This article has been written by Pankhuri Anand, a student of Banasthali Vidyapith, Rajasthan, and Ritu Aggarwal, pursuing a Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho. This article discusses the concept and procedure for Reference, Review and Revision under Civil Proceedings and what all the provisions have been laid down under the Civil Procedure Code 1908 regarding reference, review and revision.
In order to understand concepts such as Reference, review and revision, as per Code of Civil Procedure, 1908 (CPC), a party, who is offended by the decision of the court, can reach out to higher court by way of appeal against the decision given by the trial court/lower court. In case of appeal, the entire judgement is scrutinized and heard again by the higher authority. However, in the case, where there is a prima facie error on technical or procedural ground, the parties are not required to file a fresh case and appeal. In such cases, CPC has the provision of reference review and revision under section 113, 114 and 115 of CPC respectively, which shall be discussed in detail in this article.
Every human being commits a mistake and judges are also human beings. So, the provisions of reference, review and revision are given under the Civil Procedure Code in order to maintain the fairness and accuracy of the justice system.
Section 113 of Civil Procedure Code deals with the provision of reference. Under the provision of Section 113, a lower or subordinate court can reach out to higher court for the doubt in order to avoid the misinterpretation of the law which is called reference. Parties through an application can move the reference to the High court. Lower Court can apply the provision of reference suo-moto in case of any doubt with respect to any legal provision. The lower court is not bound to refer to the High Court other than in case of validity of legal provision. It helps the lower court to avoid commission of error while pronouncing the judgement. The subordinate court can use its right to reference in the following situation:
- In case of any question arising in the court at the time of entertaining the suit with respect to the validity of any act, rules, order, ordinance etc.
- Where the court has the opinion or feels that any provision of the law is invalid or not in the power of court (“ultra-virus”).
- The High Court or Supreme Court must have not made such question on the provision of law invalid.
- The court feels that it is important to take the reference of high court for ascertaining the validity of the provisions mentioned in the law before disposal of any case.
There can be two types of doubts which need to be referred under this section.
- In case, the doubt has arisen with respect to any Act or law, it is mandatory for the lower court to take the reference or opinion from the High court.
- However, in case the doubt has come up during proceedings, it is not mandatory for the lower court to take the opinion of the High Court. The lower court can suo-moto refer to the High Court.
The object behind the provisions of Reference is to empower the subordinate court to obtain the opinion of the High Court in non-appealable cases when there is a question of law so that any commission of error could be avoided which couldn’t be remedied later on.
As held in the case of Diwali Bai v. Sadashivdas, the reference must be made before passing of the judgement of the case.
Conditions for seeking reference
Order 46 of CPC mentions the procedure of making a reference. In order to make a reference to High Court, subordinate court needs to satisfy the condition mentioned in Order 46 of Civil Procedure Code which has been produced as follows:
- The suit or appeal must be pending before the court while making a reference and no further appeal from the order of such suit or decree is lying before the court.
- The question of the validity of provision of law must have arisen during the pendency of the suit i.e. during proceeding of the suit in the court.
- When such doubt regarding the validity of the provision of law has arisen, the court must have been entertaining the suit.
While making the reference, the district court can put the case on stay, or it can pass a contingent order. The subordinate court, after taking into account the opinion of the high court where such reference has been made, may pass order or decree.
There are two classes of the question of law on which the subordinate court may entertain the doubt
- Questions related to the validity of any Act, Ordinance or Regulations.
- Any other questions.
Under the second condition, reference is optional but in the first condition i.e., a question related to any Act, Ordinance or Regulations, reference is obligatory. Reference is obligatory in such condition when the following conditions are fulfilled:
- In order to dispose of the case, the decision of such question is necessary.
- The subordinate court seeking reference is of the view that the Act, Ordinance or regulation is ultra vires.
- There is no determination that such Act is ultra vires either by the Supreme Court or the High Court to which the court is subordinate to.
A reference can be made by the judge only in the case when the judge who is dealing with that case has a reasonable doubt about it. When any matter is already decided by the High Court to which the court seeking reference is subordinate to then it is not considered as a reasonable question of doubt.
Who can apply for reference?
The court of civil judicature can refer the case to the High Court either on an application made by a party or suo moto. As held in the case of Ramakant Bindal v. State of U.P, no reference can be made by a tribunal.
Powers and duty of the referring court
A reference can be made in a suit, appeal or execution proceeding pending before the court only when there is a doubt of law. As held in the case of Banarasi Yadav v. Krishna Chandra it was held that the question of law about which the subordinate court is doubtful, must have actually been called upon in the case for adjudication and it shouldn’t be a hypothetical question.
