Microvision Technologies Through its Proprietor Atul Nemichand Dhadiwal Vs Dhule Municipal Corporation Through its Commissioner (Bombay High Court)
Summary: The Bombay High Court, Aurangabad Bench, in Microvision Technologies Through its Proprietor Atul Nemichand Dhadiwal Vs Dhule Municipal Corporation Through its Commissioner, dismissed an application seeking review of an earlier judgment that had set aside an award passed by the Micro, Small Enterprises Facilitation Council (MSEFC), Nashik. Justice Nitin B. Suryawanshi held that review jurisdiction could not be invoked merely because the applicant disagreed with the earlier decision on the applicability of the Micro, Small and Medium Enterprises Development Act, 2006 (MSMED Act), supplier registration and the Council’s jurisdiction. The Court found that the submissions advanced in review had already been raised, considered and answered in the original writ proceedings. Applying the principles in Kamlesh Verma Vs Mayawati and State of West Bengal Vs Kamal Sengupta, it reiterated that a review is not an appeal in disguise and that the possibility of an alternative interpretation is insufficient to reopen a concluded adjudication. The review application was consequently rejected.
The underlying dispute originated from a contract awarded by Dhule Municipal Corporation to Microvision Technologies. According to the applicant, it had obtained permanent registration as a small-scale industrial undertaking on 6 May 2003 under the earlier Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act, 1993. A tender was issued in 2005, the parties executed an agreement on 11 October 2005 and the work order followed on 13 October 2005. The applicant subsequently pursued its payment dispute before the MSEFC, Nashik Division, which passed an award dated 13 February 2015 in Petition No. 8/2011. Dhule Municipal Corporation challenged the award through Writ Petition No. 10764 of 2015. The High Court allowed that petition, quashed the award and held that the Council lacked jurisdiction. Microvision Technologies thereafter sought review of that judgment.
The applicant contended that the earlier judgment incorrectly interpreted the relationship between the 1993 legislation and the MSMED Act, 2006. It submitted that its pre-existing permanent registration as a small-scale industry was preserved by Section 32(2) of the MSMED Act, which contains provisions concerning repeal and savings. On this construction, the applicant claimed it already possessed qualifying supplier status and was not required to obtain fresh registration under the 2006 legislation to invoke the Council’s jurisdiction. It also relied upon Section 8 and the statutory language permitting registration at the discretion of certain enterprises. According to the applicant, the earlier High Court judgment had overlooked documents establishing its registration and wrongly concluded that the Facilitation Council lacked jurisdiction over the dispute.
The applicant separately argued that the Corporation’s challenge to the MSEFC award should have been brought under Section 34 of the Arbitration and Conciliation Act, 1996, rather than through a writ petition under Articles 226 and 227 of the Constitution. It relied on the competence of an arbitral tribunal to decide its own jurisdiction under Section 16 of the Arbitration Act and submitted that the earlier judgment had failed to follow binding decisions restricting constitutional interference in arbitration proceedings. Authorities invoked included Navayuga Engineering Company Vs Bangalore Metro Rail Corporation Limited, Union of India Vs Maharashtra Steel Fabricator and Erectors, Whirlpool Corporation Vs Registrar of Trademarks, Harbanslal Sahnia Vs Indian Oil Corporation, K.G. Derasari Vs Union of India and Board of Control for Cricket in India Vs Netaji Cricket Club. The applicant maintained that failure to apply the correct precedents constituted an error apparent on the face of the record.
Dhule Municipal Corporation opposed the review, contending that registration under the earlier small-scale industry framework did not automatically establish qualifying supplier status for the purposes of the MSMED Act. It relied upon the statutory definitions of enterprise, small enterprise and supplier, particularly Sections 2(e), 2(m), 2(n), 7 and 8. The Corporation argued that the applicant had not filed the required memorandum within the statutory period and could not claim retrospective MSMED benefits for a transaction predating its registration under the later legislation. The Corporation further submitted that the original writ judgment had already examined these questions in detail and was therefore not amenable to review simply because the applicant wished to present the same contentions again. Relying upon Kamlesh Verma Vs Mayawati and State of West Bengal Vs Kamal Sengupta, it stressed the limited scope of review jurisdiction.
