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Judgment
Leila Seth, C.J.—This review application has been filed by the Punjab National Bank, Respondent No. 1 in C.W.P. No. 447 of 1991.
The brief facts are set out. On 8th August 1991, a writ petition was filed by Purewal and Associates Limited and its Managing Director praying for a writ of mandamus or a direction to be issued to the Punjab National Bank "to deal with the 1st petitioner in the mailer of opening a Letter of Credit as also to afford all other normal banking facilities and to carry oui its obligations" in accordance with the Banking Regulation Act, 1949.
On 12th August 1991, the writ petition was listed for preliminary hearing when notice to the respondents was issued to show cause why rule nisi be not issued. Mr. Chhabil Dass, Advocate General, accepted notice on behalf of the Punjab National Bank. Respondent No. 1 and the State of Himachal Pradesh, Respondent No. 4; Mr. M. L. Sharma Central Government Standing Counsel, accepted notice for Respondents Nos. 2 and 3, the Union of India and the Governor of the Reserve Bank of India respectively.
Mr. Advocate General then prayed that the matter be listed on 13th August 1991. On 13th August 1991, the writ petition was disposed of and the following order was passed :
"Mr. Chhabil Dass says that respondent No. 1, the Punjab National Bank, though denying the statement of facts made in the writ petition, has no objection to rendering normal banking services to the petitioners, including facilities pertaining to local guarantees, not involving foreign exchange, and letters of credit, subject to the rules and regulations framed by the Bank and the Reserve Bank of India. However, these facilities will not include advancing of any loan or concession to the petitioners and will also be subject to the rights of the Bank to exercise its lien as lawfully available to it. He further clarifies that the day-today deposits of the petitioners made in respect of normal banking facilities, will not be adjusted towards the lien. Mr. H.L. Tiku points out that in paragraph 15 of the writ petition, the petitioners have asserted that the operation of petitioners'' account in the Oriental Bank of Commerce has been got closed by respondent No. 1. Since this is not the subject-matter of this writ petition nor is it one of the prayers in the writ petition, the petitioners will be at liberty to agitate this aspect of the matter in such proceedings as they think fit. In view of the statement of Mr. Chhabil Dass, the writ petition is disposed of. However, we make no order as to costs. Dasti copy on usual terms."
This review petition was filed on 11th September 1991. It pertains to the clarification made in the last four lines of the statement of Mr. Chhabil Dass as above noted. It is averred in the review petition that the Bank had agreed only to render limited banking services and not all banking facilities. Consequently, the clarification recorded on 13th August 1991 was by "misapprehension", it is further asserted that if the statement is read as a whole it could be inferred that the Bank had undertaken not to exercise its lien as lawfully available to it. This was never the intention; nor was counsel authorised to waive the general right of Hen of the Bank. The only intention was to make a statement with respect to "non-exercise of Hen in which the Bank under the law could not have a lien". It is also asserted that if the word "services" be substituted for the word "facilities", the clarification would be in order.
On 26th September 1991, the review petition came up for preliminary hearing. On that date, we issued notice for 30th September 1991, on which date Mr. Tiku appearded for the non-applicants and stated that he would file a reply within a week. A rejoinder was directed to be filed within two days thereafter. The matter was then ordered to be listed on 10th October 1991. On 10th October 1991, further time to file a rejoinder was sought and granted. On that date the shorthand note book of the Secretary who took down the dictation on 13th August 1991 was called for and read out. It appeared from the shorthand note book that the statement had been correctly typed and the word noted was "facilities" and not "services''1.
Thereafter the matter was heard on 30th October 1991, 31st October 1991 and today. Admit.
Counsel request that the matter be disposed of here and now. Consequently, we proceed to do so.
Mr. Tiku has strenuously submitted that a review application is not maintainable.
Therefore, the first question that arises is whether a review application is maintainable in the facts as indicated above.
