Q 5 Reference, Review & Revision & difference.
Circumstances under which person apply for
review.
Index
1. Introduction to Remedial Mechanisms
• Purpose of Remedial Mechanisms
• Constitutional Basis (Part V, Article 227)
• Statutory Framework (CPC)
2. Reference (Section 113 + Order XLVI)
• Core Concept
• Essential Conditions
• 2.1 Pending Suit
• 2.2 Substantial Question of Law
• 2.3 Necessity
• Procedure
• 2.4 Formulation of the Question
• 2.5 Preparation and Transmission of Records
• 2.6 Proceedings in the High Court
• 2.7 High Court's Discretion
• 2.8 High Court's Decision
• 2.9 Resumption by Subordinate Court
3. Review (Section 114 + Order XLVII)
• Core Concept
• Grounds for Review
• 3.1 Discovery of New and Important Matter or Evidence
• 3.2 Mistake or Error Apparent on the Face of the Record
• 3.3 Any Other Sufficient Reason
• Procedure
• 3.4 Application Filing
• 3.5 Preliminary Scrutiny
• 3.6 Hearing
• 3.7 Court's Order
• Critical Limitations & Principles
• 3.8 Not an Appeal
• 3.9 Strict Limitation
• 3.10 Finality of Higher Courts
4. Revision (Section 115)
• Core Concept
• Conditions for Revision
• 4.1 Jurisdictional Defect
• 4.2 Illegality or Material Irregularity
• 4.3 Material Prejudice
• Post-2002 Amendment Restrictions
• Procedure
• 4.4 Petition Filing
• 4.5 Admission & Notice
• 4.6 Interim Relief
• 4.7 Hearing
• 4.8 High Court's Final Order
• Critical Nuances & Limitations
• 4.9 Not an Appeal
• 4.10 Limited Scope (Post-2002)
• 4.11 Focus on Jurisdiction
• 4.12 Discretionary Power
• 4.13 Distinction from Writ of Certiorari (Art. 227)
5. Circumstances under which a Person Applies for Review
• Discovery of New and Important Matter or Evidence
• Mistake or Error Apparent on the Face of the Record
• Any Other Sufficient Reason
6. Differences between Reference, Review, and Revision
• Reference: Seeking guidance from a High Court on a question of law.
• Review: Correcting mistakes within the original proceeding.
• Revision: Correcting jurisdictional and procedural flaws after an order is passed.
7. Conclusion
• Summary of Key Insights on Remedial Mechanisms
I. Introduction to Remedial Mechanisms
Purpose:
Remedial mechanisms in law are special procedures designed to correct errors made by courts,
address complicated legal issues that arise during litigation, and prevent miscarriages of justice,
especially in situations where regular appeals are not available. These mechanisms ensure fairness
and uphold the integrity of the judicial process by providing additional avenues for review and
correction beyond the normal appeal system.
Constitutional Basis:
The power of the High Courts to supervise and correct judicial mistakes is grounded in the
Constitution of India, specifically under Part V, Article 227. This article grants High Courts the power
of superintendence over all courts and tribunals within their jurisdiction. This constitutional provision
forms the foundation for the exercise of the remedy known as Revision, allowing High Courts to
examine and rectify orders or decisions made by lower courts to ensure justice is served.
Statutory Framework:
The procedural aspects of remedial mechanisms are governed by the Code of Civil Procedure (CPC),
which outlines several specific provisions and orders that deal with correction and review of judicial
decisions:
1. Reference (Section 113 + Order XLVI):
• This remedy allows a lower court to seek guidance from a High Court on a question
of law that is crucial to a case but uncertain or unsettled. Essentially, if a trial court
faces a legal question that it is not confident answering, it can make a reference to
the High Court for clarification before proceeding further. This helps ensure correct
application of the law and prevents errors at the trial stage.
2. Review (Section 114 + Order XLVII):
• Review is a process where a court re-examines its own judgment or order on the
basis of the same case record. A party may apply for a review when there is an
apparent mistake, error, or new evidence that could significantly affect the
judgment. The objective is to correct errors within the same court without needing
to go to a higher court. This is a limited remedy and is not meant for re-arguing the
entire case but for addressing manifest errors or oversights.
3. Revision (Section 115):
• Revision is a special corrective procedure whereby a higher court (usually a High
Court) can re-examine the decisions or orders of a lower court or tribunal. Unlike
appeals, which focus more on the factual and legal correctness, revisions are often
discretionary and primarily concerned with errors of law or jurisdiction, procedural
irregularities, or failure of due process that may have resulted in an unfair decision.
