CINE EXHIBITION PVT. LTD.versusCOLLECTOR, DISTRICT GWALIOR AND OTHERS

                          [2013] 1 S.C.R. 130


A                    CINE EXHIBITION PVT. LTD.
                                    v.
       COLLECTOR, DISTRICT GWALIOR AND OTHERS
    INTERLOCUTORY APPLICATION NOS.5 AND 6 OF 2012
                          IN
B                (Civil Appeal Nos. 281-282 of 2012)
                          JANUARY 04, 2013
        [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

c         Supreme Court Rules, 1966- Order XL and Order XVIII,
    rule 5 - Review power- Under Order XL of the Rules, a review
    application has to first go before the Judges in circulation and
    it is for the Court to consider whether the application is to be
    rejected without an order giving an oral hearing or whether
D   notice is to be issued to the opposite party - Practice of
    overcoming the provision for review under Order XL of the
    Rules by filing application for re-hearing/modification/
    clarification deprecated by Supreme Court - Held: Many a
    times, applications are fifed for clarification !modification/recall
E   or rehearing not because of any clarification/modification is
    found necessary but because the applicant in reality wants a
    review and also wants hearing by avoiding circulation of the
    same in Chambers ~ A party cannot be permitted to
    circumvent or by-pass this circulation procedure and indirectly
F   obtain a hearing in the open Court - What cannot be done
    directly, cannot be permitted to be done indirectly - Generally
    an application for correction of a typographical error or
    omission of a word etc. in a Judgment or order would lie, but
    a petition which is intended to review an order or Judgment
G   under Order XL VII Rule 1 of CPC and in criminal
    proceedings except on the ground of an error apparent on the
    face of the record, could not be achieved by filing an
    application for clarification !modification/recall or rehearing,
    for which a property constituted review is the remedy.

H                                   130
     CINE EXHIBITION PVT. LTD. v. COLLECTOR,                131
                DISTRICT GWALIOR
     Sone Lal and others v. State of Uttar Pradesh (1982) 2        A
SCC 398 and Delhi Administration v. Gurdip Singh Urban
and others (2000) 7 SCC 296: 2000 (2) Suppl. SCR 496 -
relied on.

    Delhi Administration v. Gurdip Singh Uban (1999) 7 SCC         B
44 - referred to.

                      Case Law Reference:

    (1982) 2 sec 398              relied on          Para 5

    2000 (2) Suppl. SCR 496 relied on                Para 6        c
    (1999) 1 sec 44               referred to        Par;;t 6

   CIVIL APPELLATE JURISDICTION : INTERLOCUTORY
APPLICATION NOs.5 AND 6 OF 2012
                                                                   D
                                 IN

    Civil Appeal Nos.281-282 of 2012.

    From the Judgment & Order dated 28.03.2008 and
22.09.2010 of the High Court of Madhya Pradesh, Bench at           E
Gwailor in Writ Appeal No. 234 of 2007 and Review Petition
No. 83 of 2010.

     Dr. Rajeev Dhavan, B.S. Banthia, Mishra Saurabh, Puneet
Jain, Sushil Kumar Jain, Anurag Gohil, Ruchika Gohil, Niraj        F
Sharma for the appearing parties.

    The following Order of the Court was delivered

                          ORDER
                                                                   G
     1. These applications have been preferred under Order
XVIII Rule 5 of the Supreme Court Rules, 1966 (for short 'the
Rules) against the order of the Registrar dated 28.8.2012,
alleging that the applications under Order XVIII Rule 5 of the
Rules lodging the applications for clarification/modification of   H
    132         SUPREME COURT REPORTS              [2013) 1 S.C.R.


A the Judgment dated 11.1.2012 of this Court in Civil Appeal
  Nos.281-282 of 2012 cannot be sustained in law. Applications
  for clarification/modification were filed on 21.2.12 seeking the
  following reliefs:

          (a)    Clarify/modify the observations contained in
B
                 paragraphs 21 and 22 of the Judgment dated
                 11.1.2012 in view of the Notifications being
                 produced by the Applicant herein along with the
                 present application specially Notification dated
                 20.9.1965 issued by the State Government in
c                exercise of powers under Section 52 of the Madhya
                 Pradesh Town Improvement Trusts Act, 1960;

          (b)    Clarify/modify operative directions in the Judgment
                 dated 11.1.2012 by which it has been held that the
D                Gwalior Development Authority did not have
                 authority or power to execute the lease in favour of
                 the applicant herein;

          (c)    Direct the Appellant to produce before this Hon'ble
                 Court the official records in respect of Scheme 2-
E
                 B framed by the then Gwalior Improvement Trust
                 including the Notifications and orders issued by the
                 State Government in respect thereto photocopies
                 of some of which are being produced along with the
                 present applications; and
F
          (d)    Pass such other order or orders as may be deemed
                 fit and proper in the facts and circumstances of the
                 case."

