Review Under CPC: Critical Analysis Of The Underlying Judicial Policy (By-VEDANT BHARGAVA & SAUMYATA TYAGI)
Review Under CPC: Critical
Analysis Of The Underlying Judicial Policy
Authored By-1. Vedant
Bhargava
2.
Saumyata Tyagi
The paper focuses on
the underlying judicial policy with respect to review under CPC. Review is an exception to the rule that once
the court has pronounced the judgment and signed, it has no jurisdiction to
alter it and it ceases to have control over it. The authors have analyzed as to
when does review lies or by whom can it be made. In this paper the authors have
also analyzed the grounds on which review lies.
Our judicial system is designed in such a way that any such error made
in the course of judgment can be rectified. There are 4 ways in which even
after a judgment is passed, the aggrieved party who feel that justice has
wrongly been given, can ask for an appeal against the decree, file an
application of review or reference or in some cases, a subordinate court can
make references to the High Court, which is why the authors have analyzed the
difference between Review, Revision, Reference and Appeal. The authors have
also analyzed the judicial precedents with respect to review and the judicial
opinion with respect to procedure of review.
KEYWORDS: REVIEW; REVISION;
REFERENCE; APPEAL.
Introduction
Review is an exception to the rule that once
the court has pronounced the judgment and signed, it has no jurisdiction to
alter it and it ceases to have control over it. The power of review in civil
cases is derived from section 114 of the Civil Procedure Code, while Order 47
of CPC provides for the procedure of Review. The general principle is that once
the court has decided on a particular case, the court becomes Functus officio,
which means that such a judgment is final and that it cannot be changed. Review
is a very reluctant step by the court, and it is called only when there is a
serious error or some omission in the judgement.[1] The power of Review is different from that of
appellate powers, in an appeal the power is given to the appellate court to
correct errors committed by the subordinate court.[2]
In Review the case is again decided by the same court. A review case is not equal to that of
original case and the case cannot be reopened or reconsidered or the decision
cannot be changed until the court is sure that they have committed a grave
error. To review a case which has already been decided is a waste of time if no
error is found. If the review application is not maintainable before the court,
then it cannot be described as an application for clarification or
modification.[3]
The right to review is a substantive as well as a procedural right. It is not
an inherent right and has to be expressly conferred by law. A procedural law
the court can correct any defect or misrepresentation or fraud of a party.[4]
Review means reconsideration of the judgement by the same court, in some
countries in place of review there is a writ of error. The philosophy behind this doctrine of review
is that due to an error committed by a human being, justice should not suffer.
Justice should prevail at any cost.[5]
Chapter
I: Review
Under Civil Procedure Code
The application for the review of the judgement
can be filed by the aggrieved party against whom the order or decree of court
has been passed. There is no definition of an aggrieved party and it is an
elusive concept.[6]
The term aggrieved party in the common use means the party against whom the
decree or an order has been passed. The aggrieved party can file an application
for review of the judgment if they feel that the judgment has been wrongfully
pronounced.[7] The term person aggrieved is not conclusive
and sometimes the term “party aggrieved” has been used. A person who not a
party to the judgment and he is not affected by the decree, he cannot apply for
review. The third party can only apply for review if it has been affected by
the order passed by the court.[8]
WHEN DOES REVIEW LIES?