Examining the original judgment, the High Court recorded that it had considered the applicant’s registration as a tiny enterprise under the 1993 framework, the subsequent filing of a memorandum and the statutory conditions for supplier status under the MSMED Act. The original judgment had concluded that the applicant did not possess the necessary status when the relevant agreement was executed and was therefore not entitled to the benefits of Chapter V of the MSMED Act. It had also considered the principles governing writ jurisdiction where an authority acts wholly without jurisdiction. The review court found that these matters were not overlooked; the applicant was attempting to secure reconsideration of issues already decided.
The High Court reproduced the principles laid down in Kamlesh Verma Vs Mayawati, (2013) 8 SCC 320, identifying the limited situations in which review is permissible, including discovery of important evidence unavailable despite due diligence, an error apparent on the face of the record and other sufficient reason analogous to those grounds. The judgment also identified circumstances in which review is impermissible, including repetition of rejected arguments, inconsequential mistakes, reappreciation of evidence, the availability of two possible views and attempts to obtain the same relief already refused. The Court further relied upon State of West Bengal Vs Kamal Sengupta, (2008) 8 SCC 612, for the principle that an apparent error must be evident from the record without requiring elaborate investigation or extended legal reasoning. These principles are also discussed in TaxGuru’s coverage of restricted review jurisdiction.
Dealing with the applicant’s authorities on arbitration, the High Court considered Navayuga Engineering Company and the Supreme Court’s decision in Deep Industries Ltd. Vs ONGC. These decisions recognise that High Courts should exercise considerable restraint under Articles 226 and 227 when dealing with arbitration proceedings, while permitting intervention in exceptional circumstances, including patent lack of inherent jurisdiction. The review court held that the earlier judgment had expressly recorded a finding that the MSEFC lacked jurisdiction, making those precedents distinguishable from the applicant’s suggested interpretation. The principles governing this limited constitutional intervention are examined in TaxGuru’s discussion of Deep Industries.
The High Court also considered K.G. Derasari Vs Union of India and Board of Control for Cricket in India Vs Netaji Cricket Club, which recognise circumstances permitting review where an important binding decision has been overlooked or a misconception of fact or law has occurred. The Court accepted that those principles form part of review jurisprudence but found no comparable defect in the judgment under challenge. The original decision had addressed the rival arguments and relevant statutory provisions. There was no error apparent on the face of the record, no overlooked decisive material and no misconception warranting correction. The applicant’s case amounted to a request for rehearing on the merits.
Accordingly, the High Court held that its review jurisdiction could not be exercised to reconsider the same registration, supplier-status and arbitral-jurisdiction issues merely because another view was possible. Review proceedings cannot be equated with an appeal, and a party cannot secure a second hearing simply by describing its disagreement with an earlier finding as an error apparent on the record. By its order dated 14 November 2022, the Court rejected Review Application (Civil) No. 8 of 2022. The earlier judgment setting aside the MSEFC award therefore remained undisturbed. The decision is confined to the maintainability and merits of the review application; subsequent decisions on the statutory treatment of pre-existing SSI registration and the constitutional review of MSMED awards must be assessed separately when considering the present legal position.
Cases Discussed
- Union of India Vs Maharashtra Steel Fabricator and Erectors (Bombay High Court); Writ Petition (L) No. 4049 of 2020. Relied upon by the applicant on the limited scope of writ jurisdiction against arbitral awards. The High Court held that this precedent did not assist the applicant because the original judgment had found an inherent lack of jurisdiction.
- Whirlpool Corporation Vs Registrar of Trade Marks, Mumbai and Others (Supreme Court); (1998) 8 SCC 1. Discussed concerning exceptions to the alternative-remedy rule. See Whirlpool principles and MSMED award challenges.
- Harbanslal Sahnia and Another Vs Indian Oil Corporation Ltd. and Others (Supreme Court); (2003) 2 SCC 107. Discussed concerning the High Court’s discretionary power to entertain a writ petition despite an available statutory remedy. See TaxGuru’s coverage of the alternative-remedy doctrine.
