before any order on the present set
of review petitions is made.
5. How the question of review in the present set of
review petitions has come to be raised takes us to the
background facts leading to the making of these review
petitions. The material facts and various stages, which have
led to the present set of review petitions, are, therefore, set
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 5
out, in brief, as follows:-
6. In exercise of powers conferred on the High
Court by Section 34 of the Advocates Act, 1961 (for short, „the
Act‟), “Registration of Advocates as Advocates-on-Record of
the Patna High Court Rules” were framed under heading “D”
of Chapter-XXIV of the Patna High Court Rules, 1916. The
Registration of Advocates as Advocates-on-Record of the
Patna High Court Rules (hereinafter referred to as “the
Rules”), came into force with effect from 10.12.2009.
7. Under Rule 3A of the Rules, „Advocate-onRecord‟
means those advocates, who intend to act „in addition
to plead‟ and, by virtue of Rule 5 of the Rules, an advocate
has been disentitled to register himself in the register of
Advocates-on-Record unless he (i) has an office in the city of
Patna, (ii) has a registered clerk working with him exclusively
or with other advocates collectively; and (iii) has been
recommended, in writing, by, at least, one Senior Advocate.
Rule 4 puts an embargo on the right of a litigant to engage an
advocate to act in connection with any litigation, whether
pending or to be instituted, in the High Court, as his or her
Advocate-on-Record, unless the advocate is registered as an
Advocate-on-Record (for short, A.O.R.).
8. With the help of writ petitions made, as many as
five in number, under Article 226 of the Constitution of India,
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 6
the Rules were put to challenge by some petitioners, who are
registered as advocates by the Bihar State Bar Council, the
principal contention of the writ petitioners being that the Rules
are in violation of Articles 14 and 19(1)(g) of the Constitution
of India, Section 30 of the Act and ultra vires the powers
conferred upon the High Court under Section 34 of the Act.
These writ petitions gave rise to C.W.J.C. Nos. 5831/2012,
10525/2012, 21447/2011, 10185/2010 and 19862/2010.
9. By a common judgment and order, dated
17.07.2015, the writ petitions have been partly allowed in the
following terms:-
“(a) The High Court does have the
power to frame Rules under Section 34 of the
Act, but in such a manner that the right to
practise is not taken away.
(b) The Rules that can be framed
under Section 34 of the Act are to be in
relation to the manner in which the pleadings
must be drafted, the advocates must be
dressed, the manner in which they shall
conduct themselves in the Court and the
manner in which an advocate can practise in
the High Court.
(c) The right of an advocate to
practise based on his enrolment with the Bar
Council and Section 30 of the Act cannot be
taken away in the name of Regulation.
(d) Rules 4, 5, 6, 7(vi) (a) of the
Rules framed by the Patna High Court do not
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 7
satisfy the test of law and are in conflict with
Article 19 (1) (g) of the Constitution of India
and Section 30 of the Act, apart from being
unreasonable, oppressive and discriminatory
and are accordingly set aside.
(e) The minimum marks to be
secured by an advocate in examination for
Advocate on Record shall stand modified to
50% in the aggregate and 40% in each
subject.
(f) It is left open to the High Court
to frame the said Rules, afresh.”
10. By means of these review petitions, the High
Court seeks review of the judgment and order, dated
17.07.2015, aforementioned.
11. We have heard Mr. Bindhyachal Singh, learned
Counsel, appearing on behalf of the review petitioners and Mr.
(Dr.) Kumar Amitesh Chandra, learned Counsel, appearing on
behalf of the respondents in Civil Review No. 154 of 2015. We
have also heard Mr. K. K. Chaubey (Civil Review No.
153/2015), Mr. Yogendra Prasad Azad (Civil Review No.
154/2015), Mr. Chakrapani (Civil Review No. 155/2015), Mr.
Rakesh Kumar (Civil Review No. 156/2015) and Ms. Anju
Mishra (Civil Review No. 157/2015), appearing, in person, as
respondents, in the review petitions, aforementioned.
12. Before we enter into the question as to whether
the judgment and order, under review, call for review,
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 8
apposite it is, in our considered view, to bear in mind, that the
scope of review, which has undergone, as the days have rolled
by, some significant changes inasmuch as there was a time,
when it was considered impermissible to review a judgment
and order unless a statute provides therefor; but, the Courts,
with the passage of time, have concluded that justice is, after
all, a virtue, which must prevail over all barriers and that the
rules, procedures or technicalities of law must, if necessary,
bend before justice and that such a situation may arise, when
a court finds that it has rendered a decision, which it would
not have rendered, but for an assumption of fact, which, in
fact, did not exist and its adherence to such a faulty decision
would result in miscarriage of justice. In such cases, nothing
can prevent a court from rectifying its own error, because the
doctrine of “actus curiae neminem gravabit”, (i.e., an act of
court shall prejudice none), can be invoked, in such a case,
for correcting the error committed by the court.
13. Similarly, at one point of time, it was
considered to be a rule of universal application that review by
a court of its order is not possible except on three prescribed
grounds, namely, (i) discovery of new and important matter
or evidence, which, after the exercise of due diligence, was
not within the applicant’s knowledge or could not be produced
by him at the time, when the decree or order was passed, (ii)
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 9
mistake or error apparent on the face of the record or (iii) any
such sufficient ground, which is analogous to the two grounds
aforementioned. However, it has, now, surfaced in the light of
the judicial pronouncements, that the expression, „any
sufficient ground‟, must be analogous to the two grounds
aforementioned, is no longer a rule of universal application.
14. A review of a judgment and order is
permissible, where a glaring omission or patent mistake or
grave error has crept in, because of judicial fallibility.
15. This Court must remain mindful of the basic
principle of review that a review is not a rehearing of a matter
on merits and cannot be lightly entertained by the Court.
