DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY,LUCKNOW
2019-2020

FINAL DRAFT

CIVIL PROCEDURE CODE

“Review and its Grounds under CPC”

Submitted by:- Submitted to:-

SHIVAM MAURYA Dr. Vipul Vinod
B.A.L.L.B. (Hons.) 4th semester Assistant Professor (Law)
Enrollment No. – 180101126

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ACKNOWLEDGEMENT

This assignment is made for my LL.B. HONS 4th semester

examination purpose. I would like to show my gratitude towards my
CIVIL PROCEDURE CODE subject Teacher. “Dr. Vipul Vinod” sir, who
had given me this opportunity to work on an Assignment and
helped me with all his knowledge to improvise it further, Firstly, I
would like to thank my parents who supported me with all my needs
which were beneficial for this assignment. Secondly, I would like to
thank my friends who helped me throughout the making of this
assignment. Thirdly, I would like to show my gratitude towards
everyone who was involved during the making of this assignment.
Lastly, I would like to thank THE ALMIGHTY GOD who blessed me to
complete this assignment.

THANK YOU.

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 TABLE OF CONTENTS

1. INTRODUCTION…………………………………………………………… 4

2. ORDER XLVII………………………………………………………………. 5

3. CONDITIONS FOR APPLICABILITY…………………………………… 5

4. WHO CAN FILE A “REVIEW”…………………………………………… 6

5. GROUNDS FOR REVIEW…………………………………………………..7

6. RESTRICTIONS……………………………………………………………. 9

7. CONCLUSIONS…………………………………………………………….. 9

8. REFERENCES……………………………………………………………… 10

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INTRODUCTION

“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 –

1. “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.
2. “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].

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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.”

ORDER XLVII

CONDITIONS FOR APPLICABILITY

An application for Review may be filed by any person, if such person perceive himself as
aggrieved by[v] –

1. “A decree or order which has been passed or made, by any civil court, And
2. from such decree or order, an appeal is allowed,
3. 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].

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 2. 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.

3. 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.

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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]:

1. “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

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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].

2. 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].

3. 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.

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RESTRICTIONS

The order under its Rule 9 excludes two following kinds of application, from the
consideration –

1. “An order made on the application for a review”e. grant or rejection of the
application, either case cannot be reviewed.
2. “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.

CONCLUSION

“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.

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REFRENCES

[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.

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[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.

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