Citation Codes

Equivalent Citations

citation codes

Case Number

Civil Petn. No. 169 of 1970, to review the order of this Court in W.P No. 3789 of 1970, D/- 21-10-1970

Attorney(S)

For the Appellant: R.J. Babu, R.N. Byra Reddy, Advocates.

Judges

D.M Chandrashekhar
M. Santhosh, JJ.

Acts

SCHEDULED CASTES AND SCHEDULED TRIBES ORDERS AMENDMENT ACT 1956
ARTICLE 342 CONSTITUTION OF INDIA
rule 1 of Order 47,

See more information ...

Smart Summary

Structured Summary of the Opinion (Chandrashekhar, J.)

Factual and Procedural Background

This is a review petition of an earlier order in Writ Petition No. 3789 of 1970. The original writ concerned whether a person belonging to the Meda Community and resident of Kolar District could be regarded as belonging to the Scheduled Tribes for purposes of reservation of seats in Government Medical Colleges in the State of Mysore. The Constitution (Scheduled Tribes) Order, 1950 (as amended) specified the Meda Community as a Scheduled Tribe in Coorg District but not in the rest of the new State of Mysore.

At the hearing of the original writ, this court followed the decision in Suleman v. Narasappa (1959-1937 Mys LJ 775) and held that if a community is a Scheduled Tribe anywhere in the State, it must be regarded as a Scheduled Tribe throughout the entire State; accordingly the court directed the Selection Committee to consider the applicant's claim under the reservation for Scheduled Tribes.

The Selection Committee (which had been the respondent in the writ petition) filed the present review petition seeking review of that order on the ground that the Supreme Court decision in Bhaiyalal v. Harikishan Singh (AIR 1965 SC 1557) must be held to have overruled the court's decision in Suleman v. Narasappa and therefore the earlier order should be revisited.

Legal Issues Presented

Whether overlooking a binding decision (in particular a decision of the Supreme Court) constitutes a ground for review of a judgment or order — i.e., whether such overlooking can amount to an "error apparent on the face of the record".
Whether the Supreme Court decision in Bhaiyalal v. Harikishan Singh (AIR 1965 SC 1557) effectively overruled this Court's earlier decision in Suleman v. Narasappa (1959-1937 Mys LJ 775), thereby furnishing a basis for review of the order in W.P. No. 3789 of 1970.

Arguments of the Parties

Selection Committee's (Review Petitioner) Arguments

The Selection Committee, through the learned Government Advocate, contended that if a court, in deciding a case, overlooks a binding decision bearing on a material question, that oversight constitutes an error apparent on the face of the record and therefore warrants review of the judgment or order.
Specifically, the Selection Committee argued that the Supreme Court decision in Bhaiyalal v. Harikishan Singh had bearing on the matter and must be held to have overruled the earlier Mysore decision relied upon in the writ petition.

