In this article, Lubhanshi Rai discusses Review and its Grounds under CPC.
“Review”, in a very general understanding of a layman, as described by the oxford dictionary, states – “A formal assessment of something with the intention to institute a change if necessary”. The concept under the law actually goes in consonance with the stated description, having in addition the conditions for applicability, specific grounds along with other general rules.
Order XLVII in the Code of Civil Procedure, 1908 (CPC) together with Section 114 of the Act, provides the procedure for Review. Section 114 merely produces the conditions necessary for the filing the application for Review to the ‘court’ by which decree or order, sought to be reviewed under the application, was passed or made. While Order XLVII along with the same conditions as enumerated in the section, lays down grounds for Review and other procedural rules governing the same.
In order to understand the legal procedure, Two Primary Aspects of the concept need to be borne in the mind, which are as follows –
- “Same Court” – Rule 1 of the Order specifically provide that application for Review of the decree or order has to be made to the very same court which passed such decree or made such order.
- “Court” – The term has not been defined in the CPC, but impliedly interpreted as “Any Court having the jurisdiction to try the suits of a civil nature”[i], now such civil jurisdiction may be such as conferred upon the courts by the CPC itself, or upon the Tribunals by the special statues, or upon the Supreme Court and High Courts under their civil appellate jurisdiction[ii], by the Constitution of India.
Review Jurisdiction for the Supreme Court – The Apex Court, therefore also falls within the meaning of the term “Court” while hearing any suit of a civil nature. It however has been separately empowered with the review jurisdiction under Article 137 of the Constitution, but for the cases other than that of civil and criminal, since for such cases, it is being governed by the CPC and Criminal Procedure Code only[iii].
Review Jurisdiction for the High Courts – Apart from the power conferred upon it as a “Civil Court” under the CPC, it has been held by the Apex Court in the case of Shivdeo Singh v. State of Punjab[iv] :
“It is sufficient to say that there is nothing in Article 226 of the Constitution to preclude a 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.”
CONDITIONS FOR APPLICABILITY
An application for Review may be filed by any person, if such person perceive himself as aggrieved by[v] –
- “A decree or order which has been passed or made, by any civil court, And
- from such decree or order, an appeal is allowed,
- But no appeal has been filed yet, at the time of filing of the Review application”,
However once, the review application is filed thereafter, there is no legal bar on filing of an appeal from such decree or order. If appeal is so preferred and decided by the speaking order i.e. on merits, before the Review application, then the Review application cannot be continued with[vi]. And vice versa i.e. where review application is heard and decided before the appeal then appeal becomes liable to be dismissed. So, where both are pending, whichever is decided first, will be said to have superseded the original decree or order, operationally therefore, such original decree or order no longer stands and hence the other pending proceeding will be estopped.
Although, if appeal or even Special Leave Petition (SLP) is preferred, whether before the institution of Review or after it, but is not heard and gets dismissed for the reason being legally incompetent or due to the “application of Law of Limitation”[vii], such dismissal does not create any legal obstruction for the filing of Review or proceeding thereof, if the decision is otherwise competent to get reviewed on the grounds provided in the Order[viii].
- Or, “a decree or order has been passed or made, by any civil court And,
from such decree or order, no appeal is allowed”,
This point of application provides the opportunity to an aggrieved person, in presence of a legal prohibition on filing of an appeal, to get his case reheard on any of the grounds as set out in the Order.
Since this condition being Non-Appelable, is one which is condition precedent for the Revision as well[ix], and so the confusion may arise for a layman if he is aggrieved by a decree or order, that which of the recourse available, should be opted. To consider the issue, it has to be understood that Review is wider in scope than Revision, since Revision can be done only on the grounds of jurisdictional or procedural error by the High Court, while, as already discussed that Review can be done only by the same court and grounds for Review, as explained below in this article, are much wider than merely jurisdictional or procedural error.
In fact, it may technically be said that, if a decree or order, is eligible to get revised under the “Revision” then it is mechanically eligible to get reviewed under the “Review” as well, provided such decree or order is Non-Appeable, but so is not the other way round, due to the very specific scope of Revision.