- A decree or order is open to
review if no appeal is allowed. When an appeal is dismissed because it is
time-barred or it was incompetent, the party can file for review.[9]
- In case where appeal lies but is
not preferred, appeal is also available to the aggrieved party the review
petition is maintainable, the fact that if an order can be appealed in the
higher court is not a ground to reject an application for review. The
application for review can be filed if no appeal has been instituted,
however if the appeal has already been filed before the review
application, the court will not allow the review application. If the
higher court dismisses the appeal no review can be filed in the lower
court.[10]
However, in cases where the appeal is filed after the review the jurisdiction
of the court deciding the review will not be affected. If the court allows review before the
disposal of appeal, the decree will not be allowed, and appeal will not be
allowed. In case where appeal is decided on merits before the review
application, such petition will be dismissed.[11]
- The CPC allows review of the
judgement on a reference from the small causes court.[12]
Review is reconsideration of the same judgment
that has been passed by the same court and if possible, by the same judge, if
the same judge is available then he has the jurisdiction to decide the case
again and review it. The reason behind this is that the judge will remember the
arguments that were contended before him and what was not. Therefore, it is best
suited that he should review the decision because he is best suited to remove
any error made in his own judgment.[13]
However, in cases where it is not possible for the judge who gave the judgment
to review it then his successor or any other judge of same jurisdiction may
decide the case. [14]
The application of review should be a
memorandum of application; however, form of application is immaterial. What the
substance of application is more important.[15]
In the first stage the application commences
ex-parte by the aggrieved party, the court after looking into the application
may reject the application or accept it and call the other party to show why
review should not take place.[16]
In the second stage the application of review shall be heard again by the same
court and if the rule is discharged, then the application will be dismissed,
while if the rule is made absolute then the matter will be heard again. [17]
In the third stage the case will be decided on the merits, the court after
deciding the case may grant the original decree or vary it.[18]
Any order that will be made by the court which modifies the decree or reverses
it, then a new decree will be passed which will supersede the previous one.[19]
The application for review of a judgment should
be made within 30 days from the date of the decree or order other than that in
the supreme court.[20]
The provisions of Order 47 do not apply to the
writ petitions under Article 226 that are filed in the High Court, due to the
amendment in Section 141 of Civil Procedure Code. Nothing in Article 226 can prevent the High
Court from exercising the power of review. The High Court can review a judgment
and erase a possible error that might have occurred.[21]
However, there are certain defined limits to exercise the power of review. The
High Court has the power to review under Article 226 of the Constitution and
Order 47 does not apply to the power of review of the High Court. This power of review should be utilized by
the High Court if there is a miscarriage of justice.[22]
Article 137 of the
Constitution confers the power to the Supreme Court to review judgments subject
to any laws or rules made by the parliament under Article 145. The Civil
procedure code cannot curtail the power of Supreme Court.[23]
Application for review can be made following
grounds:
An application for review can be filed by the
applicant if there is a discovery of some new evidence which was not possible
to present at the time the decree was passed.[24]
It is a general rule that the decree passed will not be overturned until there
is a very strong reason to do so. So, when the ground of new evidence is the
reason for review of judgment utmost care is taken. The party who lost the case
will try their best to collect evidence on the weak points of the case by
trying to find evidence and change the case in the favor of the party that
lost.[25]
The party who has filed for review must show that there was proper care taken
while adducing evidence at the trial, and that the new evidence should be
conclusive in nature or of such a nature that it would change the decision of
the court. In the case where the evidence could have been produced at earlier
stage and reasonable care could have been taken the application for review will
be refused. [26]
Error apparent on the face of record is another
ground for review. Error should be determined by examining the case on the
facts. If the error is not self-evident and requires examination, then it will
not be termed as error apparent on the face of record. The error which need a
long process of consideration of all the law points then it will not be termed
as error apparent on the face of record.[27] Reasons like non-consideration of a statutory
provision or omission of a material issue or when the amendment in law took
place retrospectively these reasons will not be termed as error apparent on the
face of record. The Explanation to Order 47 Rule 1 states that if the question
of law on which the judgment is based and if it has been reversed in the
subsequent judgment will not be ground to review the judgment. [28]
The phrase “sufficient reason” isn’t defined
anywhere. But reasons like when the judgment has been passed under some
misapprehension of circumstances or when the party was not provided with the
opportunity to produce the evidence or when the court has failed to consider
some important issue or if the court has failed to consider any statutory
provision, these will be considered sufficient reasons while, reasons like or
absence of the party on the date of the hearing; or subsequent events; or
failure of a party or his pleader to raise a plea or the case was mismanaged by
his counsel or there was different view taken by the court in the subsequent
case, these will not be considered as sufficient reasons.[29]
These two procedures deal with bringing
fairness to the legal system. Reference has been mentioned under section 113
and Order 46 of the Civil Procedure Code whereas right to review is given under
section 114 and Order 47. Even though both the procedures are under the same
judicial system, both are very different from each other. Under both of them,
the main difference is that under reference, a subordinate court seeks
clarification from the High court when there is a question of validity of
judgment. Whereas in review, it is the aggrieved party which asks for
re-examination of the case.[30]
Every court case is different and it is not
possible to have a unified solution for all of them. That is why it is
important in some cases to get clarification from Higher Courts before passing
out any judgment on a particular case. It is primarily done to avoid errors and
in this, the High Court has the right to interpret the legislative provision.
But it is to see that not every case can go for reference to the High Court.
There are some requirements which have to be kept in mind. The case can be
referred only by a civil judicature or by an appeal of a party under ‘suo moto’
process. However, when you look at review, the process is done in the same
court where a judge itself re-evaluates new evidence and errors which happened
in the legal process. It allows re-correction of human error during the course
of judgment so that an innocent person doesn’t pay the price.[31]
The key differences which arises between
reference and review is that through reference, the subordinate court asks for
clarification from the High Court for any provision under law. Under review,
the party seeks justice in the same court which gave the judgment. Reference is
just a communication between the subordinate court and high court. Review
petition is done when there is a petition for re-examine if there is a newly
appeared evidence or error in the previous case. Ground for reference arises on
the question of validity of the provision of an act, ordinance or regulation.
