PLD 2023 Supreme Court 22
Supreme Court Rules , 1980 ---
---- 0 . XXVI , Rr . 1 , 6 & 8 --- Review petition --- Change of Advocate in review petition --- Special leave of the Court --- Principles --- Under Order XXVI , Rule 6 of the Supreme Court Rules , 1980 an application for review has to be drawn by the Advocate who appeared at the hearing of the case in which the judgment or order , sought to be reviewed , was made --- Review argued by a new Advocate before a new Bench would inevitably amount to rehearing of the main case and going beyond the scope of review under the law --- Special leave to substitute a counsel in a review petition is to be granted ( by the Court ) , only when appearance of the earlier counsel is not possible due to some unavoidable circumstances .
Order XXVI of the Supreme Court Rules , 1980 ( ' Rules ' ) requires the same Advocate , who earlier appeared to argue the case , to draw up the review application and appeared in support of it before the Court for certain reasons . It is because a review petition is not the equivalent of a petition for leave to appeal or an appeal where the case is argued for the first time . It is not the rehearing of the same matter . The scope of review application is limited to the grounds mentioned in Order XXVI , Rule 1 of the Rules . The Advocate who had earlier argued the main case is perhaps the best person to evaluate whether the said grounds of review are attracted in the case . He being part to the hearing of the main case is fully aware of the proceedings that transpired in the Court leading to the judgment or order sought to be reviewed . He is the one who knows what was argued before the Court and what weighed with the Court in deciding the matter either way . It is also for the same reason that the review application is to be fixed before the same Bench that delivered the judgment or order sought to be reviewed , under Rule 8 of Order XXVI of the Rules . It is not hard to see that the same Advocate and the same Bench can best appreciate the grounds of review . A review argued by a new Advocate before a new Bench would inevitably amount to rehearing of the main case and going beyond the scope of review under the law .
It is true that the requirement of " sufficient ground " for granting the special leave is not expressly stated in Rule 6 , but this does not mean that the discretion of the Court to grant or decline the special leave is arbitrary or is mechanical on filing of an application in this regard by a petitioner . This discretion , like all other discretions , is to be exercised judiciously for valid reasons by considering the circumstances of the case . The special leave to substitute a counsel in a review petition is to be granted , only when appearance of the earlier counsel is not possible due to some unavoidable circumstances . The practice of filing review applications by changing the counsel without justifiable reasons or unavoidable circumstances , by the parties as well as by the Advocates representing them is condemnable .
In the present case the ground pleaded for grant of the special leave was that the earlier counsel had refused to file the review petitions , and no other reason had been mentioned as to why he had so refused or what were the circumstances that prevented him to draft the review petition , file the requisite certificate under Rule 4 and appear in support of the review petitions . The stated refusal on his part to file the review petitions prima facie suggested that he believed that there was no sufficient ground for review and he being a responsible Senior Advocate of the Supreme Court had refused to file the frivolous review petitions . Therefore , there was no valid reason or unavoidable circumstance to grant the special leave prayed for . Applications made under Order XXVI , Rule 6 of the Rules were rejected and consequently , the review petitions were not entertained .
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