- Navayuga Engineering Company Vs Bangalore Metro Rail Corporation Limited (Supreme Court); 2021 SCC OnLine SC 469. Considered concerning the exceptional circumstances necessary for interference in arbitration proceedings under Articles 226 and 227. See related Supreme Court ruling.
- K.G. Derasari and Another Vs Union of India and Others (Supreme Court); (2001) 10 SCC 496. Relied upon by the applicant concerning review where an earlier binding judgment was allegedly overlooked. Distinguished on the facts.
- Board of Control for Cricket in India and Another Vs Netaji Cricket Club and Others (Supreme Court); (2005) 4 SCC 741. Considered concerning misconceptions of fact or law and sufficient reasons for review. Distinguished because the High Court found no such defect.
- Kamlesh Verma Vs Mayawati and Others (Supreme Court); (2013) 8 SCC 320. Applied for the maintainable and impermissible grounds of review under Order XLVII Rule 1 CPC. See Kamlesh Verma principles on review.
- State of West Bengal and Others Vs Kamal Sengupta and Another (Supreme Court); (2008) 8 SCC 612. Applied concerning the requirement that an error apparent on the face of the record be self-evident, rather than discoverable only through detailed reasoning.
- Chhajju Ram Vs Neki (Privy Council); citation not supplied in the judgment. Discussed within the quotation from Kamlesh Verma concerning the expression “any other sufficient reason”.
- Moran Mar Basselios Catholicos Vs Most Rev. Mar Poulose Athanasius (Supreme Court); citation not supplied in the judgment. Discussed in the quotation from Kamlesh Verma regarding grounds analogous to those expressly specified in the review provision.
- Union of India Vs Sandur Manganese & Iron Ores Ltd. and Others (Supreme Court); citation not supplied in the judgment. Mentioned in the quotation from Kamlesh Verma concerning review principles.
- Deep Industries Ltd. Vs Oil and Natural Gas Corporation Ltd. and Another (Supreme Court); (2020) 15 SCC 706. Discussed within the extract from Navayuga Engineering on the narrow circumstances permitting constitutional interference in arbitration proceedings.
- Lily Thomas Vs Union of India (Supreme Court); citation not supplied in the judgment. Quoted within the BCCI judgment on the nature of review, correction of errors and the principle that review is not an appeal in disguise.
- Patel Narshi Thakershi Vs Pradyumansinghji Arjunsinghji (Supreme Court); citation not supplied in the judgment. Mentioned in the quotation from Lily Thomas concerning the proposition that review jurisdiction must be conferred by law.
FULL TEXT OF THE ORIGINAL JUDGMENT/ORDER
1. The applicant seeks review of the judgment of this Court (Coram: V. K. Jadhav) in Writ Petition No.10764/2015. By the said judgment, the writ petition filed by the respondent was allowed and the judgment and award dated 13-02-2015 passed by Micro, Small Enterprises Facilitation Council (MSEFC), Nashik Division, Nashik in Petition No.8/2011 (M/s. Microvision Technologies, Nashik v/s Commissioner, Dhule Municipal Corporation, Dhule) was quashed and set aside and the petition filed by the applicant was dismissed.
2. Heard the learned Senior Advocate Mr. Vijay Thorat i/b Mr. A. S. Bajaj for the applicant and the learned Advocate Mr. Amol Sawant for the respondent.