Revision empowers the higher court to ensure that justice is done, especially where
a party has no regular appeal available.
Reference Procedure under Section 113 of the Code of Civil Procedure (CPC) and Order XLVI
Core Concept
The reference procedure under Section 113 of the CPC allows a subordinate court (such as a District
Court or Civil Judge) to pause its proceedings and seek a binding ruling from the High Court on a
crucial question of law that has arisen during the trial. This mechanism is essential when the
subordinate court cannot decide a significant legal question itself, and the resolution of that question
is necessary to finally determine the case.
Example Explained
• Subordinate Court: District Court
• Pending Suit: A property dispute between two parties.
• Substantial Question of Law: The key legal issue is whether a specific State Government law
affecting property rights is constitutionally valid, potentially violating fundamental rights
such as Article 14 (Equality) or Article 19 (Freedom).
• Referral: The District Judge, unable to definitively rule on the constitutional validity of the
state law (as this is typically within the High Court's jurisdiction), refers this specific legal
question to the High Court. The property dispute itself remains pending in the District Court
until the High Court provides an answer.
Essential Conditions (Under Section 113)
For a reference to be valid and permissible, the following conditions must be met:
1. Pending Suit:
• Explanation: The case must be actively ongoing before the subordinate court at the
time of making the reference. The court must not have already passed a final decree
or judgment.
• Rationale: The purpose is to aid the subordinate court in deciding the current case.
References on hypothetical or concluded matters are not allowed.
2. Substantial Question of Law:
• Explanation: The question referred must be a genuine and significant question of
law, not merely a question of fact or a trivial legal point. Section 113 specifies the
types of substantial questions suitable for reference:
• a) Interpretation of the Constitution: Involves the correct interpretation of a
provision of the Constitution of India (e.g., the example provided).
• b) Question of General Public Importance: Legal questions that significantly
affect the public or a large section of society, where resolution by the High
Court is desirable in the public interest (e.g., environmental laws).
• c) Validity of an Act/Ordinance/Enactment: Requires the High Court to
determine the validity of any Central or State Act, Ordinance, or other
enactment.
• Key Nuance: The question must be a pure question of law. The subordinate court
must clearly state the facts, and the doubt should solely concern how the law applies
to those established facts.
3. Necessity:
• Explanation: The resolution of the substantial question of law must be essential for
the subordinate court to finally dispose of the case. If the court could potentially
decide the case on other grounds (like facts or procedural issues) without needing to
resolve this specific question, the reference is not justified.
Procedure (Under Order XLVI)
The process for making a reference is governed by Order XLVI of the CPC:
1. Formulation of the Question:
• The subordinate court must draft the precise legal question it seeks the High Court's
opinion on. This formulation is critical; the question must be clear, concise, self-
contained, and accurately reflect the legal doubt arising from the established facts of
the pending case.
2. Preparation and Transmission of Records:
• The subordinate court prepares a "Statement of Case," which includes:
• The precisely formulated legal question(s).
• A clear statement of facts relevant to that question.
• Reasons why the court believes the question is substantial, necessary, and
falls under Section 113.
• The pleadings (plaint, written statement).
• Any judgments/orders passed in the case so far.
• Relevant documents/exhibits.
• A certified copy of the order making the reference.
• This entire record is sealed and transmitted to the High Court.
3. Proceedings in the High Court:
• The High Court serves notice of the reference to all parties involved in the original
suit.
• Parties can appear and present arguments (written and/or oral) specifically on the
legal question referred.
• The High Court examines the referred question, the statement of facts, and the
arguments.
4. High Court's Discretion:
• The High Court can:
• Answer the question definitively.
• Refuse to answer if it finds:
• The question is not a "substantial question of law" under Section
113.
• The question is vague, hypothetical, or academic.
• The facts stated are insufficient to decide the legal question.
• The reference is otherwise incompetent.
• Send the case back for clarification or amendment of the question/facts
before answering.
• Direct the subordinate court to submit additional documents or findings.
5. High Court's Decision:
• If the High Court answers the question, its opinion/judgment is binding on the
subordinate court regarding that specific point of law.
• The High Court transmits its judgment/order back to the subordinate court, along
with the case records.
6. Resumption by Subordinate Court:
• The subordinate court receives back the records and the High Court's opinion.
• It is bound to apply the High Court's ruling on the legal question to the facts of the
case.
