Introduction

It is undisputed that the Supreme Court does not legislate laws but it Declares Law, on the basis of judicial interpretations, precedents & Constitutional mandates. When the Legislature legislates a new law or amends an existing law, the same may be prospective or retrospective as per the intent of the Legislature. But when the Supreme Court for the first time or overruling an earlier judgment declares a law, it implies that the said declaration was the true intent of that provision of the Act and existed right from its inception. So, when the judgment passed on the basis of an erroneous judgment, which has been overruled, can it not be said that the said declaration of law, although declared later, not being followed in the impugned judgment results in mistake apparent on the face of the record and can validly be reviewed. Let us examine how far this argument is valid.

Rule 1 of Order XLVII — Scope of Review

It is pertinent to refer to Rule 1 of Order XLVII of the Supreme Court Rules, 2013 which define the scope and power to review a judgement which is restricted to its contours and only those aggrieved persons may seek review of the judgement of this Court who:

• due to discovery of new and important matter or evidence which, after exercise of due diligence was not within the knowledge of the person aggrieved or the person seeking review could not be produced by him at the time when the decree was passed or order made.
• due to a mistake or error apparent on the face of the record.
• on account of any other sufficient reason.

Although the expression ‘for any other sufficient reason’ was wide enough to take within its scope many circumstances, however, if, on a question of law, a decision of a Court is reversed by a subsequent decision of a superior Court and the same is reopened on the basis of the said subsequent decision, there would be no finality of judgments of the Court even between the parties thereto.

Government of NCT of Delhi v. K.L. Rathi Steels Limited (2023)

The Apex Court in Govt. of NCT of Delhi v. K.L. Rathi Steels Limited, 2023 SCC OnLine SC 288 explaining the intent of ‘on account of any other sufficient reason’ held thus:

“There would be chaos and no finality of any decision of a Court which is against public policy. Judgments rendered by a Court of competent jurisdiction as per the prevailing law are binding on the parties to the said judgment.”

A subsequent Supreme Court judgment generally changes the interpretation of law retrospectively, affecting prior rulings unless the new judgment is expressly made prospective. However, the procedural rules and doctrines (such as res judicata and Order XLVII Rule 1 CPC) ensure that finality of concluded judgments is preserved, and review petitions cannot cite subsequent overruling as a valid ground except in exceptional situations expressly recognized by the Court.

Explanation to Order XLVII Rule 1, CPC — Public Policy of Finality

The doctrine that a subsequent decision of the Supreme Court cannot be a ground for review of an earlier judgment is well-settled in Indian jurisprudence. This principle is anchored in Order XLVII Rule 1 Explanation, Code of Civil Procedure, 1908 (CPC), which follows from the public policy requirement that litigation must end and judgments attain finality. The Supreme Court and several High Courts have reaffirmed this principle in numerous cases.

It would be trite to refer to Order XLVII Rule 1 Explanation, CPC reads as under:

“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.”

Accordingly, review is not maintainable simply because the legal position declared earlier is changed by a later judgment, even if by a larger bench or a constitutional bench.

Supreme Court Case Laws Affirming This Principle

Neelima Srivastava v. State of Uttar Pradesh, 2021 SCC OnLine SC 610

In the case of Neelima Srivastava v. State of Uttar Pradesh, 2021 SCC OnLine SC 610, the Apex Court reiterated that where finality has been attained, a different subsequent judgment on a law point cannot uproot the finality. The Court observed thus:

“…. It cannot mean that the judgment of a competent Court delivered prior to the decision in Umadevi (3) and which has attained finality and is binding inter se between the parties need not be implemented. Mere over-ruling of the principles, on which the earlier judgment was passed, by a subsequent judgment of higher forum will not have the effect of uprooting the final adjudication between the parties and set it at naught. There is a distinction between over-ruling a principle and reversal of the judgment. The judgment in question itself has to be assailed and got rid of in a manner known to or recognized by law. Mere over-ruling of the principles by a subsequent judgment will not dilute the binding effect of the decision on inter-parties.”

In Meera Bhanja v. Nirmala Kumari Choudhury (1995) 1 SCC 170 and Aribam Tuleshwar Sharma v. Aribam Pishak Sharma (1979) 4 SCC 389 the Apex Court categorically held that error apparent on the face of record is essential for review; a changed view of law cannot be termed as error apparent.