Observed the Supreme Court, in Sow Chandra Kanta v. Sk.
Habib, reported in (1975) 1 SCC 674,
“A review of a judgment is a
cerious 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 be a routine affair or a habitual
step.”
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 10
16. Yet another principle of review is that the
power of review has to be exercised to prevent miscarriage of
justice or correct grave and palpable error. Laid down the
Supreme Court, in Aribam Tuleshwar Sharma v. Aibam
Pishak Sharma, reported in (1979) 4 SCC 389, following its
earlier decision in the case of Shivdeo Singh v. State of
Punjab (AIR 1963 SC 1009) as follows:
“There is nothing in Article 226 of
the Constitution to preclude a High Court
from exercising the power of review which
inheres in every court of plenary jurisdiction
to prevent miscarriage of justice or to correct
grave and palpable errors committed by it.
But, there are definitive limits to the exercise
of the power of review. The power of review
may be exercised on the discovery of new
and important matter or evidence which, after
the exercise of due diligence was not within
the knowledge of the person seeking the
review or could not be produced by him at
the time when the order was made; it may be
exercised where some mistake or error
apparent on the face of the record is found; it
may also be exercised on the ground that the
decision was erroneous on merits. That would
be the province of a court of appeal. A power
of review is not to be confused with appellate
powers, which may enable an appellate court
to correct all manner of errors committed by
the subordinate court.”
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 11
(Emphasis is supplied)
17. From the underlined portion, it becomes
transparent that while an appellate Court is empowered to
correct all matters of error committed by the subordinate
court, review can be allowed on limited grounds and that the
review cannot be sought for, much less allowed, on the
ground that the decision was erroneous on merits inasmuch as
such an aspect would be exclusively within the province of
appellate court. Dealing with this aspect of review jurisdiction,
the Supreme Court, in Northern India Caterers (India)
Ltd. v. Lt. Governor of Delhi (AIR 1980 SC 674),
observed, thus:
“Whatever be the nature of the
proceeding, it is beyond dispute that a review
proceeding cannot be equated with the
original hearing of the case and the finality of
the judgment delivered by the Court will not
be reconsidered except where a glaring
omission or patent mistake or like grave
error has crept in earlier by judicial
fallibility.”
(Emphasis is added)
18. It must be, however, kept in mind that the
above observations were made by the Supreme Court, while
considering the scope of Article 137 of the Constitution read
with Order 47 Rule 1 CPC and Order XL Rule 1 of the Supreme
Court Rules, and held, in Northern India Caterers (India)
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 12
Ltd.(supra), as follows:
“It is well settled that a party
is not entitled to seek a review of a
judgment merely for the purpose of a
rehearing and a fresh decision of the
case. The general principle is that a
judgment pronounced by a court is final
and departure from this principle is
justified only when circumstances of a
substantial and compelling character
make it necessary to do so”.
19. For instance, if the attention of the Court was
not drawn to a material statutory provision during the original
hearing, the Court will review its judgment. (See, Girdhari
Lal Gupta v. D. H. Mehta and Another (AIR 1971 SC
2162). The Court may also reopen its judgment if a manifest
wrong has been done and it is necessary to pass an order to
do full and effective justice. (See, O.N. Mohindroo v. The
District Judge, Delhi and Another (AIR 1971 SC 107)
and Northern India Caterers (India) Ltd. (supra).
20. It follows, therefore, that the power of review
can be exercised for correction of a mistake, but not to
substitute a view. Such powers can be exercised within the
limits of the statute dealing with the exercise of power. A
review cannot be treated as an appeal in disguise. The mere
possibility of two views on the subject is not a ground for
review. Once a review petition is dismissed, no further petition
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 13
for review can be entertained.
21. While considering the scope of the power of
review, what needs to be noted is that under Section 114 of
the Code, any person, considering himself aggrieved by a
decree or order of a court from which appeal is allowed, but
no appeal is preferred, or where there is no provision for
appeal against the order or decree, may apply for review of
the decree or order, as the case may be, in the court, which
made the order or passed the decree.
22. Broadly speaking, thus, under Section 114 of
the Code, review of a decree or order is possible if no appeal
is provided against such a decree or order or where provisions
for appeal exist, but no appeal has been preferred. This is
really the substantive power of review. This substantive power
of review under Section 114 has not laid down any condition
as a condition precedent for exercise of the power of review
nor has Section 114 imposed any fetters on the court’s power
to review its decision. No wonder, therefore, that the Supreme
Court, in Board of Control for Cricket, India and Another
v. Netaji Cricket Club and Others (AIR 2005 SC 592),
observed:
“We are, furthermore, of the
opinion that the jurisdiction of the High Court
in entertaining a review application cannot be
said to be ex facie bad in law. Section 114 of
the Code empowers a court to review its
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 14
order if the conditions precedents 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.”
(Emphasis is added)
23. Lest the subtle but real distinction existing
between the power of review, on the one hand, and the power
of an appellate court, on the other, disappears completely,
Order 47, Rule 1 circumscribes a court’s power of review by
specifying the three grounds on which review is possible, the
specific grounds being, (i) discovery of new and important
matter or evidence, which, after the exercise of due diligence,
was not within the applicant’s knowledge or could not be
produced by him at the time, when the decree or order was
passed, (ii) mistake or error apparent on the face of the
record and (iii) for “any other sufficient reason”.
24. Having taken into account the said three
grounds, which Order 47, Rule 1 embodies as the grounds for
review, the Supreme Court, in Moran Mar Basselios
Cathlicos v. Mar Poulose Athanasius (AIR 1954 SC 526),
held that power of review is circumscribed by the three
grounds, which have been specified in Order 47, Rule 1.
