MALTHESH GUDDA POOJAversusSTATE OF KARNATAKA & ORS.

                        (2011) 11 S.C.R. 870


A                   MALTHESH GUDDA POOJA
                                  v.
                  STATE OF KARNATAKA & ORS.
                   {Civil Appeal No. 8525 of 2011)
                        OCTOBER 11, 2011
B
         [R V RAVEENDRAN AND H L GOKHALE, JJ.]

        Karnataka High Court Rules, 1959:

c         Rule 5 of Chapter 3 of High Court Rules read with 0. 47,
    rr. 1 and 5 CPC and Notification dated 29.12.2008 issued by
    Karnataka High Court - Review of judgment delivered at
    Circuit Bench - Judges or anyone of them who delivered the
    original judgment not sitting at Circuit Bench - Listing of
D   review petition as per roster of Circuit Bench - llELD: Rule 5
    of Chapter 3 of High Court Rules will prevail over r.5 of 0.47
    CPC - There is no inconsistency between r. 5 of Chapter 3 of
    High Court Rules and r.5 of 0.47, CPC- The words 'absence
    or other cause for a period of six months' in Rule 5 of Order
    47 CPC and the words 'by reason of death, retirement or
E   absence' in Rule 5 of Chapter 3 of the High Court Rules, in
    essence refer to the same causes, due to which the review
    application cannot be heard by the same bench which passed
    the original order - Rule 5 of Chapter 3 of High Court Rules
    does not specify the period of 'absence' but it is clear from
F   the context that it does not refer to casual absence -
    Therefore, it is appropriate to interpret the said words as
    'absence for a period of six months next after the application'
    by taking guidance from r. 5 of 0. 47 CPC - In the instant
    case, after filing of the review petition, for more than six
G   months the Original Bench either did not sit or dispose of the
    review petition and it was possible that for six more months
    there was no likelihood of the Judges constituting Original
    Bench being together at Dharwad - Therefore, the listing of
    the petition before a different Bench and hearing and deciding
H                                  870
       MALTHESH GUDDA POOJA v. STATE OF                        871
              KARNATAKA & ORS.
the same by that Bench as per Notification dated 29.12.2008,          A
was valid as per rules - Code of Civil Procedure, 1908 - 0.47,
r.5- High Court of Karnataka Notification No. HCBB.CBD.011
2008 dated 29. 12. 2008.

     PRACTICE AND PROCEDURE:
                                                                      B
      Listing of writ appeal for hearing, after review petition was
allowed at Dharwad Bench of Karnataka High Court - The
Division Bench before which the memo for listing of writ appeal
for hearing was listed, holding that the order allowing the review
was a nullity as a different Bench had no jurisdiction to take        C
up the review petition - Held: When an application memo is
filed in a matter where review has been granted, the Bench
dealing with such memo or application is bound to proceed
on the basis of the said order granting review, in view of the
principles of finality and res judicata and ought to have listed      D
the writ appeal for hearing and could not have examined the
correctness or validity of review order - Review - Resjudicata
- Principle of finality.

     WORDS AND PHRASES:
                                                                      E
    'Absence' occurring in r.5 of Chapter 3 of Karnataka High
Court Rules - Connotation of.

     A petition for review of a judgment delivered by a
Division Bench in a writ appeal at the Dharwad Circuit                F
Bench of the Karnataka High Court, was placed before a
different Division Bench at Dharwad Circuit Bench.
Respondent no. 3 objected to the hearing of the review
petition by the said Bench on the ground that the review
petition should be heard and decided by the same Bench                G
which had heard and disposed of the writ appeal. It was
also contended that the Notification dated 29.12.2008 of
the High Court notifying that the review petitions relating
to the judgments passed by a Division Bench or a single
Judge in the Circuit Bench at Dharwad would be posted
                                                                      H
    872      SUPREME COURT.REPORTS            [2011] 11 S.C.R.


A as per roster, was contrary to r.5 of the Karnataka High
  Court Rules, 1959. The review petition was allowed by
  order dated 17.12.2009. The appellant then filed a memo
  for listing the writ appeal for hearing. The memo came up
  for orders before a Division Bench at Dharwad Circuit
B Bench, which, by the impugned order held that the order
  dated 17.12.2009 allowing the review petition, was a
  nullity inasmuch as a different Bench had no jurisdiction
  to take up the review petition, grant a review and reverse
  the ,order made in the writ appeal.
c      In the instant appeal, the questions for consideration
  before the Court were: {i) "whether a Division Bench of
  the High Court, while considering a memo for listing an
  appeal restored for fresh hearing on grant of application
  for review by a co-ordinate bench, could refuse to act
D upon the order of review on the ground that the said
  order made by a bench different from the bench which
  passed the original order, granting review is a nullity and
  that the original order stands"; {ii) "the review application
  having been placed before the bench holding the roster,
E as per the standing instructions of the Chief Justice, and
  the said bench having heard and granted the review
  application, whether another bench before which a
  request is made for early hearing, can say it will ignore
  the order granting review as it is a nullity?"
F
          Allowing the appeal, the Court