• The subordinate court resumes the proceedings and finally disposes of the suit
based on its findings of fact and the binding legal ruling provided by the High Court.
The High Court typically does not decide the entire case itself; it only rules on the
specific legal point referred.
Review under Section 114 of the CPC and Order XLVII,
Core Concept:
Review is a statutory exception to the principle of finality of judgments. It allows the same court that
passed a decree or order to re-examine its own decision to correct grave errors apparent on the
face of the record, or to consider newly discovered material, or to address gross injustice. It
is not an appeal or a rehearing on merits.
Essence:
• Remedy: Corrects mistakes within the original proceeding.
• Forum: Only the court that passed the original order/decree.
• Objective: Prevent miscarriage of justice due to patent errors or significant omissions.
• Limitation: Strictly 30 days from the date of the decree/order (Section 114 read with Article
124 of the Limitation Act, 1963).
Grounds for Review (Order XLVII, Rule 1):
A review application is maintainable only if based on one or more of these specific grounds:
1. Discovery of New and Important Matter or Evidence:
o What qualifies: Evidence that existed at the time of the original decree/order but
could not be discovered by the applicant despite exercising due diligence.
o Due Diligence Test (Thungabhadra Industries Ltd. v. Govt. of A.P.): The applicant
must prove they took all reasonable steps to find the evidence before the original
judgment. Evidence that could have been found with ordinary diligence is
inadmissible. Evidence created after the judgment does not qualify.
o Importance: The new evidence must be so material that it would likely have changed
the outcome of the case.
2. Mistake or Error Apparent on the Face of the Record:
o Nature of Error: The error must be patent, glaring, obvious, and not requiring
elaborate argument to establish. It should jump out from the record itself.
o "Apparent" Defined (Northern India Caterers (India) Ltd. v. Lt. Governor of
Delhi): An error apparent on the record is one "which strikes one on mere looking at
the record and would not require any long-drawn process of reasoning on points
where there may conceivably be two opinions." It excludes: Errors of law or fact that
require re-argument or reconsideration of the merits of the case; debatable points;
differing interpretations of law.
o Examples:
▪ Miscalculation of dues or damages evident from the pleadings and
judgment.
▪ Overlooking a statutory provision or binding precedent directly applicable to
the case facts.
▪ Granting relief not prayed for in the pleadings.
▪ Deciding an issue not framed by the court.
▪ Contradictory findings within the judgment.
3. Any Other Sufficient Reason:
o Interpretation: This is a residual category interpreted very narrowly by courts. It
must be a reason analogous to the first two grounds and must be of a character
grave enough to justify reopening a final decision.
o Established Examples (Case Law):
▪ Fraud: Discovery that the judgment was obtained by fraud on the court or
the applicant.
▪ Violation of Natural Justice: A party was denied a reasonable opportunity to
be heard (e.g., no notice served, denial of right to cross-examine).
▪ Gross Injustice/Manifest Wrong (Meera Bhanja v. Nirmala Kumari
Choudhury): Where the judgment results in a palpable injustice so severe
that it shocks the conscience of the court, even if no specific new evidence
or patent error is initially apparent. However, this is applied extremely
cautiously.
▪ Clerical/Typographical Errors (Devendra Swamy v. Karnataka
SRTC): Mistakes in recording the judgment/decree (e.g., wrong section
number cited, typo in amount awarded, wrong party name) that do not
affect the substance of the decision. This is a common and readily accepted
ground.
Procedure (Order XLVII):
1. Application Filing (Rule 2):
o The aggrieved party (review petitioner) files a written application specifically stating
the grounds for review.
o The application must be supported by a sworn affidavit detailing the facts and
evidence relied upon (especially crucial for "new evidence" or "sufficient reason"
grounds).
2. Preliminary Scrutiny (Ex Parte Consideration - Rule 4):
o The court first examines the application ex parte (without notice to the other side).
o Rejection at this stage: If the court is prima facie satisfied that no sufficient
ground for review exists, it can summarily reject the application without issuing
notice to the opposite party. This is a crucial filter to prevent frivolous reviews.
3. Hearing (Rule 4):
o If a prima facie case exists: If the court finds merit in the initial application, it issues
notice to the opposite party (respondent).
o Opportunity to Contest: The respondent has the right to file objections/counter-
affidavits opposing the review.
o Hearing: Both parties are heard on the merits of the review application. The hearing
is focused only on whether the grounds for review are made out, not on re-arguing
the entire original case.
