Definition
Reference (S.113): Any court may state a case and refer it to the High Court for opinion, subject to the conditions in Order XLVI. Under the proviso, where a court considers that an Act, Ordinance or Regulation (or a provision of one) whose validity must be decided is invalid or inoperative, and it has not been so declared by its High Court or the Supreme Court, the court must state a case and refer it.
Review (S.114): A court that has passed a decree or order may re-examine its own decision on specific grounds. Review is not a re-hearing; it corrects errors apparent on the face of the record or admits new evidence discovered after judgment.
Reference preserves the supremacy of the HC on constitutional validity. Review allows a court to correct its own clear errors without requiring the party to undergo the expense of a full appeal.
Legal Framework
| Provision | Content |
|---|---|
| S.113 | Reference: any court may state a case for the HC's opinion; mandatory under the proviso where the court thinks a statute invalid |
| Order XLVI R.1 | In a suit or appeal where the decree is not appealable, or in execution of such a decree, the court may refer a question of law or usage on which it has reasonable doubt, on its own motion or on a party's application |
| Order XLVI R.2 | Court may stay or proceed and pass a contingent decree, not executed until the HC judgment is received |
| Order XLVI R.3 | HC decides the point and sends a copy of its judgment; the court disposes of the case accordingly |
| S.114 | Review: person aggrieved applies to the court which passed the decree or order |
| Order XLVII R.1 | Grounds: new and important matter or evidence; mistake or error apparent on the face of the record; any other sufficient reason. Explanation: later reversal of the legal basis by a superior court is not a ground |
| Order XLVII R.7 | Order rejecting a review is not appealable |
| Order XLVII R.9 | No review of an order on a review application or of a decree or order passed on review |
Core Content
Reference (S.113, Order XLVI)
When available: (i) Under O.XLVI R.1, where a question of law or usage having the force of law arises in a suit or appeal in which the decree is not appealable (or in execution of such a decree) and the court has reasonable doubt. (ii) Under the proviso to S.113, where the court thinks a statute it must apply is invalid and no superior court has so declared; here reference is mandatory. Procedure:
- Court records the question it proposes to refer.
- States the grounds for the doubt.
- Sends the record to the HC.
- HC decides the question of law and returns the case.
- Subordinate court then disposes of the case in accordance with the HC opinion.
Only the HC (and above) can strike down legislation. A subordinate civil court has no such power. If the subordinate court doubts the validity of a statute, it must refer; it cannot proceed as if the statute is invalid without HC opinion.
Review (S.114, Order XLVII)
Who may apply: Any person considering himself aggrieved by (a) an appealable decree or order from which no appeal has been preferred, (b) a non-appealable decree or order, or (c) a decision on a reference from a Court of Small Causes (S.114, O.XLVII R.1(1)). A party not appealing may seek review even while another party's appeal is pending, unless the ground is common (R.1(2)). Before which court: The same court that passed the decree or order. Grounds (O.XLVII R.1):
- Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced when the decree was passed.
- Error apparent on the face of the record (a clear, obvious error; not a debatable point).
- Any other sufficient reason, read as a ground analogous to the above two (Aribam Tuleshwar Sharma, 1979).
What Review is NOT:
- Not a re-hearing of the entire case.
- Not an opportunity to re-argue every point that was argued at the original hearing.
- Not available merely because the applicant is dissatisfied with the result.
- A second review is barred under O.XLVII R.9.
- The later reversal of the legal basis of the judgment by a superior court in another case is not a ground (Explanation to R.1).
narrow grounds: Review is an exception to the principle of finality of judgments. Broad grounds would convert every final decision into an interminable process. The grounds are therefore kept narrow and specific.
Error Apparent on Face of Record
- The error must be manifest and self-evident; it must not require extensive argument to establish.
- A view that is merely incorrect upon elaborate reasoning is NOT an error apparent on face of record.
- Example: A court awards relief on a provision that has been expressly repealed. This is apparent error.
Illustrations
-
New evidence: After a decree for possession, D finds a registered sale deed in a sealed record room that he could not trace despite diligent search. This is new and important evidence: review lies.
-
Wrong on merits: D argues the court misread oral evidence. This is not an error apparent; D must appeal (Aribam).
Key Cases
Sheonandan Paswan v. State of Bihar (1987) Sheonandan Paswan v State of Bihar 1987
Issue: What is the scope of the court's power of review under O.XLVII R.1.
Rule: Review is not an appeal in disguise; it can be exercised only on the specific grounds mentioned in O.XLVII R.1 (discovery of new evidence, error apparent, or any other sufficient reason).
Held: Mere dissatisfaction with the result is not a ground for review; the power is limited and cannot be used to re-argue the case.
Aribam Tuleshwar Sharma v. Aribam Pishak Sharma (1979) Aribam Tuleshwar Sharma v Aribam Pishak Sharma 1979
Issue: Whether a successor Judicial Commissioner could review his predecessor's order because two documents on record were not considered and several writ petitions should have been filed.