       HELD: 1.1. An application for review is not an appeal
  or a revision to a superior court but a request to the same
  court to recall or reconsider its decision on the limited
G grounds prescribed for review. The rule of consistency
  and finality of decisions, make it necessary that subject
  to circumstances which may make it impossible or
  impractical for the original bench to hear it, the review
  applications should be considered by the Judge or
H
      MALTHESH GUDDA POOJA v. STATE OF                 873
             KARNATAKA & ORS.
Judges who heJrd and decided the matter or if one of A
them is not available, at least by a bench consisting of
the other Judge. It is only where both Judges are not
available (due to the reasons mentioned) the applications
for review will have to be placed before some other bench
as there is no alternative. But when the Judges or at least B
one of them, who rendered the judgment, continues to be
members or member of the court and available to perform
normal duties, in the interests of justice, in the interests
of consistency in judicial pronouncements and
maintaining the good judicial traditions, an effort should c
always be made for the review application to be heard by
the same Judges, if they are in the same court. The said
requirement should not be routinely dispensed with. Any
attempt to too readily provide for review applications to
be heard by any available Judge or Judges should be 0
discouraged. [para 13-14] [888-B-C; 889-E-H; 890-A-E]
     Reliance Industries Ltd. vs. Pravinbhai Jasbhai Patel &
                               =
Ors. 1997 (3) Suppl. SCR 636 1997 (7) sec 300 - relied
on.
                                                               E
     Benjamin Cardozo in Nature of Judicial Process (page
12) - referred to.        ·

      1.2. As regards the instant case, after the Clrcuit
Bench of the High Court of Karnataka started functioning F .
at Dharwad and Gulberga in July 2008, the Registry faced
difficulties in listing the review petitions before the Bench
which had heard and disposed of the matters due to the
fact that both or one of the Judges of the Bench would
not be available at the Circuit Bench. Therefore. on the
proposal of the Registry, the Chief Justice made an order G
that the review petitions may be posted as per the roster
and accordingly a Notification No.HCBB.CBD.01/2008
dated 29.12.2008 was issued by the High Court in this
regard. [para 9] [883-A-C; 884-A-C]
                                                               H
    874     SUPREME COURT REPORTS            [2011] 11 S.C.R.

A      1.3. The Rules made by the High Court in exercise
  of power u/s 122 of the Code of Civil Procedure, 1908,
  cannot be inconsistent with the body of the Code (that
  is sections in the Code), but can be inconsistent with any
  of the Rules in the First Schedule to the Code. As the
B Rules u/s 122 can alter or add any rule in the First
  Schedule to the Code, the provisions of Rule 5 of Chapter
  3 of the High Court Rules will prevail over Rule 5 of Order
  47 of the Code. [para 8) [882-A-F]

C      1.4. There is no inconsistency between Rule 5 of
  Chapter 3 of the High Court Rules and Rule 5 of Order
  47 of the Code. Rule 5 of Chapter 3 of the High Court
  Rules provides that every petition for review of a
  judgment shall be posted before the original Bench
  which pronounced the judgment or if the Judges who
D constituted such Bench are not available by reason of
  death, retirement or absence, before any other Bench in
  the same manner as the original Bench. The word
  'absence' is not defined and the duration of absence is
  not indicated in the said Rule, but it is clear from the
E context that it does not refer to casual absence. The
  ordinary meaning of the word 'absence' is "the state of
  being away from one's usual place". Order 47 Rule 5 of
  the Code, provides that the review petition shall be heard
  only by the Judges who passed the order if the said
F Judges continue attached to the Court (at the time when
  the application for review is made) and are not precluded
  by absence or other cause from considering the
  application for a period of six months. The words
  ucontinue attached to the Court" mean available to
G perform normal duties and has not been transferred or
  away on deputation. The words 'absence or other cause
  for a period of six months' in Rule 5 of Order 47 of the
  Code and the words 'by reason of death, retirement or
  absence' in Rule 5 of Chapter 3 of the High Court Rules,
H



       ..
      MALTHESH GUDDA POOJA v. STATE OF                 875
             KARNATAKA & ORS.

in essence refer to the same causes, due to which the        A
review application cannot be heard by the same bench
which passed the original order. Therefore, it is
appropriate to interpret the said words as 'absence for a
period of six months next after the application' by taking
guidance from Rule 5 of Order 47 of the Code. (para 11]      B
(886-A-G]
     1.5. In the instant case, the Judges constituting the
original bench were not sitting at Dharwad. The review
petition was filed on 2.3.2009 and for more than six
months, the original Bench either did not sit or dispose C
of the review petition, and it was possible that for six more
months there was no likelihood of the Judges
constituting original bench being together at Dharwad.
The review petition was placed for hearing before a
different bench (bench holding the roster for hearing writ D
appeals) as per the Notification dated 29.12.2008 issued
by the High Court under the directions of the Chief
Justice. Thus, on 17.12.2009, when another bench heard
and decided the matter, the listing of the case before that
bench and hearing by that bench was valid as per rules. E
The said bench considered and rejected the contention
that the same bench which had passed the order should
hear the review application, in view of the Notifications
dated 29.12.2008 and held that the Chiej Justice had the
power and. authority to issue the n·otification dated F
29.12.2008. The order dated 17.12.2009 was, therefore,
neither a nullity nor one lacking of inherent jurisdiction,
nor obtained by fraud. Even assuming it to be erroneous,
it was final as it was not challenged. [para 16] (890-H; 891-
A-E]                                                          G
     2.1. Once the application for review was granted on
17 .12.2009, the order reviewed stands recalled.
Consequently, the writ appeal stood revived and
restored. Therefore, when the appellant filed a memo for
listing the writ appeal for hearing, he was not really       H
    876      SUPREME COURT REPORTS              [2011) 11 S.C.R.


