It is common knowledge that the Courts follow the binding dictum of a Higher Courts but it may happen that the case relied by the Court, on which the entire judgment has been founded, may subsequently be overruled by a Superior Court or a larger bench of the same Court. For example, the High Court decides a matter on the basis of a binding precedent of the same Court but later on the Apex Court in some other case expressly overrules the earlier judgment.

A question therefore validly arises whether in such circumstances the order of the Court, based on earlier judgment which has been subsequently overruled, can be legally reviewed. Similarly, if there is a change in law, would it be a valid ground for filing Review in cases decided earlier, wherein no appeal is pending.

It is undisputed that prior to rehearing of the matter on merits, the primary issue of maintainability of the review petition requires to be ascertained. The power of the Court to review its judgment is subject to the law enacted by the Parliament or the Rules made by the Courts in this regard.

It is noteworthy that the power to review its judgments has been conferred on the Supreme Court by Article 137 of the Constitution of India 1949. The said Article is reproduced as under:

137. Review of judgments or orders by the Supreme Court Subject to the provisions of any law made by Parliament or any rules made under Article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it.

It is evident that power of Review is subject to the provisions of any law made by the Parliament or the Rules made under Article 145. Supreme Court in exercise of the powers conferred under Article 145 of the Constitution of India has framed the Supreme Court Rules, 2013.

It would be apposite to reproduce Order XLVII- Review as it appears in CPC, which reads as under:
Rule 1: Application for review of judgment:

1. Any person considering himself aggrieved:
   • by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
   • by a decree or order from which no appeal is allowed, or
   • by a decision on a reference from a Court of Small Causes,
   and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment of the Court which passed the decree or made the order.
    
2. A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.

Explanation:
The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment."

It would be befitting to reproduce PART-IV,
ORDER XLVII of the Supreme Court Rules, 2013, which deals with Review before the Supreme Court. The relevant rule reads as under:

REVIEW:

1. The Court may review its judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII, rule I of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record. The application for review shall be accompanied by a certificate of the Advocate on Record certifying that it is the first application for review and is based on the grounds admissible under the Rules.
    
2. An application for review shall be by a petition, and shall be filed within thirty days from the date of the judgment or order sought to be reviewed. It shall set out clearly the grounds for review.
    
3. Unless otherwise ordered by the Court an application for review shall be disposed of by circulation without any oral arguments, but the petitioner may supplement his petition by additional written arguments. The Court may either dismiss the petition or direct notice to the opposite party. An application for review shall as far as practicable be circulated to the same Judge or Bench of Judges that delivered the judgment or order sought to be reviewed.
    
4. Where on an application for review the Court reverses or modifies its former decision in the case on the ground of mistake of law or fact, the Court, may, if it thinks fit in the interests of justice to do so, direct the refund to the petitioner of the court-fee paid on the application in whole or in part, as it may think fit.
    
5. Where an application for review of any judgment and order has been made and disposed of, no further application for review shall be entertained in the same matter.

From the bare reading of Explanation to Order XLVII Rule 1 CPC, it becomes amply clear that just because a judgment was subsequently overruled, the same cannot be a ground for review of such judgment. If Review in such circumstances is entertained, there would be chaos and no finality of any decision of a Court which is against public policy. There are a number of Legal maxims that there must be an end to litigation otherwise the rights of persons would be in an endless confusion and justice would suffer.

The following Maxims are worth mentioning:

1. Nemo debet bis vexari pro una et eadem causa– No man should be vexed twice for the same cause.
2. Interest reipublicae ut sit finis litium– It is in the interest of the State that there should be an end to a litigation.
3. Res judicata pro veritate occipitur– A judicial decision must be accepted as correct.