Beghar Foundation vs. Justice K.S. Puttaswamy AIR 2021 SUPREME COURT 891

In Beghar Foundation vs. Justice K.S. Puttaswamy AIR 2021 SUPREME COURT 891, the Constitution Bench of the Apex Court made the following observations:

“The present review petitions have been filed against the final judgment and order dated 26-9-2018. 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 26-9-2018 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.”

In the case of Nalagarh Dehati Coop Transport Society v. Beli Ram (1980 SCC OnLine HP 13) approved and relied in Govt. of NCT of Delhi v. K.L. Rathi Steels Limited, 2023 SCC OnLine SC 288 decided on 17-03-2023, the Himachal Pradesh High Court dealt with the issue in hand in detailed manner & observed thus:

“7. The first part of the question relates to a situation where the subsequent judgment of the Supreme Court or a larger Bench of the same Court takes a view contrary to the one taken in the judgment under review. In other words, the judgment when given was perfectly good. There was no error apparent on the face of the record. It is the happening of a subsequent event which renders the judgment erroneous. This cannot be a ground of review. The purpose of review, inter alia, is to correct an apparent error which should not have been there when the judgment was given. In Rajah Kota-giri Venkata Subbamma Rao v. Rajah Vellanki Venkatrama Rao, (1900) 27 Tnd App 197 (PC) Lord Davey said :

“the section does not authorise the review of a decree which was right when it was made on the ground of the happening of some subsequent event.”

9. It is thus plain that where a judgment of the High Court is sought to be reviewed on the ground that a larger Bench of the same Court has taken a different or a contrary view, it cannot be said that there is a mistake or error apparent on the face of the record. The subsequent decision only shows that the previous decision was erroneous. And simply because a judgment happens to be wrong is not a ground of review on the ground that there is a mistake or error apparent on the face of the record,

10……..

11. A single Judge of the Gujarat High Court in Patel Naranbhai Jinabhai v. Patel Gopaldas Venidas, AIR 1972 Guj 229, ruled that a court cannot review its error on the ground that the decision has been rendered doubtful in view of a subsequent decision of the High Court.

12. A Division Bench of the Kerala High Court in Board of Revenue v. P. K. Syed Akbar Sahib, AIR 1973 Ker 285, was called upon to decide whether a subsequent decision of the larger Bench as well as that of Supreme Court taking a contrary view would amount to an error or mistake apparent on the face of the record. After discussing the existing case Law, Mulla’s 13th Edition of the Civil Procedure Code was referred to with approval thus :

“At page 1672, the learned author observes that it is no ground for review that the judgment proceeds on an incorrect exposition of the law, or of a ruling which has subsequently been modified or reversed or that the law has been laid down differently in a later decision. Nor is a subsequent change in the law a ground for review unless it is retrospective in its operation.”

The court rejected the contention that a subsequent binding decision proclaims and declares the law as it ever was, and therefore, with retrospective effect, and that it stands on the same footing as a subsequent legislation with retrospective effect. It observed :–

“Nor can we regard these as amounting to the discovery of a “mistake” or an “error apparent on the face of the record”. While we agree that the reversal or variance or the overruling of a judicial decision by a subsequent one amounts to discovery of an error or a flaw in the reasoning of the decision reversed, varied or overruled we are unable to hold that in every such case there is an ‘error apparent on the face of the record’.”

In this context, it would be relevant to refer to the identical Section 254(2) of the Income Tax Act, 1961 which provides power to the Income Tax Appellate Tribunal to amend its order to rectify any mistake apparent on record to ensure fairness without re-visiting the entire case and prolonging litigation. It has been consistently held by Courts that a subsequent Supreme Court decision on the issue cannot be grounds for rectification of orders and not for revisiting decisions due to subsequent judicial developments.

