The Judgment of the Court was delivered by

Gopalan Nambiyar, J.:— On 1-1-1969, judgment was delivered by one of us in O.P No. 390 of 1567 allowing the petition and directing refund to the petitioner of a sum of Rs. 30,500/- collected from him as licence-fee for the years 1952 to 1957 under the Travancore Tobacco Act 1 of 1087 M.E The levy and Collection of Tobacco tax under the Act had been declared illegal by the Supreme Court in Abdulkhader's case (1962 Ker LJ 625) : (AIR 1962 SC 922) on the ground that the rules of 1950 and 1951 which authorised the levy and collection and which contained the charging provisions, had no independent existence after the implied repeal of the Tobacco Act by the Central Excises and Salt Act, 1944. Thereupon, the Kerala State Legislature passed the Validation Act 9 of 1964 (called Luxury Tax Act, for short) validating the levy and collection of the tax, as a tax on luxuries. The Validation Act was challenged in this Court. It was sustained by a learned Judge, in the first instance. On appeal, a Division Bench by Judgment in Writ Appeal No. 5070 of 1965 etc. dated 3-10-1966 held that it violated the provisions of Article 301 of the Constitution. On further appeal by the State to the Supreme Court, the decision of the Division Bench was set aside and the matter was remanded back to this Court, for fresh investigation before pronouncing whether the levy actually offends Article 301 or not. (vide the judgment of the Supreme Court dated 30-7-1969 reported in State of Kerala v. A.B Abdulkhadir (1969 Ker LT 649) : ((1969) 2 SCC 363 : AIR 1970 SC 1912)). After remand, a Division Bench of this Court sustained the validity of the Act by judgment rendered on 15-10-1970 reported in Abdulkhadir v. State of Kerala, 1971 Ker LJ 4 : (1971 Tax LR 512).

2. This application for review of judgment was filed on 18-8-1971. It is based on the ground that the judgment of one of us D/- 1-1-1969 was on account of the invalidation of Act 9 of 1964 by the Division Bench ruling of this Court in Writ Appeal No. 5070 of 1965 etc. dated 3-10-1966 and as the same had been set aside on appeal by the Supreme Court, and the legislation itself had been sustained by the later Division Bench ruling dated 15-10-1970 the State is entitled to have the judgment reviewed. An application filed to excuse delay in preferring the petition for review has been allowed. The questions that therefore survive are whether the State is entitled to have the judgment reviewed; and if so whether there are adequate grounds to allow the application. The learned Government Pleader placed his case for review both under the provisions of Order 47, Rule 1 of the CPC and under the inherent powers of the Court. The provisions of Order 47, were invoked on the ground that S.A.L Naravan Row v. Ishwarlal Bhaewandas (AIR 1965 SC 1318 : 57 ITR 149) had ruled that proceedings relating to fax under Article 226 are ‘civil proceedings’, for the purposes of Article 133 of the Constitution, and this would attract Order 47. That the said provision would be attracted was expressly ruled in Chenchanna Naidu v. Praia Seva Transports Ltd. (AIR 1953 Mad 39) which was referred to and followed in Dilip Nath Sen v. Certificate Officer (AIR 1962 Cal 346), and again in Income-tax Officer. Masulipatnam v. K. Srinivasa Rao (AIR 1969 Andh Pra 441). The Calcutta decision refers to a judgment of Chagla, C.J in S.P Awate v. C.P Fernandes (AIR 1959 Bom 466). But the Bombay decision assumed that the Court had power to review its order passed on an application under Article 226, and stated that the same could be only on the ground of an error apparent on the face of the record which means that the error should be so clear and manifest that no court would allow it to remain on the record and not one to be demonstrated by a process of ratiocination. Our attention was called to the decision of a learned Judge of this Court (Raman Navar, J. as he then was) in Pathrose v. Kuttan alias Sankaran Nair, 1969 Ker LT 15 : (AIR 1969 Ker 186). There, the learned Judge held that a subsequent binding authority taking a different view of the law is a good ground for review. In the earlier part of the judgment the learned Judge appears to rest the conclusion both on the ground that it amounted to the discovery of “a new and important matter”, and in any case to an “error apparent on the face of the record”, within the meaning of Rule 1 of Order 47 of the CPC. In the course of the judgment the latter of these grounds alone appears to have figured prominently, and ultimately the learned Judge granted the review on that ground. The decision was followed by Krishna Iyer, J. in Chandrasekharan Nair v. Purushothaman Nair (1969 Ker LT 686). The learned Judge added:

“Where it is a subsequent decision it is the discovery of a new and important matter, and where it is an antecedent decision, it is an error apparent on the face of the record.”

