1. Does overlooking a binding decision. constitute a ground for reviewing a judgment or order of a Court? That is the question that arises for decision in this review petition.
2. This is a petition for review of our order in W. P. No 3789 of 1970. The petitioner herein is the Selection Committee for admission to Government Medical Colleges (hereinafter referred to as the Selection Committee) which was the respondent in the Writ Petition, For the sake of convenience, the parties herein will hereinafter be referred to with reference to their respective positions in the Writ petition.
3. The question that arose for decision in the Writ petition, was whether the petitioner who belongs to Meda Community and was a resident of Kolar District, could be regarded as belonging to Scheduled Tribes for whom certain seats are reserved for admission to Government Medical Colleges in Mysore State. In the Constitution (Scheduled Tribes) Order. 1950, issued by the President under Article 342 of the Constitution of India, and amended by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act 1956. Meda Community in Coorg District has been specified as a Scheduled Tribe. But in the rest of the new State of Mysore that community has not been specified as a scheduled tribe.
4. At the hearing of the Writ Petition, the learned counsel for the petitioner relied on the decision of this court In Suleman v. Narasappa 1959-37 Mys LJ 775. Following that decision, we held that if a community or a tribe is a scheduled tribe anywhere in the State, it must be regarded as a scheduled tribe in the entire State- In that view, we held that the petitioner should be regarded as belonging to Scheduled Tribes though he was a resident of Kolar District and we directed the Selection Committee to consider his application for admission to Medical Colleges having regard to the reservation of seats for Scheduled Tribes,
5. The ground on which the Selection Committee has sought for a review of our order in the writ petition, is that we overlooked the decision of the Supreme Court in Bhaiyalal v. Hari-kishan Singh. : 2SCR877 which must be held to have overruled the . decision of this court in 1959-37 Mys LJ 775.
6. Undoubtedly. the aforesaid decision of the Supreme Court bears directly on the point that arose for decision in the writ petition. At the hearing of the writ petition, neither the petitioner's counsel nor the learned Government Pleader who appeared for the Selection Committee, brought to our notice the aforesaid decision of the Supreme Court : 2SCR877 ,
7. The learned Government Advocate who appeared for the Selection Committee in this review petition, contended that in deciding a case if the court overlooks a binding decision bearing qn a material question, then that constitutes an error apparent on the face of the record and calls for a review of its judgment or order.
8. On the other hand, Mr. R. J. Babu. learned counsel for the respondent in this review petition, contended that even if the court overlooks a binding decision, that constitutes neither an error apparent on the face of the record nor a sufficient cause for reviewing its judgment or order.
9. On the question whether overlooking a binding decision, is a ground for review, there is no reported decision of the Supreme Court or of this court; nor has any unreported decision of either of these courts, been brought to our notice. The views of other High Courts on this question, are divergent.
10. Before adverting to such conflicting decisions of High Courts, it may be stated that it is well-settled that that a decision is erroneous in law, is no ground for review and that it is only where such decision can be characterised as vitiated by ah error apparent on the face of the record, it can be reviewed.
11. We shall now consider the decisions cited by the learned Government Advocate.
12. In Murari Rao v. Balvant Dixit. AIR 1924 Mad 98. the District Judge had decided a suit relating to succession under Hindu Law. The plaintiff applied for a review of the judgment on the ground that the question of law arising in that decision, namely, the question of propriety of heirs under the Mitakshara Law applicable to Madras Presidency, had been settled by a decision of the Madras High Court. As that ruling had not been brought to the notice of the District Judge at the original trial, he reviewed his judgment. The defendants appealed to the Madras High Court.
A Bench consisting of Philips and Venkatasubba Rao. JJ. held that the error of law committed bv the District Judge in not noticing the legal position on the point at issue definitely laid down by the Madras High Court in its earlier decision, amounted to an error apparent on the face of the record and that hence there was a ground for granting a review. Their Lordships added:
'To hold otherwise would be to multiply litigation, for naturally the aggrieved party would appeal and the error would have to be corrected by the appellate court rather than in the court of first instance.'
13. The above decision of the Madras High Court was followed by Wadsworth, J.. in Natesa Naicker v. Sambanda Chettiar, AIR 1941 Madras 918. His Lordship said at p. 920:
'When there is a legal position clearly established by a well known authority and by some unfortunate oversight, the Judge has gone palpably wrong by the omission of those concerned to draw his attention to the authority, it may in a proper case, in the light of 1LR 46 Mad. 955 = AIR 1924 Mad 98. be a ground coming within the category of an error apparent on the face of the record.'
14. The aforesaid decisions of the Madras High Court were followed by Bhirnasankaram J., in Rameswaraswami Varu v. Ramalinga Raiu. : AIR1960AP17 .
15. The same view was taken by Biiaesh Mukherii, J., in Tinkari Sen v. Dulal Chandra. : AIR1967Cal518 . His Lordship said at p. 522:
'A mistake simpliciter. either in the realm of fact or of law. is no ground for review. But overlooking a proposition of law well settled and beyond controversy does furnish a very good ground for review.'
16. We shall now examine the decisions cited by Mr. Babu in support of his contention that not noticing an earlier decision, is not a ground for review.
