Reference and Review

Definition

Reference (S.113): A subordinate court, when it doubts the validity of an Act of Parliament or State Legislature, may refer the question to the High Court for opinion before proceeding to decide the case.

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

Core Content

Reference (S.113, Order XLVI)

When available: When a subordinate civil court doubts the validity of any Act of Parliament or any State Legislature that is relevant to the decision of the case. 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 aggrieved by the decree or order. Third parties cannot apply. Before which court: The same court that passed the decree or order. Grounds (O.XLVII R.1):

1. Discovery of new and important matter or evidence that was not within the knowledge of the applicant at the time of the original proceeding and could not with reasonable diligence have been brought forward.
2. Error apparent on the face of the record (a clear, obvious error; not a debatable point).
3. Any other sufficient reason (analogous to the above two grounds).

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.

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.

Recall Check

1. What triggers a reference under S.113 CPC?
2. What are the three grounds for review under O.XLVII R.1?
3. Who may apply for review and before which court?

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.

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

Flashcards

Q1: When does a reference under S.113 arise? A1: When a subordinate civil court doubts the constitutional validity of an Act of Parliament or State Legislature relevant to the case.

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.

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.

• The review petition must be dismissed. The party should instead file a first appeal.