G       Applications were rejected holding those applications filed
  would amount to seeking review of the Judgment and order
  passed by this Court on 11.1.2012. It was noticed that on the
  pretext of application for clarification/modification, applicant, in
  fact, sought nothing but recalling of the Judgment and order
H dated 11.1.2012 and substitution of the directions contained
     CINE EXHIBITION PVT. LTD. v. COLLECTOR,                 133
                DISTRICT GWALIOR

therein which, according to the Registrar, would amount to a        A
prayer for reviewing the Judgment. Applications were, therefore,
rejected placing reliance on the Judgment of this Court in Delhi
Administration v. Gurdip Singh Urban and others (2000) 7
sec 296.
                                                                    B
     2. Dr. Rajeev Dhawan, learned senior counsel appearing
for the applicants submitted that the respondent-State of
Madhya Pradesh had suppressed various documents which
had substantial bearing on the outcome of the appeals.
According to the learned senior counsel the following are some      C
of the documents which were suppressed from this Court:

      (i)     "Gazette Notification dated 27th September, 1963
              formulating Housing Scheme under Section 46 of
              the Madhya Pradesh Town Improvement Trust Act,
              1960 (Act of 1960).                                   D

      (ii)    Gazette Notification dated 4th October, 1963 for
              Housing Schemes

      (iii)   Details of the Acquisition of la~d and structure of
              village Ghospura and Mehra (Annexure R-1/3)           E

      (iv)    Gazette Notification under Section 52(1)(s) of,the
              Act of 1960 sanctioning the Scheme"

     3. Learned senior counsel submitted that ·the only             F
argument urged before the Bench was that since the propEirty
in question was Government land which had not been
transferred by it to Gwalior Development Authority, the authority
could not have dealt with such land by executing a lease which
had been in favour of the applicants. Learned senior counsel        G
submitted that various statements made by the State were
couched with malice, fraud and material suppression of facts.
Consequently, it was stated that the Registrar should have
entertained the applications for modificatiQn/clarification and
were wrongly lodged.             /
                                                                    H
    134      SUPREME COURT REPORTS               [2013] 1 S.C.R.


A       4. We fully endorse the view expressed by the Registrar
  that the prayers made in the applications would clearly fall in
  the realm of an application for review of the Judgment of this
  Court dated 11.1.2012 on the ground of fraud and material
  suppression of documents and there is no question of
B clarification/modification of the Judgment of this Court dated
  11.1.2012.

       5. We are of the view that the practice of overcoming the
  provision for review under Order XL of the Rules by filing an
C application for re-hearing/ modification/ clarification has to be
  deprecated. Registrar of this Court earlier in an application for
  re-hearing took the same stand in the year 1981. This Court
  dismissed a Criminal Appeal No.220 of 1974 on 3.4.1981.
  Appellant therein filed an application for re-hearing of the
  appeal on 20.4.1981. The counsel was informed by the Registry
D that since appeal had been disposed of after hearing the
  counsel for the parties, no application for re-hearing would lie
  and, if he so advised, could file a review petition under the
  Rules. Consequently, the application was not registered. The
  order of the Registrar is reported in Sone Lal and others v.
E State of Uttar Pradesh (1982) 2 SCC 398.

       6. The above mentioned order of the Registrar was later
  endorsed by this Court in Delhi Administration v. Gurdip Singh
  Uban and others (2000) 7 sec 296. In that case Civil Appeal
F Nos.4656-57 of 1999 were allowed by a two Judge Bench
  Judgment of this Court reported in Delhi Administration v.
  Gurdip Singh Uban (1999) 7 SCC 44 and the appeals of Delhi
  Administration and Delhi Development Authority were allowed.
  The appellant in Civil Appeal No.4656 of 1999 was the Delhi
G Administration while the appellant in CA No.4657 of 1999 was
  Delhi Development Authority. After the appeals were allowed
  by this Court on 20.8.1999, Review Petition Nos.1402-03 of
  1999 were filed in the two appeals by Gurdip Singh Uban and
  they were dismissed in circulation by a reasoned order on
H 24.11.1999. Another Review Petition No.21 of 2000 filed by
     CINE EXHIBITION PVT. LTD. v. COLLECTOR,                  135
                DISTRICT GWALIOR

another person was not listed on that date. IA No.3of1999 was         A
later listed along with IA Nos.4 & 5 filed by Gurdip Singh Uban
on 23.12.1999. Gurdip Singh Uban, it may be noted had filed
IA Nos.4 & 5 in spite of dismissal of his review petition on
24.11.1999. IA Nos.4 & 5 were listed before the Court and a
preliminary objection was raised stating that the applications        B
couched as applications for "clarification", modification" or for
"recall" could not be entertained once the review petitions filed
by the applicant were dismissed. This Court examined the
question in detail in Gurdip Singh Uban (supra) and held as
follows:                                                              c
     "16. At the outset, we have to refer to the practice of filing
     review applications in large numbers in undeserving cases
     without properly examining whether the cases strictly come
     within the narrow confines of Rule XL of the Supreme
                                                                      0
     Court Rules. In several cases, it has become almost
     everyday experience that review applications are filed
     mechanically as a matter of routine and the grounds for
     review are a mere reproduction of the grounds of special
     leave and there is no indication as to which ground strictly
     falls within the narrow limits of Rule XL of the Rules. We       E
     seriously deprecate this praCtice. If parties file review
     petitions indiscriminately, the time of the Court is
     unnecessarily wasted, even it be in chambers where the
     review petitions are listed. Greater care, seriousness and
     restraint is needed in filing review applications.               F

