It is common knowledge that the Courts follow the binding dictum of a Higher
Courts but it may happen that the case relied by the Court, on which the entire
judgment has been founded, may subsequently be overruled by a Superior Court or
a larger bench of the same Court. For example, the High Court decides a matter
on the basis of a binding precedent of the same Court but later on the Apex
Court in some other case expressly overrules the earlier judgment.
therefore validly arises whether in such circumstances the order of the Court,
based on earlier judgment which has been subsequently overruled, can be legally
reviewed. Similarly, if there is a change in law, would it be a valid ground for
filing Review in cases decided earlier, wherein no appeal is pending.
It is undisputed that prior to rehearing of the matter on merits, the primary
issue of maintainability of the review petition requires to be ascertained. The
power of the Court to review its judgment is subject to the law enacted by the
Parliament or the Rules made by the Courts in this regard.
It is noteworthy that the power to review its judgments has been conferred on
the Supreme Court by Article 137 of the Constitution of India 1949. The said
Article is reproduced as under:
137. Review of judgments or orders by the Supreme Court Subject to the
provisions of any law made by Parliament or any rules made under Article 145,
the Supreme Court shall have power to review any judgment pronounced or order
made by it.
It is evident that power of Review is subject to the provisions of any law made
by the Parliament or the Rules made under Article 145. Supreme Court in exercise
of the powers conferred under Article 145 of the Constitution of India has
framed the Supreme Court Rules, 2013.
It would be apposite to reproduce Order XLVII- Review as it appears in CPC,
which reads as under:
Rule 1: Application for review of judgment:
- Any person considering himself aggrieved:
and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was 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 made against him, may apply for a review of judgment of the Court which passed the decree or made the order.
- by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
- by a decree or order from which no appeal is allowed, or
- by a decision on a reference from a Court of Small Causes,
- A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.
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."
It would be befitting to reproduce PART-IV,
ORDER XLVII of the Supreme Court Rules, 2013, which deals with Review before the
Supreme Court. The relevant rule reads as under:
- 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 XLVII, rule I of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record. The application for review shall be accompanied by a certificate of the Advocate on Record certifying that it is the first application for review and is based on the grounds admissible under the Rules.
- 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.
- 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 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.
- Where on an application for review the Court reverses 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.
- 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.
From the bare reading of Explanation to Order XLVII Rule 1 CPC, it becomes amply
clear that just because a judgment was subsequently overruled, the same cannot
be a ground for review of such judgment. If Review in such circumstances is
entertained, there would be chaos and no finality of any decision of a Court
which is against public policy. There are a number of Legal maxims that there
must be an end to litigation otherwise the rights of persons would be in an
endless confusion and justice would suffer.
The following Maxims are worth mentioning:
- Nemo debet bis vexari pro una et eadem causa� No man should be vexed twice for the same cause.
- Interest reipublicae ut sit finis litium� It is in the interest of the State that there should be an end to a litigation.
- Res judicata pro veritate occipitur� A judicial decision must be accepted as correct.
It would be trite to refer to the case of Assistant Commissioner, Income Tax,
Rajkot v. Saurashtra Kutch Stock Exchange Limited, (2008) 14 SCC 171 wherein the
Apex Court held that a judicial decision acts retrospectively. The Court held
that if a subsequent decision alters the earlier one, the later decision does
not make new law but it only discovers the correct principle of law which has to
be applied retrospectively. Thus, to put it differently, even where an earlier
decision of the court operated for quite some time, the decision rendered later
on would have retrospective effect clarifying the legal position which was
earlier not correctly understood. The Court observed thus:
42. In our judgment, it is also well- settled that a judicial decision acts
retrospectively. According to Blackstonian theory, it is not the function of the
Court to pronounce a `new rule' but to maintain and expound the `old one'. In
other words, Judges do not make law, they only discover or find the correct law.
The law has always been the same. If a subsequent decision alters the earlier
one, it (the later decision) does not make new law.
It only discovers the correct principle of law which has to be applied
retrospectively. To put it differently, even where an earlier decision of the
Court operated for quite some time, the decision rendered later on would have
retrospective effect clarifying the legal position which was earlier not
43. Salmond in his well-known work states:
"The theory of case law is that a judge does not make law; he merely declares
it; and the overruling of a previous decision is a declaration that the supposed
rule never was law. Hence any intermediate transactions made on the strength of
the supposed rule are governed by the law established in the overruling
decision. The overruling is retrospective, except as regards matters that are
res judicatae or accounts that have been settled in the meantime". (emphasis
The above reasoning appears logical but this case is not an authority that
change in law or subsequent overrule would not make the Review against the
original order maintainable. The said judgment has not considered explanation to
Order XLVII- Review as it appears in CPC which specifically mandates that review
is not maintainable where 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.
It would be relevant to refer to the Himachal Pradesh High Court's judgment in
the case of Nalagarh Dehati Coop Transport Society v. Beli Ram AIR 1981 HP 1,
wherein it was held that a subsequent judgment of the Supreme Court or a larger
Bench of the same Court taking a contrary view on the point covered by the
judgment would not amount to a mistake or error apparent on the face of the
record of the judgment sought to be reviewed. Thus, Review in such cases is not
It would be befitting to refer to the Apex Court judgment in Union of India vs.
Nareshkumar Badrikumar Jagad & Others (2019) 18 SCC 586, wherein the Court
considered this aspect & held thus:
19. Reverting to the question of whether Union of India has locus to file the
review petition, we must immediately advert to Section 114 of the Code of Civil
Procedure ("CPC") which, inter alia, postulates that "any person considering
himself aggrieved" would have locus to file a review petition. Order XLVII of
CPC restates the position that any person considering himself aggrieved can file
a review petition.
