(Circuit Bench Sitting at Delhi)
(No.19/2011)
S. Usha, Vice-Chairman
1. The above diary Nos. 4867 and 4866/2010 is to review the order passed by the Bench comprising of the Chairman and the Technical Member of this Appellate Board.
2. The main rectification applications are for cancellation of the trade mark. In the main application, the respondent filed a miscellaneous petition for cross-examination of the applicant. The Bench passed an order where there were different views taken by the Chairman and the Technical Member. Therefore, the matter was referred to a third member by order dated 30.07.2010.
3. The petitioner herein has preferred this review petition to review the order dated 30.07.2010 (The review is only against the finding of the Chairman rejecting the cross-examination application). The review petition was filed on the grounds that
(a) there is an error apparent on the face of record;
(b) the so called website copy mentioned in the impugned order was never furnished by the opposite counsel and there is a wrong recordal of facts;
(c) the observation of the learned Chairman is contrary to the decision of the Honble Supreme Court;
(d) the learned Chairman failed to appreciate the law applicable to the Debts Recovery Tribunal (DRT) where the DRT as well as the Debts Recovery Appellate Tribunal have allowed cross-examination;
(e) the learned Chairman failed to appreciate that the labour Tribunal are also established for expeditious trial and yet cross-examination is allowed;
(f) the impugned order is contrary to the observation of the Honble High Court, in fact the petitioner is seeking hearing of all the matters together;
(g) the learned Chairman had no reason to make observations contrary to the High Court observations dated 17.03.2010;
(h) the impugned order merits to be reviewed;
(i) only cross-examination of the applicants Director would demonstrate the falsehood of the applicants false claim of user;
(j) the learned Chairman had no reason to refuse cross-examination.
The review petition be allowed and the application for cross-examination be allowed and as a consequence the reference to a larger bench be recalled.
4. The matter was posted on 22.09.2010 before the third Member for hearing as per the orders dated 30.07.2010 and subsequently adjourned to 25.10.2010. On 25.10.2010, the matter was adjourned at the request of the respondent/petitioner herein stating that they have filed an application to review the order dated 30.07.2010 and the matter was adjourned to 09.11.2010. The Registry of this Board had posted the matter for maintainability. This issue was heard by the Bench and orders were reserved.
5. We have heard the counsel for petitioner/respondent Shri Shailen Bhatia.
6. The learned counsel submitted that as per the provisions of section 92 of the Act, the Appellate Board is vested with the powers of a civil court and has the powers to review its own decision or order under Order 47 Rule 1 of the Code of Civil Procedure (CPC). The counsel relied on the definition of Rule as per the General Clauses Act as well as on the principles of statutory interpretation.
7. Rules made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act â AIR 1961 SC 751 State of Uttar Prradesh and ors. V. Babu Ram Upadhya.
8. The counsel then relied on the judgement reported in 1974 (2) All England Law Reports 1128 F Hoffmann-La Roche and Co AG and others v. Secretary of State for Trade and Industry.
9. As the Code of Civil Procedure applies to the proceedings before the Labour Appellate Tribunal, the provisions of Order 47 of the CPC apply to these proceedings. Hence the Appellate Tribunal has jurisdiction to review its own order under the provisions of Order 47 of the CPC â AIR 1958 SC 153 Sree Meenakshi Mills Ltd. And anr., v. Their Workmen.
10. Court or Tribunal cannot review its own order or judgement unless there is statutory provision to that effect, but Court or Tribunal have the power to recall orders obtained by practicing fraud or mis-representation on it â AIR 1980 AP 148 P. Sathyanarayana, v. The Land Reforms Tribunal and others.
11. Power to review a procedural defect or inadvertent error committed by Tribunal vests with the Tribunal â AIR 1997 M P 172 National Insurance Company Ltd., Jabalpur v. Lachhibai Urf Laxmibai and ors.