Therefore, no reference can be made on a hypothetical question or a point that may or may not arise in future. But, if the situation arises it may be considered for reference.
Power and duty of the High Court
The High has consultative jurisdiction in this context. When reference is sought from the High Court and while dealing it the High Court is not bound to decide only the question of law in doubt. As held in the case of S.K. Roy v. Board of Revenue, the High Court can consider the new aspects of law also if any new aspect arises.
To answer the question for which reference is sought totally upon the discretion of the High Court as discussed under Order 46 of the Code. The High Court may answer the question and send the case back to the referring court to dispose of it in accordance with the law. It is also upon the discretion of the High Court to refuse to answer the question and it has even power to quash it.
Effects of Reference
In the case of L.S Sherlekar v. D.L. Agarwal, it was held that when the reference is sought from the High Court and the decree is confirmed if the High Court answers the question in favour of the plaintiff. If the answer of the High Court is against him, the suit is dismissed.
Rule 3 of Order 46 states the provision that after hearing the parties if the High Court desires, it shall decide the referred points and transmits a copy of its judgement to the subordinate court which shall dispose of the case in reference to said decisions.
Section 114 of Civil Procedure Code defines the provision of review. In case of review, the party who is not happy or aggrieved with the order of the court can file an application for review in the same court which has passed the decree. This provision has been made so as to facilitate the court to review their own decree or judgement and rectify the same in case any error has been made while passing the judgement.
It was held in case of Ram Baksh v. Rajeshwari Kunwar, AIR 1948 AII 213 that the option of review is still there even if the appeal has been dismissed on any ground.
Order 47 of the CPC defines the procedure to be followed in case of review. In the following situation, the application for review can be filed by the parties:
- The decree or judgement is appealable however, no appeal has been preferred under the law.
- In case of no provision for appeal has been mentioned in the law for certain decree or judgement.
- The Court of Small Causes has passed the decision.
The law defines certain grounds on which application for review can be filed:
- Where there are new discoveries of the facts, which were not in knowledge or could not produce at the time of passing of decree due to ignorance.
- In case, the error is found on the face of the record and does not require the argument of the entire case again. These errors are not related to wrong decisions made by the court.
- Any other case, in which case the delusion of the court can be considered as sufficient ground.
The Apex court in the case of S. Nagraj & Ors. V. State of Karnataka & Anr., 1993 Supp (4) SCC 595 held that any other sufficient ground has an expanded meaning. An order passed in case of misinterpretation of the true facts can be considered as sufficient ground.
Time limit: Article 124 of Limitation Act provided that once the decree or order is passed, parties shall file the application within 30 days from the date of passing such decree. The decree or order which is passed after review shall be final and binding to the parties. It is important to note that the entertaining the application filed by parties for review is at the discretion of the court. Court can either entertain or reject the application. In case, the court does not find any sufficient ground to entertain an application, it can reject the same.
As defined in the law, even the Supreme Court can review its judgement under Article 137 of the constitution of India.
Any human being can make a mistake or error and so do the judges. So, the procedure of Review has been embedded in the legal system to correct the mistakes and prevent any miscarriage of justice as held in the case of S.Nagraj v. State of Karnataka. The review application is not an appeal or revision made to the superior court, but it is a request to recall and reconsider the decision made before the same court.
Circumstances when a review petition is maintainable
A review petition is maintainable before the court under the following circumstances:
When no appeal lies in the case
According to section 114 of the code, when no appeal lies from an order or a decree then it can be reviewed by the Court. In the case of Ganeshi Lal v. Seth Mool Chand, it was held that taking into consideration sub-clause(c) of Section 114, the application of review against a decree passed by a Small Causes Court is eligible.
Even if an appeal is dismissed on the ground of being incompetent or time-barred, the party can go for review procedure as held in the case of Ram Baksh v. Rajeshwari Kunwar.
When appeal lies in a case but not preferred
When the provision of appeal is available but it is not preferred by the aggrieved party then also a review petition is maintainable. As held in the case of Sitaramasastry v. Sunderamma an application for review can be presented before the court only till no appeal is preferred against that order. The court cannot entertain an application for review when an appeal is already instituted before making an application for review.
Reference from Small Causes Court
The court may review the judgement on a reference made by the Small Causes Court.
Grounds of Review
There are certain grounds laid down under Rule 1 of Order 47 on which an application made for the review of a judgement is maintainable:
On the discovery of new and important matter or evidence
A court can review its judgement when some new and important matter or evidence is discovered by the applicant which couldn’t be produced or was not available at the time of passing the decree.