25. Explaining the scope of the third ground of
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 15
review mentioned in Order 47, Rule 1, namely, “any other
sufficient reason”, the Supreme Court, in Moran Mar
Basselios Cathlicos (supra), held that “any other sufficient
reason” cannot be “any sufficient reason”, but a reason, which
is “sufficient” and, at the same time, at least, “analogous” to
one of the two reasons as indicated hereinbefore, namely, (i)
discovery of new and important matter or evidence, which,
after the exercise of due diligence, was not within the
applicant’s knowledge or could not be produced by him at the
time, when the decree or order was passed and (ii) mistake or
error apparent on the face of the record.
26. In short, thus, what Moran Mar Basselios
Cathlicos (supra) laid down was that the expression, “any
other sufficient reason”, cannot be construed as “any
sufficient reason” and that “any sufficient reason” cannot
become a ground for review unless even such “sufficient
reason” is “analogous” to one of the other two grounds
mentioned in Order 47, Rule 1, namely, (i) discovery of new
and important matter or evidence, which, after the exercise of
due diligence, was not within the applicant’s knowledge or
could not be produced by him at the time, when the decree
was passed or (ii) mistake or error apparent on the face of the
record.
27. Board of Control for Cricket, India (supra)
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 16
is one of those cases, which has elaborately dealt with the
scope of the power of review, particularly, of the High Courts
and, having considered the case of Moran Mar Basselios
Cathlicos (supra), the Supreme Court has clarified, in no
uncertain words, in Board of Control for Cricket, India
(supra), that the rule that “any other sufficient ground” must
be “analogous” to the other two grounds, as mentioned in
Order 47, Rule 1, “is not a rule of universal application”. The
relevant observations, made, at paragraph 91, in Board of
Control for Cricket, India (supra), in this regard, read:
“91. It is true that in Moran Mar
Basselios Cathlicos v. Most Rev. Mar Poulose
Athanasius, MANU/SC/0003/ 1954 : [1955] 1
SCR 520, this court made observations as regards
limitations in the application of review of its
order stating: Before going into the merits of the
case it is as well to bear in mind the scope of the
application for review which has given rise to the
present appeal. It is needles to emphasise that the
scope of an application for review is much more
restricted than that of an appeal. Under the
provisions in the Travancore Code of Civil procedure
which is similar in terms of Order 47, Rule 1 of our
Code of Civil Procedure, 1908, the court of review
has only a limited jurisdiction circumscribed by the
definitive limits fixed by the language used therein.
It may allow a review on three specified grounds,
namely (i) discovery of new and important matter
or evidence which, after the exercise of due
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 17
diligence, was not within the applicant’s knowledge
or could not be produced by him at the time when
the decree was passed, (ii) mistake or error
apparent on the face of the record, and (iii) for any
other sufficient reason. It has been held by the
Judicial Committee that the words “any other
sufficient reason” must mean “a reason
sufficient on grounds, at least analogous to
those specified in the rule”, but the said rule
is not universal.
(Emphasis is supplied)
28. We may pause here to point out that when a
judgment of the Supreme Court is explained by a subsequent
Bench of the Supreme Court, such an explanation of its own
judgment by the Supreme Court carries the same authority as
does the decision, which has been explained by it. Hence, in
the face of the decision, rendered in Board of Control for
Cricket, India (supra), it cannot be contended that no
ground, other than the grounds mentioned in Moran Mar
Basselios Cathlicos (supra), can ever become a ground for
review of an order or decision by a High Court.
29. In fact, there is plethora of judicial
pronouncements of the Supreme Court, which shows that
there can be exceptional cases, where a deviation from the
grounds of review, as propounded in Moran Mar Basselios
Cathlicos (supra), is possible and one of such cases is the
case of Lily Thomas v. Union of India, reported in (2000)
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 18
6 SCC 224 : 2000 CriLJ 2433, wherein, having taken into
account the facts that (a) the power of review is a creation of
statute and not an inherent power, that (b) no power of
review can be exercised if not given to a court or Tribunal
either specifically or by necessary implication; and that (c)
under the guise of review jurisdiction, merit of a decision
cannot really be examined, the Supreme Court has, in
unequivocal terms, pointed out that justice is, after all, a
virtue, which must prevail over all barriers and that the rules,
procedures or technicalities of law must, if necessary, bend
before justice and that such a situation may arise, when a
court finds that it has rendered a decision, which it would not
have rendered, but for an assumption of fact, which, in fact,
did not exist and its adherence to such a faulty decision would
result in miscarriage of justice. In such cases, rules Lily
Thomas (supra), nothing can prevent a court from rectifying
its own error, because the doctrine of “actus curiae neminem
gravabit”, (i.e., an act of court shall prejudice none), can be
invoked, in such a case, for correcting the error committed by
the court.
30. The real theme of the Supreme Court’s
decision, in Lily Thomas (supra), is that though the power of
review cannot be exercised by a court unless the statute
confers such a power and that a statutory power of review can
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 19
be exercised subject to such limitations as the statute may
impose, yet a court is not powerless, in an appropriate and
exceptional case, to rectify its error, because “an act of court
shall prejudice none” and, hence, in exceptional cases, a court
can invoke the doctrine of “actus curiae neminem gravabit” for
correcting an error committed by it.
31. In fact, from the decision in Municipal Board,
Pratabgarh v. Mahendra Singh Chawla, reported in
(1982) 3 SCC 331: AIR 1982 SC 1493 , what clearly
emerges is that when a High Court acknowledges its error and
rectifies its error, which has crept in, what the High Court
really does is restore the rule of law and not defeat it. Points
out the Supreme Court, in Municipal Board, Pratabgarh
(supra), that laws cannot be interpreted and enforced
divorced from their effect on human beings for whom the laws
are meant. Further observed the Supreme Court, in
Municipal Board, Pratabgarh (supra), on this aspect of law,
thus,
“…. Undoubtedly, rule of law must
prevail but as is often said, ‘rule of law must
run akin to rule of life. And life of law is not
logic but experience’. By pointing out the
error, which according to us crept into
the High Court’s judgment, the legal
position is restored and the rule of law
has been ensured its pristine glory…”.