A   seeking a judicial order for restoration but only a direction
    for fixing a date for hearing the writ appeal. When an
    application or memo is filed in a matter where review has
    been granted, the Bench dealing with such memo or
    application is bou.nd to proceed on the basis of the said
8   order granting review, in view of the principles of finality
    and res judicata. The review order dated 17 .12.2009
    considered the statutory provisions relating to review
    and consciously arrived at a decision that the provisions
    thereof did not prevent the hearing of the application for
c   review. It should be noted that neither party was
    aggrieved by it and the order dated 17.12.2009 was not
    under challenge. Therefore, when the memo for posting
    was filed by one of the parties, the court, being bound
    by its final decision rendered on 17.12.2009 ought to have
    listed the writ appeal for hearing and could not have
0
    examined the correctness or validity of review order
    dated 17.12.2009. [para 17) [891-F-H; 892-A-BJ

       2.2. The impugned order dated 23.4.2010 is set aside
  and Writ Appeal No.16912007 is directed to be listed for
E final hearing. [para 18) [892-C-D]
                         Case Law Reference:
          1997 (3) Suppl. SCR 636        relied on    para 12

F       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    8525 of 2011.

        From the Judgment and order dated 23.4.2010 of the High
    Court of Karnataka at Bangalore in WA No. 169 of 2007.

G       Basava Prabhu Patil, D. Rajeswar Rao, Avtar Kaur
    Dhingra, Anjani Aiyagari for the Appellant.

       Sanjay R. Hegde, Abhishek Malviya, Ramesh Kr. Mishra,
  S.J. Aristotle, Priya Aristotle, Prabu Ramasubramanian, V.G.
H Pragasam for the Respondents.
      MALTHESH GUDDA POOJA v. STATE OF                        877
             KARNATAKA & ORS.
    The Judgment of the Court was delivered by                       A

     R.V. RAVEENDRAN, J. 1. Leave granted.

      2. By an order dated 8.11.2006, the Government of
Karnataka appointed the Assistant Commissioner, Haveri
District as the Administrator of the Malathesh (Sri Mylara Unga)     B
Temple, Devara Gudda, till the formation of a Managing
Committee. The appellant along with one Guddanna Gowda
claiming to be Panchas (Trustees) filed Writ Petition No.16158/
2006 in the High Court of Karnataka challenging the said
notification dated 8.11.2006. The third respondent herein got        C
himself impleaded in the said writ petition, as a devotee of the
temple. The said writ petition was allowed in part by a learned
Single Judge, by order dated 22.12.2006 and the said
notification dated 8.11.2006 was quashed, reserving liberty to
the $tate to pass appropriate orders after affording an              D
opportunity to the writ petitioners. The writ petitioners filed an
appe~I (Writ Appeal No.169/2007) at the Dharwad Circuit
Bench challenging that part of the order reserving liberty to
respondents 1 and 2 to pass fresh orders. By judgment dated
31.1.2009, a Division Bench of the High Court (V.Gopala              E
Gowda and L.Narayana Swamy, JJ) dismissed the writ appeal.

      3. The appellant filed a review petition (R.P.No.1513/2009)
for review of the said order, at the Dharwad Circuit Bench. The
said review petition was placed before a Division Bench
consisting of K.Sreedhar Rao and Ravi Malimath, JJ., at the          F
Dharwad Circuit Bench. The third respondent objected to the
hearing of the review petition by the said Bench on the ground
that the writ appeal was heard and disposed of by the Division
Bench consisting of V.Gopala Gowda and L.Narayana Swamy,
JJ. and the review petition should therefore be heard and            G
decided by the same Bench. He also contended that the
notification dated 29.12.2008 of the High Court notifying that
the review petitions relating to judgments passed by a Division
Bench or Single Bench in respect of Circuit Bench, Dharwad
will be posted as per the roster existing in the Circuit Bench,      H
    878       SUPREME COURT REPORTS                  [2011] 11 S.C.R.


A   Dharwad, was contrary to Rule 5 of the Karnataka High Court
    Rules, 1959.

