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C/M SHYAM JEERA J.H.S. THRU' MANAGER V.B. SINGH versus STATE OF U.P. THRU' SECY. EDUCATION (BASIC) & ORS.

High Court of Judicature at Allahabad

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C/M Shyam Jeera J.H.S. Thru' Manager V.B. Singh v. State Of U.P. Thru' Secy. Education (Basic) & Ors. - WRIT - C No. - 14537 of 2003 [2007] RD-AH 15531 (14 September 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved on 07.08.2007

Delivered on 14.09.2007

Civil Misc. Review /Recall Application No. 98133 of 2007

In

Civil Misc. Writ Petition No. 14537 of 2003

Committee of Management Shyam Jeera Junior

High School, Kunjalgarh Ram Chaura,

District Gorakhpur

Versus

State of U.P. & others

Hon'ble V.K. Shukla,J.

Present review application has been filed through B.P. Singh, Advocate, describing himself, as Standing Counsel of Basic Shiksha Parisad U.P. Allahabad, counsel for respondent with a note that Sri U. N. Sharma, Senior Advocate will appear and argue this case on behalf for respondents. In support of said Review application affidavit of Rakesh Kumar Srivastava S/o N.N. Srivastava Basic Shiksha Adhikari, Gorakhpur, has been filed.

Against the said order which is subject matter of Review Special Appeal No. 38 of 2005 had been filed and therein arguments have been advanced that judgment has been obtained by the respondent by placing reliance upon fraud documents. In view of arguments which have been advanced Special Appeal Bench of this Court has observed that as to whether judgment has been obtained by the Single Judge by placing reliance upon the forged documents as the documents sere not genuine then in this background review application can be filed . Thus, present review application has been filed.

Sri U. N. Sharma, Senior Advocate assisted by Sri B.P. Singh, Advocate contended with vehemence that on the basis of material which was available on record there is not infirmity in the view which has been taken on the earlier occasion but as petitioner's claim is based on fraud and fabricated document , as such it is not acceptable and in this background judgment in question is liable to be reviewed.

Sri A.P. Tiwari, Advocate, on the other hand countered the said submission by contending that as an after thought all these statement of fact are being mentioned and on admitted position said judgment has been delivered, as such no interference to be required under the scope and ambit of Order 47 Rule 1 C.P.C.

After respective arguments have been advanced, the parameter provided for exercise of Review jurisdiction is being looked into.

Hon'ble Apex Court in the case of Shivdeo Singh v. State of Punjab, AIR1963 SC 1909, took the view that there is nothing under Article 226 of the Constitution of India, which precludes High Court from exercising the power of Review, which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. Hon'ble Apex Court in the case of A.P. Sharma v. A.P. Sharma, 1979 (4) SCC 389 has cautioned that power of review of High Court are not the same as appellate powers and review on the ground that certain documents have not been considered, which formed the record,cannot be ground of Review. Hon'ble apex Court in the case of Meera Bhanja v. Nirmla K. Chaudhary, 1995 (1) SCC 170 has taken the view that review must be confined to error apparent on the face of record, error must be such as would be apparent on mere looking without any long drawn process of reasoning, and reappraisal of evidence on record for finding out error would amount to exercise of appellate jurisdiction, which is not at all permissible. Relevant paragraphs 8, 9 and 15 of the said judgment are being quoted below:

"8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1, C.P.C. In connection with the limitation of the powers of the Court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, AIR 1979 SC 1047, speaking through Chinnappa Reddy, J., has made the following pertinent observations (para 3) :

" It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of Plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of Appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court,"

9. Now it is also to be kept in view that in the impugned judgment, the Division Bench of the High Court has clearly observed that they were entertaining the review petition only on the ground of error apparent on the face of the record and not on any other ground. So far as that aspect is concerned, it has to be kept in view that an error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably the two opinions. We may usefully refer to the observations of this Court in the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137, wherein, K.C. Das Gupta, J., speaking for the Court has made the following observations in connection with an error apparent on the face of the record :

"An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ."

