Meaning and Purpose

In the hierarchy of Courts, it is essential that subordinate Courts correctly apply the law as interpreted by the superior Courts. Sometimes, a subordinate Court might face a situation where a question of law arises that is complex, doubtful, or concerns the validity of a legislative enactment, and there is no clear or binding precedent from the High Court to which it is subordinate or the Supreme Court. In such circumstances, the Code of Civil Procedure provides a mechanism called 'Reference'.

Reference is the procedure where a subordinate Court seeks the opinion of the High Court on a question of law before deciding the case in which such question arises. This mechanism is provided under Section 113 of the CPC and the detailed procedure is laid down in Order XLVI of the CPC.

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Purpose of Reference

The main purpose of providing the power of reference is:

• To enable subordinate Courts to obtain the opinion of the High Court in difficult and doubtful questions of law.
• To prevent subordinate Courts from committing errors in cases where there is no binding precedent from the High Court or the Supreme Court.
• To ensure the correct and uniform application of law throughout the state by getting an authoritative opinion from the High Court.
• To avoid conflicting decisions by different subordinate Courts on the same question of law.
• To provide a quick and inexpensive way to resolve crucial legal doubts, without requiring the parties to go through the entire trial and then appeal stages on that specific legal point.

It is important to note that Reference is not a right of the parties; it is a power vested in the subordinate Court, to be exercised by the Court suo motu (on its own motion) or on the application of any party, when the specific conditions are met.

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Court referring doubtful questions of law

Only a subordinate Court can make a reference to the High Court. The term 'subordinate Court' here refers to a Civil Court subordinate to the High Court. This generally includes District Courts, Senior Civil Judge Courts, and Civil Judge (Junior Division) Courts, depending on the state's judicial hierarchy.

The question that is referred must be a question of law. A question of fact or a mixed question of fact and law cannot be referred to the High Court under this provision. The question of law must also be doubtful or involve the validity of a legislative provision, and its determination must be deemed necessary for the disposal of the case by the subordinate Court.

Conditions for Reference

Section 113 of the CPC read with Order XLVI, Rule 1 lays down the specific conditions that must be satisfied for a subordinate Court to make a reference to the High Court. These conditions are conjunctive, meaning all of them must be fulfilled.

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Mandatory Conditions for Reference:

The subordinate Court may refer a case to the High Court for opinion when the following conditions are met:

(a) The suit, appeal, or execution proceeding is pending before the subordinate Court.

(b) A question of law arises in the course of such suit, appeal, or proceeding.

(c) The question of law must relate to the validity of any Act, Ordinance, or Regulation (or of any provision contained in an Act, Ordinance, or Regulation) made by the Central, Provincial, or State Legislature.

(d) The subordinate Court must be of the opinion that such Act, Ordinance, Regulation, or provision is invalid or ultra vires (beyond the powers of the legislature that made it).

(e) Such invalidity or ultra vires nature has not been declared by the High Court to which the Court is subordinate or by the Supreme Court.

(f) The subordinate Court must consider the determination of such question of law regarding validity to be necessary for the disposal of the case before it.

Explanation of Conditions:

• Pending Case: The case must be actively before the Court. A case already decided or one not yet instituted cannot be referred.
• Question of Law: Only a question of law can be referred. The subordinate court cannot refer a question of fact or a question involving discretion.
• Validity of Act, etc.: The core of the reference under Section 113 concerns the constitutional validity or vires of a legislative enactment or its specific part.
• Opinion of Invalidity: The subordinate Court itself must form an opinion that the law in question is invalid. If the Court thinks the law is valid, it cannot make a reference on that ground, even if one of the parties argues for its invalidity.
• No Prior Declaration by Superior Courts: If the High Court to which the subordinate court is subordinate, or the Supreme Court, has already declared the law in question to be invalid, then there is no doubt, and a reference is unnecessary and cannot be made. The subordinate court is bound by such superior court decisions.
• Necessity for Disposal: The determination of the validity of the law must be essential for the subordinate court to pass a final order or decree in the pending case. If the case can be decided on other grounds without touching upon the validity of the Act, a reference is not necessary or proper.

