Holding

An application for clarification that is in substance a review is not maintainable and must be dismissed as an abuse of process.

Summary

The applicant, who was the respondent in a civil appeal, filed an application for clarification of a judgment dated 2 August 2005, claiming financial hardship and seeking recovery of a balance after his pension was attached. The opposing party argued that the application was in substance a review of the judgment. The Supreme Court examined whether an application labeled as "clarification" but actually seeking a review could be entertained under Article 137 of the Constitution and Order XL of the Supreme Court Rules. Relying on the procedural requirements that review applications be dealt with by circulation and not listed for open hearing unless directed, the Court held that the applicant was attempting to bypass these rules. It concluded that the application was an abuse of process and could not be maintained. Consequently, the application was dismissed.

Issues considered

Whether an application for clarification that is essentially a review of a judgment is maintainable under Article 137 and Supreme Court Rules.
Whether the court can reject such an application as an abuse of process.

Legislation cited

Constitution of Indias. Article 137
Supreme Court Rules, 1966s. Order XL Rule 3

Subjects

review applicationclarificationabuse of processArticle 137Supreme Court Rulesmaintainabilitycirculation procedurecivil appeal

Judgment

A A.P.S.R.T.C. AND ORS.
v.
ABDUL KAREEM

JANUARY 12, 2007

B [DR. ARIJIT PASAYA T AND H.K. SEMA, JJ.]

Constitution of India, 1950-Artic/e 137-Review application, in
guise of application for clarification-Maintainability of-Held, not
maintainable-Supreme Court Rules, 1966~0rder XL-Practice and
Procedure-Abuse of process of Court.
c
By the present application, the applicant who was Respondent in the
concerned civil appeal, has prayed for clarification of the judgment passed
by this Court in the said appeal.

The question which arises for consideration is whether in the guise
D of application for clarification, review of the earlier judgment is being
sought for and hence such an application cannot be maintained and is liable
to be rejected.

Dismissing the IA, the Court
E
HELD : 1. The petition is in essence and substance seeking for a
review under the guise of making an application for clarification apparently
being fully aware of the normal procedure that such applications for review
are not, unless Court directs, listed for open hearing in court, at the initial
stage at least, before ordering notice to the other side and could be
F summarily rejected, if found to be of no prima facie merit. The move
adopted itself is unjustified, and could not be countenanced also either by
way of review or in the form of the present application as well. The nature
of relief sought, and the reasons assigned are such that even under the
pretext of filing a review such an exercise cannot be undertaken, virtually
G for re-hearing and alteration of the judgment because it is not to the liking
of the party, when there is no apparent error on record whatsoever to call
for even a review. The said move is clearly misconceived and nothing but.
sheer abuse of process, which of late is found to be on the increase, more
for selfish reasons than to further or strengthen the cause of justice. The
device thus adopted, being otherwise an impermissible move by mere
H
888
A.P.S.R.T.C. & ORS. v. ABDUL KAREEM [PASAYAT, J.] 889

change in nomenclature of the applications does not change the basic A
nature of the petition. Wishful thining virtually based on surmises too, at
any rate is no justification to adopt such undesirable practices. If at all it
should be for weightly and substantial reasons. [Para 5] 890-B-El

2. By describing an application as one for "clarification" or
"-nodification" though it is really one of review a party cannot be permitted B
to circumvent or bypass the circulation procedure and indirectly obtain a
- ~-
hearing in the open Court. What cannot be done directly cannot be
permitted to be done indirectly. The Court should not permit hearing of
such an application for "clarification", "modification" or "recall" if the
application is in substance a clever move for review. [Para 7] (891-A-B] C
Delhi Administration v. Gurdip Singh Uban and Ors., [2000] 7 SCC
296, relied on.

CIVIL APPELLATE JURISDICTION: I.A 3 of2006 in Civil Appeal No.
n~~wm. D
- From the final Judgment and Order dated 31.10.2002 of the High Court
of Judicature, Andhra Pradesh at Hyderabad in W.A. No. 1209/2002.

Ms. K. Radha Rani, P. Vijay Kumar and D. Mahesh Babu, for the
Appellants. E
P.S. Narasimha (for Mis P.S.N. & Co.) for the Respondent.

The Judgment of the Court was delivered by

_,, . Dr. ARIJIT PASAYAT, J. : I. By this application, the applicant who f
• was the respondent in the appeal has prayed for clarification of the order
dated 2.8.2005 in the concerned Civil Appeal No. 7797 of2003.

2. It is stated that the applicant (respondent in the civil appeal) is living
in penury, has no means to pay back the amount which is sought to the
recovered. The pension amount has already being attached and the balance G
is now being sought to be recovered.

".- 3. Learned counsel for the appellant-Corporation on the other hand
submitted that in the guise of application for clarification, review of the
judgment is being sought for. H
890 SUPREME COURT REPORTS [2007] I S.C.R

A 4. By order dated 2nd August, 2005 it was held that the learned Single
judge and the Division Bench had erroneously granted the benefits of
increment notionally to the applicant during the period when he was out of
service.

5. The petition is in essence and substance seeking for a review under
B the guise of making an application for clarification apparently being fully
aware of the normal procedure that such applications for review are not,
unless Court directs, listed for open hearing in court, at the initial stage at
least, before ordering notice to the other side and could be summarily
rejected, if found to be of no prima facie merit. The move adopted itself is
c unjustified, and could not be countenanced also either by way of review or
in the form of the present application as well. The nature of relief sought,
and the reasons assigned are such that even under the pretext of filing a
review such an exercise cannot be undertaken, virtually for re-hearing and
alteration of the judgment because it is not to the liking of the party, when
D there is no apparent error on record whatsoever to call for even a review.
The ·said move is clearly misconceived and nothing but sheer abuse of
process, which of late is found to be on the increase, more for selfish
reasons than to further or strengthen the cause of justice. The device. thus
adopted, being otherwise an impermissible move by mere change in ·
E nomenclature of the applications does not change the basic nature of the
petition. Wishful thinking virtually based on surmises too, at any rate is no
justification to adopt such undesirable practices. If at all it should be for
weighty and substantial reasons.

6. It is to be noted that a review application can be filed under
F
Article 137 of the Constitution read with Order XL of the Supreme Court
Rules, 1966 (in short the Rules). Rule 3 of Order XL is significant. It reads
as follows:-

"Rule 3 - Unless otherwise ordered by the Court an application for
G review shall be disposed of by circulation without any oral arguments,
but ~he 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
H that delivered the judgment or order sought to be reviewed."
A.P.S.R.T.C. & ORS. v. ABDUL KAREEM [PASAYAT, J.] 891

. 7. In Delhi Administration v. Gurdip Singh Uban and Ors., [2000] 7 A
I
sec 296, it was held that by describing an application one for "clarification"
or "modification" though it is really one of review a party cannot be
permitted to circumvent or bypass the circulation procedure and indirectly
obtain a hearing in the open Court. What cannot be done directly cannot
be permitted to be done indirectly. The court should not permit hearing of
such an application for "clarification", "modification" or "recall" if the B
application is in substance a clever move for review.

8. The application cannot be maintained and is rejected.

B.B.B. I.A. dismissed.