Author Name:   anupam

This article deals with the scope and nature of the reference, review and revision.

Reference, Revision And Review

In India, there are three tiers Judiciary i.e. District Courts, High Courts and hon’ble Supreme Court of India. The appeal, review and revision lies in all the three Courts depending on which Court’s Order is being challenged. Therefore it is necessary to know the nature and scope of all these three words and also how they are different from each other. It is imperative to know the scope of all these to exercise the power of reviewability against the impugned order of the respective Court. In this paper I am going to discuss in elaborative manner the extent and scope of “Reference, Review and Revision”.

1.Reference
A. Nature and Scope
Section 113 of the Civil Procedure Code empowers a subordinate court to state a case and refer the same for the opinion of the High Court. Such an opinion can be sought when the code itself feels some doubt about a question of Law.The word ‘Court’ wherever it occurs in the code means a Court of civil Judicature.The reference can only be made by a Court but not by a persona designate.

A reference can only be made by a Court when there is a reasonable doubt about a question of Law or only when it is of opinion that Act is ultra vires. Unnecessary observations made by the High Court while disposing of the reference having no legal effect must be treated to have been rendered infructuous and superfluous but such power of reference is discretionary.

B. Object and reference under the proviso.
The object for the provision of reference is to enable subordinate courts to obtain in non-appealable cases the opinion of the High Court in the absence of a question of law and thereby avoid the commission of an error which could be remedied later on.When all the following conditions are satisfied the Court is bound to make a reference to the High Court under this proviso under setting out its opinion and the release for it.
(i) A question as to validity of any Act, ordinance or Regulation or any provision therein arises in a case before the court.
(ii) The Court is of the opinion that the same is invalid or inoperative
(iii) The same has not till then been declared invalid by the High Court to which the Court is subordinate or by the Supreme Court, and
(iv) The determination of the validity thereof is necessary for the disposal of the case.

No reference is warranted under Section 113 of the code where nothing involved regarding the issue of any Act/Ordinance/Regulation. This provision also ensures the validity of a legislative provision (Act, Ordinance or Regulation) should be interpreted and decided by the highest Court of the State and there wouldn’t remain any chance of misinterpretation.

The right of reference, however, is subject to the conditions prescribed by the order 46 Rule 1 and unless they are fulfilled, the High court cannot entertain a reference form a subordinate Court. The rule requires the following conditions to be satisfied to enable a subordinate Court to make a reference:
(i) There must be a pending suit or appeal in which the decree is not subject to appeal in which the decree is not subject to appeal or a pending proceeding in execution of such decree;
(ii) A question of law or usage having the force of law must arise in the course of such suit, appeal or proceeding ; and
(iii) The court trying a suit or appeal or executing the decree must entertain doubt on such question.

The question as to the validity of any provision of any Act (here a definition in an Act)on the ground that it offends Art 14 of the Constitution comes within the proviso to S.113 through the question, however ,is also a question as to the interpretation of the constitution, for the validity of the provision is challenged on the ground that it contravenes an Article of Constitution.Matters within the proviso include the matter of testing the constitutional validity of Any Act, regulation, Ordinance.

Section 113 of the Code and Art 226 of the Constitution.
The working of S. 113 is to check the validity of an Act or a provision in it while Article 228 of the Constitution is to interpretation of the Constitution. The question of the validity of the provision of Act also includes the interpretation of the Constitution when validity is challenged on the grounds that it contravenes an article of the Constitution.The ambit of S. 113 of the Code is much wider than the Article 226 as it only working is confined to the substantial questions of the law to the interpretation of the Constitution and nothing else while in S.113 it is possible to consider the question of constitutional invalidity or constitutional inoperativeness of an Act, ordinance or regulations.

2.Revision
A. Meaning
Section 115 of the Code of Civil Procedure empowers A High Court to entertain a revision in any case decided by a subordinate Court in certain circumstances. This jurisdiction is known as revisional jurisdiction of the High court .Revision meaning the action of revising, especially critically or careful examination or perusal with a view to correcting or improving.