(Emphasis is added)
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 20
32. The law, on the subject of review, may, in the
light of the discussions held, as a whole, be summarized thus:
(i) Ordinarily, a court or a tribunal cannot review
its order or decision if the statute does not confer on the court
or the tribunal, as the case may be, the power to review its
own order. This apart, whatever limitations are imposed by a
statute, while conferring the power of review on a court or a
tribunal, the court or the tribunal, as the case may be, must
adhere to the limitations, which the relevant statute may
impose on the exercise of such power. Section 114 CPC, which
embodies the substantive power of review of a civil court,
does not impose any limitations on the court’s power to
review its order or decision; yet the power of review even by a
civil court cannot be unguided and uncanalised, for, Order 47,
Rule 1 circumscribes the court’s power of review.
(ii) Though, at one point of time, it was considered
to be a rule of universal application that review by a court of
its order is not possible except on three prescribed grounds,
namely, (i) discovery of new and important matter or
evidence, which, after the exercise of due diligence, was not
within the applicant’s knowledge or could not be produced by
him at the time, when the decree or order was passed and (ii)
mistake or error apparent on the face of the record or (iii) any
such sufficient ground, which is analogous to the two grounds
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 21
aforementioned, the subsequent development of law, on the
subject of review, has shown that the grounds referred to,
namely, that any sufficient ground must be analogous to the
two sufficient grounds aforementioned is no longer a rule of
universal application.
(iii) One of the cases, which has helped in the
expansion of the court’s power to review its order is the case
of Lily Thomas (supra) inasmuch as Lily Thomas (supra)
ruled that ordinarily, the power of review, being a creature of
statute, cannot be exercised as an inherent power, yet such
technicalities of law may have to be bent, in an appropriate
cases, for the purpose of correcting an order committed by
the court if such an error arises out of a presumption of fact,
which was nonexistent, and when the court finds that its
refusal to review its own error would cause, or has caused,
grave miscarriage of justice.
(iv) It is essentially the principle behind the
doctrine of “actus curiae neminem gravabit”, which has made
the court hold, in Municipal Board, Pratabgarh (supra),
that when a court corrects and rectifies an error, it restores
the rule of law and not defeat it. Even Rajesh D. Darbar v.
Narasingrao Krishnaji Kulkarni, reported in (2003) 7 SCC
219, recognises that in an exceptional case, a court may have
to review its order by invoking the doctrine of “actus curiae
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 22
neminem gravabit”.
33. It is in the backdrop of the above developments
of law on the scope of review, that these review petitions need
to be, now, dealt with and decided.
34. Appearing on behalf of the review petitioners,
Mr. Bindhyachal Singh, learned Counsel, has drawn our
attention to some parts of the judgment and order, under
review, contending, inter alia, that this Court fell in error in
omitting to notice the ambit of Section 30 vis-à-vis Section 34
of the Act, the High Court‟s power to regulate or restrict, in
certain manner and in some respects, an advocate‟s right to
practice in the High Court.
35. Describing the errors „as errors apparent on the
face of the record‟, Mr. Bindhyachal Singh, learned Counsel,
submits that the review petitioner, have been able to make
out a case for review of the judgment and order, under
review.
36. Though a faint attempt was made, by and on
behalf of the respondents in the review petitions, particularly,
by Mr. Chakrapani, who has appeared, in person, as the writ
petitioner, to resist the review petitions, at its threshold, on
the ground that the judgment and order under review suffer
from no error, far less an error apparent on the face of the
record, and that the review petitions are, in effect, appeals in
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 23
disguise and call for correction of the judgment and order,
which is impermissible in law.
37. We must record, in fairness to the respondents
and the learned Counsel for the respondents appearing in the
review petitions, that at a later stage, the review petitions
have not been resisted on the ground that no error apparent
on the face of the record could be pointed out by the review
petitioners; rather, what has been contended, by and on
behalf of the respondents in the review petitions, is that the
Rules are bad in law being violative of Articles 14 and
19(1)(g) of the Constitution of India and Sections 30 and 34
of the Act and the impugned Rules cannot be sustained.
38. The argument, so advanced, necessarily and,
admittedly, relates to, as fairly acknowledged by, and on
behalf of, even the respondents in the review petitions, merit
of the writ petitions and not to the errors, which have been
pointed out by the review petitioners as errors apparent on
the face of the record.
39. Situated thus, it becomes clear that the
respondents, in the review petitions, did not object to the
determination afresh of the merit of the writ petitions.
40. Notwithstanding, however, the fact that even
the respondents, in the review petitions, agreed to make
submissions and did make some submissions on the merit of
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 24
the writ petitions, we deem it appropriate to broadly deal with
some of the salient features of the review petitions in order to
determine if a case calling for review of the judgment and
order, dated 17.07.2015, aforementioned, has or has not
been made out.
41. For the purpose of having clarity, we may, at
the very outset, point out that the judgment and order, under
review, holds, in effect, at page 16 and 17, that when a Court
makes observations dismissing a writ petition, the
observations made therein, with regard to the position of law
determined therein, cannot be treated as an authoritative
pronouncement of law.
42. With regard to the above, it is pointed out by
Mr. Bindhyachal Singh, learned Counsel, that the position of
law, so recorded in the judgment and order, under review, is
an error apparent on the face of the record inasmuch as a
Court may have to record the correct position of law even in
order to dismiss a writ petition so that the parties and the
people know as to what is the correct position of law and why
the writ petition has been dismissed and, therefore, the
position of law determined in a judgment and order, while
dismissing a writ petition, will not denude the judgment and
order of its authority as a judicial precedence if the judgment
and order, otherwise, carry the authority as a judicial
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 25
precedent.