In Babboo alias Kalyandas and Others Vs. State of Madhya Pradesh, Mr. Justice Chhinappa Reddy, speaking for the Court, after referring to Shivdeo Singh v. State of Punjab AIR 1963 SC 1909, observed that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it; but, there are definitive limits to the exercise of this power of review. The power of review may be exercised on the discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court.
A Full Bench of the Gujarat High Court in Gujarat University, Ahmedabad and etc. Vs. Sonal P. Shah, dealt with this matter. Mr. Justice A.M. Ahmadi (as he then was) referred to the decisions oi the Supreme Court in Shivdeo Singh v. State of Punjab (AIR 1963 SC 1909) (supra), State of Gujarat Vs. Sardarabegum and Others, and finally to the judgment of the Supreme Court in Babboo alias Kalyandas and Others Vs. State of Madhya Pradesh, and observed that of course there are definitive limits to the exercise of the power of review by the High Court but these decisions conclude the point that the High Court has the power of review in matters under Article 226 of the Constitution of India notwithstanding the absence of a provision similar to Article 137 of the Constitution.
In the same Full Bench decision Mr. Justice V.V. Bedarkar observed at paragraph 34:
"A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition through different counsel of old and overruled arguments cannot create a ground for ''review''".
On a perusal of the CPC and the abovementioned decisions it is clear that Order 47, C.P.C. does not apply in view of Section 141, C.P.C. to this case, as we are dealing with a civil writ petition and not a civil suit; but it is also clear that provisions analogous thereto will apply to a petition under Article 226 of the Constitution of India. Further, the power of review is a plenary power to be used by a Court to prevent palpable errors and miscarriage of justice. However, the power is circumscribed and cannot be confused with the appellate power which is wider; also the review forum is to be used rarely and reluctantly and not on the basis of repetitive arguments which had earlier been overruled. Consequently, it would appear to us that the petition for review is maintainable. As to whether a review should be granted in the facts and circumstances of this case will be examined here-after.
Mr. Tiku, learned counsel for the non-applicants, next urged that it is not open to counsel to resile from a concession made by him and in any case not by way of review; the remedy, if any, may be by way of appeal. For this proposition, he relied on the observations of the Supreme Court in State of Maharashtra Vs. Ramdas Shrinivas Nayak and Another, which are to the effect that a concession made by a party, recorded in the judgment of a court is conclusive and not open to be contradicted in appeal; but a party may resile and an appellate court may permit him in rare and appropriate cases to do so on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice.
It appeas to us that Mr. Tiku''s contention is not correct and the observation of the Supreme Court has been read by him out of context. It has not been held in the said decision that only an appellate court can permit a counsel to resile from a statement and the original court cannot permit him to do so.
In that case, Mr. A.K. Sen who had appeal ed for the State of Maharashtra before the High Court intervened in the Supreme Court and said that no concession had been made by him in the High Court. The court observed as follows State of Maharashtra Vs. Ramdas Shrinivas Nayak and Another, :
".....We are afraid that we cannot launch into an enquiry as to what transpired in the High Court. It is simply not done. Public policy bars us. Judicial decorum re-strains us. Matters ot judicial record are unquestionable They are not open to doubt. Judges cannot be dragged into the arena. ''''Judgments cannot be treated as mere counters in the game of litigation." We are bound to accept the statement of the judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the judges to be contradicted by statement at the Bar or by affidavit and other evidence. If the judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the mind of the judges, to call the attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. This is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an appellate court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, the he may not call in question the very fact of making the concession as recorded in the judgment."
From the drift of the judgments it is clear that it is the original court which must be first approached while the matter is still fresh in the minds of the judges who recorded the facts on the concession. It would appear to us that they can certainly permit a party to resile from the concession if they are satisfied that it was made on a misappreciation or a wrong understanding of the law resulting in injustice. It is only if the party is not able to persuade the particular judges who heard the matter or recorded the concession that the party may approach the appellate court, which may in a "rare and appropriate" case permit him to resile on the ground that the concession was made on "a wrong appreciation of the law and had led to gross injustice". It certainly does not preclude the party from resiling before the particular judges before whom the concession was made.
