Counsel’s failure to argue grounds in written submission cannot be the basis for review.

In an significant order in the case of Priya Communication v. Tata Capital (REVIEW PETITION (L) NO. 5868 OF 2021), the Bombay High Court has held that the failure of the counsel in pressing the grounds in the written submission cannot be ground for review petition under the Code of Civil Procedure, 1908 [CPC].

 

Background to the dispute

Aggrieved by an order in the Section 9 Arbitration petition, the respondents filed a review petition before the Bombay High Court. The court was concerned with the maintainability of the review petition. Review petitioner argued that there were certain submissions in the written statement that were not considered by the courts in the original petition and hence those needs to be considered in the review petition.

 

Analysis

The power of review is statutory in nature and thus it is essential that the grounds of review are confined within the four prongs of the relevant statutory provisions. Under the CPC, Order XLVII Rule 1 lays down the contours of review petition and accordingly a review is maintainable when:

  1. There is a discovery of new and important evidence, which after the due exercise of due diligence was not within knowledge of the petitioner or could not have been produced by him.
  2. There is a mistake or error apparent on the face of record
  • Any other sufficient reason

The Hon’ble Supreme Court Moran Mar Basselios Catholicos v. Most Rev.Mar Poulose Athanasius, [AIR 1954 SC 526] has interpreted ‘other sufficient reason’ to mean “a reason sufficient on grounds at least analogous to those specified in the rule”. It has been also time and again reiterated by the Hon’ble Supreme Court that review does not either entail rehearing of the matter or for reagitating a prayer which has been negatived in the original petition by the court.

In the court’s opinion, not arguing certain grounds in written submissions does not fit within the contours of Order XLVII. The court also observed that if the petitioner’s arguments were to be accepted, it would mean that the court has to engage in forensic excavation of the voluminous records filed before it on its own irrespective of the fact whether those grounds have been argued or pressed before the court or not. It is neither desirable nor feasible for the courts to go through the voluminous documents on its own unless those being argued and thus the court rejected the argument. The court held that permitting review on grounds that were not argued in the original petition would add uncertainty in the entire decision making process. The court saw no error apparent or mistake on the face of record, which is a sine-qua-non for the review petition and hence dismissed the petition.

Conclusion

Thus, what flows a natural corollary to the decision is the fact that the counsel’s failure in pressing certain arguments into service before the court cannot be attributed to court’s mistake or error apparent on the face of record under Order 47 Rule 1 for allowing the review petition.