43. While dealing with the error so pointed out, we
find that it has, indeed, been observed by the learned Chief
Justice, at page 17, speaking for the Court, that the
observations, made by the Division Bench, in Prayag Das Vs.
Civil Judge, Bulandshahar and Others (AIR 1974 All
133), cannot be treated as an authoritative pronouncement
on the subject, more so, when they were made, while
dismissing the writ petition and when the effected parties
were not before it.
44. We are of the view that the observations so
appearing in the judgment and order, under review, do not
correctly lay down the position of law inasmuch as a Court,
even while disallowing an application, appeal or revision, may
have to discuss the law and, on the basis of position of law as
may be concluded or dismissed, such an application, appeal or
revision may have to be dismissed.
45. Not necessary, therefore, it is that a
pronouncement of law, on a given subject, would not hold the
force of binding precedent merely because the writ petition
was dismissed, while pronouncing the law and/or that the
affected parties were not before the Court.
46. In a situation, such as the one, as depicted
above, the pronouncement of law will not lose its authority as
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 26
a precedent merely because the writ petition was dismissed or
the affected parties were not before the Court. In a given
case, however, if the affected parties appear before the Court
seeking review of such an order, it would be permissible for
the Court to hear the parties for the purpose of determining
the correctness of the pronouncement of law; but so long as
the decision stands, the law laid down therein would hold good
as an authoritative pronouncement, no matter whether the
writ petition is dismissed or allowed or the affected parties
had or had not been heard.
47. It is contended, on behalf of the review
petitioners, that in R. K. Anand Vs. Registrar, Delhi High
Court, reported in (2009) 8 SCC 106, the Supreme Court
has issued directions to the High Courts to frame rules under
Section 34 of the Act and consider making of rules, on the
subject of Advocate-on-Record, on the pattern of Supreme
Court.
48. Thus, according to Mr. Bindhyachal Singh,
learned Counsel, the system of having Advocate-on-Record,
in the High Courts on the pattern of the Supreme Court,
having been recommended, in R.K. Anand’s case (supra), by
the Supreme Court itself, impugned rules (relating to
Advocate-on-Record), could not have been interfered with;
yet the relevant observations, appearing in R.K. Anand’s
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 27
case (supra), escaped the attention of the Court, while coming
to the conclusions, which the Court has reached, leading to
the writ petitions being partly allowed.
49. Reacting to the above submissions made on
behalf of the review petition, Mr. Chakrapani, learned Counsel,
who appears in person, points out that the observations
appearing, at paragraph 344 (3), in R.K. Anand’s case
(supra), which read, “those of the High Courts which have so
far not framed any rules under Section 34 of the Advocates
Act, shall frame appropriate rules without any further delay as
directed in paras 242 and 243 of the judgment”, command the
High Courts to frame Rules under Section 34 of the Act, but
the Supreme Court‟s observations, which read, “The High
Courts may also consider framing rules for having Advocateson-Record
on the pattern of the Supreme Court of India” do
not, in specific terms, command the High Courts to frame
rules relating to Advocate-on-Record on the pattern of the
Supreme Court; rather, the Supreme Court directs the High
Courts to consider framing rules relating to Advocates-onRecord
on the pattern of the Supreme Court.
50. Before we express any opinion on the above
submissions made on behalf of the review petitioners, let us
examine the relevant observations of the Supreme Court
appearing in R.K. Anand’s case (supra). These observations,
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 28
appearing in R.K. Anand’s case (supra), at paragraph Nos.
242, 243 and 344 (3), read as under:
242. Ideally every High Court
should have rules framed under Section 34 of
the Advocates Act in order to meet with such
eventualities but even in the absence of the
rules the High Court cannot be held to be
helpless against such threats. In a matter as
fundamental and grave as preserving the
purity of judicial proceedings, the High Court
would be free to exercise the powers vested
in it under Section 34 of the Advocates Act
notwithstanding the fact that rules prescribing
the manner of exercise of power have not
been framed. But in the absence of statutory
rules providing for such a course an advocate
facing the charge of contempt would normally
think of only the punishments specified under
Section 12 of the Contempt of Courts Act. He
may not even imagine that at the end of the
proceeding he might end up being debarred
from appearing before the court. The rules of
natural justice, therefore, demand that before
passing an order debarring an advocate from
appearing in courts he must be clearly told
that his alleged conduct or actions are such
that if found guilty he might be debarred from
appearing in courts for a specific period. The
warning may be given in the initial notice of
contempt issued under Section 14 or Section
17 (as the case may be) of the Contempt of
Courts Act. Or such a notice may be given
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 29
after the proceedee is held guilty of criminal
contempt before dealing with the question of
punishment.
243. In order to avoid any such
controversies in future all the High Courts
that have so far not framed rules under
Section 34 of the Advocates Act are
directed to frame the rules without any
further delay. It is earnestly hoped that all
the High Courts shall frame the rules within
four months from today. The High Courts
may also consider framing rules for
having Advocates-on-Record on the
pattern of the Supreme Court of India.
… …. …
344. (1) xx xx xx
(2) xx xx xx
(3) Those of the High
Courts which have so far not framed any
rules under Section 34 of the Advocates Act,
shall frame appropriate rules without any
further delay as directed in paras 242 and
243 of the judgment.
(4) xx xx xx
(Emphasis is supplied)
51. Correct it is, as pointed by Mr. Chakrapani, that
while clearly directing the High Courts to frame Rules under
Section 34 of the Act, the Supreme Court observed that the
High Courts shall “consider” framing of Rules relating to
Advocates-on-Record on the pattern of the Supreme Court.