B. Nature and Scope
In Major S.S Khanna v. Brig F.J Dillon, the Court stated “The section consists of two parts, the first prescribes the conditions in which the jurisdiction of the High Court arises, i.e. there is a case decided by a subordinate Court in which no appeal lies to the High Court, the second sets out the circumstances in which no appeal lies to the High court, the second out the circumstances in which the Jurisdiction may be exercised.’’
For the effective exercise of the High court’s superintending and visitorial powers over subordinate courts, this revisional jurisdiction has been conferred by the High Court under S.115; the powers given are clearly limited to the keeping of subordinate courts within the bound of their jurisdiction.It is a part of general appellate jurisdiction of the High court though the jurisdiction is strictly restricted by the terms of S.115 investing it.Though revisional Jurisdiction is only a part of appellate jurisdiction, it cannot be equated with full that of a full fledged appeal.

Section 115 authorizes the High Court to satisfy on three matters:
(i) That the order of the subordinate court is within jurisdiction.
(ii) That the case is one in which the court ought to exercises its jurisdiction;
(iii) that in exercising jurisdiction the court has not acted illegally, that is, in breach of some provision of the law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision.

In Pandurang Ramchandra Manddlik v. Maruti ramchandra Ghatge, it was held that
’’..But an erroneous decision on a question of law reached by the subordinate court which has no relation to questions of jurisdiction of that court, cannot be corrected by the High court under S. 115."

C. Object and Application
Any illegality ,irregularity or impropriety coming to the notice of High court has the jurisdiction to the High Court to examine the records relating to the ‘’any order’’ and/or proceedings is capable of being corrected by the High Court by passing such appropriate order or direction as the law requires and the justice demands but only limitation on the scope of the High Court’s jurisdiction is that the order or proceeding sought to be scrutinized by the subordinate court .Revisional Jurisdiction doesn’t allow High Court to interfere and correct errors of facts or of law.When the order is within the Jurisdiction of the subordinate Court, even if the order is right or wrong or in accordance with the law or not, unless it has exercised its jurisdiction illegally or with material irregularity the high Court has no jurisdiction to interfere.The high Court will not interfere in revision until it comes to the conclusion that the impugned order has occasioned a failure of justice or has caused an irreparable injury to the party against when it is made.The revisional power under Section 115 of the Code is clearly is the nature of a power to issue a writ of certiorari.Its ambit is not as large as certiorari as revisional Jurisdiction can only be exercised in the failure of Jurisdictional error but not in any other manner.

Section 115 of the Code and Art 227 of the Constitution.
A revision under section 115 and Superintendence under Article 227 are two separate and distinct proceeding. One can’t be overindulging with the other.

S.115 and Art 227are distinguished with the each other in the following way:-
1) Revisional power is only judicial while Article 227 which empowers Superintendence is both Judicial as well as administrative.
2) Revisional power is statutory and it can be taken away by legislation but the power of superintendence is constitutional and cannot be curtailed or taken away by the statue.
3) Revisional power has less peripheral application as compared to Article 227 as S.115 are restricted and cannot be exercised in all the conditions.

3. Review
A. Meaning
Review means to reconsider, to look again or to re examine. In legal sense, it is a judicial re-examination of the case by the same court and by the same Judge.

B. Nature and Scope
According to the general principle of law, once the judgment is passed the court becomes functus officio. A power of review should not be confused with the appellate powers which enables an appellate court to enable all errors committed by the subordinate Court. Greater care, seriousness and restrain should be given in review application as would not be fair to court to deal with the same case with the same party over again and again and it would increase the backlog of the case over the court.

A right of review is both substantive as well as procedural. As a substantive right, it has to be conferred by law, either expressly or by necessary implications. There can be no inherent right of review. As a procedural provision, every Court or tribunal can correct an inadvertent error which has crept in the order due to procedural defect or mathematical or clerical error or by misrepresentation or fraud of a party to the proceeding, which can be corrected asex debito justitae. If a review is not maintainable I, it cannot be allowed by describing such application as an ‘’clarification’’ or ‘’modification’’

C. Object and Application
A person aggrieved by a decree or order may apply for review of a Judgment. A person aggrieved has been understood to mean who has a genuine grievance because an order has been made which prejudicially affects his interests.But the concept, purpose and provisions ‘’person aggrieved’’ varies according to the context, purpose and provisions of the statue.A person who is neither a party to the proceedings nor a decree or order binds him, cannot apply for review as the decree or order does not adversely or prejudicially affect him. The remedy of review, which is a reconsideration of the Judgment by the same Court and by the same Judge, has been borrowed from the Court of equity. This remedy has a remarkable resemblance to the writ of error. Rectification of an order stems from the fundamental principle that justice is above all. It is exercised to remove error and not to disturb finality.