Ground for review arises on discovery of new evidence or any other reason which
deems to be satisfactory. Lastly, the proceeding of reference can start even
when there is pendency of case. It has to be done before a judgment or decree
is passed. However, the process of review petition can only begin when the
judge had already passed a judgment or decree against the party who is
aggrieved.
Under the judicial system, the higher courts
have appellate jurisdiction under which the cases are re-examined. However, in
some cases where the appeal is not given to the parties, the Civil Procedure
Code has introduced the concept of review in these matters. In the case of Usha Ranee Banik vs Hardas[32],
it was seen that the concept of review shall arise only when there is a
mistake which is apparent on the record and not on any inaccurate call.
Appeal is given from section 96 to 112 of CPC
for civil cases. The actual term ‘appeal’ isn’t defined anywhere. It is termed
as the power of the higher authorities or higher court to re-examine the
judgment given by the lower authorities or lower court. It cannot be said as
inherent right but as statutory right. It is the re-hearing of the whole
case/dispute in the higher court.
The power of both appeal and review of the
court are in accordance to the circumstances of the case and are applied in the
court in different manner and different criterion. To rightly point out the
distinction between the two, review, in basic terms means to reconsider, to
look again into the matter which is done by the same judge in the same court.
An appeal petition requires an application to be filed to the Higher Court for
considering or looking into the decision given by the lower court. Where a
review is made merely to rectify any error which has been made in the interest
of the party, the appellate courts re-examine the questions of facts and law
and even look into the evidences presented in the case all over again. As
mentioned above, it is important for discovery of a new valid matter for the
case to go under review or there has to be error in judgment or any other
sufficient reason. On the other hand, the grounds of appeal are such that the
case should have already been decided in the subordinate court and not pending
in the high court. Any person, whose name has been entered into the suit and is
a party to the suit, has been adversely by the decree given in the suit can
file for an appeal petition in the higher court. Lastly, when any person is
bound by a decree which would operate res judicata against him. The review
petition can be filed by the aggrieved party when he does not have the right to
appeal.[33]
The term has not been per say ‘defined’ in the
Civil Procedure Code but has been mentioned under section 115 of the CPC. It is
the power of the court to revise the cases which has already been decided by
the subordinate courts. This jurisdiction which the high court have is known as
‘Revisional Jurisdiction’ of High Court. For a revisional jurisdiction to be
applied, the case has to be decided by the lower court and no appeal should
have been exercised. In the case of Major S.S Khanna vs Brig F.J Dillion[34], it
was held by the Supreme Court that if there is availability of any other
remedy, revisional jurisdiction shall not be exercised.
As mentioned before, both of these powers are
mentioned in different provisions of CPC. Where review is just re-examining the
case in the same court in front of the same judge, revision means that the
higher court shall revise the judgment of any case which has been decided by
the subordinate or lower court. It is done with the view of correcting a
judgment which the higher court deems fit. Revision mostly deals with any
illegality or irregularity which comes to the notice of the High court and
examine the records and proceeding which can be corrected by the High Court.
The provision dealing with both review and revision are mentioned under section
114 and section 115 of the CPC respectively. For the provision of revision to
be applied, the case necessarily has to be decided by the subordinate court and
no appeal for that case should be pending in the High court. It should also be
seen that subordinate or lower court, while deciding the case, 1) must have
exercised some jurisdiction which is not mentioned under law 2) have failed to
exercise the jurisdiction it has been vested with and 3) the lower court has
exercised its given jurisdiction in an illegal manner or with irregularity. The
similarity between the two is that if the right to appeal is not allowed to the
aggrieved party, he can either file a review application or a revision
application based on the circumstances of the case.
The Supreme Court in
the case of Lily Thomas vs Union of India[35]
laid down that the word ‘review’ is, “the act of looking, offer something again
with a view to improve.”[36] In the case of Patel
Narshi Thakeshi vs Pradyumansinghji Arjun Singhji[37]
it was stated that the power of review is not an inherent power which means
that it has to be conferred by law by specifically stating or necessarily
implied. Review cannot be said to be an appeal in disguise. Lily Thomas case
quoted that ‘law has to bend before justice’[38]
It stated that if the judgment on the case was made under mistake and that the
earlier judgment would not have been passed which would have prevented a
miscarriage of justice, the Court would not have to correct the error made in
the judgment.
The concept of review
petition is also accepted in English Courts. In the case of R vs IRC Ex
parte Preston[39] it was stated by Lord
Scarman that judicial review as a remedy shall not be made available if there
are other remedies present. It cannot be compared to an appeal. When appeal
procedures are already provided, the collateral process of judicial review
should be used rarely.
