Review Must Be Heard By Same Judge If Available; Another Bench Cannot Entertain Review When He Is On Short Leave: Bombay High Court
The High Court held that where the Judge who passed the original order continues to be attached to the Court and is not precluded by absence for a period of two months, the review must be heard by the same Judge and no other.
The Bombay High Court set aside an order passed by an alternate bench entertaining a review application against an earlier order, holding that the review ought to have been heard by the same Judge who had passed the original order, as mandated under Order XLVII Rule 5 of the Code of Civil Procedure.
The Court was hearing a Commercial Appeal From Order challenging an ex parte order passed in a review application arising out of proceedings in a commercial suit.
A Division Bench of Justice R.I. Chagla and Justice Advait M. Sethna observed that “where the learned Judge who has made the Order for which the review is applied for, continues to be attached to the Court at the time when the application for review is presented, and is not precluded by absence or other cause for a period of two months next after the application from consideration of the Order to which the application refers, such Judge shall hear the application, and no other Judge of the Court shall hear the same.”
Background
The dispute arose from a commercial suit filed before the City Civil Court seeking certain reliefs, including injunctions. The trial court had initially declined to register the suit without compliance with the mandatory requirement of pre-institution mediation under Section 12A of the Commercial Courts Act.
A review application was thereafter filed. During a brief period when the Judge who had passed the original order was on leave for approximately two weeks, an alternate Judge entertained the review and set aside the earlier order, permitting registration of the suit.
The appellant challenged this order before the High Court, contending that the alternate Judge lacked jurisdiction under Order XLVII Rule 5 CPC to hear the review when the original Judge continued to be attached to the court and was merely on short leave.
Court’s Observations
The High Court noted that Order XLVII Rule 5 CPC expressly mandates that where the Judge who passed the order under review continues to be attached to the Court and is not precluded by absence or other cause for a period of two months, the review must be heard by the same Judge.
The Bench found that in the present case, the original Judge was on leave only for about two weeks and was expected to resume charge shortly. In such circumstances, the alternate Judge could not have assumed jurisdiction to hear the review.
The Court held that there was a “clear violation of this provision in the present case by the alternate Judge having heard the Review Application … and passing the impugned Order, when the coordinate bench who had passed the Order under review was available after the two-week leave.”
The Bench rejected the contention that the two-month period mentioned in the Rule was not mandatory. It was observed that while the period of absence may be shorter in cases of compelling urgency, no such circumstance was made out in the present matter.
The Court further found that the alternate Judge had effectively sat in appeal over the earlier order. The impugned order set aside the original order without recording grounds permissible in review jurisdiction and treated the review application as if it were an appeal.
Reiterating settled law, the Bench observed that the power of review cannot be equated with appellate jurisdiction and cannot be used to re-hear the matter on merits.
The Court also noted that if a party believes that its submissions were incorrectly recorded in an earlier order, the proper course is to move the very Judge who passed the order while the matter is still fresh, rather than approaching another bench.
Conclusion
Holding that the alternate Judge lacked jurisdiction to entertain and decide the review application in the circumstances of the case, the High Court set aside the impugned order.
The Commercial Appeal was allowed and disposed of, with no order as to costs. The request for a stay of the judgment was rejected.
Cause Title: Advanced Technology Products Inc. v. Oriental Export Corporation (Neutral Citation: 2026:BHC-AS:9107)
Appearances
Appellant: Advocates Gaurav Mehta, Ravitej Chilumuri, Afreen Noor, Prince Todi and Sanya Gandhi
Respondent: Advocates Ankita Singhania, Burzin Somandy, Ariana Somandy, Rina Ram and Nikita H. Joshi