17. In Ellem v. Basheer. (1876) ILR 1 Cal 184 Richard Garth, C. J., who spoke for the Bench said:
'The Subordinate Judge of Sylhet reviewed his own decision ..... He gave as a reason for the review that he was referred by the pleader to two authorities, decided by the High Court many years ago, one of which he considered to be opposed to his former judgment He, accordingly, made an order for the review and reversed his previous decision.'
'We cannot consider that the production of an authority to which the attention of the Judge was not called in the first trial, is sufficient ground for demanding a second trial. The parties ought to come prepared with all their materials both of law and facts at the first hearing and if they do not come properly prepared they ought not to be allowed upon discovering that they had omitted to bring forward some decided case, to try the case over again upon the strength of their own omission. If the Judge has decided improperly upon a point of law that would be a matter for appeal and not for review'.
18. The aforesaid decision of the Calcutta High Court was followed by Sinha. J. (as he then was), in Dilip Nath Sen y. Certificate Officer. : AIR1962Cal346 .
19. In Garabini Kamarain v. Surji Narain Singh. AIR 1924 Pat 250. the Munsiff had granted a review on the ground that the case law relied on by him had been modified by a subsequent decision. Setting aside the order of the Munsiff granting review- this is what Dawson Miller. C. J., who spoke for the Bench, said at p. 253:
'The ground upon which the application for review was based was that the petitioners were not aware of the Full Bench ruling of this court and could not place it before the Munsiff at the first trial ..... It would be impossible to prove that a Full Bench decision of the High Court to which the trial Court was subordinate, published in the authorised law reports some four months before the trial, could not have been adduced at the trial. If in fact the decision was not within the knowledge of the petitioner or his pleader, ignorance of this nature ought not, in my opinion, in view of rule 1 of Order 47, to be allowed to be pleaded in support of an application such as the present.'
20. The aforesaid decision of the Patna High Court was followed by Baker, C. J., in Atmaram v. Punjabrao, AIR 1925 Nag 384.
21. In Opporti PadhJ v. Paila Ujiula. AIR 1927 Mad 998, Srinivasa Aiyangar. J. doubted the correctness of the decision of the Madras High Court In AIR 1924 Mad 998. His Lordship said at p. 1000:
'It seems to me sufficient to say that the mere omission on the part of a learned Judge to consider a decision, however regrettable, however wrong, cannot possibly be regarded as constituting an error apparent on the face of the record. Even assuming it to be an error that may be discovered from the record itself, it seems to me to be almost impossible to regard such error as an error apparent on the face of the record.'
22. In C. Venkatappayya v. Ponna-yya. AIR 1933 Mad 631, Waller, J.. in his order of reference to the Full Bench, observed thus:
'Speaking for myself I cannot understand how a mistake of law can be apparent on the face of the record. It may be apparent from the contrary decision of a superior court but that is not a part of the record.'
23. In this state of divergence of views as to whether overlooking a binding decision amounts to an error apparent on the face of the record, the key to the solution of this question is. in our opinion, found in the test laid down by Raja-gopala lyengar. J.. who spoke for the court in Tungabhadra Industries Ltd. v. Govt. of Andhra Pradesh, : 5SCR174 . Without intending to deal with that question exhaustively, his Lordship said that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out-
24. Article 141 of the Constitution provides that the law declared by the court, shall be binding on all courts within the territory of India. Hence, where there is a decision of the Supreme Court bearing on a point and where a Court has taken a view on that point, which is not consistent with the law laid down by the Supreme Court, it needs no elaborate argument to point to the the error and there could reasonably be no two opinions entertained about such error. Applying the above test laid down by Raja-gopala Ayyangar, J.. in : 5SCR174 , such an error would clearly be an error apparent on the face of the record-The reasoning of Srinivasa Iyengar. J., in : AIR1927Mad998 and of Waller, J., in AIR 1933 Mad 731, that a mistake of law apparent from a contrary decision of a superior court, cannot be said to be apparent on the face of the record, cannot prevail in view of the test laid down by the Supreme Court as to what constitutes an error apparent on the face of the record.
25. The reasoning of Garth. C. J., In (1876) ILR 1 Cal 184 that a counsel omitting to cite a decided case, ought not to be allowed to demand a second trial, and the reasoning of Dawson Miller C. J., in AIR 1924 Pat 250 that the ignorance of a party or his pleader as to a ruling, ought not to be allowed to be pleaded in support of an application for review, cannot prevail against the decision of the Federal Court in Jamna Kuer v. Lal Bahadur. AIR 1950 F. C. 131. Mahajan, J. (as he then was), who spoke for the Federal Court, said that where there is an error apparent on the face of the record, the question as to how that error occurred, is of no relevance for the purpose of review, and that it is immaterial whether such error occurred bv reason of the counsel's mistake or had crept in by reason of oversight on the part of the court.
26. As stated by Wadsworth, J.. in Venkatarayulu Naidu v. Rattamma Garu, AIR 1939 Mad 293, where there is an error apparent on the face of the record, it should be corrected at the earliest possible time without driving the parties to the expenses of an appeal or revision petition to which there would be no answer.
27. In the result, we allow this review petition and set aside our order dated 21-10-1970 in Writ Petition No. 3789 of 1970. The Writ Petition will again be posted for hearing. In the circumstances of the case, we direct the parties to bear their own costs in this petition.