BERI, C. J. - (1.) THESE three writ petitions under Art. 226 of the Constitution of India raise an identical question and can be disposed of by a single judgment Different learned Members of the Board of Revenue by their judgments of different dates following the decision of the Full Bench of the Board of Revenue in Madhosingh vs. Moti Lal (l) declined to hear the three review petitions of the petitioners before us, on the ground that the judgments against which those review applications were made, were rendered by the Members who were no longer attached to the Board of Revenue and the petitions failed in view of the interpretation given to O. 47 r. 5 of the Code of Civil Procedure by the Full Bench of the Board of Revenue.
(2.) WHILE the learned counsel for the petitioners before us contend that the view taken in Madhosingh's case (1) is erroneous, the learned counsel appearing for the non-petitioners supported it for the reasons given therein. In Madhosingh's case (1) the view taken by the learned Members of the Board of Revenue has been expressed in para 53 of the judgment, which reads: "to sum up, the conditions for R. 5 of O. 47 of the Code of Civil Procedure to come into play are (i) that the Member or Members any one of them who passed the decree or order sought to be reviewed continues or continue to be attached to the Court at the time when the application for review is presented, and (ii) that such Member or Members is not or are not precluded i. e. prevented, by absence of other cause for a period of six months next after the presentation from considering the decree or order sought to be reviewed. If the conditions are satisfied, only the Member or Members referred to shall hear the application. They may hear it within the period of six months or even after the expiry of that period. No other Member or Members can in the circumstances (i. e.) if the said conditions are satisfied) hear the application, either within the six months or even after the expiry of that period. In that event, the bar against other Members hearing the application is a total bar. This prohibition applies to both the stages of hearing of the application, namely the exparte hearing stage for admission, and if the application is admitted, the subsequent stage of hearing both parties after notice. " The above view was taken by the learned Members on the basis of the decision of the Travancore Cochin High Court reported in Sikar vs. Volayudhan Ponnan (2 ). In that case Sankaran, Gangadhar Menon JJ. have taken the view which has been adopted by the Board of Revenue while Subramania Iyer J. took a contrary view. Another Full Bench of the Travencore-Cochin High Court consisting of Sankaran, Govinda Pillai and Subramania Iyer, JJ. took a diametrically opposite view in Narayanan vs. Raman (3 ). We are in respectful agreement with the view taken in Narayanan's case (3) and we shall presently state our reasons for so doing. The remedy of review, which is a reconsideration of the judgment at the same level by which it was rendered, appears to have been borrowed from the Courts of Equity. There was no such remady available at Common Law. This remedy has a remarkable resemblance with the remedy known as writ of error. Nevertheless, like appeal the remedy by way of a review is a creature of stature. Unless authorised by law expressly or by implication a right to ask for a review of a judgment delivered cannot be assumed. Therefore, in order to ascertain its authority and scope, reference will have to be made, to the relevant statutes. The cases before us are revenue cases. Sec, 229 of the Rajasthan Tenancy Act lay down: 229. Power of review by Board and other revnue courts - Subject to provisions of the Code of Civil Procedure, 1908 (Central Act 5 of 1908) - (1) the Board of its own motion or on the application of a party to a suit or proceeding, may review and may rescind, alter or confirm any decree or order made by itself or by any of its members; and (2) every revenue court, other than the Board, shall be competent to review any decree, order or judgment passed by such courts. " The aforesaid provision is subject to the provisions of the Code of Civil Procedure, 1908, but what is remarkable to be noticed in the above section are the words that the Board may review any decree or order made by itself or by any of its members. This is indicative of the fact that the review is done by the Board as an entity regardless of the fact that the judgment might have been rendered by any of its members. These words in our opinion help us immensely in taking the view that we are adopting. The power of review is conferred by sec. 114 of the Code of Civil Procedure, which circumscribes the conditions in which a review could be sought. Mulla in his commentary on the Code of Civil Procedure, 13th Ed. 1967 at page 1568 says - "a party aggrieved by a decree or a decision specified in clause (1), (b) or (c) of sub-rule (l) [ see sec. 114] may apply for a review in any of the following cases - (i) on the ground of the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the party or could not be produced by him at the time when the decree was passed or order made ; or (ii) on account of same mistake or error apparent on the face of the record; or (iii) for any other sufficient reason. " In our opinion, the first case serves the cause of Truth provided the seeker of the remedy could not place it before the court earlier despite diligence. The second ground impliedly recognises the universally accepted principle of human fallibility. If there is an error manifest on the record due to human failing it should not be permitted to perpetuated on error and thereby defeat justice. The third ground has been interpreted by the privy Council in Chhajjuram vs. Naki (4) to mean those causes which are analogous to the first two. Discovery of truth or human error or any other similar cause authorises a court to reconsider its judgment already rendered for the obvious purpose of serving the cause of Justice to the parties before it. O. 47 r. 5 of the Code of Civil Procedure reads as follows "o. 47, R. 5. Application for review in Court consisting of two or more Judges - Where the Judge ar Judges, or any one of the Judges, who passed the decree or made the order, a review of which is applied for, continues or continues to be attached to the Court at the time when the application for a review is presented, and is not or are not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application and no other Judge and Judges of