        4. A Division Bench consisting of K.Sreedhar Rao and
  Ravi Malimath, JJ. heard the said review petition and allowed
B it by judgment dated 17.12.2009 and directed that the appeal
  should be heard afresh for disposal in accordance with law.
  With reference to the objection of the third respondent that the
  learned Judges who disposed of the appeal alone should hear
  the review petition, it was held as follows :
c         "3. Rule 5 is not a rigid mandate. The exception to the rule
          is provided in the rule itself. In the case of death or non-
          availability of the judge, the review petition is permitted to
          be heard by the Bench other than the one, which passed
          the order. The experience has shown that for correcting
D         trivial mistakes in the judgment, the review jurisdiction is
          invoked by the parties. In the scheme of sitting
          arrangement for the Circuit Benches, it is difficult to obtain
          the same combination to hear the review within a
          reasonable time. Therefore, in order to obviate the
E         hardship to the litigants, the above notification is issued.
          Even on merits when a judgment or an order is to be
          rev~wed, the similar difficulty of non-availability of the
          Bench, which passed the order within a reasonable time,
          is very much felt.
F
          4. The exercise of power of allotment of subjects and
          cases is the prerogative of the Hon'ble Chief Justice.

          5. Keeping in view the practical considerations the above
          notification is issued. Therefore the notification cannot be
G         termed as arbitrary and illegal."

        5. The appellant thereafter filed a memo dated 25.3.2010
  for listing the writ appeal (restored by order dated 17.12.2009)
  for fresh hearing. The said memo came up for orders before a
H Division Bench consisting of D.V. Shailendra Kumar and
     MALTHESH GUDDA POOJA v. STATE OF                         879
    KARNATAKA & ORS. [R.V. RAVEENDRAN, J.]
N.Ananda, JJ., at Dharwad Circuit Bench. After hearing the A
parties on the said memo, the said Division Bench passed the
impugned order dated 23.4.2010 holding that the judgment
dated 17.12.2009 in Review Petition No.1513/2009 allowing
the petition in exercise of the review jurisdiction under Order
47 Rule 1 CPC was nothing short of a nullity in the eye of law B
and was without jurisdiction, having regard to the fact that the
Bench which rendered the judgment in writ appeal No.169/2007
(V.Gopala Gowda and Narayana Swamy, JJ) were still Judges
in the High Court and were available for hearing; and that
therefore a different Division Bench had no jurisdiction to take      c
up a review petition, grant a review and reverse the order made
in the writ appeal. Consequently the memo filed by the appellant
for listing of restored Writ Appeal No.169/2007 for hearing was
dismissed. The Division Bench relied upon the provisions of
Order 47 Rules 1 and 5 of Code of Civil Procedure (for short 0
the 'Code') and Rule 5 of the High Court of Karnataka Rules,
1959 ('High Court Rules' or 'Rules' for short) in passing the
order dated 23.4.2010. It held :

     (i)     The Division Bench which heard the review petition
             had no jurisdiction to take up the review petition as    E
             the learned Judges who constituted the Bench which
             heard and disposed of the writ appeal on 31.1.2009
             continued to be the Judges of the court.

     (ii)    The review proceedings are not by way of appeal          F
             and have to be strictly confined to the ambit of order
             47 Rule 1 CPC.

     (iii)   The Division Bench which heard the review petition
             instead of confining itself to the ambit of Order 47
             Rule 1 had dealt with the merits of the judgment         G
             dated 31.1.2009 as if it was sitting in appeal over
             the said judgment and allowed the review petition
             which was contrary to law.

    The effect of the impu~ned order dated 23.4.2010 was to           H
    880       SUPREME COURT REPORTS                [2011) 11 S.C.R.


A   declare that the review judgment dated 17.12.2009 was non
    est and a nullity and consequently the earlier judgment dated
    31.1.2009 passed in the writ appeal continued to be in effect.
    The said order is challenged in this appeal by special leave.

    Question for consideration
8
         6. The question for consideration is whether a Division
    Bench of the High Court, while considering a memo for listing
    an appeal restored for fresh hearing, on grant of application for
    review by a co-ordinate bench could refuse to act upon the
C   order of review on the ground that the said order made by a
    bench different from the bench which passed the original order,
    granting review is a nullity and that the original order stands.

    Who can hear applications for review?
D         7. Order 47 of the Code relates to review. The relevant
    portions of Rules 1(1), 4, 5, arid 8 are extracted bel()w:

          "1. Application for review of judgment.-(1) Any person
          considering himself aggrieved -
E
          (a) by a decree or order from which an appeal is allowed,
          but from which no appeal has been preferred,

          (b) by a decree or order from which no appeal is allowed,
          or
F
          (c) 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
G
          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
H
 MALTHESH GUDDA POOJA v. STATE OF                        881
KARNATAKA & ORS. [R.V. RAVEENDRAN, J.]
made against him, may apply for a review of judgment to          A
the Court which passed the decree or made the order. X
xx xx

4. Application where rejected.-(1) Where it appears to
the Court that there is not sufficient ground for a review, it
                                                                 8
shall reject the application.

