Reference, Review and Revision (Sections 113 to 115; Order 46-47)

This article titled ‘Reference, Review and Revision (Sections 113 to 115; Order 46-47).’ is written by Devanjali Banerjee and discusses the law related to reference, review and revision.

I. Introduction

Where no appeal lies to the High court, the Code of Civil Procedure, 1908 (‘the Code’) empowers the subordinate courts to refer questions of law for the decision to the high court.[1] This is called a reference.

When no appeal lies to the High court, the Code also empowers the High court itself to revise the proceedings of courts subordinate to it in certain cases.[2] This is called revision, and only high courts possess such revisional jurisdiction.

Where there is an error apparent on the face of the record or other such irregularity in a civil suit, then the review function of the Code allows for the same judge who passed the impugned judgment, to re-examine the same case.

II. What is reference, review and revision as per the Code?

Sections 113 to 115 of the Code deal with the substantive aspects of reference, review and revision respectively. These sections are to be read with Order 46 and 47 of the Code, which discusses the procedure for reference and review respectively.

Section 113 deals with the reference to a question for the determination of the High Court. If any civil court determines that a case requires a substantial question of law to de decided by the High Court, it may make a reference to the High Court.[3] This usually deals with the validity of the provisions of an Act, Ordinance or Regulation.[4]

Section 114 deals with the review and is to be read with Order 47 Rule 1. The scope of review function applies in cases where there is an error apparent on the face of the record or the appearance of new facts which came to the knowledge of the party and he could not know, with due diligence at the time of passing of the decree.[5]

Section 115 provides the revisional power of the court. This implies that the High Court may vary or reverse any order made or any order made in deciding an issue in cases where the subordinate court appears to have exercised a jurisdiction not vested in it, or not exercised a jurisdiction that was rightly vested in it or acted in the exercise of its jurisdiction illegally or with material irregularity.[6]

III. Reference (S.113)

According to this section, any Court may state a case and refer the same to the High Court for its opinion, provided certain conditions and limitations have been complied with.[7]

Stating a case in this context implies that the court making the reference is satisfied that a case pending before it involves a question relating to the validity of any law, and in whose opinion such law may be invalid or inoperative- and such question requires determination for the disposal of the case.[8]

The referring court will then draw a statement of facts, formulate a precise question of law and set out its opinion, with reasons and refer the same to the High Court. The High Court then has the discretion to make an order as it thinks fit, in response to such reference made.

Order 46, Rules 1-6 discuss the procedural aspects of reference proceedings. A subordinate court may make a reference on a question that arises:[9]

1. In a suit in which the decree is not subject to a second appeal to the high court, or in the execution of such a decree;[10]
2. If it is a question of law or usage having the force of law, on which the court is trying the suit or appeal entertains reasonable doubt.[11]

The main objective of making a reference to the high court by a subordinate court in the Code is to facilitate a subordinate court in obtaining the opinion of the high court in non-appealable cases or on a question of law and or to avoid the commission of errors which cannot be rectified in a subsequent stage of legal proceedings.[12]

Thus, the referring court may pass a decree contingent upon the decision of the high court, however, no decree or order shall be executed until the subordinate court gets a receipt of the copy of the judgment of the high court on said reference.[13]

It is thus the duty of the subordinate court on receipt of such judgment to dispose of the case in conformity with said decision. While it is only courts of civil judicature that can make reference to a high court, Order 46, Rules 6-7 detail instances where questions as to jurisdiction in small causes may also be referred.[14]

It is to be noted that the jurisdiction of the high court is consultative in nature, and is not original or appellate in origin. Thus, there is no question of passing order on merits.[15] In another case, it was held that once the high court answers the questions referred to it, there is no further obligation on part of the high court in the context of determination of legal questions.[16]

IV. Review (S.114)

The review function can be understood from reading Section 114 with Order 47, Rules 1-9. As mentioned in Lily Thomas v. Union of India (2000) 6 SCC 224, review is an act of looking at something or offering something again with a view of correction or improvement. There are three situations from which an aggrieved person can prefer an appeal:

“(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred.