It would be trite to refer to the case of Assistant Commissioner, Income Tax, Rajkot v. Saurashtra Kutch Stock Exchange Limited, (2008) 14 SCC 171 wherein the Apex Court held that a judicial decision acts retrospectively. The Court held that if a subsequent decision alters the earlier one, the later decision does not make new law but it only discovers the correct principle of law which has to be applied retrospectively. Thus, to put it differently, even where an earlier decision of the court operated for quite some time, the decision rendered later on would have retrospective effect clarifying the legal position which was earlier not correctly understood. The Court observed thus:

42. In our judgment, it is also well- settled that a judicial decision acts retrospectively. According to Blackstonian theory, it is not the function of the Court to pronounce a `new rule' but to maintain and expound the `old one'. In other words, Judges do not make law, they only discover or find the correct law. The law has always been the same. If a subsequent decision alters the earlier one, it (the later decision) does not make new law.

It only discovers the correct principle of law which has to be applied retrospectively. To put it differently, even where an earlier decision of the Court operated for quite some time, the decision rendered later on would have retrospective effect clarifying the legal position which was earlier not correctly understood.

43. Salmond in his well-known work states:

"The theory of case law is that a judge does not make law; he merely declares it; and the overruling of a previous decision is a declaration that the supposed rule never was law. Hence any intermediate transactions made on the strength of the supposed rule are governed by the law established in the overruling decision. The overruling is retrospective, except as regards matters that are res judicatae or accounts that have been settled in the meantime". (emphasis supplied)"

The above reasoning appears logical but this case is not an authority that change in law or subsequent overrule would not make the Review against the original order maintainable. The said judgment has not considered explanation to Order XLVII- Review as it appears in CPC which specifically mandates that review is not maintainable where the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior court in any other case.

It would be relevant to refer to the Himachal Pradesh High Court's judgment in the case of Nalagarh Dehati Coop Transport Society v. Beli Ram AIR 1981 HP 1, wherein it was held that a subsequent judgment of the Supreme Court or a larger Bench of the same Court taking a contrary view on the point covered by the judgment would not amount to a mistake or error apparent on the face of the record of the judgment sought to be reviewed. Thus, Review in such cases is not maintainable.

It would be befitting to refer to the Apex Court judgment in Union of India vs. Nareshkumar Badrikumar Jagad & Others (2019) 18 SCC 586, wherein the Court considered this aspect & held thus:

19. Reverting to the question of whether Union of India has locus to file the review petition, we must immediately advert to Section 114 of the Code of Civil Procedure ("CPC") which, inter alia, postulates that "any person considering himself aggrieved" would have locus to file a review petition. Order XLVII of CPC restates the position that any person considering himself aggrieved can file a review petition.

Be that as it may, the Supreme Court exercises review jurisdiction by virtue of Article 137 of the Constitution which predicates that the Supreme Court shall have the power to review any judgment pronounced or order made by it. Besides, the Supreme Court has framed Rules to govern review petitions.

Notably, neither Order XLVII of CPC nor Order XLVII of the Supreme Court Rules limits the remedy of review only to the parties to the judgment under review. Therefore, we have no hesitation in enunciating that even a third party to the proceedings, if he considers himself an aggrieved person, may take recourse to the remedy of review petition. The quintessence is that the person should be aggrieved by the judgment and order passed by this Court in some respect."

It is very pertinent to note that the Constitution Bench in Beghar Foundation vs. Justice K.S. Puttaswamy (Retired) and Others(2021) 3 SCC 1,held that even the change in law or subsequent decision/ judgment of
co-ordinate Bench or larger Bench by itself cannot be regarded as a ground for review. The Court observed thus:

"The present review petitions have been filed against the final judgment and order dated 26.09.2018. We have perused the review petitions as well as the grounds in support thereof. In our opinion, no case for review of judgment and order dated 26.09.2018 is made out. We hasten to add that change in the law or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review. The review petitions are accordingly dismissed."