The High Court of
Madhya Pradesh in the case of Principal Commissioner of Customs vs M.S.S
Foods Processors[40] held that a review petition
can be made only when there is an error or mistake made on the face of record
or there is some other sufficient reason. This error must be apparent and
should be made out without conducting further detailed examination. Re-examining
a case without any apparent error is not permissible and can be challenged
under section 114 and order 47 Rule 1 of the CPC and article 226 of the
Constitution of India.
The Supreme Court in Asstt.
Commissioner of Income Tax vs Saurashtra Kutch Stock Exchange Ltd.[41] said that an error cannot
be said to be apparent or on the face of it if one has to look beyond records
to find whether the judgment passed was correct or not. It does not have to be
something which needs a long-drawn reasoning as to why there is an error,
rather something can be striked on one look.
Also, in the case of JSW Energy Limited vs Union of India[42] it was held by the Hon’ble
Delhi High Court that review does not itself concern with the judgment but the
process of making the decision/judgement. It is the review of the manner the
judgment was made and not what was made.
Lastly, in the case of Board
of Control for Cricket in India vs Netaji Cricket Club[43], it was held that Order 47
Rule 1 of CPC provides for filing of an application for review which shall be
maintainable not only on discovery of any new evidence or if there is an
apparent error on the face of record, but also if there is any other sufficient
reason or necessary on the account of same mistake. Thus, a mistake made by the
court would naturally be called for a review of the order. The term ‘sufficient
reason’ under Order 47 Rule 1 is wide enough to be interpreted in a
misconception of fact or law. The doctrine of review lies under the doctrine of
‘actus curiae neminem gravabit’ which means that the act of court shall
prejudice no one.
Conclusion
The
right of review judgment is an exception to the Latin term ‘functus officio’
which means that once a judgment is passed by the court, the case cannot be
reopened and the judgment is binding on both the parties. On the application
filed by an aggrieved person, the proceeding for review of judgment can be
initiated. The review petition, when a decree is passed by High court can be
made to that judge, or their successor. And when a decree is passed by any
court other than High Court, the review application shall be filed to the same
judge who gave the judgment regarding the case or their successor in office. To
conclude, the power of review is the power where a court review its own judgment
and ensures that justice is served.
- Constitution
of India 1950.
- Civil
Procedure Code, 1908
- Limitations
Act, 1963
- C.K
Takwani, Civil Procedure & Limitation, 8th Edition, 2019.
1.
Asstt.
Commissioner of Income Tax vs Saurashtra Kutch Stock Exchange Ltd, 2008 (230)
E.L.T 385 (SC).
2.
Board of Control for Cricket in India
vs Netaji Cricket Club,
(2005) 4 SCC 741.
3.
Common
Cause, A Registered Society v. Union of India, (1999) 6 SCC 667.
4.
Delhi
Admn. v. Gurdip Singh Uban, (2000) 7 SCC 296.
5.
Gujarat
University v. Sonal P. Shah, AIR 1982 Guj 58.
6.
Jasbhai
Motibhai v. Roshan Kumar, (1976) 1 SCC 671.
7.
JSW
Energy Limited vs Union of India, 2019 (17) G.S.T.L 198 (Bom.).
8.
Lily
Thomas v. Union of India, (2000) 6 SCC 224.
9.
Major.
S.S. Khanna v. Brig. F.J. Dillion,1964 AIR 497.
10.
Nundo
Lal v. Punchanon Mukherjee, AIR 1918 Cal 618.
11.
Patel
Narshi Thakeshi vs Pradyumansinghji Arjun Singhji, (1971) 3 SCC 844.
12.
Principal
Commissioner of Customs vs M.S.S Foods Processors, 2017 (7) G.S.T.L 394 (MP).
13.
R
vs IRC Ex parte Preston, (1985) 4C 835 = (1985) 2 A 11 ER 327 = (1985) STC 282
14.
Raja
Shatrunji v. Mohd. Azmat, (1971) 2 SCC 200.
15.
Ram
Baksh v. Rajeshwari Kunwar, AIR 1948 All 213.
16.
Reliance
Industries Ltd. v. Pravinbhai, (1997) 7 SCC 300.
17.
Shevdeo
Singh v. State of Punjab, AIR 1963 SC 1909.
18.
Sushil
Kumar v. State of Bihar, (1975) 1 SCC 774.
19.
Thungabhadra
Industries Ltd. v. Govt. of A.P, AIR 1964 SC 1372.
20.
Usha
Ranee Banik vs Hardas, AIR 2005 Gau 1.