    17. We next come to applications described as
    applications for "clarification", "modification" or "recall" of
    judgments or orders finally passed. We may point out that
    under· the relevant Rule XL of the Supreme Court Rules,           G
    1966 a review application has first to go before the learned
    Judges in circulation and it will be for the Court to consider
    whether the application is to be rejected without giving an
    oral hearing or whether notice is to be issued.
                                                                      H
    136        SUPREME COURT REPORTS                    [2013] 1 S.C.R.


A         Order XL Rule 3 states as follows:

                "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.
B
          The Court may either dismiss the petition or direct notice
          to the opposite party .... "

          In case notice is issued, the review petition will be listed
          for hearing, after notice is served. This procedure is meant
c         to save the time of the Court and to preclude frivolous
          review petitions being filed and heard in open court.
          However, with a view to avoid this procedure of "no
          hearing", we find that sometimes applications are filed for
          "clarification'', "modification" or "recall" etc. not because any
D         such clarification. modification is indeed necessary but
          because the applicant in reality wants a review and also
          wants a hearing, thus avoiding listing of the same in
          chambers by way of circulation. Such applications, if they
          are in substance review applications, deserve to be
E         rejected straight away inasmuch as the attempt is
          obviously to bypass Order XL Rule 3 relating to circulation
          of the application in chambers for consideration without
          oral hearing. By describing an application as one for
          "clarification" or "modification", - though it is really one of
F         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. (See in this
          connection a detailed order of the then Registrar of this
          Court in Sone Lal v. State of U.P. deprecating a similar
G
          practice.)

          18. We, therefore, agree with the learned Solicitor General
          that the Court should not permit hearing of such an
          application for "clarification", "modification" or "recall" if the
H
     CINE EXHIBITION PVT. LTD. v. COLLECTOR,                  137
                DISTRICT GWALIOR

     application is in substance one for review. In that event,       A
     the Court could either reject the application straight away
     with or without costs or permit withdrawal with leave to file
     a review application to be listed initially in chambers.

     19. What we have said above equally applies to such              8
     applications filed after rejection of review applications
     p,articularly when a second review is not permissible under
     the Rules. Under Order XL Rule 5 a second review is not
     permitted. The said Rule reads as follows:

     "5. Where an application for review of any judgment and          C
     order has been made and disposed of, no further
     application for review shall be entertained in the same
     matter."

     20. We should not however be understood as saying that           o
     in no case an application for "clarification", "modification"
     or "recall" is maintainable after the first disposal of the
     matter. All that we are saying is that once such an
     application is listed in Court, the Court will examine
     whether it is, in substance, in the nature of review and is      E
     to be rejected with or. without costs or requires to be
     withdrawn with leave to file a review petition to be listed
     in chambers by circulation. Point 1 is decided accordingly.

     7. We are of the view that the ratio laid down in the above~
mentioned Judgment squarely applies to the facts of this case         F
as well. Generally an application for correction of a typographical
error or omission of a word etc. in a Judgment or order would
lie, but a petition which is intended to review an order or
Judgment under Order XLVll Rule 1 of the Code of Civil
Procedure and in criminal proceedings except on the ground            G
of an error apparent on the face of the record, could not be
achieved by filing an application for clarification/modification/
recall or rehearing, for which a properly constituted review is
the remedy. Review power is provided under Order XL of the
Rules, which reads as follows:                                        H
    138        SUPREME COURT REPORTS                 [2013] 1 S.C.R.


A         "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
          XLVll, Rule 1 of the Code, and in a criminal proceeding
          except on the ground of an error apparent on the face of
B         the record.

          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.
c
          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
D         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
E
          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.
F
          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."
G
         8. Under Order XL of the Rules a review application has
  first to go before learned Judges in circulation and it will be for
  the Court to consider whether the application is to be rejected
  without an order giving an oral hearing or whether notice is to
H be issued to the opposite party. Many a times, applications are
     CINE EXHIBITION PVT."LTD. v. COLLECTOR,                  139
                DISTRICT GWALIOR
filed for clarification/modification/recall or rehearing not         A
because of any clarification/modification is found necessary but
because the applicant in reality wants a review and also wants
hearing by avoiding circulation of the same in Chambers. We
are of the view that a party cannot be permitted to circumvent
or by-pass this circulation procedure and indirectly obtain a        B
hearing in the open Court, what cannot be done directly, cannot
be permitted to be done indirectly.

      9. We are, therefore, of the view that the Registrar has
rightly ordered for lodgment of the applications. However, we
make it clear that the di!?missal of these applications would not    C
stand in the way of the applicants in filing review petitions with
additional documents, stated to have been suppressed by the
opposite side, which would be dealt with in accordance with
law. The interlocutory applications are dismissed.
                                                                     D
8.8.8.                                           I.As dismissed.