It would be trite to refer to a recent Apex Court judgment in Review Petition (Civil) No. 1620 of 2023 in Civil Appeal no.1661 of 2020 in the case of Sanjay Kumar Agarwal vs. State Tax Officer (1) & Anr. & other 2023 SCC OnLine SC 1406 decided on 31st October, 2023. The Court elucidated the concept of Review and categorically reiterated thus:

"(viii) Even the change in law or subsequent decision/ judgment of a co-ordinate or larger Bench by itself cannot be regarded as
a ground for review."

Thus, it is indisputable that If the judgment against a litigant passed by any Court, relying on a binding precedent which has subsequently been overruled, and the litigant has not appealed against the judgment passed against him, review is not maintainable. Similarly, if there is change in law but the matter is concluded and not pending in any forum, review against the same is not maintainable.

Does this mean that a litigant would be remediless in such circumstances? In my opinion, although review is impermissible but a belated appeal/ revision/writ would lie against the order, against which no redressal was sought for in view of the binding decision of the High Court/Supreme Court, but which has been subsequently been overruled. The said belated Appeal/Revision/ Writ shall be necessarily accompanied by an application for condonation of delay u/s 5 of the Limitations Act 1963 in as much as the applicant was prevented by a sufficient cause from not filing appeal/revision/writ within the stipulated time as it would have been a fruitless exercise in view of the binding precedent/law as it existed on that day.

It is undisputed that 'change in law' is a valid ground for condonation of delay. It cannot be denied that non-filing of appeal/revision/writ, within the statutory time is neither wilful nor deliberate, but only on bona fide belief that filing of case at that stage will only be futile exercise as the judgment of this High Court/Apex Court was against the applicant.

Thus, a subsequent decision of the Higher Court/ Larger Bench holding the existing law as incorrect can be sufficient cause for condoning the delay in filing the revision inasmuch as it will be futile to file a case when the law is against the petitioner. In such circumstances, it would be just and necessary that the Courts condone the delay in filing the case.

It would be apposite to refer to the judgment of the Andhra Pradesh High Court in the case of State of A.P. v. Venkataramana Chuduva and Muramura Merchant, 57 STC 179 wherein the Court categorically held that subsequent change of law would constitute a 'sufficient cause' to condone the delay in preferring appeal/revision or any other legal action, as the case may be. The High Court categorically held thus:

"14. The other remedy open to the assessees is to prefer an appeal or revision, as the case may be, along with a petition for condoning the delay, on the ground that in view of the position of law obtaining on the date of receipt of the impugned order, they decided not to file an appeal; but, since the subsequent decision establishes the said assumption to be incorrect, and further that the tax has been illegally collected from them, they are now preferring the appeal and that the same should constitute "sufficient cause" within the meaning of the proviso to sub-section (1) of section 19, or sub-section (2) of section 21, or the proviso to sub-section (1) of section 22, as the case may be."

The Court further held that in view of Article 265 of the Constitution of India, a subsequent decision of the High Court or the Supreme Court which changed the position, interpretation or the understanding of the law, constituted a 'sufficient cause' for condoning delay in filing the appeal or revision, as the case may be, where it was established that on the date of receipt of the impugned order the filing of an appeal or revision would be an empty formality, having regard to the position of law then obtaining. In so opining, the Division Bench of this Court, placed reliance on the following observations of the Apex Court in Kamala Mills Limited v. State of Bombay, (1965) 16 STC 613 (SC).

It is relevant in this regard that the Courts have consistently held that the words "sufficient cause", as appearing in Section 5 of Limitation Act, should receive a liberal construction when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the applicant/appellant, in order to advance substantial justice. The words "sufficient cause for not making the application within the period of limitation" should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case. The decisive factor in condonation of delay is not the length of delay but sufficiency of a satisfactory explanation.

Thus, although Revision in such cases is not legally maintainable but appeal/ revision/ writ is maintainable with an application for condonation of delay as delay in the filing the same constitute a 'sufficient cause' for condonation of delay as elucidated above.

Written By: Inder Chand Jain
Ph no: 8279945021, Email: [email protected]