3. One of us in State of Kerala v. Kesavan Vadhyan Namboodiri (1969 Ker LJ 450) held that a subsequent binding decision was not a ground for review under the inherent powers.

4. Giving the matter our careful attention, we are unable to agree that, assuming Order 47, Rule 1 is applicable to the case, a subsequent binding decision in this case the pronouncement of the Supreme Court on 30-7-1969 and certainly of the Division Bench on 15-10-1970 would constitute either the discovery of “a new and important matter” or “an error apparent on the face of the record”. There is the early authority of a Division Bench of the Bombay High Court in Waghela Raisangii Shivsangji v. Shaik Masludin (1889) ILR 13 Bom 330 that a decision of the Privy Council reversing that of the High Court is “a new and important matter”, within the meaning of Secs. 623 and 624 of the Code of 1882. The authority of this decision has been shaken by the pronouncement of the Privy Council in Rajah Kotagiri Venkata Subbamma Rao v. Raiah Vellanki Venkatrama Rao (1900) 27 Ind App 197 : ILR 24 Mad 1 (PC). Lord Davey observed:

“Section 623 enables any of the parties to apply for a review of any decree on the discovery of new and important matter and evidence, which was not within his knowledge, or could not be produced by him at the time the decree was passed, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason. It is not necessary to decide in this case whether the latter words should be confined to reasons strictly ejusdem generis with those enumerated, as was held in Roy Meghrai v. Beeioy Govind Burral. (1) In the opinion of their Lordships, the ground of amendment must at any rate be something which existed at the date of the decree and the section does not authorise the review of a decree which was right when it was made on the ground of the happening of some subsequent event.”

5. At page 1670 of Mulla's 13th Edition of the Code of Civil Procedure adverting to the Bombay decision, in Waghela Raisangji Shivsangji's case (1889) ILR 13 Bom 330), the learned author comments that the decision stands on the special facts of the case. At page 1672, the learned author observes that it is no ground for review that the judgment proceeds on an incorrect exposition of the law, or of a ruling which has subsequently been modified or reversed or that the law has been laid down differently in a later decision. Nor is a subsequent change in the law a ground for review unless it is retrospective in its operation.

6. But it is claimed by the Government pleader that a subsequent binding decision proclaims and declares the law as it ever was, and therefore with retrospective effect, and that it stands on the same footing as a subsequent legislation with retrospective effect. This reasoning found favour with Raman Navar, J. in the decision in Pathrose's case (1969 KLT 15 : (AIR 1969 Ker 185)). We are unable to accept the reasoning as correct. In the case of a legislation Passed subsequently but with retrospective effect from the time when the decision sought to be reviewed was rendered, the position is that if the legislation is projected back to the date of the delivery of the judgment, there is, an error apparent on the face of the record in the judgment, based on the old or unamended legislation. On this aspect, we find ourselves in agreement with the reasoning of the majority in Mohammad Azamat Azim Khan v. Raja Shatranji (AIR 1963 All 541 (FB) See paragraphs 3 and 4). We are unable to agree, with the reasoning of Raman Nayar, J. distinguishing this case, in 1969 KLT 15 : (AIR 1969 Ker 186). In A.C Estates v. Saraiuddin & Co. (AIR 1966 SC 935 at 939). the Supreme Court approved of the Privy Council ruling in 27 Indian Appeals 197 and stated that for review on the ground of discovery of “new and important matter”, the said matter must exist at the time when the order sought to be reviewed was made. The decision of the Full Bench of the Allahabad High Court in AIR 1963 All 541 was affirmed by the Supreme Court in Raia Shatrunjit v. Mohammed Azmat Azim Khan ((1971) 2 SCC 200 : AIR 1971 SC 1474). After referring to the grounds for review, reference was made to Kotagiri case ((1900) 27 Ind App 197) and to the principle stated therein that review of a decree which was right when made, on the ground of some subsequent event was not contemplated. The Supreme Court observed:

“Counsel for the appellant submitted that when the High Court decided the matter, the High Court applied the law as it stood and a subsequent change of law could not be a ground for review. The appellant's contention is not acceptable in the present case for two principal reasons first, it is not a subsequent law. It is the law which all along was there from 1952. The deeming provision is fully effective and operative as from 25 May, 1953, when the 1952 Act came into force. The result is that the Court is to apply the legal provision as it always stood. It would, therefore, be error on the face of the record. The error would be that the law that was applied was not the law which is applicable. Secondly. Section 4 of the 1952 Act confers power on the court to apply the law notwithstanding any provision contained in the Code of Civil Procedure. Therefore the application though entitled an application for review was not so. The substance and not the form of the application will be decisive.”

7. In the AIR Commentaries, on the Constitution of India By Chitaley & Rao. Vol. III (2nd Edn) at pages 229 and 230, the conflict of judicial opinion on the question whether a decision in another case whether between the same or different parties, after the date of judgment sought to be reviewed, would be a sufficient ground for review, is noticed, and the learned authors submit that after the Privy Council decision in the Kotagiri case ((1900) 27 Ind App 197) the decision in (1889) ILR 13 Bom 330 and the cases following the same, cannot be accented as laying down the correct law. In the light of these, we are unable to accent the position that the subsequent decision of the Supreme Court rendered on 30-7-1969 or of the Division Bench given on 15-10-1970 constitutes discovery of “a new and important matter” justifying review.

8. Nor can we regard these, as amounting to the discovery of a “mistake” or an “error apparent on the face of the record”. While we agree that the reversal or variance, or the overruling of a judicial decision by a subsequent one amounts to discovery of an error or a flaw in the reasoning of the decision reversed, varied or overruled, we are unable to hold that in every such case, there is an “error apparent on the face of the record”. The expressions underlined are quite strong, and have a well understood judicial connotation. Mere conflict or divergence of opinion cannot amount to an error apparent on the face of the record. This ground of review again, should therefore fail. It follows that in the light of the authorities discussed, we cannot accept the decisions in Pathrose's case (1969 KLT 15) : (AIR 1969 Ker 186), and in 1969 KLT 686 as laving down correct law.

9. The only other ground for review under Order 47, Rule 1 is “other sufficient cause”. It is well settled that these words should be understood ejusdem generic with the two grounds immediately preceding them. Being so, it is enough for us to state that no other sufficient reason has been disclosed for review. The result is even if Order 47, Rule 1 of the CPC is applicable to the case, — as to which we need not venture a final opinion — none of the grounds contemplated by it are made out. The position is no better if the application is treated as one for review under the inherent powers of the Court. The decision of the Supreme Court in Shivdev Singh & Others v. State Of Punjab & Others (AIR 1963 SC 1909) is an authority for the Position that an order passed under Article 226 of the Constitution, can be reviewed under the inherent powers of the Court. But even so, no grounds have been made out for invocation of the inherent powers of review. The judgment sought to be reviewed, rendered on 1-1-1969 noticed that no counter-affidavit had been filed by the Government and there was no appearance for the Government at the hearing. Writ Appeal No. 5070 of 1965 and the batch of cases heard along with it, or at least some of them, were then pending in appeal before the Supreme Court. The Supreme Court set aside the Judgment of the Division Bench and remanded the matter back to this Court on 30th July, 1969. In pursuance of the remand, a Division Bench of this Court sustained the legislation by its judgment given on 18-10-1970. No steps were taken for an appeal against the judgment dated 1-1-1969. The application for review was filed only on 18-8-1971. In the circumstances, we see no ground to exercise our inherent Power of review. We dismiss this application but in the circumstances without costs.

10. Application dismissed.