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 30
However, to our mind, the direction to consider, given by the
Supreme Court in R.K. Anand’s case (supra), cannot be
taken lightly and must be given due respect and the
importance, which the observations deserve.
52. While considering the above observations made
in R.K. Anand’s case (supra), this Court, as a High Court, has
to remain alive to the law laid down by the Apex Court, in
Spencer and Company Limited and Another v.
Vishwadarshan Distributor (Private) Limited) and
Others, reported in (1995) 1 SCC 259, that even request of
the Supreme Court to a High Court should be treated to be
binding.
53. Observed, therefore, the Supreme Court, in
Spencer and Company Limited (supra), in no uncertain
words, thus,
“1. It has been said before, and
needs to be said again, what we are about to
through this order, to strengthen the
functional chains which pull the judicial
machine to its destination on the track laid by
the Constitution.
……… ………….. …………
4. Patently our order dated 14-
1-1994 has been flouted, which is a matter
of grave concern to us. On our part what else
is expected? It has obvious ramifications, far
and significant. …… ……. …….. Conceivably
our action has parameters ranging
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 31
between total apathy and punishment for
contempt after initiating contempt
proceeding. They have, in all seriousness, in
one voice, advised us to show at this juncture
judicial statesmanship, and let the present
order go on record, more as a reminder and a
message, travelling far and wide, less as a
warning, solely to uphold and preserve the
independence and majesty of the Supreme
Court, as the highest court of justice in the
Sovereign Republic of India; a pillar of the
body politic, established under the
Constitution, conferred with plenary powers
under Articles 141, 142 and 144 of the
Constitution. We appreciate and value their
advice. We would rather remain advised on a
matter like this, for then we are on sure
ground.
…….. ……. ……..
6. Ex facie courtesy is the blend
of our order of 14-1-1994. Outwardly it
is neither commanding in nature nor
explicitly in terms of a direction. Such is
not the sheen and tone of our order,
meant as it was, for a high constitutional
institution, being the High Court. It comes
from another high constitutional institution
(this Court) hierarchically superior in the
corrective ladder. When one superior
speaks to another it is always in
language sweet, soft and melodious;
more suggestive than directive. Judicial
language is always chaste.
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 32
…….. …….. ……….
9. Recently, on a lesser aberration,
this Court in Bayer India Ltd. v. State of
Maharashtra, (1993) 3 SCC 29, had occasion
to strike a sad note in the following words:
(SCC pp. 31-32, paras 5-6)
“5. We are saddened to
notice that in spite of the Court‟s
request contained in this order dated 6-
2-1991, the High Court has not
disposed of the review petition till now.
The High Court was requested to
dispose of the said writ petition within
four months from the date of the said
order and, at any rate, by 30-9-1991. It
is more than two years since the order
was made. While we certainly
respect the independence of the
High Court and recognise that it is a
co-equal institution, we cannot but
say, at the same time, that the
constitutional scheme and judicial
discipline requires that the High
Court should give due regard to the
orders of this Court which are
binding on all courts within the
territory of India. The request made
in this case was contained in a
judicial order. It does no credit to
either institution that it has not
been heeded to. We hope and trust
that the delay in the disposal of the
review is either accidental or on
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 33
account of some or other
procedural problem. Be that as it
may, the present situation would not
have arisen if only the review petition
had been disposed of within the time
contemplated in the order dated 6-2-
1990. ………………………..
The case which we are dealing with
is far more angular because there is a
deliberate and conscious obstruction, put and
recorded by the Hon‟ble Judges of the High
Court, even when the judicial order of this
Court dated 14-1-1994 was before them, in
support of the prayer for an early durated
hearing of the appeal. The case in hand is of
a negative or reverse action, whereas Bayer
India case1 was barely of inaction, far less in
gravity.
10. The afore-narrated words,
we think, presently, are enough to assert
the singular constitutional role of this
Court, and correspondingly of the
assisting role of all authorities, civil or
judicial, in the territory of India, towards
it, who are mandated by the Constitution
to act in aid of this Court. That the High
Court is one such judicial authority
covered under Article 144 of the
Constitution is beyond question. The
order dated 14-1-1994 of this Court was
indeed a judicial order and otherwise
enforceable throughout the territory of India
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 34
under Article 142 of the Constitution. The
High Court was bound to come in aid of this
Court when it required the High Court to have
its order worked out.
(Emphasis is supplied)
54. Leaving none in doubt, the Supreme Court
observed, in Spencer and Company Limited (supra), that
the language of request oftenly employed by this Court in
such situations is to be read by the High Court as an
obligation in carrying out the constitutional mandate
maintaining the writ of the Supreme Court running throughout
the country.
55. Considered thus, it becomes clear that the
conclusions drawn in the judgment under review, without
taking into notice, inadvertently indeed, the observations
made by the Supreme Court, in the case of R.K. Anand’s
(supra), will, in fact, amount to both, glaring omission and
patent mistake, in the judgment under review.
56. Unless, therefore, it is judicially determined
that under our Constitutional scheme or under the relevant
statutory provisions, it is impermissible to have rules, in a
High Court, relating to Advocates-on-Record on the same
pattern as the Supreme Court has, it would not be proper, on
our part, to take the view that impugned provisions, relating
to the Advocates-on-Record, are bad in law.
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 35
57. At any rate, the observations, appearing in
R.K. Anand’s case (supra), ought to have been kept in mind
by the Court, while making the judgment and order under
review, and as these observations do not appear to have been
taken note of, and clearly escaped the notice of, the Court,
there is, we find, an error apparent on the face of the record
inasmuch as the error relates to not only a relevant fact, but a
fact, which was integral to the very interpretation of the
system of Advocates-on-Record, which the impugned rules
have introduced in the Patna High Court.
