Order passed in exercise of review jurisdiction is Appealable
A petition for review of an order passed in proceedings under Article 226 of the Constitution would lie irrespective of whether the provisions of the Code have been made applicable in a High Court to proceedings in such High Court under Article 226 of the Constitution. An appeal would lie against an order passed in a review of the order under Article 226 of the Constitution, even if the original order is retained, once the review petition is entertained and the additional material or grounds that are referred to or urged are considered or a further consideration on merits then in such a scenario, the original order, albeit being retained in substance is eclipsed by the subsequent order as the considerations for making the subsequent order may be different. An appeal against an order passed in a review petition in proceedings under Article 226 of the Constitution will lie if the original order is altered or modified or reversed. In such a scenario, the original order would stand substituted and lose all relevance.
Ordinarily, an order refusing to entertain a review against an order passed under Article 226 of the Constitution and, thereby, not entertaining the further material sought or grounds to be relied upon or reconsidering the original basis of the order, would not be appealable. However, even if an order is passed refusing to entertain a review petition or look into the additional material or grounds sought to be relied upon or reconsidering the matter, an appeal may lie therefrom if such order of refusal can be regarded as a judgment within the meaning of Clause 15 of the Letters Patent.
When an appeal is preferred against an order and the appellate court does not enter into the merits of the appeal but permits a review to be carried therefrom, it amounts to the appeal not having been filed. The mechanical recording of the disposal or dismissal of the appeal in the order is of no relevance and it is the substance of the order that has to be seen. When the review petition is dismissed in limine and without going into the grounds urged for review, the original order may be appealed against, subject to limitation, and the propriety of the original order may be decided by folowing the law. An order declining to entertain a review petition and refusing to reconsider the matter would leave the original order unaffected as the question of the merger would not arise. An order entertaining the review petition but maintaining the original order after reconsideration of the matter would eclipse the original order and be amenable to appeal in its own steam. When an order passed on a petition under Article 226 of the Constitution is appealed against and such appeal is dismissed, there is no scope for a review against the order of the Single Bench as the original order is merged in the order of affirmation in appeal.
In proceedings under Article 226 of the Constitution, the authority to seek a review of an order may not be traced to the CPC as the provisions of the CPC have not been made applicable to proceedings under Article 226 of the Constitution. Jurisprudentially, however, the power of review exercised in the writ jurisdiction would be substantially the same as under the CPC. When a new issue is considered upon the receipt of a review petition and the same order as in the original case is retained, the original order stands eclipsed and substituted by the new order since the considerations, therefore, are not the same. The resultant order, when passed in proceedings under Article 226 of the Constitution, is appealable.