We are fortified in our view by the decision of the Calcutta High Court noticed by the Supreme Court in the abovementioned decision in Sarat Chandra Maiti and Others Vs. Bibhabati Debi and Others, . In the said case Mookherjee J. speaking for the court noticed the observations of Mr. Justice Sadasive Iyer in Nellavadivu v. Subramaniya 38 Ind Cas 617 : (AIR 1918 Mad 1039) that a statement in a judgment as to an admission made before the Court of first instance should not be doubted lightly by the appellate Court, specially in the absence of an affidavit by the Vakil who appeared in the Court of first instance. It is plain that in eases of this character where a litigant feels aggrieved by the statement in a judgment that an admission has been made, the most convenient and satisfactory course to follow, wherever practicable is to apply to the Judge without delay and ask for rectification or review of the judgment.
In a very recent judgment of the Supreme Court in Apar (P) Ltd. and Another Vs. Union of India (UOI) and Others, where an affidavit of counsel was filed in the Supreme Court disputing the recording of a concession in the High Court and no such affidavit was filed in the High Court, the Supreme Court opined "Learned counsel for the petitioner strenuously urged that the concessions attributed to the petitioners'' counsel in the High Court arc wrongly recorded in the High Court judgment. An affidavit of counsel filed in this Court disputing the making of such concessions which have been recorded in the High Court''s judgment was relied on by the learned counsel for the petitioners. In reference to our query, the learned counsel, however, clearly conceded that no such affidavit was filed in the High Court saying that the concessions recorded in the judgment had not been made by the petitioners'' counsel. The permissible manner in which such challenge to the concession of counsel recorded in the High Court''s judgment can be made is well settled. See State of Maharashtra Vs. Ramdas Shrinivas Nayak and Another, This being (he settled practice to assail a concession of counsel recorded in the High Court''s judgment and the same not having been adopted by the petitioners in spite of the fact that the petitioners were represented by several senior counsel before us, this contention cannot be accepted and the petitioners must be held bound by the concession made on their behalf by their counsel in the High Court as recorded in the High Court''s judgment to which the learned Chief Justice was a party."
It is, therefore, clear that even if an affidavit is filed in the appellate court and no such affidavit is filed in the original court disputing the concession, the appellate court will not permit the concession to be withdrawn. The reason for this is apparent, the record of the court is a record which is to be respected and to be accepted as "absolute verity". It is conclusive of what is recorded. Neither lawyer nor litigant can claim to contradict it, except before the judges themselves. Thus, it would appear to us that learned counsel for the applicant is correct in calling our attention to the matter while it is still fresh in our minds. If the concession is to be resiled from, the party must first approach us by way of review as we are the very judges before whom the concession was made. The appellate court may be approached thereafter, which may in a rare and appropriate case permit it to resile on the ground of gross injustice.
Since the party has clearly approached the correct forum by way of review, the next point for consideration is whether it should be permitted to resile from the concesion made by learned counsel on 13th August 1991.
Mr. Tiku, learned counsel for the non-applicants, has strenuously submitted that it should not be permitted to do so, especially as the concession was made by Mr. Chhabil Dass, who is a seasoned and senior advocate and the power of the Court in review is limited.
There is no doubt that the power of review has definite limit sand is not as wide as the power of appeal. In cases of writ jurisdiction under Article 226 of the Constitution of India, the review jurisdiction is admittedly analogous to that under Order 47, C.P.C. as noticed earlier.
Patanjali Sastri, J. (as he then was) observed in Govinda Chettiar v. Varadappa Chettiar AIR 1940 Mad 17, as follows:
"that a misconception by the Court of a concession made by the advocate or of the attitude taken up by the party appears to be a ground analogous to the grounds set forth in the first part of the review section and affords a good and cogent ground for review,"
In Gangamma v. Venkanna AIR 1957 AP 481, it was held that mistake of counsel was a sufficient ground for granting review under Order 47, Rule 1, C.P.C. Reliance was placed on the aforesaid judgment of Mr. Justice Patanjali Sastri in Govnida Chettiar (supra).