15. In our view the aforesaid approach of the Division Bench dealing with the review proceedings clearly shows that it has overstepped its jurisdiction under Order 47, Rule 1, C.P.C. By merely styling the reasoning adopted by the earlier Division Bench as suffering from a patent error. It would not become a patent error or error apparent in view of the settled legal position indicated by us earlier. In substance, the review Bench has reappreciated the entire evidence, sat almost as Court of appeal and has reversed the findings reached by the earlier Division Bench Even if the earlier Division Bench findings regarding C.S.Plot No.74 were found to be erroneous, it would be no ground for reviewing the same, as that would be the function of an appellate Court. Learned counsel for the respondent was not in a position to point out how the reasoning adopted and conclusion reached by the Review Bench can be supported within the narrow and limited scope of Order 47, Rule 1, C.P.C. Right or wrong, the earlier Division Bench judgment had become final so far as the High Court was concerned. It could not have been reviewed by reconsidering the entire evidence with a view to finding out the alleged apparent error for justifying the invocation of review powers. Only on that short ground, therefore, this appeal is required to be allowed. The final decision dated 8th July, 1986 of the Division Bench dismissing the appeal from appellate decree No.569 of 1973 insofar as C. S. Plot No.74 is concerned as well as the review judgment dated 5th September, 1984 in connection with the very same plot, i.e. C. S. Plot No.74 are set aside and the earlier judgment of the High Court dated 3rd August, 1978 allowing the Second Appeal regarding suit plot No.74 is restored. The appeal is accordingly allowed. In the facts and circumstances of the case, there will be no order as to costs."

Hon'ble Apex Court in case of Parsion Devi and others versus Sumitri Devi and others, 1997 (8) J.T. SC 480 has taken the view that Review proceeding has to be strictly confined to the ambit and scope of Order 47, and therein the two earlier judgments referred to above have been relied upon. Paragraphs 7, 8, 9 and 10 of the said judgment are being quoted below:

"7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 Code of Civil Procedure. In Thungabhadra Industries Ltd. V. The Government of Andhra Pradesh (1985 (5) SCR 174 at 186) this Court opined:

"What, however, we are not concerned with this whether the statement in the order of September 1959 that the case did not involve substantial question of law is an "error apparent on the face of the record". The fact that on the earlier occasion the Court held on an identical state of fact that a substantial question of law arose would not per se be ''conclusive' for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an "error apparent on the face of the record" for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterized as vitiated by "error apparent". A review is always means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error."

8. Again in Smt. Meera Bhanja v. S,t. Nirmala Kumari Choudhary (1985 (1) SCC 170) while quoting this approval a passage from Abhiram Taleshwar Sharma v. Abhiram Pishak Sharma & Ors. (1979 (4) SCC 389 this Court once again held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC.

9. Under Order 47 Rule 1 CPC a judgment may be o pen to review inter alia if there is mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the facer of the record justifying the court to exercise its power of review Under Order 47 Rule 1 Code of Civil Procedure In exercise of the jurisdiction Under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise."