(b) by a decree or order from which no appeal is allowed by this Code, or

(c) by a decision on a reference from a Court of Small Causes”[17]

Order 47, Rule 1 elaborates specific grounds or conditions for which review can be preferred by an aggrieved person:

1. the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or[18]
2. on account of some mistake or error apparent on the face of the record, or[19]
3. for any other sufficient reason[20]

1. Order 47, Rule 1: Application for Review of Judgment

According to Order 47, Rule 1(2), a party may apply for a review even when there is a pending appeal by another party- except when the ground of such appeal is common between the appellant who is preferring the said appeal and the applicant himself, or as being respondent he can present to the Appellate court the case on which he is applying for review.[21]

This sub-rule also mentions that a decision on a question of law on which the judgment of the court is based has been modified or reveres by a subsequent judgment of a superior court in another case, shall not be a ground of review of such judgment.[22] While the benefit of preferring review of a judgment is an important one- the rule of stare decisis, which implies the binding nature of past precedent held by higher courts upon lower courts, is an equally important principle to uphold.

Sufficient reason

The term ‘sufficient reason’ has been held to be wide enough to include a misconception of fact or law by a court or even an advocate.[23] An application for review may be necessitated by way of invoking the doctrine actus curiae neminem gravatib- this Latin maxim means that the act of a court shall prejudice no one, and the court is under obligation to undo any wrong done to a party by dint of the court.

Error apparent

The term error apparent on the face of record generally relates to a fundamental error of procedure in court functioning, typically one of omission of legal precedent or rules in the determination of a dispute.[24] This may include the failure to apply the law of limitation; the failure to consider a particular legal provision or the application of a statutory provision that was not in operation; and not taking into account a judgment that was binding on the court.[25]

Such an error may be one of fact or law. In fact, the Supreme Court has held that “…In case the error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of review.”[26]

2. Order 47, Rules 2-9: Application for Review of Judgment

These rules deal with the granular details of the application of review, the appropriate form of application of review[27] and so on. In case of rejection of application of review by the court, the rejection is not appealable.[28]

In case an application has been granted under Order 42, Rule 4(2), it is mentioned that notice needs to be provided to the opposite party to enable the same to be aware of the review application and that such application is not to be granted unless the requirements for an application under Order 47, Rule 1(1) are met.

Thus, this implies that the condition precedent for entertaining the review would be to ascertain as to whether at the initial stage where decree or order had been made against which review was being preferred, the party had acted with due diligence.

The judge or judges who had passed the decree or order that is being reviewed is to hear the review application, and Order 47, Rule 5 states that in case of the court comprising two or more judges and they are not precluded by the absence or other cause for a period of six months after the application from considering such decree or order- the same judges shall hear this review application, to the exception of all other judges.[29]

Where the application for a review is heard by more than one judge and the Court is equally divided, the application shall be rejected.[30]

It may be noted that the review power of the supreme court, as provided under Article 137 of the Constitution is not curtailed by the operation of the review function as provided under the CPC.[31]

V. Revision (S.115)

The power of revision is invested in high courts under Section 115 of the Code, read with Order 46, Rule 7 of the Code. According to the Code, the High Court has the power to call for the record of any case which has been decided by a subordinate court and in which no appeal lies, and if the court in question appears-

“(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity”[32]

The High court has the discretion to make such order as it thinks fit. The situation envisaged in Section 115(1)(c) refers to the manner in which the decision is arrived at, not the decision itself- rather procedural errors resulting in injustice to a party or breach in procedures are what is covered by the phrase “illegality or material irregularity.”[33]

Thus, it can be argued that while the grounds for revision are limited, the interpretation of the revisional power is wide. The key question in deciding the maintainability of a revision application is whether the order or suit in favour of the party applying for revision would have afforded finality to the suit or proceeding- if yes, then revision is maintainable.

The object of this section is to prevent subordinate courts from acting in an arbitrary, capricious manner and keeping them within their jurisdictional limits.[34]

In the case where such observation was made, the question before the court was whether the revision petition under Section 115 of the Code would lie against an order made by a civil court based related to an appeal on limitation period in arbitration between the respondent and appellant.[35]

While deliberating on the case, the Court made pertinent observations as to the objective of revisional power- it was stated that the revisional power of the High Court was to correct the jurisdictional error and this included any error committed by a subordinate court under Section 37(2) of the Arbitration and Conciliation Act, 1996 relating to a limitation period of raising issues.

In the words of the Supreme Court, “…The section [115] is concerned jurisdiction and jurisdiction alone involving a refusal to exercise jurisdiction where one exists or an assumption of the jurisdiction where none exists and lastly acting with illegality or material irregularity.”[36]

Order 46, Rule 7 of the Code deals with the power to the district court to submit for revision proceeding had under a mistake as to jurisdiction in small causes.