It is, therefore, clear that a party can resile from a concession made as a result of a mistake of counsel. Though normally such concessions are binding on parties.
In Birj Bhukan Lal Vs. Lala Mahadeo Pershad Minor through Musammat Champa, Walsh, J. has observed :
"....Counsel have full discretion as to the conduct of their cases, and what is best in the interest of their clients. And counsel may have many excellent reasons for not pressing a point which is no business of anybody else. It is entirely within their discretion to press or not to press a particular point. And when Counsel makes a statement of that kind in open Court upon which the Court acts it must be treated as final, unless he has been induced or misled by some circumstances to make a statement under a mistake. I entirely dissent from the view taken by the lower appellate Court that it is a question of interpretation. It is not like the construction of a contract. Counsel cannot make bargains with the Court, nor the Court with Counsel. The rule is that parties are bound by what Counsel do in the exercise of their discretion acting within the scope of their authority. Such a rule is absolutely necessary for the conduct of the business. The Bar have previleges of audience, and a good deal more than audience, which involve correlative obligations, and matters like admissions, consents, withdrawals by Counsel in the conduct of their cases made in open Court are, in my judgement subject to the condition that I have mentioned, final and binding upon the parties."
However, in Nundo Lal Bose v. Nistarini Dassi ILR (1900) Cal 428, a Full Bench of Calcutta High Court has opined :
"Counsel possesses a general authority, an apparent authority, which must be taken to continue until notice be given to the other side by the client, that it has been determined, to settle and compromise the suit in which he is actually retained as Counsel. Where the compromise, however, extends to collateral matters, to matters quite outside the scope of the particular case in which Counsel is engaged in order to bind his client it must be shown that he had from his client special authority to compromise, upon the terms upon which the compromise was effected, and the other side cannot avail themselves of the position that they did not know that it had not been given; they are not entitled to assume, as in the case of an apparent authority, that it was given and was existing.
Where Counsel under a misapprehension of his client''s instrutions and believing himself to have authority acts in fact without it, he cannot bind his client."
In Buddhu Lal Vs. Raja Pertabgir, a Full Bench of that High Court observed that though a lawyer in the ordinary course of his duties as pleader has authority to bind his client by admissions of fact, yet that should not relate to matters outside the scope of the case in which he is engaged and further it should be necessary for the purpose for which he is retained. The Court has, therefore, to see whether at the time the lawyer makes the admission it was necessary for the purpose of the matter in dispute to make such an admission, for it is such an admission, that can bind his client. The statement of a lawyer admitting the entire debt on behalf of his client, a portion of which had already been decreed, does not serve as an acknowledgement of the said portion within the meaning of Section 19 of the Hyderabad Limitation Act.
It, therefore, appears to us that admissions, concessions and withdrawals by counsel are binding upon the party unless he has been induced or misled by some circumstances to make a statement under a mistake or it is based on a complete mis-appreciation of the law. Further the authority of counsel to compromise etc. will be presumed unless it extends to collateral matters outside the scope of the particular case being dealt with.
Mr. Chhabil Dass has submitted that the statement in connection with the clarification was made on a "misapprehension" and was made contrary to the express authority given to him and in any case was in excess of jurisdiction and outside the scope of the writ petition. He contended that he did not have any authority to waive the general right of lien as the power of attorney limited him to the case in hand which was only pertaining to a mandamus regarding affording normal banking facilities.
At the time when the concession was made on 13th August 1991, a typed statement was handed over to the court by Mr. Chhabil Dass which was in the following terms :
"While denying the statement of facts made in the writ petition, the Bank has no objection in rendering normal banking services to the party subject to the regulations and the rules framed by the Bank and the Reserve Bank of India, provided that such facilities will not include advancing of any loan or concession to the petitioners and also subject to the rights of the Bank to exercise its lien on such money as may lawfully be available to them."
