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CASE NO.: Appeal (civil)  7797 of 2003

PETITIONER: A.P.S.R.T.C. & Ors.

RESPONDENT: Abdul Kareem

DATE OF JUDGMENT: 12/01/2007

BENCH: Dr. ARIJIT PASAYAT & H.K. SEMA

JUDGMENT: J U D G M E N T I.A. 3 OF 2006

IN  

CIVIL APPEAL NO. 7797 OF 2003

Dr. ARIJIT PASAYAT, J.

       By this application, the applicant who was the  respondent in the appeal has prayed for clarification of the  order dated 2.8.2005 in the concerned Civil Appeal No. 7797  of 2003.         It is stated that the applicant (respondent in the civil  appeal) is living in penury, has no means to pay back the  amount which is sought to the recovered.  The pension  amount has already being attached and the balance is now  being sought to be recovered.

       Learned counsel for the appellant-Corporation on the  other hand submitted that in the guise of application for  clarification, review of the judgment is being sought for.

       By order dated 2nd August, 2005 it was held that the  learned Single judge and the Division Bench had erroneously  granted the benefits of increment notionally to the applicant  during the period when he was out of service.

       The petition is in essence and substance seeking for a  review under the guise of making an application for  clarification apparently being fully aware of the normal  procedure that such applications for review are not, unless  Court directs, listed for open hearing in court, at the initial  stage at least, before ordering notice to the other side and  could be summarily rejected, if found to be of no prima facie  merit. The move adopted itself is unjustified, and could not be  countenanced also either by way of review or in the form of the  present application as well. The nature of relief sought, and  the reasons assigned are such that even under the pretext of  filing a review such an exercise cannot be undertaken,  virtually for re-hearing and alteration of the judgment because  it is not to the liking of the party, when there is no apparent  error on record whatsoever to call for even a review. The said  move is clearly misconceived and nothing but sheer abuse of  process, which of late is found to be on the increase, more for  selfish reasons than to further or strengthen the cause of

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justice. The device thus adopted, being otherwise an  impermissible move by mere change in nomenclature of the  applications does not change the basic nature of the petition.  Wishful thinking virtually based on surmises too, at any rate  is no justification to adopt such undesirable practices. If at all  it should be for weighty and substantial reasons.  

It is to be noted that a review application can be filed  under Article 137 of the Constitution read with Order XL of  the Supreme Court Rules, 1966 (in short the Rules). Rule 3 of  Order XL is significant. It reads as follows:-

"Rule 3 - 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."

In Delhi Administration v. Gurdip Singh Uban and Ors.  (2000 (7) SCC 296), it was held that by describing an  application one for "clarification" or "modification" though it is  really one of review a party cannot be permitted to circumvent  or bypass the circulation procedure and indirectly obtain a  hearing in the open Court. What cannot be done directly  cannot be permitted to be done indirectly. The court should  not permit hearing of such an application for "clarification",  "modification" or "recall" if the application is in substance a  clever move for review.

       The application cannot be maintained and is rejected.