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Discretionary Reference (Order XLVI, Rule 1 - other questions)

Order XLVI, Rule 1 also provides for a discretionary reference by a subordinate court to the High Court on *any other question of law* (not necessarily relating to the validity of an Act) provided:

• A question of law arises in the suit, appeal, or execution proceeding.
• The subordinate court has a reasonable doubt about the question.
• The subordinate court considers the determination of the question necessary for the disposal of the case.

This discretionary power for general questions of law is less frequently used in practice compared to references on the validity of Acts, which are covered by the mandatory conditions in Section 113.

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Procedure After Reference (Order XLVI, Rules 3-7):

Once a reference is made, the subordinate Court stays the proceedings and forwards the case record or a statement of the case containing the question of law to the High Court. The High Court hears the matter and provides its opinion on the question of law. The High Court may also decide the case itself or return it to the subordinate Court with its opinion. The subordinate Court is then bound to decide the case in conformity with the opinion of the High Court on the point of law referred.

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Meaning and Purpose

The general rule is that once a Court has pronounced a judgment and signed a decree, it becomes functus officio, meaning it loses the power to alter or modify its own decision. However, there are certain exceptions to this rule provided by law, such as appeal, revision, reference, and review. Review is one such exception.

Review is a judicial re-examination of the case by the same Court that passed the judgment or order. It is the power of the Court to correct its own errors. The power of review is conferred by Section 114 of the Code of Civil Procedure, 1908 (CPC), and the detailed procedure and grounds for review are provided in Order XLVII of the CPC.

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Reconsideration of a judgment by the same court

Unlike an appeal where a higher court reviews the decision of a lower court, in a review application, the very same judge(s) who passed the judgment or made the order are invited to reconsider their own decision. The underlying principle is to correct an error that is apparent on the face of the record or to take into account new and important matter that was previously unavailable, thereby preventing a miscarriage of justice.

The power of review is not an inherent power of the Court; it is a creature of statute and must be specifically conferred by law. Section 114 grants this power to a Court that considers itself aggrieved by a decree or order from which an appeal is allowed but has not been preferred, or from which no appeal is allowed, or by a decision on a reference from a Small Cause Court.

The purpose is not to allow a re-hearing of the case on merits or to provide an opportunity to the dissatisfied party to argue points that were already considered and rejected. It is a limited power meant for correcting specific types of errors or addressing situations where crucial new information has come to light.

Grounds for Review

Order XLVII, Rule 1 specifies the grounds upon which an application for review may be made. An application for review of a decree or order may be filed by any person considering himself aggrieved on any of the following three grounds:

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Discovery of new and important matter or evidence

This is the first ground for seeking a review. It applies when the applicant has discovered new and important matter or evidence which:

• After the exercise of due diligence, was not within their knowledge or could not be produced by them at the time when the decree was passed or order made.

The "new matter or evidence" must be:

• New: It must have been discovered *after* the judgment or order was passed.
• Important: It must be relevant and of such a nature that if it had been available at the trial, it would likely have influenced the decision of the Court. It must be material to the issue.
• Could not be produced despite due diligence: The party seeking review must show that they exercised reasonable care and effort to obtain this evidence during the trial, but were unable to discover it or produce it. Mere negligence is not an excuse.

The discovery of new evidence must be genuine and not merely a rehash of old arguments or previously known facts. The Court will scrutinise whether due diligence was indeed exercised.

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Mistake or error apparent on the face of the record

This is the second major ground for review. It refers to an error that is clear, evident, and obvious from merely looking at the record of the case, without needing to go into a lengthy argument or process of reasoning. An error apparent on the face of the record is one that stares in the face, is a manifest error, a self-evident error. It must not require a process of elaborate reasoning or re-appreciation of evidence to discover.

Examples of mistakes or errors apparent on the face of the record include:

• An obvious arithmetical error in calculating amounts.
• Ignoring a mandatory provision of law or a binding precedent of a higher court that was brought to the court's notice but overlooked.
• Misconstruing the clear words of a document or statute in an obvious manner.
• A clear inconsistency between the judgment and the record.

It does not include:

• An error that requires re-hearing the arguments on merits.
• Re-appreciation of evidence or finding fault with findings of fact based on evidence.
• A decision that is merely arguable or capable of having two possible interpretations.
• An error that could have been challenged in an appeal.