Rule: Review lies for new and important matter, an error apparent on the face of the record, or an analogous ground; it may not be exercised on the ground that the decision was erroneous on merits, which is the province of an appeal.
Held: Neither reason was a ground for review. The review order was set aside and the original order restored.
Sow Chandra Kante v. Sheikh Habib (1975) Sow Chandra Kante v Sheikh Habib 1975
Issue: What constitutes an "error apparent on the face of the record" for purposes of review.
Rule: An error apparent must be ex facie obvious and should not require elaborate argument to establish; a merely erroneous decision is not reviewable.
Held: Only errors that are self-evident without argument qualify as "error apparent"; a debatable legal point is not such an error.
Distinctions
| Point | Review | Appeal | Reference |
|---|---|---|---|
| Forum | Same court | Superior court | HC from subordinate court |
| Who initiates | Aggrieved party | Aggrieved party | Court, on its own motion or on a party's application |
| Grounds | New evidence, apparent error, sufficient cause | Law and/or fact | Doubt on a question of law or usage; opinion that a statute is invalid |
| Re-hearing | Not a re-hearing | Full rehearing | HC opinion returned; not a fresh trial |
| Second time | Barred after one review | No bar | No equivalent rule |
| Point | Review (S.114) | Revision (S.115) |
|---|---|---|
| Court | Same court that passed the order | High Court over subordinate courts |
| Grounds | New matter, error apparent, analogous reason | Jurisdictional error under S.115(1)(a) to (c) |
| Applicable to | Appealable orders not appealed, non-appealable orders | Cases decided in which no appeal lies |
| Who acts | Any aggrieved person applies | HC, on application or its own motion (calls for record) |
Criticism and Debate
- History: The proviso to S.113 was added by Act 24 of 1951 (w.e.f. 1-4-1951) to make reference compulsory where a court thinks a statute invalid. O.XLVII R.2 was repealed by the CPC (Amendment) Act 1956, and the Explanation to R.1 was added later to stop review on a subsequent change in the law.
- Debate: The "error apparent" test is vague; courts often disagree whether an error is self-evident or needs argument. The Explanation also prevents relief even when the law is later declared differently.
- Conclusion: Review balances finality (interest reipublicae ut sit finis litium) against the need to correct obvious mistakes.
Essay Outline
- Introduction: finality and correction.
- Reference: S.113, O.XLVI.
- Review: S.114, O.XLVII R.1 grounds; R.7, R.9.
- Cases: Aribam; Sow Chandra Kante; Sheonandan Paswan.
- Review vs revision vs appeal.
- Conclusion.
Exam Scenario
Problem: A civil court passes a decree. The losing party files a review petition on the ground that the court decided incorrectly on a question of law and that a different result is possible if the same evidence is re-read.
Analysis:
-
Review under O.XLVII R.1 is available only on:
-
(1) new evidence
-
(2) error apparent on face of record
-
(3) sufficient cause.
-
A wrong decision on a question of law, if arrived at after deliberate consideration, is not an error apparent on the face of the record.
-
Re-reading the same evidence is not a ground for review; it is at best a ground for first appeal.
-
Per Sheonandan Paswan (1987): review is not an appeal in disguise; and per Aribam Tuleshwar Sharma v Aribam Pishak Sharma (1979), an erroneous decision on merits is for an appeal, not review.
-
Met / Not met: new evidence: Not met; error apparent: Not met; analogous sufficient reason: Not met.
-
The review petition must be dismissed. The party should instead file a first appeal.
Recall Check
- What triggers a reference under S.113 CPC?
- What are the three grounds for review under O.XLVII R.1?
- Who may apply for review and before which court?
Flashcards
Q1: When does a reference under S.113 arise? A1: Optionally, when a court has reasonable doubt on a question of law or usage in a non-appealable case (O.XLVI R.1); compulsorily, when a court thinks a statute it must apply is invalid and no superior court has so declared (S.113 proviso).
Q2: Before which court is a review filed? A2: The same court that passed the original decree or order.
Q3: What is the first ground for review under O.XLVII R.1? A3: Discovery of new and important matter or evidence not known at the time of the original proceeding and not discoverable with reasonable diligence.
Q4: What does error apparent on face of record mean? A4: An ex facie obvious error that does not require elaborate argument to establish; per Sow Chandra Kante v Sheikh Habib (1975).
Q5: Is review a re-hearing of the original case? A5: No. Review corrects specific errors or considers new evidence; it is not an opportunity to re-argue all grounds.
Q6: Can a second review be filed after the first review is decided? A6: No. O.XLVII R.9 bars a second review.
Q7: What does the HC do after deciding a reference? A7: Returns its opinion to the subordinate court, which then disposes of the case in accordance with the HC opinion.
Q8: How does review differ from revision? A8: Review is by the same court on the grounds in O.XLVII R.1; revision is by the High Court over a subordinate court for jurisdictional error under S.115.