This has been recorded by us on 13th August 1991 almost in similar terms. It is the subsequent four lines as above noticed which are the subject-matter of the review :
".....He further clarifies that the day-to-day deposits of the petitioners made in respect of normal banking facilities, will not be adjusted towards the lien."
It is not disputed that the Bank has and had a general right of lien over the monies of the non-applicants. Could counsel by concession in the writ petition have given away or intended to have give away this general right of lien which was available to the Banker both under the Indian Contract Act and in terms of the agreement executed between the Bank and the non-applicants? Further, would this not have resulted in imposing a condition contrary to what was specially mentioned in the proposed statement, which counsel was to make on behalf of the Bank?
A letter dated 12th August 1991 written by Mr. Chhabil Dass to the Regional Manager, Punjab National Bank at Shimla has been placed on record. In the said letter he has stated that as he had earlier advised the Bank that it cannot refuse ordinary banking services to a client simply because a client is in default he was advising them to continue to render banking services to the party subject to the condition that "no loan facilities are involved" and if it wants to open a letter of credit it "must conform to the full directions and instructions of the Reserve Bank of India." He had also indicated in the said letter that after discussion it had been agreed that a statement be made in Court that "the Bank has no objection in extending normal banking facilities to the petitioner subject to the rules and regulations both of the Bank and the Reserve Bank of India. A reservation will, however, be made that the statement will not prejudice the rights of the Bank to exercise its lawful lien on such amounts on which the Bank may exercise its lien according to law....."
It is, therefore, apparent that the intention of the Bank and its counsel was to permit banking facilities/services to the non-applicants but keep its lawful lien intact. This clearly appears to be the position agreed to after discussion with the Bank and this was the statement that counsel was to make on behalf of the Bank. It is in these circumstances that we have to consider whether the clarification made by Mr. Chhabil Dass on 13th August 1991 was made on a misapprehension and/or he over-stepped the agreement/authority with regard to the statement to be made on behalf of the Bank.
In this connection it is necessary to see what is the effect of those four lines on the earlier part of the statement. Can the Bank exercise its lawful lien if the clarification as indicated by Mr. Chhabil Dass was to hold the field? It would appear to us that the first part of the statement, that is the "right of the Bank to exercise its lien as lawfully available to it" would not only be prejudiced but would in effect be taken away by the clarification. It, therefore, appears to us that when counsel had specifically sought permission from the Bank to make a statement, and had, in fact, arrived at an agreed statement, the clari-ficatory part of the statement made by counsel was on a wrong understanding of the legal position or on a misapprehension. Though it is true that a voluntary statement made by counsel for a party can be resiled from only in "rare and appropriate cases" it appears to us that not to let him do so would make the earlier agreed part of the statement nugatory. It is, therefore, clear that there has been some "misapprehension" on the pajt of counsel while making the clarificatory part of the statement, especially in view of the clear instructions given to counsel with regard to the proposed statement to be made on 13th August, 1991.
There is no doubt that Mr. Chhabil Dass is a seasoned lawyer of good standing but that does not make him infallible. "To err is human". He is also an extremely fair and straightforward lawyer and, therefore, we are more inclined to accept his statement that the clarification was made on a misapprehension and a wrong understanding of the clear legal position and was beyond the express instructions of his client. There is no rule that says that a lawyer of many years standing cannot have any misapprehension or misconception of law though it is normally presumed that he would know the law better than a junior lawyer. However the presumption is rebutta-ble. But no advocate can know every aspect of the law and understand all its nuances and never make a mistake.
It would appear to us that the mistake is apparent from the statement itself as the clarification takes away the general right of lien which the Bank had and which had been recorded in the earlier part of the statement.