Respondent's Arguments

Mr. R.J. Babu, counsel for the respondent in the review petition, contended that even if the court overlooks a binding decision, that omission does not amount to an error apparent on the face of the record and is not, by itself, a sufficient cause for review of its judgment or order.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Suleman v. Narasappa, 1959-1937 Mys LJ 775	Held that if a community is a Scheduled Tribe anywhere in the State, it must be regarded as a Scheduled Tribe throughout the entire State.	The court had followed this decision in the original writ to regard the applicant as belonging to Scheduled Tribes for admission purposes.
Bhaiyalal v. Harikishan Singh, AIR 1965 SC 1557	Invoked by the Selection Committee as a Supreme Court decision bearing on the point and alleged to have overruled the Mysore decision in Suleman.	Cited as a binding Supreme Court decision that bears directly on the point decided earlier; its existence prompted the review application.
Murari Rao v. Balvant Dixit, AIR 1924 Mad 98	Where a subordinate court omitted to notice a legal position definitely laid down by the High Court, that omission amounted to an error apparent on the face of the record and warranted review.	Relied upon by the court as authority that overlooking a clear legal position can constitute error apparent on the face of the record.
Natesa Naicker v. Sambanda Chettiar, AIR 1941 Madras 918	When a legal position is clearly established and by oversight a judge omits to consider it, that omission may, in a proper case, be a ground of review as an error apparent on the face of the record.	Followed Murari Rao and cited as supportive authority for allowing review where a clearly settled proposition was overlooked.
Rameswaraswami Varu v. Ramalinga Raju, AIR 1960 Andh. Pra. 17	Applied the view of the Madras decisions that overlooking settled law can be a ground for review.	Noted as a following decision consistent with the Madras line of authority.
Tinkari Sen v. Dulal Chandra, AIR 1967 Cal 518	Stated that overlooking a well-settled proposition of law furnishes a good ground for review, distinguishing a mere mistake from the overlooking of settled law.	Cited as supporting the proposition that omission to notice a settled legal proposition may ground review.
Ellem v. Basheer ((1876) ILR 1 Cal 184)	Held that production of an authority not called to a judge's attention in the first trial is not sufficient ground for review; improper decision on a point of law is matter for appeal, not review.	Cited by the court as an authority taking the contrary view that omissions to cite cases in the first hearing should not automatically justify review.
Dilip Nath Sen v. Certificate Officer, AIR 1962 Cal 346	Followed the Calcutta High Court principle that omission to cite authorities is not necessarily ground for review.	Noted as following Ellem v. Basheer in support of the opposite view.
Garabini Kamarain v. Surji Narain Singh, AIR 1924 Pat 250	Set aside a review granted on the ground of ignorance of a Full Bench ruling; held ignorance should not be allowed to ground review, invoking rule 1 of Order 47.	Referred to as representing the Patna High Court view that ignorance of prior ruling is not a basis for review.
Atmaram v. Punjabrao, AIR 1925 Nag 384	Followed the Patna High Court approach that ignorance of an authoritative ruling cannot be pleaded in support of review.	Noted as following Garabini Kamarain.
Opporti Padhi v. Paila Ujjula, AIR 1927 Mad 998	Expressed doubt about the correctness of the Madras High Court decision that omission to consider a decision is an error apparent on the face of the record; argued mere omission cannot be regarded as such an error.	Referred to as an authority expressing the contrary viewpoint that omission to consider a decision cannot readily be classed as error apparent on the face.
C. Venkatappayya v. Ponnayya, AIR 1933 Mad 631	Observed that a mistake of law cannot easily be considered apparent on the face of the record because a contrary decision of a superior court is not part of the record.	Cited as part of the line of authorities doubting that overlooking a decision is an error apparent on the face of the record.
Tungabhadra Industries Ltd. v. Govt. of Andhra Pradesh, AIR 1964 SC 1372	Laid down the test: where without elaborate argument one can point to an error that is a substantial point of law which "stares one in the face" and on which there could be no two opinions, a clear case of error apparent on the face of the record is made out.	Adopted by the court as the key test to resolve the divergence of views; used to hold that overlooking a binding Supreme Court decision can be an error apparent on the face of the record when the test is met.
Jamna Kuer v. Lal Bahadur, AIR 1950 F.C. 131	Held that where there is an error apparent on the face of the record the manner in which the error occurred (counsel's mistake or court's oversight) is irrelevant.	Relied upon to reject the argument that the reason for the error (e.g., counsel's omission) should affect whether review is permitted.
Venkatarayulu Naidu v. Rattamma Garu, AIR 1939 Mad 293	Stated that where there is an error apparent on the face of the record it should be corrected at the earliest possible time without forcing parties to appeal or revision.	Quoted to support the proposition that an error apparent on the face of the record should be corrected promptly by review.

Court's Reasoning and Analysis

The court framed the central question as whether overlooking a binding decision constitutes a ground for review. It noted that the Selection Committee sought review on the basis that the Supreme Court decision in Bhaiyalal v. Harikishan Singh bore directly on the point and had not been brought to the court's attention at the original hearing of the writ petition.

The court observed a divergence of authority among High Courts: a line of decisions (Madras, Calcutta, Patna and others) took differing views on whether omission to notice earlier authority can amount to an error apparent on the face of the record. The court examined both lines:

One line (e.g., Murari Rao; Natesa Naicker; Tinkari Sen) held that omission to notice a clearly settled legal position may amount to an error apparent on the face of the record and warrant review.
Another line (e.g., Ellem v. Basheer; Opporti Padhi; C. Venkatappayya) held that mere omission or oversight is not sufficient and that such matters are for appeal rather than review.

