Reference, Review and Revision: An Insider Zinger to Unlock CPC

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Introduction

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.

Synopsis

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.

Reference

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:

1. 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.
2. 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”).
3. The High Court or Supreme Court must have not made such question on the
provision of law invalid. 
4. 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.
 1. 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.
2. 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.

Object

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:

1. 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.
2. 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.
3. 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

1. Questions related to the validity of any Act, Ordinance or Regulations.

2. 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:

1. In order to dispose of the case, the decision of such question is necessary.

2. The subordinate court seeking reference is of the view that the Act,
Ordinance or regulation is ultra vires.
3. 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.

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Review

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:

1. The decree or judgement is appealable however, no appeal has been

preferred under the law.
2. In case of no provision for appeal has been mentioned in the law for certain
decree or judgement.
3. The Court of Small Causes has passed the decision.

The law defines certain grounds on which application for review can be filed:

1. 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.
2. 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. 
3. 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.

Object

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.

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Revision

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.
Object

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.

Conditions

Section 115 of the Code of Civil Procedure Code lays down all the conditions when
the High Court can exercise its revisional jurisdiction:

1. The case must be decided.

2. The revisional jurisdiction is exercised when no appeal lies in the case
decided by the subordinate court.
3. The subordinate court has decided such case by:

1. Exercise of jurisdiction which is not vested to that court by law., or

2. It has failed to exercise the vested jurisdiction, or
3. 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.

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Distinctions

Reference and Review

S.No
Reference Review
.
The case is referred to the High Court by the
For review, the application is made by
1. subordinate court and not by the party for
the aggrieved party.
reference.
A review is done by the court which
The matter of reference can be decided by the
2. has passed the decree or made the
High Courts only.
order.
Reference can be made only when the suit, A review can be done only after the
3.
appeal or execution proceeding is pending. decree or order is passed.
Grounds of reference is different than a
4. Grounds for review are different.
review.

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

S.No
Revision Review
.
Revisional jurisdiction can be exercised A review is done by the court who has
1.
only by the High Court. passed the order or decree itself.
2. Revisional power is exercised when no Review of an order or decree can be done
 appeal lies to the High Court. even if an appeal lies to the High Court.
The High Court can exercise the revisional For review, an application is required to
3.
power even suo moto(by its own motion). be filed by the aggrieved party.
The grounds for revision is mainly on
4. The grounds for revision are different
jurisdiction errors.
The order granting the review is The order passed on exercising revisional
5.
appealable. jurisdiction is not appealable.

Reference and Appeal

S.N
Reference Appeal
O
The power of reference is vested in The right to appeal is the right which has been
1.
the court. conferred to the parties.
An appeal can be made to any court which
Reference can always be made to
2. superior and it does not need to be only High
the High Court.
Court.
The grounds for reference are a
The grounds of appeal are much wider than
3. substantial question of law and it is
grounds for reference.
narrower.
Reference can be made only when An appeal can be filed only after the decree is
4. the suit, order or execution is passed or appealable order has been made by the
pending. subordinate court.

Review and Appeal

S.No
Review Appeal
.
A review can be made only to the same An appeal can be filed to any superior
1. 
court. court.
The review is a procedure of An appeal is the procedure of
2. reconsideration of the same matter by the consideration of the matter by the
same judge of the same court. different judge of the superior court.
Grounds of review are narrower than the Grounds for appeal are wider than the
3.
grounds for appeal. grounds of review.
In an appeal, the provision for the second
There is no provision for the second
4. appeal lies when sufficient grounds are
review.
present.
Revision and Appeal

S.No
Revision Appeal
.
An appeal can be made to any court
An application for revision lies only to the
1. superior to the court passing the
High Court.
decree or order.
A revisional application can be made to the
An appeal lies only from the decree or
High Court for any decision made by the
2. order passed by the subordinate
subordinate court when no appeal lies for
court.
such decision.
Revisional power of the High Court is totally The right to appeal has been provided
3.
discretionary. by the statue as a substantive right.
The grounds for revision is the jurisdictional An appeal lies on the question of fact
4.
error. or question of law or, both.
For an appeal a memorandum of
For revision, filing an application is not
appeal to be filed by the aggrieved
5. necessary. The high court may exercise the
party before the superior court is a
revisional power as suo moto.
must.