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1 Reference, Review and Revision

National Law Institute University, Bhopal

A Project on

Reference, Review and Revision

Submitted to
Mr.P.K.Gupta
Civil Procedure Code-2

Submitted by
Varshita Mangamoori
2008 BA LLB 45
8th Trimester

2 Reference, Review and Revision

Table of Contents
Topic

Page no.

1. Introduction

2. Declaration

3. Statement of Problem

4. Objectives

5. Research methodology

6. Reference
a) Introduction

b) Powers of referring court

c) Powers of High Court

d) Procedure at hearing

e) Costs

f) Revision

7. Review

a) Introduction

b) Who may apply?

c) When review lies?

10

d) By whom review may be made?

12

e) Suo moto review?

12

f) Procedure at hearing

12

g) Limitation

12

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h) Appeal
i) Revision

13

j) Review in writ petitions

13

8. Revision
a) Introduction

13

b) Revision and writ

14

c) Revision and powers of superintendence

14

d) Who may apply?

14

e) Conditions

15

f) Limitation

15

9. Reference and review

15

10. Reference and revision

16

11. Review and revision

16

12. Conclusion

16

13. Bibliography

17

4 Reference, Review and Revision

DECLARATION
I hereby declare that the project work entitled Reference, Review and Revision submitted
to the National Law Institute University, is a record of an original work done by me under the
guidance of Mr.P.K.Gupta, Faculty Member, National Law Institute University. Where ever I
have taken information from other sources, I have made the proper citation.

Varshita
26th November, 2010.

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Statement of Problem
Reference, review and revision are often confused for one another. The project aims at
analysing the terms reference, review and, revision in their legal sense and differentiating
between them.

Objectives
Analysis of the provisions in the Civil Procedure Code regarding reference, review,
and revision.
Examination of the important case-laws relating to reference, review, and revision.
Analysis of the procedural intricacies involved in filing for reference, review, and
revision.
Study of the importance of the provisions relating to reference, review, and, revision.
Differentiating between reference, review, and revision.

Research Methodology
This project has utilised the doctrinal method of research i.e. has researched through
secondary sources of information- books, websites, and articles.

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Reference
Section 113 of the Civil Procedure Code empowers a subordinate court to state a case and
refer the same for the opinion of the High Court. Such an opinion may be sought when the
Court itself is doubtful on the question of law which has arisen. Such an opinion may be
sought when the court trying a suit, appeal or execution proceedings entertains a reasonable
doubt about a question of law.1
The object of section 113 was stated in Chhotubhai v. Bai Kashi,2 as to enable subordinate
courts to obtain the opinion of the High Court in non-appealable cases and thereby avoid a
commission of an error which could not have been remedied later. The provision also
ensures that the validity of a legislative provision is interpreted and decided by the highest
court in the state.3 Here, legislative provision means any Act, Ordinance or Regulation.
Therefore, the reference has to be made before passing of the judgment of the case.4
The subordinate court may refer the case either on an application made by a party or suo
moto. Only courts of Civil Judicature may make an application for reference. 5 In Ramkant
Bindal v. State of U.P.6, it was held that a tribunal or persona designata cannot be said to be a
Court and no reference can be made by them.
Reference is subject to certain conditions under Order 46, Rule 1. The High Court cannot
entertain any reference from a subordinate court unless these conditions are fulfilled. 7 They
are:
i.

There must be a pending suit or appeal in which the decree is not subject to appeal, or

ii.

a pending proceeding in execution of such decree;


A question of law or usage having the force of law must arise in the course of such
suit, appeal or proceeding. These questions of law maybe divided intoa) Questions that relate to the validity of any Act, Ordinance or
Regulation;

Section 113; Order 46 Rule 1.


AIR 1941 Bom 365
3
Public Prosecutor v. Dr.B.Krishnaswami, AIR 1957 AP 567
4
Diwalibhai v. Sadashivdas, ILR (1900) Bom 310
5
Phul Kumari v. State, AIR 1957 All 495
6
AIR 1973 All 23
7
Garling v. Secy. Of State for India, ILR (1903) 30 Cal 458
2

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b) Other questions.
In the latter case, reference is optional, but in the former case, it is obligatory if it is
necessary to decide such a question to dispose of the case, and the subordinate court is of the
view that the impugned Act, Ordinance or Regulation is ultra vires, and there have been no
precedents regarding the questions in the Supreme Court or High Court.
iii.