10. Considering in the light of this settled position we find that Sharma J. clearly over-stepped the jurisdiction vested in the court Under Order 47 Rule 1 CPC. The observation of Sharma J. that accordingly the order in question is reviewed and it is held that decree in question was of composite nature wherein both mandatory and prohibitory injunctions were provided" and as such the case was covered by Article 182 and not Article 181 cannot be said to fall within the scope and ambit of Order 47 Rule 1 CPC. There is clear distinction between an erroneous decision and the error apparent on the face of the record. While the first can be corrected by higher forum, the later only can be corrected by exercise of the review jurisdiction. While passing the impugned order Sharma J. fond the order of Civil Revision dated 25.4.1989 as an erroneous decision, though without saying so in so many words. Indeed, while passing the impugned order Sharma J. did record that there was an error on the face of the record which was not of such a nature, "which had to be detected by a long drawn process" and proceeded to set at naught the order of Gupta, J. However, mechanical use of statutorily sanctified phrases cannot detract from the real import of the order passing in exercise of the review jurisdiction. Recourse of review petition in the facts and circumstances of the case was not permissible. The aggrieved judgment debtors could have approached the higher forum through appropriate proceedings to assail the order of Gupta, J. and get it set aside but it was not open to them to seek a "review" of the order of Gupta J. on the grounds detailed in the review petition, In this view of the matter, we are of the opinion that the impugned order of Sharma, J, cannot be sustained and we accordingly accept this appeal and set aside the impugned order dated 6.3.1997."

Hon'ble Apex Court, in the case of Lily Thomas v. Union of India, AIR 2000 SC 1650, after considering the dictionary meaning of word "review" has taken the view that power of review can be exercised for correction of mistake and not to substitute a view. Such powers can be exercised within the limits of the statute, dealing with exercise of power; the review cannot be treated as an appeal in disguise, and mere possibility of two views on the subject is not a ground of Review. Relevant paragraphs 52 and 55 of the said judgment are being quoted below:

"52. The dictionary meaning of the word "review" is "the act of looking, offer something again with a view to correction or improvement. It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji, AIR 1970 SC 1273 held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error. This Court in S. Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595 held :

"Review literally and even judicially means re-examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the Courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest Court indicating the circumstances in which it could rectify its order the Courts culled out such power to avoid abuse of process or miscarriage of justice. In Prithwi Chand Lal Choudhury v. Sukhraj Rai, AIR 1941 FC 1 the Court observed that even though no rules had been framed permitting the highest Court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae v. Bijai Govind Singh (1836) 1 Moo PC 117 that an order made by the Court has final and could not be altered.

". . . . . . . .nevertheless, if by misprison in embodying the judgments, by errors have been introduced, these Courts possess, by Common Law, the same power which the Courts of record and statute have of rectifying the mistakes which have crept in. . . . . The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies.' Basis for exercise of the power was stated in the same decision as under :

'It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevaling to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard.'

Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Art. 137 of the Constitution. Our Constitution makers who had the practical wisdom to visualise the efficacy of such provision expressly conferrred the substantive power to review any judgment or order by Art. 137 of the Constitution. And Cl. (c) of Art. 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order 40 had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order 47 Rule 1 of the Civil Procedure Code. The expression, 'for any other sufficient reason' in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order 40, Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest in justice or to prevent the abuse of process of Court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice."

The mere fact that two views on the same subject are possible is no ground to review the earlier judgment passed by a Bench of the same strength.

55. It follows, therefore, that the power of review can be exercised for correction of a mistake and not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of co-ordinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under Art. 136 or Art. 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment."

Hon'ble Apex Court in the case of State Haryana v. Mohinder Singh, JT 2002 (1) 197, disapproved the judgment of High Court,wherein earlier writ petition was disposed of by High Court being infructuous and giving some directions, and subsequent to the same, Review was sought, which was allowed, same was clearly termed to be overstepping of jurisdiction, and amounting to giving of one more chance of hearing. Relevant paragraph 5 of the said judgment is being quoted below:

"5. We have carefully considered the submissions of learned counsel appearing on either side. The division bench in the High Court, ion our view, completely overstepped the limits of its review jurisdiction and on the face of it appears to have proceeded as though it is a rehearing of the whole petition which had been earlier finally disposed of. It has often been reiterated that the scope available for a litigant invoking the powers of review is not one more chance for rehearing of the matter already finally disposed of. The course adopted in this case by the high Court appears to be really what has been held by this Court to be not permissible. On this ground alone without expressing any views on the merits of the claim, the order of the High "court dated 14.5.999 is set aside and the original order dated 14.5.1998 shall stand restored. While noticing some of the submissions made on merits by either side, we consider it appropriate to place on record that even the learned counsel for the appellant could not seriously dispute the position that the respondents would at any rate be entitled to be placed on the ''first higher standard pay scale' and that to this extent at least, the respondents' deserve consideration. The appeals are allowed in the above terms. No order as to costs."