To resolve this divergence, the court relied upon the Supreme Court's test laid down in Tungabhadra Industries Ltd. v. Govt. of Andhra Pradesh (AIR 1964 SC 1372). The Tungabhadra test, as summarized by the court, is that when an error is of such a character that, without elaborate argument, one can point to a substantial point of law which "stares one in the face" and about which there could reasonably be no two opinions, that constitutes an error apparent on the face of the record.

Further, the court applied Article 141 of the Constitution — that the law declared by the Supreme Court is binding on all courts in India — and reasoned that where a decision of the Supreme Court bears on the point and a court has taken a view inconsistent with the law laid down by the Supreme Court, it needs no elaborate argument to point to the error and there could reasonably be no two opinions about such error. Accordingly, applying the Tungabhadra test and Article 141, the court concluded that overlooking a binding Supreme Court decision in such circumstances would be an error apparent on the face of the record.

The court also addressed and rejected competing lines of reasoning (for example, the views of Garth, C.J. and Dawson Miller, C.J.) to the extent they suggested that party or counsel omissions should preclude review; instead, the court followed the Federal Court's decision in Jamna Kuer v. Lal Bahadur to the effect that the manner in which an error occurred is irrelevant where an error apparent on the face of the record exists.

Holding and Implications

Core Ruling: The review petition was allowed and the court set aside its earlier order dated 21-10-1970 in Writ Petition No. 3789 of 1970. The Writ Petition was ordered to be re-posted for hearing.

Implications:

The court applied the Supreme Court test from Tungabhadra Industries Ltd. (AIR 1964 SC 1372) and Article 141 of the Constitution to hold that where a court's view is inconsistent with binding Supreme Court law and the inconsistency is manifest (a point of law that "stares one in the face" with no two opinions reasonably possible), overlooking that binding decision is an error apparent on the face of the record and is a ground for review.
In practical terms for the parties, the earlier order in the writ petition has been set aside and the writ petition will be reheard; the parties were directed to bear their own costs in the review petition.
The court expressly relied on Supreme Court precedent to settle the divergent High Court views and to justify correction by review in the circumstances described; the decision therefore clarifies that overlooking a binding Supreme Court decision can, in appropriate cases meeting the Tungabhadra test, justify review.

Order accordingly.

This summary is drawn exclusively from the text of the provided opinion and does not add or infer information beyond what the opinion itself contains.

Show full summary ...

The Selection Committee For Admission To The Medical And Dental College, Bangalore, v. M.P Nagaraj, .

Chandrashekhar, J.:— Does overlooking a binding decision constitute a ground for reviewing a judgment or order of a Court? That is the question that arises for decision in this review petition.

2. This is a petition for review of our order in W.P No. 3789 of 1970 The petitioner herein is the Selection Committee for admission to Government Medical Colleges (hereinafter referred to as the Selection Committee) which was the respondent in the Writ Petition. For the sake of convenience, the parties herein will hereinafter be referred to with reference to their respective positions in the Writ petition. The question that arose for decision in the Writ petition, was whether the petitioner who belongs to Meda Community and was a resident of Kolar District, could be regarded as belonging to Scheduled Tribes for whom certain seats are reserved for admission to Government Medical Colleges in Mysore State. In the Constitution (Scheduled Tribes) Order, 1950, issued by the President under Article 342 of the Constitution of India, and amended by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1956. Meda Community in Coorg District has been specified as a Scheduled Tribe. But in the rest of the new State of Mysore that community has not been specified as a scheduled tribe.

3. At the hearing of the Writ Petition the learned counsel for the petitioner relied on the decision of this court Page: 45in Suleman v. Narasappa, 1959-1937 Mys LJ 775. Following that decision, we held that if a community or a tribe is a scheduled tribe anywhere in the State, it must be regarded as a scheduled tribe in the entire State. In that view, we held that the petitioner should be regarded as belonging to Scheduled Tribes though he was a resident of Kolar District and we directed the Selection Committee to consider his application for admission to Medical Colleges having regard to the reservation of seats for Scheduled Tribes.

4. The ground on which the Selection Committee has sought for a review of our order in the writ petition, is that we overlooked the decision of the Supreme Court in Bhaiyalal v. Harikishan Singh, AIR 1965 SC 1557 which must be held to have overruled the decision of this court in 1959-1937 Mys LJ 775.