The court trying the suit or appeal or executing the decree must entertain a reasonable
doubt on such question.

Power and duty of the referring court:


The referring court cannot make a reference on a hypothetical question or to provide an
answer to a point likely to arise in the future. 8 The reference may be made only in a suit,
appeal or execution proceeding pending before the court where the subordinate court
entertains a doubt on a question of law9 that has actually arisen between the litigating parties
and the court has been called upon to adjudicate the lis.10 If the validity of an Act, Ordinance
or Regulation is in question, the case has to be referred to the High Court if the referring
court is prima facie convinced that the legislative provision is ultra vires.
Power and duty of the High Court:
In Delhi Financial Corporation v. Ram Parshad,11 it was specifically stated that the
jurisdiction of High Courts with respect to references made from subordinate courts is
consultative. The power of the High Court is not confined to the questions referred by the
subordinate court. The High Court can consider any new aspect of law that arises. 12 Also, the
High Court may answer just the question referred to and send the case back to the referring
court for disposal in accordance with law.13 It may even refuse to answer the reference or
even quash it.14 However, the High Court cannot make any order on merits or any
suggestions.15
8

Ranganath v. Hanumantha (1984) 1 Kant LC 243


Tika Ram v. Maheshwari Din AIR 1959 All 653
10
Banarsi Yadav v. Krishna Chandra Dass, AIR 1972 Pat 49 (FB)
11
AIR 1977 Del 80
12
S.K.Roy v. Board of Revenue, AIR 1967 Cal 338
13
Order 43, Rule 3; Ibid
14
Order 46, Rule 5; Krishnarao Bhaskar v. Lakshman Ramchandra, AIR 1929 Bom 30
15
Municipal Corporation of City v. Shivshanker Gaurishanker, (1998) 9 SCC 197
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Procedure at hearing
The referring court is to prepare a statement of facts of the case, formulate the question of law
on which the opinion is sought and give its opinion thereon.16 The court may either stay the
proceedings in the meanwhile or order contingent upon the decision of the high Court. The
High Court, after hearing the parties if they so desire, shall decide the point so referred and
transmit a copy of the judgment to the court which shall dispose of the case in accordance
with the said decision.17 Where the referring court has not complied with the conditions for
making reference, the High Court has the power to return the case for amendment. 18 The High
Court can even quash the order of reference. 19 It may alter, cancel, or set aside any decree or
order passed or made by the court making the reference and make such order as it thinks fit.20
Costs
Generally, costs of the reference shall be costs in the cause. 21 But if the reference is altogether
unwarranted, the High Court may direct the referring judge to personally pay the costs.22
Revision
An order refusing to make reference to the High Court is a case decided under section115 of
the Code and therefore, revisable.23

Review
Section 114 of the CPC gives a substantive right of review in certain circumstances and Order
47 lays down the procedure for the same. The provision relating to review constitutes an
exception to the general rule that once the judgment is pronounced and signed by the court, it
16
17
18
19
20
21
22
23

Order 46, Rule 1, Rule 4-A


Order 46, Rule 3
Garling v. Secy. Of State for India, ILR (1903) 30 Cal
Krishnarao Bhaskar v. Lakshman Ramchandra, AIR 1929 Bom 30
Order 46, Rule 5
Order 46, Rule 4
L.S.Sherlekar v. D.L.Agarwal, AIR 1968 Bom 439
Cantonment Board v. Phulchand, AIR 1932 Nag 70