4. Court's Order:
o Dismissal: If grounds are not established.
o Allowance: If grounds are made out. The court may:
▪ Modify/Reverse its original decree/order to correct the error.
▪ Set aside the original decree/order and proceed to re-hear the case (rare,
usually only for natural justice violations or fraud).
▪ Correct clerical errors.
Critical Limitations & Principles:
1. Not an Appeal (Aribam Tuleshwar Sharma v. Aribam Pishak Sharma):
o This is the most fundamental limitation. A review cannot be used to:
▪ Re-hear arguments already advanced and rejected.
▪ Raise new arguments not previously made (unless based on new evidence
meeting the strict test).
▪ Challenge the correctness of the decision on merits where the law was
correctly applied but the result is unfavourable.
▪ Re-agitate questions of fact or law that were debated and decided.
o The court does not sit in appeal over its own decision.
2. Strict Limitation: The 30-day period is mandatory. Courts have limited power to condone
delay only under Section 5 of the Limitation Act, requiring a "sufficient cause" for the delay.
3. Finality of Higher Courts:
o No Review by HC of SC Judgment: A High Court cannot review a judgment passed by
the Supreme Court. The SC has its own review procedure under Article 137 of the
Constitution and Order XLVII of the SC Rules.
o Res Judicata: A matter finally decided on review cannot be reopened again by
another review application on the same grounds.
4. Discretionary Remedy: Granting review is the discretion of the court. Even if grounds exist,
the court may refuse review if it finds no substantial injustice or if the application is frivolous
or vexatious.
5. "Error Apparent" is Narrow: As emphasized in Northern India Caterers, this ground is strictly
confined to obvious mistakes. Disagreement with the court's reasoning or interpretation of
law is insufficient.
6. "Sufficient Reason" is Exceptional: Courts construe this residuary clause very restrictively
(Meera Bhanja), requiring circumstances akin to fraud, denial of justice, or manifest illegality
causing grave prejudice.
Revision under Section 115 of the Code of Civil Procedure (CPC), incorporating the post-2002
amendment landscape and key case law:
Core Concept:
Revision is the supervisory jurisdiction of the High Court to correct grave jurisdictional errors,
illegalities, or material irregularities committed by subordinate civil courts (District Courts, Civil
Judges, etc.) in the exercise of their jurisdiction. It ensures lower courts function within their legal
boundaries and follow fundamental procedure. It is not an appeal; it focuses on the manner of
exercise of jurisdiction, not the merits of the decision.
Essence:
• Remedy: Corrects jurisdictional and procedural flaws after an order is passed.
• Forum: High Court (exercising supervisory power over subordinate courts).
• Objective: Prevent miscarriage of justice due to courts acting beyond their authority or
violating fundamental procedural norms.
• Limitation: Generally 90 days from the date of the impugned order (as per Article 131 of the
Limitation Act, 1963). Crucially, many states have amended this period (e.g., Karnataka: 30
days; Kerala: 90 days). Always check the relevant State Amendment.
Conditions for Revision (Section 115):
A revision is maintainable only if the subordinate court's order meets all three cumulative
conditions:
1. Jurisdictional Defect:
o a) Exercising Jurisdiction Not Vested: The court passed an order in a matter over
which it had no jurisdiction whatsoever (e.g., a Civil Judge trying a case exclusively
reserved for a Rent Tribunal).
o b) Acting in Excess of Jurisdiction: The court had jurisdiction to entertain the
suit/case but overstepped its bounds while exercising it (Surya Dev Rai v. Ram
Chander Rai). Examples:
▪ Granting relief not claimed in the plaint.
▪ Deciding an issue not arising from the pleadings.
▪ Ignoring a statutory bar (e.g., limitation, res judicata).
▪ Passing an order contrary to a specific legal prohibition.
o c) Failure to Exercise Jurisdiction: The court wrongfully refused to exercise a
jurisdiction that it did possess (Major S.S. Khanna v. Brig. F.J. Dillon). Examples:
▪ Dismissing a suit on a preliminary point without deciding the merits when it
should have.
▪ Refusing to frame a necessary issue.
▪ Declining to record evidence when legally required.
2. Illegality or Material Irregularity: The court committed an error of law or procedure in the
exercise of its jurisdiction.
3. Material Prejudice: The jurisdictional defect, illegality, or irregularity must have
caused substantial injustice or material prejudice to the revision petitioner. A minor
procedural slip not affecting the outcome won't suffice.