(2) Application where granted.-Where the Court is of
opinion that the application for review should be granted,
it shall grant the same:
                                                                 c
Provided that -

(a) no such application shall be granted without previous
notice to the opposite party, to enable him to appear and
be heard in support of the decree ot order, a review of
                                                                 0
which is applied for; and x x x x x

5. Application for review in Court consisting of two or
more judges.-Where the Judge or Judges, or any one
of the Judges, who passed the decree or made the order,
a review of which is applied for, continues or continue          E
attached to the Court at the time when the application for
a review is presented, and is not or are not precluded by
absence or other cause for a period of six months next
after the application from considering the decree or order
to which the application refers, such Judge or Judges or         F
any of them shall hear the application, and no other Judge
or Judges of the Court shall hear the same. x x x x

8. Registry of application granted, and order for re-
hearing.-When an application for review is granted, a
note thereof shall be made in the register and the Court         G
may at once re-hear the case or make such order in regard
to the re-hearing as it thinks fit."

                                       (emphasis supplied)
                                                                 H
    882       SUPREME COURT REPORTS                 (2011) 11 S.C.R.


A      8. Section 122 of the Code relates to power of the High
  Courts to make rules. The said section empowers the High
  Court from time to time, after previous publication to make rules
  regulating their own procedure, and may by such rules annul,
  alter or add to all or any of the rules in the First Schedule to
B the Code. The High Court, in exercise of the powers conferred
  under Article 225 of the Constitution, section 122 of the Code
  and other relevant provisions, with the previous approval of the
  Government of Karnataka promulgated and issued the High
  Court of Karnataka Rules, 1959 in regard to the practice and
c procedures to be followed by the High Court. Rule 5 of chapter
  3 of the said Rules provides as under :
          "5. Every petition or application for review, reconsideration
          or correction of a judgment, decree, order or sentence shall
          be posted before the original Bench which pronounced,
D         made or passed such judgment, decree, order or sentence
          or if the Judge or any of the Judges who constituted the
          said Bench is not available by reason of death,
          retirement or absence, bei,.,re any other Bench
          constituted in the same manner as the original Bench."
E
                                                 (emphasis supplied)

  The Rules made under Rule 122 cannot be inconsistent with
  the body of the Code (that is sections in the Code), but can be
F inconsistent with any of the Rules in the First Schedule to the
  Code. As the Rules under section 122 can alter or add any rule
  in the First Schedule to the Code, the provisions of Rule 5 of
  Chapter 3 of the High Court Rules will prevail over Rule 5 of
  Order 47 of the Code.

G      9. After the Circuit Bench of the High Court started
  functioning at Dharwad and Gulberga in July 2008, the Registry
  faced difficulties in listing the review petitions before the Bench
  which heard and disposed of the matters due to the fact that
  both or one of the Judges of the Bench will not be available at
H the Circuit Bench. Certain number of Judges from the main
     MALTHESH GUDDA POOJA v. STATE OF                        883
    KARNATAKA & ORS. [R.V. RAVEENDRAN, J.]
Bench chosen by the Chief Justice as per a broad roster, hold A
sittings for 5 to 6 weeks in the circuit benches followed by other
batches of Judges and many a time a Judge who had sat during
a particular session of 5 to 6 weeks may not sit again in the
same circuit Bench for more than six months to one year.
Further in case of decisions rendered by division benches, the B
two learned Judges who constituted the Bench may not sit
together in the circuit Bench again as they may be posted during ·
different periods before the Circuit Bench. Therefore the
Registry submitted a note dated 19.12.2008 to the learned
Chief Justice seeking directions in that behalf. The relevant c
portions of the said note are extracted below :

      " ........... in case of the Review Petitions relating to
    · judgment, decree, order or sentence pronounced, made
      or passed by the Division Bench· out of which one of the
      Hon'ble Judge is not available for the reasons stated in       D
      Rule 5, it may not be permissible to post the said Review
   · Petition before the Division Bench assigned with the
      respective subjects at this Circuit Bench even if one of the
      Hon'ble Judge having sittings at this Circuit Bench was a
      member of the Division Bench original constituted. X xx x      E
    x
    Beca1,1se, having regard to Rule 5 of the High Court of
    Karnataka Rules 1959, it may not be permissible to post
    such of the Review Petitions before other Single Bench           F
    constituted at this Circuit Bench assigned with the
    concerned subjects. Consequently, either such Review
    Petitions shall have to be kept pending at this Circuit
    Bench for being posted before the original Bench, which
    pronounced, made or passed such judgment, decree,
    order or sentence as and when it is constituted at this          G
    Circuit Bench or such Review Petitions may have to be
    transferred to the Principal Bench for being posted before
    the original Bench.

     In view of the above said Rule 5 of the Karnataka High          H
    884       SUPREME COURT REPORTS                   [2011] 11 S.C.R.


A         .Court Rules, 1959, kind orders are solicited as to what
           norms are to be followed, if a Review Petition is filed
           against the order of Division Bench or a Single Bench on
           merits before the High Court Circuit Bench, Dharwad."