Hon'ble Apex Court in the case of Union of India v. B. Valluvar, 2006 (8) SCC 686, has again considered the parameters of Review jurisdiction of High Court, that same shall be exercised within the limitations as provided under Section 114 read with Order 47 Rule of C.P.C.,and without recording finding as to there existed error apparent on the face of the record, merit cannot be gone into. Relevant paragraph 16 of the said judgment is being extracted below:

"16. The Division Bench of the High Court committed a serious error in entering into the merit of the matter while exercising its review jurisdiction. The Court's jurisdiction to review its own judgment, as is well known, is limited. The High Court, indisputably, has a power of review, but it must be exercised within the framework of Section 114 read with Order 47 of the Code of Civil Procedure. The High Court did not arrive at a finding that there existed an error on the face of the record. In fact, the High Court, despite noticing the argument advanced on behalf of the Union of India that the 1st respondent had no legal right to be appointed, proceeded to opine that the panel prepared for filling up the future vacancies should be given effect to. The review of the High Court was not only contrary to the circular letter issued by the Union of India, but also contrary to the general principles of law."

Hon'ble Apex Court in the case of State of Haryana and others v. M.P. Mohila, 2007 (1) SCC 457, has taken the view that in the garb of Clarification Application, recourse to achieve the result of Review Application, cannot be permitted, as what an not be done directly,cannot be done indirectly. Paragraphs 27, 28 and 31 being relevant are quoted below:

"27. A review petition filed by the appellants herein was not maintainable. There was no error apparent on the face of the record. The effect of a judgment may have to be considered afresh in a separate proceeding having regard to the subsequent cause of action which might have arisen but the same by itself may not be a ground for filing an application for review.

28. Mr. Srivastava submitted that an application for review in effect and substance was an application for clarification of the judgment of the High Court. We do not think so. An application for clarification cannot be taken recourse to achieve the result of review application. What cannot be done directly, cannot be done indirectly. (Ram Chandra Singh v. Savitri Devi (2004) 12 SCC 713).

31. Therein a review proceeding was entertained as the court accepted its own mistake in understanding the nature and purport of the undertaking given by the learned Senior counsel appearing on behalf of the Bord. It was in that context opined that the subsequent even maybe taken into consideration by the court for the purpose of rectifying its own mistake. Subsequent event may have some relevance but the same must have direct nexus with the judgment sought to be reviewed. It has been noticed herein before that before us an endeavour has been made to urge that the review application was in effect and substance an application for clarification."

On the touchstone of the dictum noted above, Review is permissible only when there is error apparent on the face of record i. e. error should be grave and palpable, and the error must be such as would be apparent on mere looking of record, without requiring any long drawn process of reasoning, and reappraisal of entire evidence for finding the error, as same would amount to exercise of appellate jurisdiction. Possibility of two view on the subject, cannot be ground for review, and Review jurisdiction is not to be exercised, as a matter of course,for providing one more hearing on the matter. Review proceeding has to be confined within the scope and ambit of Order 47 Rule 1 C.P.C. and can be exercised when there is miscarriage of justice on account of fraud or misrepresentation of parties.

Order passed on earlier occasion has been perused. This Court while delivering the judgment on 25.03.2004 had taken into consideration the judgement dated 07.01.2003 passed on earlier occasion wherein categorical observation has been made as follows:

"it is not disputed that the petitioner's school was granted temporary recognition from class I to VIII in the year 1972-73. The Assistant Director of Education (Basic) has granted compensation by his order dated 30.03.1992. It is mentioned in his order and is also reproduced in the impugned order that primary section as well junior High School is in the same building and both are being run under the same committee of Management with the same Principal. In view of the admitted fact, it cannot be said that primary section is different identity than the junior High School section. Grant-in-aid to primary section may not be refused merely on the ground that the State has chosen to grant permanent recognition to primary section on different date. Both the sections have to be treated as part of the same school and the sanction of grant-in-aid to the primary section ought to be decided on this basis."