- Or, “a decision on a reference from a court of a small cause”.
Where, reference has been made by a court of a small cause, to the High Court under Order XLVI, the decision of the High Court, on such reference is binding, but person aggrieved by such decision may apply for review of such decision.
WHO CAN FILE A “REVIEW”
“Any person who consider himself aggrieved” is what the rule provides, and it being legally clear in terms, on the face, gives the interpretation that person filing a review need not necessarily be a party to the suit, rather may be one who simply derives a legitimate interest in the suit or according to him, such interest has been adversely affected by the decision of such suit. And therefore any such person would have locus standi to file a review.
Supreme Court in the case of Union of India v. Nareshkumar Badrikumar Jagad & ors.[x], held:
“Even a third party to the proceedings, if he considers himself an aggrieved person, may take recourse to the remedy of review petition. The quintessence is that the person should be aggrieved by the judgment and order passed by this Court in some respect”.
GROUNDS FOR REVIEW:
Review can be filed, if there is[xi]:
- “Discovery of New and Important matter or evidence, which, after the exercise of due diligence was not within the knowledge of the person seeking review or could not be produced by him at any time when the decree was passed or order made”,
Discovery of any new matter or evidence necessarily has to be an important or relevant as such to the extent that had it been brought on record at any time when the decree was passed or order made, it would have an impact and might have altered the decision[xii]. Moreover, absence of such important matter or evidence on record at the time of decision, must not be the result of negligent attitude of the concerned person and therefore such person applying for Review is required by law to strictly prove that such matter or evidence was not within his knowledge or could not be adduced, even after exercising due diligence and unless such proof is given, application shall not be granted[xiii].
Court may take subsequent events into consideration while reviewing a decision[xiv], however the fact that the question of law on which decision, sought be reviewed, is based has been reversed or modified subsequently by the higher authority in any other case, would not make it a new and important matter, to review the decision[xv].
Illustration – “A sued B for a sum of money alleged to be due under an agreement and obtained the decree for the same, against which B, subsequently filed an appeal in the Privy Council, and while the appeal was pending, A obtained another decree against B on the strength of the former decree, for another sum of money alleged by him to have become due under the same agreement and later Privy Council reversed the former decree in the appeal, on the basis of which B applied to the court which had passed the second decree, for the Review on the ground of the decision of Privy Council and so was accepted and held by the court to be a new and important matter”[xvi].
- Or, “some mistake or error apparent on the face of the record”,
The mistake or error should be such, which is very obvious and visible itself on the face of it, and therefore any error found out from the judgment after a long reasoning and law based analysis, cannot be said to be one apparent on the face of record, as a ground for review. However, such mistake or error can be of fact and as well as of law.
Illustrations – “Non-consideration of the very obvious application of particular law, such as law of limitation or particular provision to the facts of the case, setting aside of the ex parte decree without being satisfied of the any of the conditions laid down in Order 9 Rule 13, application of religious law which has not been legally recognized, wrong interpretation of a settled legal issue, where a commission was issued to examine a witness in a country where no reciprocal arrangement exists, have been held to be an error apparent on the face of record”[xvii].
- Or, “any other sufficient reason”.
Before 1922, the application of the term “Sufficient reason” was unrestricted and unregulated, finally in that year a principle came to be laid down by the Privy Council in the case of Chhajju Ram V. Neki[xviii], which can be summarized as that “the third ground mentioned, is no doubt giving wide scope to the grounds for review, but at the same time that “sufficient reason” has to be at least analogous (ejusdem generis) to either of the other two grounds and the mere reason that decree was passed or order made on erroneous ground that court failed to appreciate the important matter or evidence, would not make any good ground for review, and therefore in such cases, the appeal and not review, is the remedy to get such erroneous decree or order corrected”[xix].
Illustrations – Failure to adhere to legal provision which required the court to act in a particular manner would fall within the meaning of “Sufficient Reason” as analogous to the “Error Apparent on the Face of the Record”[xx]. Order of the dismissal of a suit due to default of the plaintiff, cannot be reviewed on the ground of misapprehension of the counsel as sufficient reason, but if order was on its face illegal then such order may be reviewed on the ground as error of the law apparent on the face of the record.