5. Undoubtedly, the aforesaid decision of the Supreme Court bears directly on the point that arose for decision in the writ petition. At the hearing of the writ petition, neither the petitioner's counsel nor the learned Government Pleader who appeared for the Selection Committee, brought to our notice the aforesaid decision of the Supreme Court AIR 1965 SC 1557.

6. The learned Government Advocate who appeared for the Selection Committee in this review petition, contended that in deciding a case if the court overlooks a binding decision bearing on a material question, then that constitutes an error apparent on the face of the record and calls for a review of its judgment or order.

7. On the other hand, Mr. R.J Babu, learned counsel for the respondent in this review petition, contended that even if the court overlooks a binding decision, that constitutes neither an error apparent on the face of the record nor a sufficient cause for reviewing its judgment or order.

8. On the question whether overlooking a binding decision, is a ground for review, there is no reported decision of the Supreme Court or of this court; nor has any unreported decision of either of these courts, been brought to our notice. The views of other High Courts on this question, are divergent.

9. Before adverting to such conflicting decisions of High Courts, it may be stated that it is well-settled that a decision is erroneous in law, is no ground for review and that it is only where such decision can be characterised as vitiated by an error apparent on the face of the record, it can be reviewed.

10. We shall now consider the decisions cited by the learned Government Advocate.

11. In Murari Rao v. Balvant Dixit, AIR 1924 Mad 98, the District Judge had decided a suit relating to succession under Hindu Law. The plaintiff applied for a review of the judgment on the ground that the question of law arising in that decision, namely, the question of propriety of heirs under the Mitakshara Law applicable to Madras Presidency, had been settled by a decision of the Madras High Court. As that ruling had not been brought to the notice of the District Judge at the original trial, he reviewed his judgment. The defendants appealed to the Madras High Court.

12. A Bench consisting of Philips and Venkatasubba Rao, JJ. held that the error of law committed by the District Judge in not noticing the legal position on the point at issue definitely laid down by the Madras High Court in its earlier decision, amounted to an error apparent on the face of the record and that hence there was a ground for granting a review. Their Lordships added:

“To hold otherwise would be to multiply litigation, for naturally the aggrieved party would appeal and the error would have to be corrected by the appellate court rather than in the court of first instance.”

13. The above decision of the Madras High Court was followed by Wadsworth J., in Natesa Naicker v. Sambanda Chettiar, AIR 1941 Madras 918. His Lordship said at p. 920:

“When there is a legal position clearly established by a well known authority and by some unfortunate oversight, the Judge has gone palpably wrong by the omission of those concerned to draw his attention to the authority, it may in a proper case, in the light of ILR 46 Mad. 955 : AIR 1924 Mad 98, be a ground coming within the category of an error apparent on the face of the record.”

14. The aforesaid decisions of the Madras High Court were followed by Bhimasankaram J., in Rameswaraswami Varu v. Ramalinga Raju, AIR 1960 Andh. Pra. 17.

15. The same view was taken by Bijaesh Mukherji, J., in Tinkari Sen v. Dulal Chandra, AIR 1967 Cal 518. His Lordship said at P. 522:

“A mistake simpliciter, either in the realm of fact or of law is no ground for review. But overlooking a proposition of law well settled and beyond controversy does furnish a very good ground for review.”

16. We shall now examine the decisions cited by Mr. Babu in support of his contention that not noticing an earlier decision, is not a ground for review.

17. In Ellem v. Basheer, (1876) ILR 1 Cal 184 Richard Garth, C.J, who spoke for the Bench said:

“The Subordinate Judge of Sylhet reviewed his own decision ………… He gave as a reason for the review that he was referred by the pleader to two authorities decided by the High Court many years ago, one of which he considered to be opposed to his former judgment He, accordingly, made an order for the review and reversed his previous decision.”

“We cannot consider that the production of an authority to which the attention of the Judge was not called in the first trial, is sufficient ground for demanding a second trial. The parties ought to come prepared with all their materials both of law and facts at the first hearing and if they do not come properly prepared they ought not to be allowed upon discovering that they had omitted to bring forward some decided case, to try the case over again upon the strength of their own omission. If the Judge has decided improperly upon a point of law that would be a matter for appeal and not for review.”

18. The aforessid decision of the Calcutta High Court was followed by Sinha, J. (as he then was), in Dilip Nath Sen v. Certificate Officer, AIR 1962 Cal 346.