D. Circumstances for Reviews
A) No Right of appeal is allowed
Where no right of appeal is allowed to an aggrieved party, he can file a review application. When an appeal is dismissed on the ground that it was incompetent or was time –barred, the provisions of review would get attracted.

B) Right of appeal lies but not availed.
A review petition is also maintainable in cases where appeal is provided but no such appeal is preferred by the aggrieved party. An application for review can be presented so long as no appeal is preferred against the order. However when appeal is already pending in the Court, no review petition can be entertained. But if the review petition is filed first and subsequently appeal is filed, the jurisdiction of the court to deal with the review application is not affected. If review is granted before the disposal of the appeal, the decree or order ceases to exist and the appeal will not remain. If appeal is decided on the merits before an application of review is heard, such petition becomes infructuous and is liable to be dismissed.

E. Grounds for review
(i) Discovery of new and important matter or evidence.
A review is permissible on the grounds of discovery by the applicant of some new and important matter or evidence which, after exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree is passed. The underlying object of this provision is neither to enable the Court to write a second Judgment nor to give a second innings to the party who has lost the case because of his negligence or indifference. Therefore, a party seeking a review must show that there was no remiss on his part in adducing all possible evidence at the trial.
The new evidence must be such as presumably to be believed, and if believed to be conclusive. In other words, such evidence must be:-
(a) Relevant
(b) Or of such character that if it had been given it might possibly have altered the judgment.

(ii) Mistake or error
What is an error apparent on the face of the record cannot be defined precisely or exhaustively, and it should be determined on the facts of the each case. Such error may be one of fact or of the law.No error can be said to be apparent on the face of the record if it is not self-evident and requires an examination or argument to establish it.
In the case of Thungabhandra Industries ltd v. Govt of A.P, the Supreme Court rightly observed:
“…….where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of apparent on the face of the record would be made out.

(iii) Other sufficient reason.
The other sufficient reason has not been defined in the Code. There are the reasons which has been observed in the number of cases are following;-
(a) Where the statement of the judge is not correct.
(b) The decree or order has been passed under a misapprehension of the true state of circumstances.
(c) Where a party had no notice or fair opportunity to produce his evidence.
(d) Where a Court has failed to consider a material issue, fact or evidence.
(e) Misconception by the court of a concession made by the advocate.
(f) The court has omitted to notice or consider material statutory provisions.
(g) Ground which goes to the root of the matter and affects inherent jurisdiction of the Court.
(h) manifest wrong has been done and it is necessary to pass an order to do full and effective justice.