When the mistakes or errors are apparent on the face of the record
When there is an apparent error on the face of record then the court may review its judgement or decree. As decided in the case of Karutha Kritya v. R. Ramalinga Raju, the error includes an error of fact as well as an error of law.
Other sufficient reason
The last ground for review is any sufficient reason. Any sufficient ground considered for review by the court comes under this ground. It could be any reason which the court feels sufficient to review its judgement in order to avoid a miscarriage of justice.
In the case of Bank of Bihar v. Mahabir Lal, the Supreme Court laid down certain reasons which can be considered as a sufficient reason for review such as- when there has been any misapprehension of the true state of circumstances, or when the party has not been given fair chance to produce any statement or evidence, or no notice was sent to the party, or the court has failed to consider a material fact or evidence, or the court has omitted any statutory provisions.
The limitation period for Review
The limitation period for filing an application for review as given under Article 124 of the Limitation Act, 1963 is thirty days for a court other than the Supreme Court from the date of decree or order.
Is the power to review an inherent power?
It is a well-settled matter that the power to review is not an inherent power. It is required to be either expressly conferred by law or by necessary implications.
Inherent power to review of a Court of plenary jurisdiction
The Court of plenary jurisdiction such as a writ court, in order to prevent a miscarriage of justice and to correct grave errors, has been empowered to review its orders. On the leading case law regarding this context is Shivdeo Singh v. State of Punjab in which the same was discussed.
Being the final court of the country who is the last and final to decide on a matter, it has been empowered to review and to undo injustice. In exceptional circumstances, it can even exercise the power suo moto.
Who can make a review?
As discussed till now, a review is the reconsideration of the same matter by the same judge who has decided the matter. If the judge who decided is present in the court, then he alone has jurisdiction to review the matter decided by him. He is considered to be the best to reconsider the case as only he will be able to remember what arguments were done and what reason he used to decide that case.
However, if there is a situation that the same “judicial officer” cannot be available and any unavoidable reason might prevent the judge who decided the case to review it, then in such exceptional circumstances any judge or court of the concurrent jurisdiction can review it and give decision as held in the case of Reliance Industries Ltd. v. Pravinbhai.
If we go to the literal meaning, “to revise” stands for “to look again” or “to look repeatedly at” or “to go through a matter carefully and correct where necessary”. The High Court has been empowered with the revisional jurisdiction under section 115 of the Code of Civil Procedure,1908.
The object behind empowering the High Court with revisional jurisdiction is to prevent arbitrary illegal or irregular exercise of jurisdiction by the subordinate court. Under section 115 the High Court is empowered to keep an eye on the proceedings of subordinate courts that the proceedings are being conducted in accordance with the law, under its jurisdiction for which it is bound for and in furtherance of justice as held in the case of Major S.S Khanna v. Brig. F.J. Dillion.
But, the judges of the subordinate court have absolute jurisdiction to decide a case and even when they have wrongfully decided a case, they do not commit any “jurisdictional error”. With the power of revision, the High Court can correct the jurisdictional error when committed by the subordinate court. The provision of revision provides an opportunity to the aggrieved party to get their non-appealable orders rectified.
Section 115 of the Code of Civil Procedure Code lays down all the conditions when the High Court can exercise its revisional jurisdiction:
- The case must be decided.
- The revisional jurisdiction is exercised when no appeal lies in the case decided by the subordinate court.
- The subordinate court has decided such case by:
- Exercise of jurisdiction which is not vested to that court by law., or
- It has failed to exercise the vested jurisdiction, or
- Illegal exercise of the vested power or with immaterial irregularity.
The High Court is not entitled to vary or reverse the order or decision of the subordinate court unless such order is in favour of the party who has applied for revision. Also, the revisional jurisdiction is not to be exercised if in that matter appeal lies to the High Court.
So, by analysing section 115, we can observe that the revision is done mainly on jurisdictional errors by the subordinate Court.
Can the power of Revision be exercised if an alternative remedy is available?
The exercise of revisional jurisdiction is upon the discretion of the court and the parties cannot claim it as a right. In the leading case of Major. S.S. Khanna v. Brig. F.J. Dillion, it was held by the Supreme Court that the court has to take into consideration several factors before exercising the revisional jurisdiction. One of the that is considered is the availability of an alternative remedy. When an alternative and efficacious remedy is available to the aggrieved party, then the court may not exercise its revisional power under section 115 of the Code.
The limitation period for Revision
According to article 131 of the Limitation Act, 1963 for a revision of the decree or order, the limitation period is 90 days. The revision application is required to be made before the High Court within the limitation period.