the Court shall hear the same. " As the marginal note of the rule indicates, it lays down the procedure for the consideration of a review application by a Court which consists of two or more Judges. In our opinion, this rule means nothing more than this that where the Judge or Judges or any one of the Judges who passed the decree or made the order, a review of which is applied for, continues or continue attached to the Court at the time when the application for a review is presented, such Judge or Judges alone shall hear the application, and no other Judge or Judges of the Court shall hear the same. This rule shall be adhered to even if such Judge or Judges is or are precluded by absence or other cause for a period of 6 months next after the application from considering the decree or order to which the application refers. This rule cannot be interpreted to mean that the right of review is totally barred if the Judge or Judges who heard the matter under review are not available due to retirement, resignation, transfer, physical in-ability or death or for any other reason the applicant's right of review is lost. The waiting period of six months is the limit upto which the review application may be kept pending in the prospect of the return of the Judge or Judges. The view which has been taken in Velayudhan's case (2) and which has been adopted in Madhosingh's case (l) is that if for any reason such Judge or Judges is or are not available when such an application comes to be considered when the right of review itself is totally barred. We regret, with respect, we are unable to agree with such a view. In our opinion, the intention of the Legislature was that if an error apparent on the face of the record is sought to be pointed out then rule 5 provides that the Judge or Judges who had fallen into the alleged error should have an opportunity to reconsider it. The period of 6 months' has been provided so that even at the expense of 6 months' delay if this rule could work it should be adhered to. It cannot be construed to mean that the right of review itself would stand negatived if for some reason such Judge or Judges ceased to occupy the position or are not available for any length of time beyond 6 months. The language of the rule does not justify such an interpretation. Even if for the sake of argument we were to assume that the language of the rule is capable of such an interpretation which has been taken in Velayudhan's case (2) or by the learned Members of the Board of Revenue, we would still reject such an interpretation for several reasons. In Frome vs. Clement (1881) L. R. 18 Ch. p. 499, 508, Jessel M. B. observed: "we ought to adopt that interpretation which will make the law uniform, and will remedy the evil which prevailed in all the cases to which the law can be fairly applied. " (Quoted in Caries on Statute Law, 7th Ed. p. 95) It would be anomalous to hold that the right of review would become unpredictable on the continuance or discontinuance of the Members of the Board of Revenue or the Judge of the Court. Such an interpretation would render the availability of the remedy dependent on circumstances over which an applicant has evidently no control. Faith in the rule of law itself gets disturbed when the availability of a relief becomes erratic. Order 47 rule 5 of the Code of Civil Procedure is basically a procedural statute. Sutherland Statutory Construction, Vol. 3, (1943) Edition, paragraph 6802 makes the following significant observations: "legislation designating the method of enforcing and establishing substantive rights, as a general rule, is enacted not for an end in itself, but to provide a better way of accomplishing an end, Statutes on procedure, then, have as their obvious purpose the providing of expeditious means whereby the plaintiff holding a cause of action may enforce his right, and the facilities whereby the defendant may interpose his defences. Therefore the judiciary has generally been very generous in the treatment of statutes relating to procedure. An interpretation of a procedural statute which insures that a case will be considered on its merits so that substantive rights will be presented is to be highly preferred. Mere technicalities should not be permitted to impede the trial of a case, and so an interpretation which is highly technical, or results in absurdity or injustice is to be avoided. " It is easy to imagine that acceptance of an interpretation given by the Board of Revenue is likely to lead to strange results and anomalies. The review application of an applicant, however good in law, will be lost if official exigencies force a certain Member of the Board of Revenue to leave that office; whereas another applicant similarly situated may not suffer from such a handicap. Procedural law is not erratic but is an instrument for the attainment of justice, and if the language can reasonably bear an interpretation of its uniform application, which in our opinion O. 47 r. 5, C. P. C. does, than such an interpretation alone can be given to it rather than an interpretation which tends to strange results and anomalies. A legal battle is ordinarily a conflict of interests and the procedural law is the accepted path on which would travel the process of settlement. This path has for its foundation principles of natural justice, sound reason and good conscience. Any interpretation which detracts from the certainty of the path or makes it freakish anomalous or uncertain has to be avoideds because it will lend unpredictability to the process.
(3.) ONE word more and we have done. The learned Members of the Board of Revenue in Madhosingh's case (l) have unfortunately not fully appreciated the fully, implications of Maji Mohan Kumar vs. The State of Rajasthan (5 ). That case governed an altogether different situation and has not taken the view which supports the Board's decision. As a matter of fact this authority says that even if one member of the Court. out of those who heard the case is available the review application should be heard by him alone. We respectfully agree with this view. The net result is that Madhosingh's case (l) has been wrongly decided and resultantly the orders dated 22/1/71 in writ petition No. 2032/71, dated 12-1-72 in write petition No. 634/72 and dated 13-2-73 in writ petition No. 687/73 passed by the Board of Revenue are quashed and it is directed to rebear the review applications in the light of the observations made above. All the three writ petitions are accepted but there will be no order as to costs. . ;