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becomes functus officio i.e. the court ceases to have control over the matter and has no
jurisdiction to alter it. The general principle of law is that after a judgment is pronounced, the
court becomes functus officio and by Order 20 Rule 3, it is final and cannot be altered or
changed.
Review simply means to look again or reconsider. In legal parlance, it is judicial reexamination of the case by the same court and judge.24 A review of a judgment is a serious
step and reluctant resort to it is called for only where a glaring omission, patent mistake, or
grave error has crept in by judicial fallibility. 25 Public time is wasted in such matters and the
practice, therefore, should be deprecated.26 Greater care, seriousness and restraint is needed in
review applications.27
The remedy of review has been borrowed from the courts of equity. The basic philosophy
inherent in the doctrine is acceptance of human fallibility. Errors due to human failing cannot
be allowed to defeat the ends of justice. Justice is above all and is a virtue that transcends all
barriers.
Who may apply?
A person aggrieved by a decree or order may apply for review of a judgment. 28 A person
aggrieved means a person who has suffered a legal grievance or against whom a decision
has been pronounced which has wrongfully deprived him of something, refused him
something, or affected his title. A person who is neither a party to the proceedings nor a
decree or order binds him, cannot apply for review as the decree or order does not adversely
or prejudicially affect him.29

When review lies?


A review petition is maintainable only in
i)

24
25
26
27
28
29

Cases in which no appeal lies

Lily Thomas v. Union of India (2000) 6 SCC 224


Sajjan Singh v. State of Rajasthan AIR 1965 SC 845
Sow Chnadra Kante v. Sk.Habib, (1975) 1 SCC 674
Delhi Admin. V. Gurdip Singh Uban, (2000) 7 SCC 296
Section 114; Order 47, Rule 1.
Satvir Singh v. Baldeva (1996) 8 SCC 593

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ii)

Cases in which appeal lies but not preferred-

iii)

Decisions on reference from Court of Small Causes

An application for review of a judgment may be made on any of the following


grounds:30
a) Discovery of new and important matter or evidence- A review is permissible
on the ground of discovery by the applicant of new and important evidence
which, after the exercise of due diligence, was not within his knowledge or could
not be produced by him at the time when the decree was passed. The new
evidence must be relevant and of such character that if it had been given it might
possibly have altered the judgment.31 An application for review should be refused
when such evidence could have been produced had reasonable care and diligence
been exercised.32
b) Mistake or error apparent on the face of the record- What is an error
apparent on the face of the record cannot be defined precisely or exhaustively,
and it should be determined judicially on the facts of each case. 33 Such error may
be one of fact or law.34 In Thungabhadra Industries v. Govt. Of A.P.35, the
Supreme Court rightly observed that where without any elaborate argument
one could point to the error and say here is a substantial point of law which
stares one in the face,and there could reasonably be no two opinions entertained
about it, a clear case of error apparent on the face of the record would be made
out.
Errors on the face of the record include- pronouncement of judgment without
taking into consideration the fact that law was amended retrospectively; 36 or
without considering the statutory provisions;37 or on the ground of omission to

30
31
32
33
34
35
36
37

Order 47, Rule 1.


Nundo Lawl v. Punchanon Mukherjee, AIR 1918 Cal 618
Mahabir Prasad v. Collector of Allahabad, AIR 1914 All 44
Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233
Karutha Kritya v. P.Ramalinga Raju, AIR 1960 AP 17
AIR 1964 SC 1372
Raja Shatrunji v. Mohd. Azmat,
Ghulam Abbas v. Mulla Abdul kadar, (1970) 3 SCC 643

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try a material issue in the case; 38 or taking a view contrary to the law laid down
by the Supreme Court.39
c) Any other sufficient reason- The expression any other sufficient reason has
not been defined anywhere in the Code. However, relying on a Privy council
judgment40 and the Federal Court41, the Supreme Court has held that the words
any other sufficient reason must mean a reason sufficient on grounds, at least
analogous to those specified in the rule.
The following have held to be sufficient reasons for granting review: where the
statement in the judgment is not correct; 42 or where the decree or order has been
passed under a misapprehension of the true state of circumstances; 43 or where
the party had no notice or fair opportunity to produce his evidence; 44 or where
the court had failed to take into consideration any material issue, fact or
evidence;45etc.

By whom review may be made


Review is reconsideration of the same subject-matter by the same court and by the same
judge. The law insists that if he is available, he alone should hear the review petition. 46 There
might be cases of death or other unexpected circumstances that might prevent the judge who
passed the order from reviewing it. In such cases, his successor or any other judge or court of
concurrent jurisdiction may hear the review petitions and decide the same.47
Suo Moto review?
The power of review can be exercised by a court on an application made by a person
aggrieved. The Code does not empower the court to exercise the power of review suo moto.