3. The learned Senior Advocate for the applicant submits that, this Court has wrongly interpreted the provisions of Micro, Small and Medium Enterprises Development Act, 2006 (for short ‘MSMED Act’) and has erred in coming to the conclusion that Facilitation Council had no jurisdiction to entertain the arbitration proceedings. In fact, according to him, since the applicant was provisionally registered as a small scale industry under the Interest on Delayed Payments to Small Scale and Ancillary Industries Undertaking Act, 1993 (for short ‘the Act of 1993’) and since the applicant was permanently registered as a small scale industry on 06-05-2003 under the Act of 1993, and as tender notice was issued in the year 2005, agreement between the parties was executed on 11-10-2005 and the work order was issued on 13-10-2005 prior to the enactment of MSMED Act, only the Act of 1993 is applicable in the present case. He submits that as a result of repeal of the Act of 1993 and Section 32 of MSMED Act is enacted, the Facilitation Council has jurisdiction. Section 32(2) of MSMED Act, provides that anything done under the repealed Act shall be deemed to have been done or taken under corresponding provisions of MSMED Act. He further submits that the applicant falls in the category of ‘supplier’ as defined under Section 2(f) of the Act of 1993, being a small scale industrial undertaking, holding permanent registration certificate, the applicant is deemed to be continued under Section 32 of MSMED Act since the words used in definition clause of MSMED Act are “unless the context otherwise requires”. Therefore, according to him, the definition of ‘supplier’ under Section 2(n) of MSMED Act must be read along with Section 8 of the said Act. Under Section 8, memorandum is discretionary at the behest of an industrial unit, provided it has obtained a registration certificate.
4. Clarification issued on 01-08-2007 under Section 31 of MSMED Act is confirmed. He submits that the words, “may, at his discretion” used in proviso (a) gives a discretion to the unit to get registered under MSMED Act.
5. Section 18 of MSMED Act, provides that Arbitration and Conciliation Act, 1996 shall apply. Under Section 16 of the Arbitration Act, an arbitrator is entitled to consider the question of his own jurisdiction and accordingly, the Facilitation Council has considered the question and has held that it has jurisdiction.
6. He further submits that remedy against an award under the Arbitration Act is by filing a petition under Section 34 of the Act of 1993. The Court therefore is entitled to consider the question of jurisdiction as well as award on merits. Thus, the respondent ought to have availed the remedy under Section 34 of the Arbitration Act and could not have filed writ petition. The decision of the Division Bench in Union of India V/s Maharashtra Steel Fabricator and Erectors in Writ Petition (L) No.4049/2020, which relies on decision of the Hon’ble Supreme Court, clearly states that after the expiry of period of limitation provided under Section 34 of the Arbitration Act, petition under Article 226 of the Constitution of India is not maintainable. Further submission is that taking into consideration the law laid down by the Hon’ble Supreme Court and the Hon’ble Division Bench of this Court, the judgment under review is per incuriam and there is an error apparent on the face of record. The judgment under review does not give reasons, as to why the petition under Article 226 and 227 is entertained. He further submits that the ratio in Whirlpool Corporation Vs. Registrar of Trademarks, Mumbai and Others reported in (1998) 8 SCC 1 and Harbanslal Sahnia and Another Vs. Indian Oil Corporation Ltd. and Others reported in 2003 (2) SCC 107 are not applicable to the facts of the present case. Question of jurisdiction of the Facilitation Council can only be decided in the petition under Section 34 of the Arbitration Act. He further submits that this Court in judgment under review failed to notice and refer to documents on record regarding provisional and permanent registration under the Act of 1993. He submits that this Court has wrongly interpreted the ratio in Whirlpool Corporation (Supra) and Harbanslal Sahnia (Supra), holding that it gives unfettered right to High Court to entertain writ petition under Article 226, according to him, Section 8 applies to new industry and registration under MSMED Act is not mandatory. In support of his submissions, learned Senior Advocate relied on Navayuga Engineering Company Vs. Bangalore Metro Rail Corporation Limited reported in 2021 SCC Online SC 469, K.G. Derasari and Another Vs. Union of India and Others reported in (2001) 10 SCC 496, Board of Control for Cricket in India and Another Vs Netaji Cricket Club and Others reported in (2005) 4 SCC 741 and Division Bench Judgment in Writ Petition (L) No.4049/2020.