End-Notes
** 3rdYear student of National University of Study and Research in Law, Ranchi.
# C.K. TAKWANI, Civil Procedure with Limitation Act,1963 564 (Eastern Book Company,7th edition 2013
# Phulkumari v. S, AIR 1957 All 495.
# Nanak v. Estate Officer, AIR 1969 P&H 304.
# S. 113; Or.46 R. 1.
# H P Financial Corpn. v. Nahan & Co, AIR 1982 HP 49.
# Municipal Corporation of City v. Shivshanker Gaurishanker Mehta,(1998) 9 SCC 197.
# Ranadeb v. Land v. Land Acquisition Judge, AIR 1971 Cal 368.
# Birendra Kishor v. Secy. of State, AIR 1921 Cal 262.
# Central Bank of India v. Vrajlal Kapurchand Gandhi, AIR 2003 SC 3028.
# Mohammed Azharuddin v. A.C Muthaiah, AIR 2002 AP 409.
# M.S. Oberoi v. Union of India, AIR 1970 Punj 407.
# Garling v. Secy of state for India, ILR (1903) 30 Cal 458.
# C.K. TAKWANI, Civil Procedure with Limitation Act, 1963 564 (Eastern Book Company, 7th edition 2013).
# Ganga Pratap v. Allahabad Bank,AIR 1958 SC 293.
# Banarasi V Krishna,AIR 1942 P&H 49.
# Ganga Pratap v. Allahabad Bank,AIR 1958 SC 293.
# Ranadeb v Land Acquisition Judge, AIR 1971 AP 339.
# Ram Swarup v. Shikhar Chand, AIR 1961 All 221.
# Major S.S Khanna v. Brig F.J Dillon,AIR 1964 SC 497.
# Khanna v Dillion,AIR 1964 SC 497).
# Shankar v. Krishnaji,AIR 1970 SC 1;Abbasbhai v. Gulamnabi, AIR 1964 SC 134.
# Chandrika Prasad v. Umesh Kumar Verma,(2002) 1 SCC 531.
# C.K. TAKWANI, Civil Procedure with Limitation Act,1963 589 (Eastern Book Company,7th edition 2013).
# Keshardeo v. Radha Kissen, AIR 1953 SC 23.
# AIR 1966 SC 153.
# Rajah Amir Hassan v Sheo Baksh Singh,ILR (1185) 11 Cal 6 (PC).
# Hindustan Aeronautics v. Ajit,AIR 1973 SC 76.
# HMM Coaches Ltd.v. M/s. Jaycee Coach builders Ltd,(2001) 1 Punj LR 729.
# Major S.S Khanna v. Brig F.J Dillion,AIR 1964 SC 497.
# Vishesh Kumar v Shanti Prasad, (1980) 2 SCC 378.
# Black’s law Dictionary(1979) at p.1186.
# Maharaja Moheshur Sing v. Bengal Govt.(1857) 7 Moo IA 283.
# Lily Thomas v Union of India,(2000) 6 SCC 224.
# Delhi Admn. V. Gurdip singh Ubn, (2000) 7 SCC 296.
# Patel Narshi Thakershi v. Pradyuman Singhji,(1971) 3 SCC 844.
# Supra,Footnote 34.
# Section 114;Or. 47 R. 1.
# Attorney General of the Gambia v. N’Jie,1961 2 All ER 504.
# Bar Council of Maharashtra v. M.V Dabholkar,(1975) 2 SCC 702.
# Bharat Singh v. firm sheo Pershad giani Ram,AIR 1978 Del 122.
# Sow Chandra Kante v. Sk. Habib,(1975)1 SCC 674.
# A registered Society v. Union of India,(1999) 6 SCC 667.
# Ganeshi Lal v. Seth Mool Chand,AIR 1935 All 435.
# Ram Baksh v. Rajeshwari Kunmaw,AIR 1948 All 213.
# R.1(1) (a)
# Sitaramasastry v. Sunderamma,AIR 1966 AP 173.
# Gopabandhu Biswal v. Krishna Chandra, (1998) 4 SCC 447.
# Thungabhandra Industries Ltd. V. Govt. of A.P,AIR 1964 SC 1372.
# Supra,footnote 44.
# Kapoor Chand v.Ganesh Dutt,AIR 1993 SC 1145.
# C.K. TAKWANI, Civil Procedure with Limitation Act,1963 575 (Eastern Book Company,7th edition 2013
# S.O Krishna Aiyar v. S.V Narayanan, AIR 1951 Mad 660.
# Sardar Balbir singh v. Atma Ram,AIR 1977 All 445.
# Kessowji Issur v. Great Indian Oenisula Railway Co.,(1907) 34 IA 115.
# Brown v. Dean, 1910AC 374 HL.
# Appa Rao,In re,ILR (1886) 10 Mad 73 (PC).
# Hari Vishnu Kamath v. Ahmadd Ishaque, AIR 1955 SC 233.
# Karutha Kritya v. R. Ramalinga Raju,AIR 1960 AP 17.
# Thungabhadra Industries, AIR 1964 SC 1372.
# Ibid.
# Bank of Bihar v. Mahabir Lal, AIR 1964 SC 377.
# Moran Mar Basselios Catholicos v. Mar Poulose Athanasius,AIR 1954 SC 526.
# Rajkishore Das v. Nilamani Das, AIR 1968 Ori 40.
# Burma Shell Oil Storage Distributing Co.ofIndia Ltd. V. Labour Appellate tribunal,AIR 1955 Cal 92.
# Moran Mar Basselioos Catholicos v. Mar Paulose Atthanasius,AIR 1954 SC 526.
# O.N. Mohindroo v. District Judge,(1971) 3 SCC 5.

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