12. We have heard and carefully considered the arguments of the counsel for the petitioner.
13. Review means the act of looking, offer something again with a view to correction or improvement. The review is not an appeal in disguise. The power of review is not an inherent power, it is a creature of statute. Law must confer it either specifically or by implication.
14. With regard to the judgments relied on by the counsel under the Motor Vehicles Act as well as under the Industrial Disputes Act, the powers to review before the Tribunal were said to be vested with the Tribunal as decided in those cases. As regards the Motor Vehicles Act - section 169 it is said that the powers were vested with the claim Tribunal as that of a Civil Court to receive documents, summoning of witness and as per the provisions of section 195 of the CPC. The observation of the Division Bench of the High Court of Andhra Pradesh in Air 1980 AP 149 P. Sathyanarayana v. The Land Reforms Tribunal and others at para 13 â
â13. On a conspectus of case law, it becomes quite evident that a Court or Tribunal cannot review its own order or Judgment unless there is a statutory provision providing for the same. However, a Court or Tribunal has inherent powers to recall orders obtained by practising fraud on it. There is no question of the Court becoming functus officio, because it retains the jurisdiction to recall such orders. It inheres in a Court or Tribunal to review by recalling the orders on grounds of fraud, misrepresentation or other similar grounds. We may, however, make it clear that the decision of the Division Bench in K.B.G. Tilak v. Spl. Tahsildar (1978) 2 APLJ (HC) 83) is confined to a case of reopening in a case where either it was dismissed for default or a decision was rendered exparte. This decision, as it is peculiarly confined to the facts and circumstances thereof, cannot, therefore, be of any assistance in so far as the case on hand is concerned. We, therefore, reiterate that a Court or Tribunal can review its own order or judgement only where the party, by way of mis-representation, has played fraud upon the Court and not in other cases.â
15. This Appellate Board is also of the view that the review petition could be entertained if there is any procedural error and has held so in one another matter. In this context, we quote the observation of the Honble Supreme Court in Grindlays Bank Vs. Central Government â MANU/SC/0308/1980 â
âIt is true that there is no express provision in the Act or the rules framed thereunder giving the Tribunal jurisdiction to do so. But it is a well known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancilliary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. In a case of this nature, we are of the view that the Tribunals should be considered as invested with such incidental or ancilliary powers unless there is any indication in the statute to the contrary. We do not find any such statutory prohibition.â
16. Based on this if it is to cure the defect due to any inadvertent error or procedural error that could be done. In the present case on hand, the first and foremost requirement has not been complied with. The review petition has not been filed along with the copy of the impugned order in which case the review petition is not complete. From the grounds it is seen that the petitioner has stated that there is an error apparent on the face of record as the learned Chairman has referred to a so called website coy of http://bankdrt.netwhich was not furnished by the opposite counsel. In this regard we think there is no error apparent on the face of the record, if really the petitioners are aggrieved they could as well approach the other forum for the remedy. The other ground that all the matters are to be heard together was the view of the High Court and the Chairman has taken a different view. From the wordings of the Review Petition, we do not find any contradictory statement by the Chairman as regards the clubbing of the matters.
17. Following the decisions of the Supreme Court in Grindlays Banks case and the Division Bench of the Andhra Pradesh case we are of the view that if there is nothing provided in the statute the court or the Tribunal will have no powers to deal with the matter. In the interest of justice, it could be done if there is an error due to a procedural defect that definitely could be rectified. In view of the above, we do not find any procedural defect in the instant case to review the same.
18. Assuming such review powers are vested as contended by the counsel, we do not think there is any final order passed in this matter for it to be viewed. As mentioned above, there had been a difference of opinion between two members and hence it has been referred to a third member. Therefore, we are of the view that the matter has not reached finality. Consequently the issue as to the powers of the Board to review its own order or decision is not gone into.
19. In view of the above circumstances, we are of the view that the review petition is not maintainable and is liable to be dismissed. Consequently the review petition is dismissed with no order as to costs.