7. Per contra the learned Advocate for the respondent submits that SSI units and small enterprises are different entities. By referring to the object of MSMED Act, he submits that ‘small enterprise’ is defined under Section 2(m) of MSMED Act and ‘supplier’ under Section 2(n) of MSMED Act, which means a micro or small enterprise, which has filed a memorandum with the authority referred to in sub-section (1) of section 8, which is an inclusive definition. By referring to Section 7, he submits that applicant does not fall within the definition of ‘small enterprise’. According to him under clause 9 of sub-section 2 of section 7 of MSMED Act, the Central Government has not classified the applicant as small enterprise. According to him, the applicant also does not fall within the definition of ‘enterprise’ under Section 2(e) of MSMED Act. By referring to Section 8(1) proviso (b), he submits that it is mandatory for the applicant to file memorandum in accordance with the provisions of MSMED Act, within 180 days from the commencement of the Act. Since the applicant failed to file memorandum, arbitration proceedings before Facilitation Council were not maintainable. According to him, the Division Bench decision in Writ Petition (L) No.4049/2020 is not applicable to the facts of the present case. By pointing out the form/application filled by the applicant, he submits that the category of enterprise is declared as ‘small’ and the certificate to that effect is issued to the applicant on 03-07-2014. According to him, only after registration of memorandum, the proceedings before Facilitation Council are maintainable. He further submits that this Court has dealt with all the arguments advanced by the applicant and has rightly delivered the judgment. There is no error apparent on the face of record as is being claimed by the applicant. By relying on Kamlesh Verma Vs. Mayawati and Others reported in (2013) 8 SCC 320 and State of West Bengal and Others Vs. Kamal Sengupta and Another reported in (2008) 8 SCC 612 he submits that no case for review is made by the applicant.
8. Heard the learned Senior Advocate for the applicant and learned Advocate for the respondent at length. Perused the citations relied upon by both the parties and the judgment under review.
9. In the judgment under review, this Court has considered preliminary objection of the Corporation about maintainability of arbitration proceedings due to lack of jurisdiction. This Court has held that the applicant is existing from the year 2002 and was registered under the Act of 1993 on 06-05-2003 as ‘tiny enterprise’ and the said registration is valid upto 05-05-2008.
10. By referring to sub-section (1) of Section 8 of MSMED Act, it is held that, after filing of memorandum on 03-07-2010 for the first time, the applicant-enterprise is classified as small enterprise considering the investment in the plant and machinery and prior to it, the applicant-enterprise was not classified as small enterprise. Therefore, this Court has accepted the contention of the respondent that at the time of agreement dated 11-10-2015, the applicant-enterprise was not ‘supplier’ and the respondent-corporation was not ‘buyer’.
11. By referring to the definition of small scale industrial undertaking as provided under Section 2(e) of the Act of 1993, which has the same meaning assigned to it by clause (j) of Section 3 of the Industries (Development and Regulation) Act, 1951 (for short “the Act of 1951”) a finding is recorded that the applicant-enterprise is not small scale industrial undertaking in accordance with the requirements as specified under Section 11B of the Act of 1951. It is further held that on the date on which, contract was entered into between the parties, applicant-enterprise had not filed memorandum, as per the provisions of Section 8 of MSMED Act and hence, applicant-enterprise would not be entitled for the benefit under Chapter V of MSMED Act.
12. By considering the citations relied upon by both the parties, this Court by relying on the ratio in Whirlpool Corporation (Supra) and Harbanslal Sahnia (Supra) held that writ petition filed by the respondent has to be entertained as the order passed by the Facilitation Council is wholly without jurisdiction.
13. It is thus clear that this Court accepted the challenge raised to the jurisdiction of Facilitation Council and has recorded a finding that Facilitation Council had no jurisdiction.
14. From the judgment under review, it is clear that all the arguments which are now advanced by the learned Senior Advocate in support of review, were advanced at the time of hearing of writ petition by the learned Advocate representing the applicant. All these arguments were considered and dealt with in detail in the judgment under review. Reference to the citations relied upon by both the parties can be found in the judgment under review. This Court has also taken into consideration the relevant provisions of MSMED Act, Act of 1993 and after considering all the aspects, judgment under review is rendered and petition filed by the respondent is allowed.
15. In Kamlesh Varma (Supra), the Hon’ble Apex Court has observed thus;
“19. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction.
Summary of the Principles:
20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:
20.1 When the review will be maintainable:-
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason.