58. It is pointed out, on behalf of the review
petitioners, that the Court has fallen in error in holding that
the Supreme Court Rules, 2013, do not go to the extent of
making the right of an advocate to practice in the Supreme
Court dependent upon his being certified as an Advocate-onRecord,
and, hence, is not violative of the advocates‟ right to
practice under Article 19(1)(g) of the Constitution of India.
59. It is the submission of Mr. Bindhyachal Singh
that the proviso to Clause 1 of Order IV of the Supreme Court
Rules, 2013, and Clause-7 (c) of Order IV of the Supreme
Court Rules, 2013, regulate the pleading and acting of
advocate in Supreme Court inasmuch as Clause 7 (c) of Order
IV of the Supreme Court Rules, 2013, reads,
“No advocate other than an
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 36
advocate-on-record shall be entitled to file an
appearance or act for a party in the Court.”
60. Though what has been pointed by Mr.
Bindhyachal Singh, as noted above, is an important aspect of
the writ petition, this aspect of the writ petition will call us to
comment on the merit of the judgment under review and
would, therefore, be not an error apparent on the face of the
record inasmuch as the question as to whether the Court‟s
conclusion, reached to the effect that Rule 4 of the Rules
prohibits an advocate from practicing is wholly correct or
wholly incorrect or partly correct or partly incorrect, relates to
merit of the judgment and order under review and cannot,
therefore, be advanced, in our considered view, as a ground
for review.
61. Mr. Bindhyachal Singh, learned Counsel, points
out that the judgment under review suffers from an error
apparent on the face of the record inasmuch as the judgment,
while reproducing the observations made by the Supreme
Court, in Harish Uppal vs. Union of India and Another,
reported in (2003) 2 SCC 45, observes that Section 30 had
not come into force at the time, when the decision, in Harish
Uppal’s case (supra), was delivered, but the Court failed to
notice that it had also been observed, at paragraph 34 in
Harish Uppal’s case (supra) itself, that even if Sections 30
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 37
and 34 were to be enforced, it would not alter the situation or
the position of law. The relevant observations, appearing at
paragraph 34 of Harish Uppal’s case (supra), in this regard,
read thus:
“34. One last thing which must be
mentioned is that the right of appearance in
courts is still within the control and
jurisdiction of courts. Section 30 of the
Advocates Act has not been brought into
force and rightly so. Control of conduct in
court can only be within the domain of courts.
Thus Article 145 of the Constitution of India
gives to the Supreme Court and Section 34 of
the Advocates Act gives to the High Court
power to frame rules including rules regarding
condition on which a person (including an
advocate) can practise in the Supreme Court
and/or in the High Court and courts
subordinate thereto. Many courts have
framed rules in this behalf. Such a rule would
be valid and binding on all. Let the Bar take
note that unless self-restraint is exercised,
courts may now have to consider framing
specific rules debarring advocates, guilty of
contempt and/or unprofessional or
unbecoming conduct, from appearing before
the courts. Such a rule if framed would not
have anything to do with the disciplinary
jurisdiction of the Bar Councils. It would be
concerning the dignity and orderly functioning
of the courts. The right of the advocate to
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 38
practise envelopes a lot of acts to be
performed by him in discharge of his
professional duties. Apart from appearing in
the courts he can be consulted by his clients,
he can give his legal opinion whenever sought
for, he can draft instruments, pleadings,
affidavits or any other documents, he can
participate in any conference involving legal
discussions, he can work in any office or firm
as a legal officer, he can appear for clients
before an arbitrator or arbitrators etc. Such a
rule would have nothing to do with all the
acts done by an advocate during his practice.
He may even file vakalat on behalf of a client
even though his appearance inside the court
is not permitted. Conduct in court is a matter
concerning the court and hence the Bar
Council cannot claim that what should happen
inside the court could also be regulated by
them in exercise of their disciplinary powers.
The right to practise, no doubt, is the genus
of which the right to appear and conduct
cases in the court may be a specie. But the
right to appear and conduct cases in the court
is a matter on which the court must and does
have major supervisory and controlling
power. Hence courts cannot be and are not
divested of control or supervision of conduct
in court merely because it may involve the
right of an advocate. A rule can stipulate that
a person who has committed contempt of
court or has behaved unprofessionally and in
an unbecoming manner will not have the right
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 39
to continue to appear and plead and conduct
cases in courts. The Bar Councils cannot
overrule such a regulation concerning the
orderly conduct of court proceedings. On the
contrary, it will be their duty to see that such
a rule is strictly abided by. Courts of law are
structured in such a design as to evoke
respect and reverence to the majesty of law
and justice. The machinery for dispensation of
justice according to law is operated by the
court. Proceedings inside the courts are
always expected to be held in a dignified and
orderly manner. The very sight of an
advocate, who is guilty of contempt of court
or of unbecoming or unprofessional conduct,
standing in the court would erode the dignity
of the court and even corrode its majesty
besides impairing the confidence of the public
in the efficacy of the institution of the courts.
The power to frame such rules should not be
confused with the right to practise law. While
the Bar Council can exercise control over the
latter, the courts are in control of the former.
This distinction is clearly brought out by the
difference in language in Section 49 of the
Advocates Act on the one hand and Article
145 of the Constitution of India and Section
34(1) of the Advocates Act on the other.