Generally, the Code invests the High Court with revisional power- however in exceptional cases, where a District Court determines that a subordinate court has committed a jurisdiction error, it may submit a record (either by its own accord or if required by a party) to the High Court to consider revision of such suit.[37] The High court in turn may make any order it thinks fit.

VI. Appeal v. Revision, Review or Reference

It is possible to find similarities in the powers of appeal versus those of revision, review or reference, however, there are differences among them as well.

In case of review and appeal- one must choose between the two options; both cannot be simultaneously pursued. This is because the substantive provision prohibits appeals in certain suits, which may be open to review- thus there are certain mutually exclusive subject matters for litigation.

Regarding revisional power, as mentioned above revision is based on jurisdiction alone, and questions of fact are not to be interfered with- it is technically possible to pursue both revision and appeal as reliefs, at least as far as certain special legislation such as the Arbitration and Conciliation Act, 1996.[38]

The Supreme Court has held that “In appeal, interference can be made both on facts and law whereas in revision only errors relating to jurisdiction can be corrected.”[39]

In case of reference, the power of reference is vested in a court while only a party has the right to appeal.[40] Further, reference can only be made to the high court and during the pendency of the suit or appeal or execution proceedings. In contrast, an appeal can be preferred to any superior court, not necessarily the high court and can only be made against an order or decree of a court.[41]

VII. Conclusion

The present article has discussed reference, review and revision as per the Code in relation to relevant case-law and statutory provisions. The three powers all show up as different aspects of a supervisory function of the high court to check jurisdictional or procedural errors of subordinate courts.

---

References

[1] D.F. Mulla, Mulla The Key to Indian Practice: Summary of Civil Procedure Code, 1908, 11^th ed., 2016.

[2] Ibid.

[3] Section 113, Code of Civil Procedure, 1908.

[4] Ibid.

[5] Order 47, Rule 1, Code of Civil Procedure, 1908.

[6] Section 115(1), Code of Civil Procedure, 1908.

[7] Ibid.

[8] Section 115(1), Proviso, Code of Civil Procedure, 1908.

[9] Supra, at note 1.

[10] Order 46, Rule 1, Code of Civil Procedure, 1908.

[11] Ibid.

[12] Supra, at note 1.

[13] Order 46, Rule 2, Code of Civil Procedure, 1908.

[14] Supra, at note 1.

[15] Delhi Financial Corpn. v. Ram Parshad, AIR 1973 Delhi 28.

[16] Municipal Corpn. of City v. Prashant Preetam Kr. Shegaonkar, AIR 200 Bom (105)(DB).

[17] Section 114, Code of Civil Procedure, 1908.

[18] Order 47, Rule 1(1), Code of Civil Procedure, 1908.

[19] Supra, at note 18.

[20] Ibid.

[21] Ibid.

[22] Order 47, Rule 1(2), Code of Civil Procedure, 1908.

[23] Board of Control for Cricket, India v. Netaji Cricket Club AIR 2005 SC 592.

[24] Supra, at note 1.

[25] Ibid.

[26] Haryana State Industrial Development Corporation & Ors. Etc. etc. v. Mansi & Ors etc. etc., (2012) 7 SCC 200

[27] Order 47, Rule 3, Code of Civil Procedure, 1908.

[28] Order 47, Rule 7(1), Code of Civil Procedure, 1908.

[29] Order 47, Rule 5, Code of Civil Procedure, 1908.

[30] Order 47, Rule 6(1), Code of Civil Procedure, 1908.

[31] Supra, at note 1.

[32] Supra, at note 6.

[33] Supra, at note 1.

[34] ITI Ltd. v. Siemens Public Communication Networks Ltd. (M/s), AIR 2002 SC 2308.

[35] Ibid.

[36] Major S.S. Khanna v. Brig. F.J. Dhillon, AIR SC 497.

[37] Order 46, Rule 7(1), Code of Civil Procedure, 1908.

[38] ITI Ltd. v. Siemens Public Communication Networks Ltd. (M/s), AIR 2002 SC 2308.

[39] Ibid.

[40] Supra, at note 1.

[41] Ibid.

---

1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
2. Legal Bites Academy – Ultimate Test Prep Destination