The power of review on this ground is to correct a patent error, not to reconsider a debatable point or provide a platform for appeal in disguise.

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Any other sufficient reason

This is the third and somewhat broader ground. It refers to "any other sufficient reason" which is analogous to the first two grounds. The Supreme Court has interpreted this phrase to mean a reason that is ejusdem generis (of the same kind) as the preceding two grounds. It is not an open invitation to seek review for just any reason.

"Any other sufficient reason" typically covers situations like:

• A case where the judgment is passed without hearing a party (e.g., due to a failure of notice which was not the party's fault).
• An error caused by the Court's own inadvertence or oversight in not considering relevant material or statutory provisions, provided it amounts to an error apparent on the face of the record.
• A change in law or a subsequent binding decision of a higher court that renders the previous judgment incorrect, provided the review application is filed within the prescribed limitation period.

This ground cannot be used to re-litigate issues or to seek a fresh hearing simply because the party is dissatisfied with the outcome.

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Procedure for Review

Order XLVII of the CPC details the procedure for filing and hearing an application for review.

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Who can apply for Review? (Order XLVII, Rule 1)

Any person considering himself aggrieved by a decree or order on any of the grounds mentioned above may apply for review.

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To which Court? (Section 114, Order XLVII, Rule 1)

The application for review must be made to the same Court which passed the decree or made the order. If the Judge or Judges who passed the decree or made the order have retired or are no longer available in that Court, the succeeding Judge or Judges can hear the review application.

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Form of Application (Order XLVII, Rule 2, 3)

The application must be in the form of a memorandum signed by the applicant or their pleader and must state the grounds upon which review is sought. It should be filed within the prescribed period of limitation.

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Limitation (Article 124, Limitation Act, 1963)

The period of limitation for filing an application for review is thirty days from the date of the decree or order. This is prescribed under Article 124 of the Limitation Act, 1963.

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Initial Hearing (Order XLVII, Rule 4)

When an application for review is presented, the Court may either reject it summarily or grant it. Rule 4 states that where it appears to the Court that there is not sufficient ground for a review, it shall reject the application. Where the Court is of the opinion that the application for review should be granted on the grounds specified in Rule 1, it shall grant the review.

Crucially, before granting a review application, the Court must give notice to the opposite party to enable them to appear and be heard. No application for review shall be granted without previous notice to the opposite party to enable him to appear and be heard.

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Effect of Granting Review (Order XLVII, Rule 8)

When an application for review is granted, the Court shall make an order for the re-hearing of the suit, appeal or other proceeding in respect of which the decree or order was made. Upon such re-hearing, the original decree or order is set aside, and the case is heard afresh, limited to the grounds for which the review was granted (and sometimes the entire case if the original order is wholly set aside).

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Consequences of Rejecting or Granting Review

• Order Rejecting Review: An order of the Court rejecting an application for review is generally not appealable (Order XLIII, Rule 1(w) provides for appeal against an order granting an application for review, not rejecting it). However, the original decree remains appealable if it was otherwise so.
• Order Granting Review: An order granting an application for review is an appealable order (Order XLIII, Rule 1(w)). If the order granting review is set aside in appeal, the original decree is restored. If the order granting review is upheld or not appealed, the case is re-heard, and a new decree is passed. The new decree passed after the review is the final decree and is appealable.

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Meaning and Purpose

Revision is a power conferred upon the High Court under Section 115 of the Code of Civil Procedure, 1908 (CPC). It allows the High Court to call for the record of any case which has been decided by any Court subordinate to it, and in which no appeal lies thereto, and if such subordinate Court appears to have:

• Exercised a jurisdiction not vested in it by law, or
• Failed to exercise a jurisdiction so vested, or
• Acted in the exercise of its jurisdiction illegally or with material irregularity.

This power is essentially a supervisory jurisdiction intended to correct jurisdictional errors or grave illegalities committed by subordinate Courts, ensuring that they act within the bounds of their authority and according to law.

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Purpose of Revision

The purpose of the revisional jurisdiction is not to enable the High Court to act as an appellate court. It is not a third avenue of appeal. The primary objective is to check against arbitrary, illegal, or irregular exercise of jurisdiction by subordinate Courts. It serves as a mechanism to prevent miscarriage of justice in cases where no appeal is available.