At no point of time validity of the said observation which has been made in the aforesaid judgment had ever been challenged. In this background this Court has proceeded to mention in the judgment and order dated 25.03.2003 that judgment has not been challenged in any higher Court and same has attained finality and is binding on the parties. Thus, the claim of the petitioner's institution could not have been denied that attached Primary Section is separate.

Entire emphasis of the arguments is that there was no attached primary section in the year 1972-73 as Society itself was got registered for the first time on 30.08.1974 and as such factum of recognition of year 1972-73 is completely ruled out, and same cannot be accepted and recorded as undisputed fact. Alongwith counter affidavit document dated 13.05.1976 has been attached. In the said document at item no. 9 name of the petitioner's institution has been mentioned wherein it has been mentioned that in continuance of the recognition accorded from Class VI to Class VIII, renewal was being accorded to class 1 to V with certain condition. Thus, there is order of recognition which clearly demonstrates the renewal of recognition from Class I to Class VI with certain condition. This particular document has not been disputed and this particular document is clearly demonstrative of the fact that in academic session 1975-76, while according recognition to Junior High School from class VI to Class VIII, in continuity, recognition was accorded to primary section also. This Court on earlier two occasions have proceeded to mention that institution in question was granted temporary recognition in the year 1972-73 from class I to VIII which is undisputed. Entire emphasis is that this particular finding is not at all supported from documentary evidence and is totally against facts and record. This Court is conscious of its authority while proceeding to exercise, its authority of review. If in the judgment a totally wrong fact has crept in on account of which, there would be miscarriage of justice, which requires correction then the order in question can be very well reviewed. Categorical mention has been made, that society in question was got registered for the first time on 30.08.1974, and that institution in question is running since 1972-73 is absolutely false statement. In paragraph-5 of the counter affidavit filed it has been reiterated that temporary recognition was accorded from class I to VIII in the year 1972-73, 1973-74 and original papers were taken away by District Basic Education Officer on 17.11.2004. Dispute has been raised that this is factually incorrect statement of fact, in order to cover non-existing facts. As to whether institution in question was granted temporary recognition in the year 1972-73, even before the society in question came into existence, is essentially question of fact, which can be determined on the basis of evidence adduced. Neither at the time of filing of writ petition nor as on date any paper of recognition of year 1972-73 has been produced, as such inevitable conclusion is that finding recorded by this Court, that institution in question was accorded temporary recognition in the year 1972-73, is not at all based on any evidence and incorrect recording of fact. Consequently said finding is reviewed and the said question is left open to be decided by the authorities concerned after affording opportunity of hearing to petitioners, and shall not be taken as conclusive. Recognition of said year, assumes significance and importance as State Government has accorded exemption in respect of 393 institutions, which had continued to function from prior to 1973 and teachers had been paid their salary from the State Government. In case of said schools, State Government has taken decision to continue to pay salary of primary teachers of such schools. If recognition of year 1972-73 is accepted as undisputed fact, it would result in miscarriage of justice, and it would be appropriate that said question is answered on the basis of evidence.

Much emphasis has been laid that documents qua teachers have been manipulated. This Court at no point of time has ever gone into the question of validity of teachers as such said issues are not at all engaged. This Court has never adjudicated as to who are valid teacher or invalid teacher of the institution rather taking into consideration various other circumstances and the finding recorded on earlier occasion said judgement has been delivered.

Consequently to the extend indicated above, Review application is allowed.

Dated: 14th September, 2007

Dhruv


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