B On the said note, the learned Chief Justice made an order that
  the review petition may be posted as per the roster. In
  pursuance of it, the High Court issued a notification
  No.HCBB.CBD.01/2008 dated 29.12.2008 reading as follows


C         "It is hereby notified that the Review Petitions relating to
          Judgments, Decree, Order or sentence pronounced, made
          or passed by the Division Bench or Single Bench in
          respect of Circuit Bench, Dharwad, will be posted as per
          the roster existing in the Circuit Bench, Dharwad."
D
    It is in view of the said notification, instead of listing the review
    petitions before the Judges who passed the order, the review
    petitions were being listed before the Bench which was currently
    assigned the subject roster.
E      10. The validity of the circular dated 29.12.2008 was
  considered by another Division Bench of the High Court in Sri
  Balachandra Vigneshwara Dixit v. H.S. Srikanta Babu [C.C.C.
  No.2020 of 2009 (Civil) decided on 26.3.2010]. The said
  decision held that the circular dated 29.12.2008 directing that
F the review petitions relating to judgments, decree and orders
  made by a Division Bench or a Single Bench at Circuit Bench,
  Dharwad be posted as per the roster existing in the Circuit
  Bench, Dharwad is ultra vires Rule 5 of the Karnataka High
  Court Rules, 1959 and quashed the said circular. In that behalf,
G the Division Bench observed as follows :

          "45. In this context, if a review petition is filed and the
          judges who passed the order are not sitting at the Circuit
          Benches, then it is open to the parties to file a review
          petition either at the Circuit Bench where the original order
H
     MALTHESH GUDDA POOJA v. STATE OF                           885
    KARNATAKA & ORS. [R.V. RAVEENDRAN, J.]
    was passed, or at the Principal Bench. Then it is open to          A
    the Chief Justice to constitute the bench in accordance with
    Rules, arrang'e roster and have the said review petition
    heard and decided either at the Circuit Bench or at the
    Principal Bench. The party had the opportunity of full
    hearing of the case. If the order is against him, without          B
    availing the remedy of appeal, if he wants to avail the
    remedy of review, he cannot plead that his convenience
    alone should be taken into consideration in arranging
     hearing of the review petition. If he is really aggrieved,
    wants review, it should not be difficult for him even to           c
     appear before the Principal Bench and argue his case for
     review.

     46. In that view of the matter, the contention that a review
     petition cannot be heard by the Principal Bench at
     Bangalore when the original order is passed at the Circuit        D
     Benches at Dharwad/Gulbarga, is without any substance.
     It would be better if those review petitions are also heard
     at the Circuit Benches, and that is possible only when the
     original Bench which passed the order, is functioning in the
     Circuit Benches. If the original Bench is not functioning in      E
     those Circuit Benches, and if there is difficulty to constitute
     such Bench for the purpose of hearing the review petition,
     it is open to the learned Chief Justice to constitute the
     Bench at the Principal Bench at Bangalore, and the parties
     can prosecute the same at Bangalore."                             F

      The said order was challenged by the High Court in SLP
[C] No.14337/2010 and this court on 13.5.2010 stayed the
operation of the said order. Be that as it may. The validity of
the order dated 29.12.2008 does not arise for our consideration        G
in this case. It is relevant to note that the impugned order dated
23.4.2010 was made after the decision of the High Court in Sri
Balachandra Vigneshwara Dixit and before the stay of that
decision by this Court;

     11. We may now examine the scope of Rule 5 of Chapter             H
    886      SUPREME COURT REPORTS                 [2011] 11 S.C.R.


A   3 of the High Court Rules and Rule 5 of Order 47 of.the Code.
    At the outset it should be noticed that there is no inconsistency
    between the two provisions. As noticed above Rule 5 of
    Chapter 3 of the High Court Rules provides that every petition
    for review of a judgment shall be posted before the original
B   Bench which pronounced the judgment or if the Judges who
    constituted the such Bench constituted are not available by
    reason of death, retirement or absence before any other Bench
    in the same manner as the original Bench. The word 'absence'
    is not defined and the duration of absence is not indicated in
c   the said Rule. The ordinary meaning of the word 'absence' is
    "the state of being away from one's usual place". Order 47 Rule
    5 of the Code, provides that the review petition shall be heard
    only by the Judges who passed the order if the said Judges
    continues or continue attached to the Court (at the time when
    the application for review is made) and are not precluded by
0
    absence or other cause from considering the application for a
    period of six months. The words "co; .tinue attached to the Court"
    mean available to perform normal duties and has not been
    transferred or away on deputation. The words 'absence or other
E   cause for a period of six months' in Rule 5 of Order 47 of the
    Code and the words 'by reason of death, retirement or
    absence' in Rule 5 of Chapter 3 of the High Court Rules, in
    essence refer to the same causes, due to which the review
    application cannot be heard by the same bench which passed
    the original order. As Rule 5 of Chapter 3 of High Court Rules
F   does not specify the period of 'absence' but it is clear from the
    context that it does not refer to casual absence. Therefore, it
    is appropriate to interpret the said words as 'absence for a·
    period of six months next after the application' by taking
    guidanc~ from Rule 5 of Order 47 of the Code.
G
        12. This court in Reliance Industries Ltd. vs. Pravinbhai
    Jasbhai Patel & Ors. [1997 (7) SCC 300] explained the object
    and scope of review applications as under:

          "It has to be kept in view, that review petitions are not by
H
 MALTHESH GUDDA POOJA v. STATE OF                          887
KARNATAKA & ORS. [R.V. RAVEENDRAN, J.]
  way of appeals before the superior Court but they are by          A
  way of requests to the same Court which decided the
  matter, for persuading it to recall or reconsider its own
  decision on grounds which are legally permissible for
  reviewing such orders. As laid down by 0. XLVll R. 5, CPC
  as far as possible the same two learned Judges or more            B
  Judges who decided the original proceedings have to hear
  the review petition arising from their own judg.ment. Thus
  in substance a review amounts to reconsideration of its
  own decision by the very same Court. When the Court sits
  to review its own order, it obviously is not sitting in appeal    c
  over its judgment but is seeking to have a fresh look at its
  own judgment of course within the limits of review powers,
  but still invoking for that limited purpose the very same
 jurisdiction which it exercised earlier. It is axiomatic that if
  a Division Bench of two learned Judges deciding the
                                                                    0
  appeal had exercised appellate powers and when its
  decision is sought to be reviewed it can be said to be
  required to reconsider its own decision within the limits of
. review jurisdiction but still in exercise of the same appellate
  jurisdiction which it earlier exercised. Similarly when a
  decision rendered in exercise of original jurisdiction by a·      E
   Bench of two learned Judges is sought to be reviewed the
  learned Judges exercising review jurisdiction subject to the
  limitations inhering in such an exercise, can be said to be
  called upon to reconsider their decision earlier rendered
  in &xe:rci5e of the very same original jurisdiction. In that      F
  review jurisdiction takes colour from the nature of the
  jurisdiction exercised by the Court at the time when the
  main judgment, sought to be reviewed, was rendered.
  Review jurisdiction, therefore, cannot be said to be some
  independent jurisdiction sought to be exercised by the            G
  Court dehors the nature of the jurisdiction exercised by it
  when the judgment sought to be reviewed was rendered
  by it."

 13. Order 47 Rule' 5 of the Code and Rule 5 of the Chapter         H
    888       SUPREME COURT REPORTS                 [2011] 11 S.C.R.


A 3 of the High Court Rules require, and in fact mandates that if
  the Judges who made the order in regard to which review is
  sought continue to be the Judges of the court, they should hear
  the application for review and not any other Judges unless
  precluded by death, retirement or absence from the Court for
B a period of six months from the date of the application. An
  application for review is not an appeal or a revision to a
  superior court but a request to the same court to recall or
  reconsider its decision on the limited grounds prescribed for
  review. The reason for requiring the same Judges to hear the
c application for review is simple. Judges who decided the
  matter would have heard it at length, applied their mind and
  would know best. the facts and legal position in the context of
  which the decision was rendered. They will be able to
  appreciate the point in issue, when the grounds for review are
  raised. If the matter should go before another Bench, the Judges
0
  constituting that bench will be looking at the matter for the first
  time and will have to familiarize themselves about the entire
  case to know whether the grounds for review exist. Further when
  it goes before some other Bench, there is always a chance that
  the members of the new bench may be influenced by their own
E perspectives, which need not necessarily be that of the Bench
  which decided the case. Benjamin Cardozo's celebrated
  statement in the Nature of Judicial Process (page 12) is
  relevant in this context:

F         "There is in each of us a stream of tendency, whether you
          choose to ca11 it philosophy or not, which gives coherence
          to thought and action. Judges cannot escape that current
          any more than other mortals. All their lives, forces which
          they do not recognize and cannot name, have been tugging
G         at them - inherited instincts, traditional beliefs, acquired
          convictions; ...... In this mental background every problem
          finds its setting. We may try to see things as objectively
          as we please. Nonetheless, we can never see them with
          any eye except our own."
H
     MALTHESH GUDDA POOJA v. STATE OF                         889
    KARNATAKA & ORS. [R.V. RAVEENDRAN, J.]
     Necessarily therefore, when a Bench other than the Bench        A
which rendered the judgment, is required to consider an
application for review, there is every likelihood of. some
tendency on the part of a different bench to look at the matter
slightly differently from the manner in which the authors of the
judgment looked at it. Therefore the rule of consistency and         B
finality of decisions, make it necessary that subject to
circumstances which may make it impossible or impractical for
the original bench to hear it, the review applications should be
considered by the Judge or Judges who heard and·decided
the matter or if one of them is not available, at least by a bench
consisting of the other Judge. It is only where both Judges are
                                                                     c
not available (due to the reasons mentioned above) the
applications for review will have to be placed before some other
bench as there is no alternative. But when the Judges or at least
one of them, who rendered the judgment, continues to be
members or member of the court and available to perform              D
normal duties, all efforts should be made to place it before them.
The said requirement should not be routinely dispensed with.