38
39
40
41
42
43
44
45
46
47

Moran Mar Basselios Catholicos v. Mar Poulose Athanasius, AIR 1954 SC 526
CST v. Pine Chemicals, (1955) 1 SCC 58
Chajju Ram v. Neki, AIR 1922 PC 112
Hari Shankar v. Anath Nath, AIR 1949 FC 106
Bank of Bihar v. Mahabir Lal, AIR 1964 SC 377
Moran Mar Basselios Cathelicos v. Mar Poulose Athanasius, AIR 1954 SC 526
C.C.Naidu v. Seva Transports Ltd. AIR 1953 Mad 39
Rajkishore Das v. Nilamani Das, AIR 1968 Ori 140
D.Pillai v. S.Pillai, (1987) 1 SCC 61
Reliance Industries Limited v. Pravinbhar (1997) 7 SCC 300

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However, in A.R.Antulay v. R.S.Nayak,48 it was observed that the upreme Court may exercise
power of review suo mot in an appropriate case.

Procedure at Hearing
The procedure starts with an ex parte application by the aggrieved party. The Court may
reject it at once if there is no sufficient ground or may issue calling upon the opposite party to
showcause why review should not be granted.49
The application is then heard by the same court and by the same judge who has passed the
decree or order. If the rule is discharged, the case ends and the application will be rejected. If,
on the other hand, the rule is made absolute, the application will be granted for rehearing of
the matter.50
Then, the matter will be reheard on merits by the court either at once or at any time fixed by
it. After rehearing the case, the Court may either confirm the original decree or vary it.
Limitation
The period of limitation for an application for review is thirty days when it is any court other
than the Supreme Court.
Appeal
An order granting an application for review is appealable, but an order rejecting an
application is not appealable.
Revision
An application for review can be said to be a proceeding and a decision thereon amounts to
a case decided under the Code and such decision is revisable.
Review in writ petitions

48
49
50

(1988) 2 SCC 602


Order 47, Rule 4 (1)
Order 47, Rule 4 (2)

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After the amendment in section 141 of the Code and insertion of the explanation to that
section, it is clear that the provisions of Order 47 do not apply to writ petitions filed in a High
Court under Article 226 of the Constitution.

Revision
Section 115 of the Code empowers a High Court to entertain a revision in any case decided
by any subordinate court in certain circumstances. This is known as revisional jurisdiction of
the High Court.
Revision means the action of revising, especially critical or careful examination or perusal
with a view to correct or improve.51
Section 115 invests all High Courts with revisional jurisdiction. It authorises a high Court to
satisfy itself on three matters: (a) that the order of the subordinate court is within jurisdiction;
(b) that the case is one in which the court ought to exercise its jurisdiction; (c) that in
exercising jurisdiction, the court has not acted illegally; i.e. breach of some provision of law
or some material irregularity.52 When satisfied with these matters, the High Court has no
power to interfere even if it differs from the conclusion of the subordinate court on questions
of fact or law.53 In Major S.S.Khanna v. Brig.F.J.Dhillon54, the Supreme Court rightly held
that an erroneous question of law reached by the subordinate court which has no relation to
questions of jurisdiction of that Court cannot be corrected by the High Court under Section
115.
The underlying object of Section 115 is to prevent subordinate courts from acting arbitrarily,
capriciously, illegally and irregularly in the exercise of their jurisdiction. Revisional
jurisdiction is conferred upon the High Court for the effective exercise of its superintending
and visitorial powers.55It is not intended to allow the High Court to interfere and correct
errors of fact or of law.56
Revision and writ
51
52
53
54
55
56

Concise Oxford Dictionary (2002); Ram Sarup v. Shikhar Chand, AIR 1961 All 221
Keshardeo v. Radha Kissen, AIR 1953 SC 23
M.L.Sethi v. R.P.Kapur, (1972) 2 SCC 427
AIR 1964 SC 497
Maj.S.S.Khanna v. Brig.F.J.Dhillon, AIR 1964 SC 497
Rajah Amir Hassan v. Sheo Baksh Singh, ILR (1885) 11 Cal 6 (PC)