The words “any other sufficient reason” have been interpreted in Chhajju Ram vs. Neki and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanasius, to mean “a reason sufficient on grounds at least analogous to those specified in the rule”. The same principles have been reiterated in Union of India vs. Sandur Manganese & Iron Ores Ltd. & Ors.
20.2. When the review will not be maintainable:
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of the case.
(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a ground for review.
(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.”
16. Applying the above principles to the case in hand, this Court is of the considered view that the applicant has repeated old and overruled arguments, which were concluded by the judgment under review. There is no material error, manifest on the face of record or error apparent on the face of record to exercise review jurisdiction. The present review application appears to be an appeal in disguise and the same is not maintainable.
17. In State of West Bengal and Others (Supra), the Supreme Court has observed;
“22. The term “mistake or error apparent” by its very connotation signifies an error which is evidence per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of record for the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court-tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision.”
18. In the light of the above legal principles, the judgment under review cannot be corrected merely because, according to the applicant, it is erroneous in law, which in fact is not so, or a different view could have been taken by this Court, on a point of fact or law. This Court cannot sit in appeal over its own judgment while exercising the power of review.
19. In Navayuga Engineering Company (Supra), the Hon’ble Apex Court held that”
“4) Despite this Court repeatedly referring to Section 5 of the Arbitration Act in particular and the Arbitration Act in general and despite this Court having laid down in Deep Industries Ltd. Vs. ONGC & Anr. (2020) 15 SCC 706 that the High Court under Article 226 and 227 should be extremely circumspect in interfering with orders passed under the Arbitration Act, such interference being only in cases of exceptional rarity or cases which are stated to be patently lacking in inherent jurisdiction, we find that High Courts are interfering with deposit orders that have been made. This is not a case of exceptional rarity or of any patent lack of inherent jurisdiction.”
20. In the present case, a clear finding is recorded in the judgment under review that the Facilitation Council lacked inherent jurisdiction.
21. In K. G. Derasari (Surpa), the Apex Court was considering the issue, whether CAT while considering a contempt petition could issue certain directions which would have the effect of reviewing the original order passed by it. The Tribunal reviewed its order as it failed to take into consideration a Supreme Court judgment. In these facts, the Apex Court held that, review is maintainable against the order passed by the Tribunal without taking into consideration earlier judgment of the Supreme Court. This ruling is cited in support of the contention that the Division Bench judgment in Writ Petition (L) No.4049/2020 was not taken into consideration by this Court, while rendering the judgment under review.
22. In Writ Petition (L) No.4049/2020, the Division Bench has held that, “Contours of Section 34 of the Act of 1996 are now settled by various judicial pronouncements. The concept of inherent lack of jurisdiction and nullity of arbitral awards have acquired a distinct meaning such as non-existence of arbitration agreement and non-arbitrability of the disputes. It is not the Petitioners case that there was no arbitration agreement or that the dispute was not arbitrable. Therefore the contention that arbital Award itself was nullity and the Arbital tribunal lacked inherent jurisdiction, cannot be accepted, even assuming this aspect can be gone into.”
23. In view of the above observations and since this Court has relied upon the decisions in Whirlpool Corporation (Supra) and Harbanslal Sahnia (Supra), in my opinion, the Division Bench decision would not assist the applicant.
24. In Board of Control for Cricket in India (Supra), it is held;
“88. 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 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.
89. Order 47, Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.
90. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words ‘sufficient reason’ in Order 47, Rule 1 of the Code is wide enough to include a misconception of fact or law by a court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine “actus curiae neminem gravabit”.
92. Yet again in Lily Thomas (supra), this Court has laid down the law in the following terms:
“52. The dictionary meaning of the word “review” is “the act of looking, offer something again with a view to correction or improvement”. It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error”
There cannot be any dispute about the aforesaid ratio laid down by the Apex Court. In the case in hand, this Court however does not find any error apparent on the face of record or a misconception of fact or law by the Court, while rendering the judgment under review.
25. This Court while exercising review jurisdiction is not sitting in appeal. Merely because different view is possible, review cannot be entertained, particularly when the same arguments were advanced and were considered while rendering the judgment under review.
26. For the aforesaid reasons, there is no substance in the review application and the review application is rejected.