Consequently, in view of what has been outlined by us above regarding the scope of the writ petition, the express instructions given to counsel and the clarification being contradictory to the earlier part of the statement thus taking away the general right of lien which had been specifically reserved as recorded therein, it is clear that even a seasoned and senior counsel like Mr. Chhabil Dass has made a mistake and/or a statement on a misconception of the law by "misapprehension".
Mr. Tiku lastly contended that the party/counsel is estopped from resiling from the concession and it must be held to bind the party.
In AIR 1948 47 (Privy Council) the Privy Council observed that where there is no representation, no acting on it, no misleading and no change of position on such representation and all are under a mistake, there is neither estoppel nor waiver nor acquiescence. Thus, admission which have been made under a mistake as to the true legal character of Sthanam estate will not operate to create an estoppel or acquiescence if no one was misled into doing anything to his detriment as a result of the mistaken view.
In the present case there is no averment that the non-applicants have altered their position to their detriment as a result of the concession made by counsel. Consequently it appears to us that the question of being estopped from resiling from the concession does not arise.
To sum up it would appear to us that in the present case though counsel had a power of attorney to deal with the case, in fact, specific instructions had been given and obtained and counsel could not have waived the general right of lien when that was not the subject matter of the writ petition; nor could he have intended to waive the lien or given a go-by the contract between the parties, as indicated in the documents of loan etc. executed by the parties. The "misapprehension" and "mistake" are apparent.
Who then is to correct this mistake? As observed by the Supreme Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius AIR 1954 SC 526, the proper procedure is to apply to the Court whose judgment is said to be founded on a misconception as to the concession made by the learned Advocate appearing before it by way of review. The matter has been brought to our notice by way of review. It has been brought to our notice while it is still fresh in our minds so that the error can be corrected. Of course it is a very serious matter, as the record has to be altered and is to be allowed in very rare and special cases.
In Mt. Jamna Kuer v. Lal Bahadur AIR 1950 FC 131, Mr. Justice Mahajan observed :
"Where there is an error apparent on the face of the record, whether the error occurred by reason of the counsel''s mistake or it crept in by reason of an oversight on the part of the Court, is not a circumstance which can affect the exercise of jurisdiction of the Court to review its decision."
In that case it appears that an error had crept in because counsel did not fully understand the case of his client and no representative of his client enlightened him. He did not inform the Court that as a result of an amendment of her claim, Mt. Jamna Kuer had intended to claim all the properties, which had admittedly belonged to Kunj Behari Lal. Mt. Jamna Kuer sought to have this error rectified by means of a review petition but the High Court held : "if our decision did not give to Mst. Jamna Kuer all that she was entitled to, it was not because we made any mistake which was apparent on the face of the record, but because from the time of the amendment of the claim of Mst. Jamna Kuer, that is to say, from 16th October, 1930, there had been no clear pleadings or arguments". Federal Court allowed the appeal of Mst. Jamna Kuer and observed, it would have been appropriate if the High Court had corrected this error on the review petition and saved the appellant the trouble and expense of an appeal to the Privy Council or to this Court.
Therefore, it is apparent from the decision of the Federal Court that it is for this Court to correct the error, if any, and not to reject the petition and leave it to the appellate Court to do so.
Consequently, it would appear to us that the review has to be allowed. It is in the interests of justice and would advance the course of justice if the four lines, which are the subject matter of the review, are treated as a concession/clarification made on a misapprehension by counsel and deleted. We order accordingly.
The next question is what should happen to the writ petition? The writ petition, as noticed above, was disposed of on 13th August, 1991 in view of the statement of counsel for the Bank. Mr. Tiku says that the statement of counsel without the said four lines would not be of any help to the petitioners-non-applicants. Consequently, it would appear to us that it would be only fair, in such circumstances, to put the writ petitioners i.e., the non-applicants back to the position as if the statement had not been made; because by just deleting the four lines which are the subject matter of the review, the writ petitioners will be at a disadvantage. As such, we restore the writ petition to its original number and direct it to be listed for preliminary hearing now. The review petition is disposed of accordingly. However, in the facts and circumstances, we make no order as to costs.