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The revisional power is clearly in the nature or a power to issue a writ of


certiorari.57However, it is not as wide as certiorari since it can be exercised only in the case
of a jurisdictional error and not in case of any other error. Any petitioner who has filed for a
revision cannot invoke the jurisdiction of the High Court under Article 226.
Revision and Powers of superintendence
Firstly, revisional power is only judicial; the power of superintendence is both judicial as well
as administrative.
Secondly, the revisional power is statutory andit can be taken away by a legislation. But the
power of superintendence is constitutional and cannot be taken away or curtailed by a statute.
Finally, revisional powers of a High Court are restricted and can be exercised on all the
conditions laid down in section115 of the Code being fulfilled; none of those restrictions
apply to the exercise of supervisory powers of the High Court under Article 227 of the
Constitution.58
Who may file?
A person aggrieved by an order passed by a court subordinate to the High Court may file a
revision against such order.59 But the High Court may even suo moto exercise revisional
jurisdiction under Section 115 of the Code.

Conditions
The following conditions must be satisfied before revisional jurisdiction can be exercised by
the High Court:
i)

A case must have been decided;

57

Maj.S.S.Khanna v. Brig.F.J.Dhillon, AIR 1964 SC 497

58

Jetha Bai & Sons v. Sunderdad, (1998) 1 SCC 722


Rajinder Singh v. Karnal Central Coop. Bank Ltd, AIR 1965 Punj. 331

59

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ii)

The court which has decided the case must be a court subordinate to the High
Court;

iii)

The order should not be an appealable order;

iv)

The subordinate court must have (a) exercised jurisdiction not vested in it by law;
or (b) failed to exercise jurisdiction vested in it; or (c) acted in exercise of its
jurisdiction illegally or with material irregularity,

The exercise of revision is in the discretion of the court and no party can claim it as a
right. The court generally considers the availability of an alternative remedy. Where the
aggrieved party has an alternative and efficacious remedy, the court may not entertain a
revision under Section 115 of the Code.60
Limitation
The period of limitation for preferring a revision application is ninety days from the decree or
order sought to be revised.61

Reference and Review


a. In reference, it is the subordinate court and not the party which refers the case to
the High Court. In case of review, the application is made by the aggrieved party.
b. The High Court alone can decide matters on reference. Review is by the court
which passed the decree or made the order.
c. Reference is made in a pending suit, appeal or execution proceedings, while an
application for review can be made only after the decree is passed or order is
made.
d. The grounds for reference and review are different.

60

Maj.S.S.Khanna v. Brig.F.J.Dhillon, AIR 1964 SC 497

61

Section131, Limitation Act, 1963.

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16 Reference, Review and Revision

Reference and Revision


a. In reference, the case is referred to the High Court by a court subordinate to it. In
revision, the jurisdiction of the High Court is invoked either by the aggrieved
party or by the High Court suo moto.
b. The grounds of reference relate to reasonable doubt on question of law, while
the grounds for revision relate to jurisdictional errors of the subordinate court.

Review and Revision


a. Revisional jurisdiction can only be exercised by the High Court, while the
power of review can be exercised by the very court which passed the decree or
made the order.
b. Revisional power can be exercised by the High Court only in cases where no
appeal lies to the High Court, but review can be made even when an appeal
lies to the High Court.
c. Revisional powers can be exercised by the High Court even suo moto, but for
review an application has to be made by the aggrieved party.
d. The powers of revision and review can be exercised on different grounds.
e. The order granting review is appealable, but an order passed in the exercise of
revisional jurisdiction is not appealable.

Bibliography
Statute
The Code Of Civil Procedure, 1908
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Books
Bakshi, P. M, Mulla Code of Civil Procedure, Vol-I, 15th Ed.(1999),
Butterworths, Mumbai.
Takwani, C. K., Civil Procedure, 6th Ed. (2009 Rep.), Eastern Book Company,
Lucknow.

Majumdar, P. K. and Katariya, R.P., Commentary on The Code of Civil Procedure,


1908, 3rd Ed. (1998), Orient Publishing Company, Allahabad.

Websites
www.manupatra.com/search/cpcamendment
www.legalpundits.com/amendments
www.ebc-india.com/cpc/amendingbills

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