CIT vs. Reliance Telecom Ltd (2022) 440 ITR 1 (SC)

The Apex Court in the case of CIT vs. Reliance Telecom Ltd, reported in (2022) 440 ITR 1 (SC) held that the powers u/s 254(2) of the Income Tax Act are akin to Order XLVII Rule 1 CPC. The Court observed thus:

“In exercise of powers under Section 254(2) of the Act, the Appellate Tribunal may amend any order passed by it under sub-section (1) of Section 254 of the Act with a view to rectifying any mistake apparent from the record only. Therefore, the powers under Section 254(2) of the Act are akin to Order XLVII Rule 1 CPC. While considering the application under Section 254(2) of the Act, the Appellate Tribunal is not required to re-visit its earlier order and to go into detail on merits. The powers under Section 254(2) of the Act are only to rectify/correct any mistake apparent from the record.”

Commissioner of CGST and Central Excise (J&K) vs. Saraswati Agro Chemicals Pvt. Ltd — SLP (Civil) Diary No(s).18051/2023

The Apex Court in the case of Commissioner of CGST and Central Excise (J&K) vs. Saraswati Agro Chemicals Pvt. Ltd in SLP (Civil) Diary No(s).18051/2023 and others, vide judgment and order dated 04/07/2023 reiterated the same principle and made following observations:

“Thus, in substance, by filing the miscellaneous application the revenue was seeking a second review of the said judgment which is impermissible in law (Order XLVII Rule 9 CPC). Secondly, by ignoring the Explanation to Order XLVII Rule 1 of the CPC and the principle that emerges from the same, what is sought to be contended by learned ASG is that if a judgment is overruled by this Court by a subsequent judgment, then the overruled judgment will have to be reopened and on reopening the said judgment will have to be brought in line with the subsequent judgment which had overruled it. This is not permissible in law for two reasons: firstly, there has to be finality in litigation and that is in the interest of State. Secondly, a person cannot be vexed twice….”

In Shanti Devi v. State of Haryana, the Apex Court considered the Explanation to Rule 1 of Order XLVII and rejected the review petition by holding that the contention that the judgment sought to be reviewed was overruled in another case subsequently is no ground for reviewing the said decision as the Explanation to Order XLVII Rule 1 of the Code of Civil Procedure clearly rules out such type of review proceedings.

Union of India v. Mohd Nayyar Khalil — Review Petition (C) No. 91 of 2000

It would be apropos to refer to the Apex Court judgment in the case of Union of India v. Mohd Nayyar Khalil in Review Petition (C) No. 91 of 2000 in Civil Appeal (C) No. 7717 of 1997, decided on February 16, 2000, the Apex Court observed thus:

“Even if the question regarding the legality of the said three-Judge Bench decision is pending scrutiny before the Constitution Bench the same is not relevant for deciding the review petition for two obvious reasons — firstly, this was not pointed out to the Bench which decided the civil appeal; and secondly, by the time the impugned order was passed the three-Judge Bench judgment had not been upset and even in future if the Constitution Bench takes a contrary view it would be a subsequent event which cannot be a ground for review as is clear from the explanation to Order 47 Rule 1(2) of the Code of Civil Procedure. The principle, thus, laid down is that a decision being upset in the future would be a subsequent event which could not be a ground to seek review.”

Nand Kishore Ahirwar v. Haridas Parsedia (2001) 9 SCC 325

The Apex Court in Nand Kishore Ahirwar v. Haridas Parsedia (2001) 9 SCC 325, while dismissing the review petitions before it, made pertinent observations reaching out to the very core of the said Explanation. This Court observed that simply because there has been a Constitution Bench decision, passed in the aftermath of the judgment impugned, would be no ground for a review of the said judgment. The Court succinctly observed thus:

“3. Thus even if subsequent Constitution Bench takes a contrary view, it will be no ground for reviewing the judgment in question.”

Subramanian Swamy v. State of Tamil Nadu 2014 (5) SCC 75

It would be appropriate to refer to the Apex Court judgment in Subramanian Swamy v. State of Tamil Nadu 2014 (5) SCC 75 wherein the Court dealt with the issue in hand and held thus:

“52. The Explanation to Order XLVII, Rule 1 of Code of Civil Procedure 1908 provides that if the decision on a question of law on which the judgment of the court is based, is reversed or modified by the subsequent decision of a superior court in any other case, it shall not be a ground for the review of such judgment. Thus, even an erroneous decision cannot be a ground for the court to undertake review, as the first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and in absence of any such error, finality attached to the judgment/order cannot be disturbed.”

Judicial Maxims Supporting Finality

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