Post-2002 Amendment Restrictions (Proviso to Section 115):
The 1999/2002 CPC Amendment severely restricted the scope of revision. A revision
application shall not be entertained if:
1. Alternative Remedy Bar: "From which an appeal lies" - If the impugned order is one against
which a statutory appeal lies (either immediately or at a later stage in the same suit), revision
is not maintainable. The party must exhaust the appeal remedy first (Shiv Shakti Co-op.
Housing Society v. Swaraj Developers).
2. Monetary Limit Bar: "Any case where the value... does not exceed..." - Many states (e.g.,
Maharashtra, Karnataka, Gujarat, Delhi) have amended this proviso to impose a monetary
threshold. Revision is barred if the value of the suit/proceeding is below a specified
amount (commonly ₹3 lakhs, but check State Amendments). For example:
o Maharashtra CPC (Amendment) Act: Bar for suits valued < ₹3,00,000.
o Delhi High Court Rules: Bar for suits valued < ₹3,00,000.
Key Case Law Interpretations:
• Surya Dev Rai v. Ram Chander Rai (2003): Reaffirmed revision lies for jurisdictional errors
(excess/lack/failure) but distinguished it from writ jurisdiction (Art. 227). Emphasized
revision corrects specific orders, while Art. 227 is broader supervisory power.
• Shiv Shakti Co-op. Housing Society v. Swaraj Developers (2003): Held the 2002 Amendment
(introducing the proviso) is procedural and applies retrospectively to pending revisions.
Strictly enforced the bar where an appeal lies.
• Major S.S. Khanna v. Brig. F.J. Dillon (1964): Established that a wrongful refusal to exercise
existing jurisdiction is a valid ground for revision.
Procedure:
1. Petition Filing (to High Court):
o The aggrieved party (revision petitioner) files a Revision Petition in the concerned
High Court.
o The petition must be accompanied by a certified copy of the impugned order
passed by the subordinate court.
o It must clearly plead the jurisdictional error/illegality/irregularity and the material
prejudice caused, demonstrating how the case falls within the restricted scope of S.
115 post-amendment.
2. Admission & Notice:
o The High Court may conduct a preliminary hearing (often ex-parte) to determine if a
prima facie case for revision is made out, considering the strict conditions and bars.
o If admitted, the High Court issues notice to the opposite party (respondent).
3. Interim Relief (Rule 10, Order XLVI read with S. 115):
o The High Court has the discretion to grant interim relief, such as staying the
execution of the impugned order or staying further proceedings in the subordinate
court, pending the final decision in the revision. This is crucial to prevent irreparable
harm.
4. Hearing:
o Both parties file written arguments (notes) and are heard orally.
o The hearing focuses strictly on whether the subordinate court's order suffers from a
jurisdictional error, illegality, or material irregularity causing prejudice – not on re-
appreciating evidence or merits.
5. High Court's Final Order:
o Dismissal: If no grounds are made out.
o Allowance: If grounds are established, the High Court may:
▪ Set aside or Modify the impugned order.
▪ Remand the case to the subordinate court with directions to decide it afresh
according to law or within specific parameters.
▪ Pass any other order as it deems fit to secure the ends of justice within the
scope of its revisional power.
o Affirm: Uphold the subordinate court's order.
Critical Nuances & Limitations:
1. Not an Appeal: Revision cannot be used to:
o Re-examine findings of fact (unless perverse or based on no evidence amounting to
jurisdictional error).
o Re-argue questions of law already decided correctly on merits.
o Challenge the correctness of a discretionary order if exercised legally.
o Substitute the High Court's view on merits for that of the trial court.
2. Limited Scope (Post-2002): The amendment drastically curtailed revision, making it a remedy
of last resort only for grave jurisdictional errors where no appeal lies and (often) where
the suit value exceeds the state threshold.
3. Focus on Jurisdiction: The core inquiry is whether the subordinate court acted within the
four corners of its legal authority and followed fundamental procedure. Merits are
secondary.
4. Discretionary Power: Granting revision is the discretion of the High Court. Even if grounds
technically exist, the court may refuse if no substantial injustice occurred or if the petition is
frivolous.
5. Distinction from Writ of Certiorari (Art. 227): While both correct jurisdictional errors,
Revision (S. 115 CPC) is a statutory remedy against specific orders in pending
suits/proceedings, bound by CPC limitations (like the proviso). Writ jurisdiction under Article
227 is the High Court's constitutional supervisory power, broader in scope (can address
non-judicial tribunals, quash final orders), but exercised more sparingly. Surya Dev
Rai clarified the distinction.