The order under its Rule 9 excludes two following kinds of application, from the consideration –
- “An order made on the application for a review”e. grant or rejection of the application, either case cannot be reviewed.
- “Decree passed or order made on review”e. where application is granted, case is re-heard and the decree or order which is passed or made on merits of the case, superseding the original one, cannot be further sought to be reviewed for the second time.
“Where it appears to the court that no prescribed ground exists for the review then such application shall be rejected”[xxi]. “And if it does, in the opinion of the court then same shall be granted, but only after the service of notice upon the opposite party enabling thereby him to appear and present his case in favor of the decree or order, sought to be reviewed”[xxii].
The order of rejection of application for review cannot be appealed, notwithstanding this general rule, if so was rejected due to non-appearance of applicant, the application can be restored by the court after being satisfied with the cause which prevented the applicant from appearing, to be genuine and sufficient. “The grant of the application may be opposed once by the way of appeal”[xxiii], however as mentioned above such grant cannot be reviewed.
After analyzing these general rules to the concept of Review and its nature, it can be concluded that power to review a decision is very specifically a creation of the law and therefore can in no terms be considered something as intrinsic on the jurisdiction of the court[xxiv]. Hence it is implied duty of the court to exercise this power with the great caution, only after being satisfied as to existence of any of the grounds mentioned[xxv] and should not use it as inherent power or as to entertain any such application for which only remedy available under the law is an appeal.
[i] Section 9, The Code of Civil Procedure, 1908, No. 5, Act of Parliament.
[ii] INDIA CONST. article 132, 133 and 225.
[iii] Order XLVII, Rule 1, Part IV, Supreme Court Rules 2013.
[iv] AIR 1963 SC 1909.
[v] Order XLVII, Rule 1, The Code of Civil Procedure 1908.
[vi] Hari Singh V. S Seth AIR 1996 Del 2.
[vii] Thungabhadra Industries ltd. V. Government of Andhra Pradesh 1964 S.C. 1372.
[viii] Indian Oil Corpn. Ltd. v. State of Bihar, (1986) 4 SCC 146 and Kunhayammed v. State of Kerala, (2000) 6 SCC 359.
[ix] Section 115, The Code of Civil Procedure 1908.
[x]Review Petition (C) D. No. 40966 of 2013 in Civil Appeal No.7448 of 2011.
[xi] Order XLVII, Rule 1, The Code of Civil Procedure 1908.
[xii] SIR DINSHAH FARDUNJI MULLA, THE CODE OF CIVIL PROCEDURE 1908, 1900 (15th ed. 2012).
[xiii] Order XLVII, Rule 4(2)(b), The Code of Civil Procedure 1908.
[xiv] Board of Control of cricket in India V. NetajI Cricket club, AIR 2005 SC 592.
[xv] Explanation, Rule 1, Order XLVII, The Code of Civil Procedure 1908.
[xvi] 3 SIR DINSHAH FARDUNJI MULLA, THE CODE OF CIVIL PROCEDURE, 1908, 2334 (14th ed, 1989).
[xvii] 3 SIR DINSHAH FARDUNJI MULLA, THE CODE OF CIVIL PROCEDURE, 1908, 2335-2336 (14th ed, 1989).
[xviii] (1922) 49 I.A. 144.
[xix] Aribam Tuleshwar Sharma vs Aribam Pishak Sharma And Ors. (1979) 4 SCC 389.
[xx] Hari Shankar V. Anant Nath, 1949 F.C.R 36.
[xxi] Order XLVII Rule 3, The Code of Civil Procedure 1908.
[xxii] Order XLVII, Rule 4, The Code of Civil Procedure 1908.
[xxiii] Order XLVII, Rule 7, The Code of Civil Procedure 1908.
[xxiv] SIR DINSHAH FARDUNJI MULLA, THE CODE OF CIVIL PROCEDURE, 1908, 1898 (15th ed. 2012).
[xxv] Kamlesh Verma v. Mayawati & Ors. (2013) 8 SCC 320.