Section 49 merely empowers the Bar Council
to frame rules laying down conditions subject
to which an advocate shall have a right to
practise i.e. do all the other acts set out
above. However, Article 145 of the
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 40
Constitution of India empowers the Supreme
Court to make rules for regulating this
practice and procedure of the court including
inter alia rules as to persons practising before
this Court. Similarly Section 34 of the
Advocates Act empowers High Courts to
frame rules, inter alia to lay down conditions
on which an advocate shall be permitted to
practise in courts. Article 145 of the
Constitution of India and Section 34 of
the Advocates Act clearly show that
there is no absolute right to an advocate
to appear in a court. An advocate appears
in a court subject to such conditions as are
laid down by the court. It must be
remembered that Section 30 has not
been brought into force and this also
shows that there is no absolute right to
appear in a court. Even if Section 30
were to be brought into force control of
proceedings in court will always remain
with the court. Thus even then the right
to appear in court will be subject to
complying with conditions laid down by
courts just as practice outside courts
would be subject to conditions laid down
by the Bar Council of India. There is thus
no conflict or clash between other provisions
of the Advocates Act on the one hand and
Section 34 or Article 145 of the Constitution
of India on the other.”
(Emphasis is added)
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 41
62. From a close reading of the observations,
appearing at paragraph 34 in Harish Uppal’s case (supra),
we notice that it clearly escaped the attention of this Court,
while delivering the judgment and order, under review, that
the Supreme Court has taken the view, in Harish Uppal’s
case (supra), that even if Section 30 of the Act had been
brought into force, it‟s (Supreme Court‟s) conclusion, that an
advocate does not have absolute right to appear in Court,
would not have changed and even if Section 30 were to
brought into force inasmuch as control of proceedings, in
Court, will always remain with the Court. This aspect of the
case has gone un-noticed in the judgment and order, under
review, and would, therefore, constitute an error apparent on
the face of record.
63. Mr. Bindhyachal Singh, learned Counsel, also
points that the judgment and order, under review, do not take
into account the provisions of Clauses 7 and 8 of the Letters
Patent of Patna High Court, which empower the Patna High
Court to make rules for qualification and admission of proper
persons as advocates in Patna High Court.
64. While considering the above submissions made
on behalf of the review petitioners, it may be noted that
Clauses 7 and 8 of the Letters Patent of this Court were
relevant and ought to have been taken into consideration
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 42
before the judgment under review was delivered. To this
extent, therefore, there is, to our mind, an error, which is an
error apparent on the face of the record.
65. It is next pointed out by Mr. Bindhyachal Singh,
learned Counsel, that while delivering the judgment and order
under review, this Court has not considered Rule 3 (c) of the
impugned Rules of the Patna High Court, which defines
Advocate-on-Record to mean those advocates, who intend to
act in addition to plead. Insists Mr. Bindhyachal Singh, learned
Counsel, that pleading by the advocates, in Patna High Court,
is not restricted under the impugned Rules inasmuch as the
impugned Rules, according to Mr. Bindhyachal Singh, learned
Counsel, intend only to regulate the acting aspect of practice
in Patna High Court.
66. Presenting the review petitioners‟ case that the
judgment and order, under review, suffers from contradictions
inherent therein and do not, therefore, lay down a workable
scheme, relating to the system of the Advocates-on-Record,
which the Court, while delivering the judgment and order,
under review, has nonetheless maintained, Mr. Bindhayachal
Singh, learned Counsel, has pointed out that while the
judgment, under review, has quashed Rule 4 by observing to
the effect that the right of an advocate to be engaged by a
client or litigant cannot be infringed, the Court has not
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 43
touched Rule 9 of the impugned rules, which prohibits filing
vakalatnama and memorandum of appearance by an
advocate, who is not registered as an Advocate-on-Record
under the impugned rules.
67. On the above aspect, too, we agree with Mr.
Bindhayachal Singh, learned Counsel, that the judgment and
order, under review, while quashing Rule 4, have not
interfered with Rule 9, which prohibits filing vakalatnama and
memorandum of appearance by an advocate, who is not
registered as an Advocate-on-Record. Thus, the judgment and
order, under review, to the effect of presenting a nonworkable
situation in the functioning of the High Court
inasmuch as Rule 9 cannot be left untouched if Rule 4 is
quashed.
68. Whether Rule 9 can at all be touched is a
question, which relates to the merit of the writ petition and we
would not, therefore, examine this issue in the present review
petitions.
69. We find substance in the submission of Mr.
Bindhayachal Singh, learned Counsel, that the judgment and
order, under review, leave room for confusion and call for
review inasmuch as the judgment, under review, lays down to
the effect that there is no requirement for an advocate to be
registered as an Advocate-on-Record for filing vakalatnama or
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 44
filing petitions/pleadings, yet the Court retained the
examination system for admitting/registering the Advocateon-Record
by only lowering the qualifying/passing marks. This
is, indeed, the situation, which the judgment, under review,
has created and when the judgment and order suffer ex facie
from contradictions inherent therein, it calls for its review on
the ground of error apparent on the face of the record; or
else, the confusion will lead to miscarriage of justice.
70. Because of what have been discussed and
pointed out above, we are clearly of the view that the
judgment and order, under review, suffer from errors
apparent on the face of the record and, therefore, call for
review.
71. In the result and for the reasons discussed
above, we allow these review petitions and direct that these
writ petitions may, now, be listed for hearing at an early date
so that the prevailing uncertainty may be arrested and a clear
picture, with regard to the validity or otherwise of the
impugned Rules, can be effectively determined.
72. Before parting with this set of review petitions, we
consider it our duty to point out that we have consciously
refrained ourselves from either noting down, or making any
reference to, the submissions, which have been made by the
review petitioners and their learned Counsels on the merit of
Patna High Court C. REV. No.153 of 2015 dt.30-09-2015 45
the writ petitions, so that they remain free and without
prejudice by the fact that the review petitions have been
allowed and it would, therefore, permit the writ petitioners to
advance such submissions, which they deem necessary and
relevant for the purpose of just decision in the writ petitions.
(I. A. Ansari, ACJ.)
Shivaji Pandey, J. :
Sudhir Singh, J. :
Prabhakar Anand/AFR
I agree.
(Shivaji Pandey, J.)
I agree.
(Sudhir Singh, J.)
U √ T X