The power of revision is discretionary and is exercised sparingly. It is invoked to correct errors of jurisdiction, not merely errors of law or fact, however grave, unless those errors of law result in a jurisdictional defect or a decision based on acting illegally or with material irregularity in the exercise of jurisdiction.

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Supervisory jurisdiction of High Court over subordinate courts

Section 115 reflects the supervisory role of the High Court over all civil Courts subordinate to it. This supervision is limited to examining the correctness, legality, or propriety of any decision of the subordinate Court concerning jurisdiction. The High Court satisfies itself that the subordinate Court has:

• Jurisdiction to try the case (i.e., it has not exceeded its jurisdiction).
• Not refused to exercise jurisdiction that it has.
• Exercised its jurisdiction in accordance with law and without material irregularity.

The High Court does not normally interfere with findings of fact, even if they are erroneous, as long as the subordinate court acted within its jurisdiction and did not commit any jurisdictional error or grave illegality/irregularity in procedure that affects the legality of the decision.

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Grounds for Revision

Section 115(1) of the CPC specifies the three main grounds upon which the High Court may exercise its revisional jurisdiction. These grounds are related to the jurisdiction of the subordinate Court and its exercise.

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Illegality

This ground refers to a decision of the subordinate Court that is contrary to law. It means the subordinate Court has applied the law incorrectly. However, it's not every error of law that warrants revision. The illegality must be such that it goes to the root of the jurisdiction or affects the legality of the order passed. It often overlaps with acting "illegally or with material irregularity in the exercise of jurisdiction". For instance, passing an order prohibited by law, or applying a wrong law to decide a jurisdictional fact, could fall under this.

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Irregularity

This refers to procedural irregularities. It implies that the subordinate Court has failed to follow the proper procedure established by law. Similar to illegality, not every procedural deviation is grounds for revision. The irregularity must be "material", meaning it is significant and likely to have affected the outcome or caused injustice. An irregularity that doesn't affect the merits or jurisdiction is usually not a ground for revision. Examples might include deciding a case without giving a party a proper opportunity to be heard (violating natural justice, though this often also falls under 'illegally').

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Perversity

While Section 115 primarily deals with jurisdictional errors, sometimes a finding of fact can be so perverse that it implies a failure to exercise jurisdiction legally or regularly. A perverse finding is one that is against the weight of evidence or based on no evidence at all, or one arrived at by ignoring relevant evidence or considering irrelevant evidence, provided this perversity stems from a failure to follow the procedure or law correctly. However, mere error in appreciating evidence is not perversity justifying revision. The perversity must suggest that the court did not apply its mind judicially or follow the law in arriving at the finding.

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Failure to exercise jurisdiction or exceeding jurisdiction

These are the core jurisdictional grounds mentioned in Section 115(1). There are three limbs under which the High Court can interfere:

(a) Exercised a jurisdiction not vested in it by law: This occurs when the subordinate Court entertains a case or passes an order in a matter over which it has no jurisdiction (pecuniary, territorial, or subject-matter). For example, a Court with a pecuniary limit of Rs. 1 lakh trying a suit for Rs. 5 lakhs.

(b) Failed to exercise a jurisdiction so vested: This occurs when the subordinate Court refuses to exercise jurisdiction that it rightfully possesses. For example, a Court refusing to entertain a suit which is within its jurisdiction, or refusing to decide an issue that it is bound to decide.

(c) Acted in the exercise of its jurisdiction illegally or with material irregularity: This covers errors committed by the Court *while exercising its jurisdiction*. It means the Court had the jurisdiction, but it exercised it in a manner that is illegal or with material irregularity. This is where the concepts of 'illegality' and 'material irregularity' as discussed above primarily apply.

Proviso to Section 115(1):

An important proviso was added to Section 115(1) which further limits the power of revision. It states that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding.

This means that interlocutory orders (orders passed during the pendency of a suit, like orders on applications for adjournment, discovery, etc.) are generally not revisable unless the order is of such a nature that if the High Court had decided it in favour of the revisionist, the suit itself would have been disposed of (e.g., an order deciding a preliminary issue like limitation or jurisdiction, where a finding against the plaintiff would end the suit). This proviso aims to prevent piecemeal revision of every interlocutory order, which would delay the trial.

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