19. In Garabini Kamarain v. Surji Narain Singh, AIR 1924 Pat 250, the Munsiff had granted a review on the ground that the case law relied on by him had been modified by a subsequent decision. Setting aside the order of the Munsiff granting review this is what Dawson Miller, C.J, who spoke for the Bench, said at p. 253:

“The ground upon which the application for review was based was that the petitioners were not aware of the Full Bench ruling of this court and could not place it before the Munsiff at the first trial …….. It would be impossible to prove that a Full Bench decision of the High Court to which the trial Court was subordinate, published in the authorised law reports some four months before the trial, could not have been adduced at the trial. If in fact the decision was not within the knowledge of the petitioner or his pleader, ignorance of this nature ought not, in my opinion, in view of rule 1 of Order 47, to be allowed to be pleaded in support of an application such as the present.”

20. The aforesaid decision of the Patna High Court was followed by Baker, C.J, in Atmaram v. Punjabrao, AIR 1925 Nag 384.

21. In Opporti Padhi v. Paila Ujjula, AIR 1927 Mad 998, Srinivasa Aiyangar, J. doubted the correctness of the decision of the Madras High Court in AIR 1924 Mad 998. His Lordship said at p. 1000:

“It seems to me sufficient to say that file mere omission on the part of a learned Judge to consider a decision, however regrettable, however wrong, cannot possibly be regarded as constituting an error apparent on the face of the record. Even assuming it to be an error that may be discovered from the record itself, it seems to me to be almost impossible to regard such error as an error apparent on the face of the record.”

22. In C. Venkatappayya v. Ponnayya, AIR 1933 Mad 631, Wailer, J., in his order of reference to the Full Bench, observed thus:

“Speaking for myself I cannot understand how a mistake of law can be apparent on the face of the record. It may be apparent from the contrary decision of a superior court but that is not a part of the record.”

23. In this state of divergence of views as to whether overlooking a binding decision amounts to an error apparent on the face of the record, the key to the solution of this question is in our opinion, found in the test laid down by Rajagopala Iyengar, J., who spoke for the court in Tungabhadra Industries Ltd. v. Govt. of Andhra Pradesh, AIR 1964 SC 1372. Without intending to deal with that question exhaustively, his Lordship said that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.

24. Art. 141 of the Constitution provides that the law declared by the court, shall be binding on all courts within the territory of India. Hence, where there is a decision of the Supreme Court bearing on a point and where a Court has taken a view on that point, which is not consistent with the law laid down by the Supreme Court, It needs no elaborate argument to point to the error and there could reasonably be no two opinions entertained about such error. Applying the above test laid down by Rajagopala Ayyangar, J., in AIR 1964 S.C 1372, such an error would clearly be an error apparent on the face of the record-The reasoning of Srinivasa Iyengar. J., in AIR 1927 Mad 998 and of Waller, J., in AIR 1933 Mad 731, that a mistake of law apparent from a contrary decision of a superior court, cannot be said to be apparent on the face of the record, cannot prevail in view of the test laid down by the Supreme Court as to what constitutes an error apparent on the face of the record.

25. The reasoning of Garth, C.J, In (1876) ILR 1 Cal 184 that a counsel omitting to cite a decided case, ought not to be allowed to demand a second trial, Page: 47and the reasoning of Dawson Miller C.J, in AIR 1924 Pat 250 that the ignorance of a party or his pleader as to a ruling, ought not to be allowed to be pleaded in support of an application for review, cannot prevail against the decision of the Federal Court in Jamna Kuer v. Lal Bahadur, AIR 1950 F.C 131. Mahajan, J. (as he then was), who spoke for the Federal Court, said that where there is an error apparent on the face of the record the question as to how that error occurred, is of no relevance for the purpose of review, and that it is immaterial whether such error occurred by reason of the counsel's mistake or had crept in by reason of oversight on the part of the court. As stated by Wadsworth, J. in Venkatarayulu Naidu v. Rattamma Garu, AIR 1939 Mad 293, where there is an error apparent on the face of the record, it should be corrected at the earliest possible time without driving the parties to the expenses of an appeal or revision petition to which there would be no answer.

26. In the result, we allow this review petition and set aside our order dated 21-10-1970 in Writ Petition No. 3789 of 1970. The Writ Petition will again be posted for hearing. In the circumstances of the case, we direct the parties to bear their own costs in this petition.