Reference and Review
|1.||The case is referred to the High Court by the subordinate court and not by the party for reference.||For review, the application is made by the aggrieved party.|
|2.||The matter of reference can be decided by the High Courts only.||A review is done by the court which has passed the decree or made the order.|
|3.||Reference can be made only when the suit, appeal or execution proceeding is pending.||A review can be done only after the decree or order is passed.|
|4.||Grounds of reference is different than a review.||Grounds for review are different.|
Reference and Revision
|1.||For reference, a case is transferred by a subordinate court to the High Court.||For revision, the application is made to the High Court either by the aggrieved party of by High Court suo moto.|
|2.||The grounds for reference is when there is reasonable doubt on the question of law by the subordinate court.||The ground for revision is jurisdictional errors by the subordinate court.|
Review and Revision
|1.||Revisional jurisdiction can be exercised only by the High Court.||A review is done by the court who has passed the order or decree itself.|
|2.||Revisional power is exercised when no appeal lies to the High Court.||Review of an order or decree can be done even if an appeal lies to the High Court.|
|3.||The High Court can exercise the revisional power even suo moto(by its own motion).||For review, an application is required to be filed by the aggrieved party.|
|4.||The grounds for revision is mainly on jurisdiction errors.||The grounds for revision are different|
|5.||The order granting the review is appealable.||The order passed on exercising revisional jurisdiction is not appealable.|
Reference and Appeal
|1.||The power of reference is vested in the court.||The right to appeal is the right which has been conferred to the parties.|
|2.||Reference can always be made to the High Court.||An appeal can be made to any court which superior and it does not need to be only High Court.|
|3.||The grounds for reference are a substantial question of law and it is narrower.||The grounds of appeal are much wider than grounds for reference.|
|4.||Reference can be made only when the suit, order or execution is pending.||An appeal can be filed only after the decree is passed or appealable order has been made by the subordinate court.|
Review and Appeal
|1.||A review can be made only to the same court.||An appeal can be filed to any superior court.|
|2.||The review is a procedure of reconsideration of the same matter by the same judge of the same court.||An appeal is the procedure of consideration of the matter by the different judge of the superior court.|
|3.||Grounds of review are narrower than the grounds for appeal.||Grounds for appeal are wider than the grounds of review.|
|4.||There is no provision for the second review.||In an appeal, the provision for the second appeal lies when sufficient grounds are present.|
Revision and Appeal
|1.||An application for revision lies only to the High Court.||An appeal can be made to any court superior to the court passing the decree or order.|
|2.||A revisional application can be made to the High Court for any decision made by the subordinate court when no appeal lies for such decision.||An appeal lies only from the decree or order passed by the subordinate court.|
|3.||Revisional power of the High Court is totally discretionary.||The right to appeal has been provided by the statue as a substantive right.|
|4.||The grounds for revision is the jurisdictional error.||An appeal lies on the question of fact or question of law or, both.|
|5.||For revision, filing an application is not necessary. The high court may exercise the revisional power as suo moto.||For an appeal a memorandum of appeal to be filed by the aggrieved party before the superior court is a must.|
The provisions for reference, review and revision provided under the Code of Civil Procedure are different ways by which the court can work more efficiently for fairness of justice system even when there is no provision of appeal.
Whenever a matter is decided is the Court and the judge passes a decree or order then there might be circumstances where there has been any mistake or error, or a party is aggrieved by the order or decree or, there can also be circumstances where the subordinate court is doubtful on such question of law. And, a general rule once a judgement is pronounced it cannot be altered by the same court.
So the provision of review, reference and revision have been inserted under the legal system to avoid a miscarriage of justice.
Where the reference is sought by the subordinate court itself when there is a doubt on the question of law to the High Court, revisional power is exercised when there is a jurisdictional error by the subordinate court. The power of review is vested in the subordinate court itself which has passed the decree or order.
The process of Review, reference and revision are also very different from Appeal or Second appeal. The subordinate court can seek reference from the High Court on its own but for review or revision, an application is required to be filed. So, all three procedures have different grounds, conditions and procedures.
If you want to know more about the same with reference to CrPC, then Click Here.
- Sitaramasastry v. Sunderamma [(1996) AIR 173 AP]
- Diwali Bai v. Sadashivdas, [(1900) ILR 24 Bom 310]
- Reliance Industries Ltd. v. Pravinbhai, [(1997) 7 SCC 300]
- Takwani, C.K, Civil Procedure, Eighth Edition, 2017
- The Code of Civil Procedure, 1908
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