     14. When the provision for review by the same Judge/s
was made, it was made on the assumption that the Judges will E
be available at the same place. The Rules did not contemplate
the court having Benches outside the main seat or Circuit
Benches and Judges moving from Bench to Bench or Judges
and coming back after three months or six months. A Judge
who sits and hears a matter in a Circuit Bench away from the     F
main seat, may not be available in that particular Circuit Bench
for a considerable time which may vary from three to six months
or even more. Further, when two Judges heard the matter at a
Circuit Bench, the chances of both Judges si~ing again at that
place at the same time, may not arise. But the question is in
                                                                 G
considering the applications for review, whether the wholesome
principle behind Order 47 Rule 5 of the Code and Rule 5 of /
Chapter 3 of the High Court Rules providing that the same
Judges should hear it, should be dispensed with merely
because of the fact that the Judges in question, though continue
                                                                     H
    890     SUPREME COURT REPORTS                  [2011] 11 S.C.R.

A to be attached to the Court are sitting at the Main bench, or
  temporarily at another bench. In the interests of justice, in the
  interests of consistency in judicial pronouncements and
  maintaining the good judicial traditions, an effort should always
  be made for the review application to be heard by the same
B Judges, if they are in the same court. Any attempt to too readily
  provide for review applications to be heard by any available
  Judge or Judges should be discouraged. With the technological
  innovations available now, we do not see why the review
  petitions should not be heard by using the medium of video
c conferencing. Or an appropriate rule can be made, if such a
  rule is not already available, for consideration of the application
  written submissions alone. For example Order XL Rule 3 of the
  Supreme Court Rules provides that unless otherwise ordered
  by the court, an application for review shall be disposed of by
D circulation without any oral arguments but with written
  arguments. That will not in any way violate section 114 of the
  Code providing for review. The solution may not be to send the
  review petition to the place where the concerned Judges are
  holding their sitting in view of the fact that would involve travel,
E engaging of new counsel, additional cost etc. and defeat the
  very purpose of having circuit benches. Every effort should be
  made to achieve the object of review by ensuring that the matter
  is considered by the Judge or the Bench which rendered the
  judgment. Be that as it may.

F Finality of decisions
       15. But the crucial question is this: The review application
  having been placed before the bench holding the roster, as per
  the standing instructions of the Chief Justice, and the said
G bench having heard and granted the review application,
  whether before another bench a request is made for early
  hearing can say it will ignore the order granting review as it is
  a nullity?

       16. In this ·case, the review petition was placed before
H different bench (bench holding the roster for hearing writ
     MALTHESH GUDDA POOJA v. STATE OF                          891
    KARNATAKA & ORS. [R.V. RAVEENDRAN, J.]
appeals) as per the Notification dated 29.12.2008 issued by            A
the High Court under the directions of the learned Chief Justice
requiring the review petition to be placed before a bench
assigned to hear writ appeals as per the then existing roster.
As on 17.12.2009, when another bench heard and decided the
matter, the listing of the case before that bench and hearing          B
by that bench was valid as per rules. The Judges constituting
the original bench were not sitting at Dharwad. The review
petition was filed on 2.3.2009 and .for more than six months,
the original Bench either did not sit or dispose of the review
petition. When the review petition was placed for hearing before       c
the roster bench, it was possible that for six more months there
was no likelihood of the Judges constituting original bench
 being together at Dharwad. The bench before which the review
 application was placed held the writ appeal roster. The said
 bench considered and rejected the contention that the same
                                                                       0
 bench which passed the order should hear the review
 application, in view of the Notifications dated 29.12.2008 and
that bench also held that the Chief Justice had the power and
authority to issue the notification dated 29.12.2008. The order
dated 17 .12.2009 was therefore neither a nullity nor one lacking
of inherent jurisdiction, nor obtained by fraud. Even assuming         E
 it to be erroneous, it was final as it was not challenged.

    17. Once the application for review was granted on
17.12.2009, the order reviewed stands recalled. Consequently
!he review appeal stood revived and restored. Therefore when           F
the appellant filed a memo for listing the writ appeal for hearing,
he was not really seeking a judicial order for restoration but only
a direction for fixing a date for hearing the writ appeal. When
an application or memo is filed in a matter where review has
been granted, the Bench dealing with such memo or application          G
is bound to proceed on the basis of the said order granting
review, in view of the principles of finality and res judicata. Even
a·wrong decision between parties which has attained finality
is binding-and cannot be re-agitated or re-opened at a later
stage. As noticed above, the review order dated 17.12.2009             H
    892     SUPREME COURT REPORTS                [2011] 11 S.C.R.


A considered the statutory provisions relating to review and
  consciously arrived at a decision that the provisions thereof did
  not prevent it from hearing the application for review. It should
  be noted that neither party was aggrieved by it and the order
  dated 17.12.2009 was not under challenge. Therefore when the
B memo for posting was filed by one of the parties, the court,
  being bound by its final decision rendered on 17.12.2009 ought
  to have listed the writ appeal for hearing and could not have
  examined the correctness or validity of review order dated
  17.12.2009.
c       18. We therefore allow this appeal, set aside the impugned
  order dated 23.4.2010 and direct the Writ Appeal No.169/2007
  be listed for final hearing. Our observations as to who should
  hear review applications, will not affect the validity of orders
  made on review applications by roster benches as per
D notification dated 29.12.2008 and which have attained finality.

    R.P.                                         Appeal allowed.