Be that as it may, the Supreme Court exercises review jurisdiction by virtue of
Article 137 of the Constitution which predicates that the Supreme Court shall
have the power to review any judgment pronounced or order made by it. Besides,
the Supreme Court has framed Rules to govern review petitions.
Notably, neither Order XLVII of CPC nor Order XLVII of the Supreme Court Rules
limits the remedy of review only to the parties to the judgment under review.
Therefore, we have no hesitation in enunciating that even a third party to the
proceedings, if he considers himself an aggrieved person, may take recourse to
the remedy of review petition. The quintessence is that the person should be
aggrieved by the judgment and order passed by this Court in some respect."
It is very pertinent to note that the Constitution Bench in Beghar Foundation
vs. Justice K.S. Puttaswamy (Retired) and Others(2021) 3 SCC 1,held that even
the change in law or subsequent decision/ judgment of
co-ordinate Bench or larger Bench by itself cannot be regarded as a ground for
review. The Court observed thus:
"The present review petitions have been filed against the final judgment and
order dated 26.09.2018. 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 26.09.2018 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
It would be trite to refer to a recent Apex Court judgment in Review Petition
(Civil) No. 1620 of 2023 in Civil Appeal no.1661 of 2020 in the case of Sanjay
Kumar Agarwal vs. State Tax Officer (1) & Anr. & other 2023 SCC OnLine SC 1406
decided on 31st October, 2023. The Court elucidated the concept of Review and
categorically reiterated thus:
"(viii) Even the change in law or subsequent decision/ judgment of a co-ordinate
or larger Bench by itself cannot be regarded as
a ground for review."
Thus, it is indisputable that If the judgment against a litigant passed by any
Court, relying on a binding precedent which has subsequently been overruled, and
the litigant has not appealed against the judgment passed against him, review is
not maintainable. Similarly, if there is change in law but the matter is
concluded and not pending in any forum, review against the same is not
Does this mean that a litigant would be remediless in such circumstances? In my
opinion, although review is impermissible but a belated appeal/ revision/writ
would lie against the order, against which no redressal was sought for in view
of the binding decision of the High Court/Supreme Court, but which has been
subsequently been overruled. The said belated Appeal/Revision/ Writ shall be
necessarily accompanied by an application for condonation of delay u/s 5 of the
Limitations Act 1963 in as much as the applicant was prevented by a sufficient
cause from not filing appeal/revision/writ within the stipulated time as it
would have been a fruitless exercise in view of the binding precedent/law as it
existed on that day.
It is undisputed that 'change in law' is a valid ground for condonation of
delay. It cannot be denied that non-filing of appeal/revision/writ, within the
statutory time is neither wilful nor deliberate, but only on bona fide belief
that filing of case at that stage will only be futile exercise as the judgment
of this High Court/Apex Court was against the applicant.
Thus, a subsequent decision of the Higher Court/ Larger Bench holding the
existing law as incorrect can be sufficient cause for condoning the delay in
filing the revision inasmuch as it will be futile to file a case when the law is
against the petitioner. In such circumstances, it would be just and necessary
that the Courts condone the delay in filing the case.
It would be apposite to refer to the judgment of the Andhra Pradesh High Court
in the case of State of A.P. v. Venkataramana Chuduva and Muramura Merchant, 57
STC 179 wherein the Court categorically held that subsequent change of law would
constitute a 'sufficient cause' to condone the delay in preferring
appeal/revision or any other legal action, as the case may be. The High Court
categorically held thus:
"14. The other remedy open to the assessees is to prefer an appeal or revision,
as the case may be, along with a petition for condoning the delay, on the ground
that in view of the position of law obtaining on the date of receipt of the
impugned order, they decided not to file an appeal; but, since the subsequent
decision establishes the said assumption to be incorrect, and further that the
tax has been illegally collected from them, they are now preferring the appeal
and that the same should constitute "sufficient cause" within the meaning of the
proviso to sub-section (1) of section 19, or sub-section (2) of section 21, or
the proviso to sub-section (1) of section 22, as the case may be."
The Court further held that in view of Article 265 of the Constitution of India,
a subsequent decision of the High Court or the Supreme Court which changed the
position, interpretation or the understanding of the law, constituted a
'sufficient cause' for condoning delay in filing the appeal or revision, as the
case may be, where it was established that on the date of receipt of the
impugned order the filing of an appeal or revision would be an empty formality,
having regard to the position of law then obtaining. In so opining, the Division
Bench of this Court, placed reliance on the following observations of the Apex
Court in Kamala Mills Limited v. State of Bombay, (1965) 16 STC 613 (SC).
It is relevant in this regard that the Courts have consistently held that the
words "sufficient cause", as appearing in Section 5 of Limitation Act, should
receive a liberal construction when the delay is not on account of any dilatory
tactics, want of bona fides, deliberate inaction or negligence on the part of
the applicant/appellant, in order to advance substantial justice. The words
"sufficient cause for not making the application within the period of
limitation" should be understood and applied in a reasonable, pragmatic,
practical and liberal manner, depending upon the facts and circumstances of the
case. The decisive factor in condonation of delay is not the length of delay but
sufficiency of a satisfactory explanation.
Thus, although Revision in such cases is not legally maintainable but appeal/
revision/ writ is maintainable with an application for condonation of delay as
delay in the filing the same constitute a 'sufficient cause' for condonation of
delay as elucidated above.
Written By: Inder Chand Jain
Ph no: 8279945021, Email: [email protected]