CPC & LAW OF LIMITATION

MID-TERM PROJECT

TOPIC - REFERENCE UNDER CODE OF CIVIL PROCEDURE

SUBMITTED TO:
SUBMITTED BY:
MR. AMITESH DESHMUKH
RAHUL SAGAR
FACULTY OF CPC & LAW OF
1631
LIMITATION
ONE THOUSAND SIX HUNDRED
THIRTY ONE

SEMESTER III

NATIONAL LAW UNIVERSITY, JODHPUR

SUMMER SESSION 2020

(JULY - NOVEMBER 2020)

 Table of Contents

Reference .............................................................................................................................. 3

Review .................................................................................................................................. 6

Revision ................................................................................................................................ 9

Conclusion .......................................................................................................................... 11

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 REFERENCE

Every case has different circumstances. Many questions come before the subordinate court
that requires the assistance of the High Court. When the subordinate court in order to take
assistance refers the case to the High Court, it is called as the reference. The opinion of the
High Court can also be sought when the subordinate court has some doubts about the
question of law. Reference is always made to the High Court. Section 113 of the Code of
Civil Procedure empowers a subordinate court to state a case and refer it to the High Court
for its opinion.

Object

The object behind the provisions of Reference is to empower the subordinate court to obtain
the opinion of the High Court in non-appealable cases when there is a question of law so that
any commission of error could be avoided which couldn’t be remedied later on. As held in
the case of Diwali Bai v. Sadashivdas, the reference must be made before passing of the
judgement of the case.

Conditions for seeking reference

Reference can be sought only in a suit, appeal or an execution proceeding which is pending
before the court. Order 46 Rule 1 of the Code of Civil Procedure prescribes certain conditions
to be fulfilled in order to obtain a reference from the High Court. The conditions required to
obtain a reference from the High Court are as followings:

1. The suit or appeal must be pending in which the decree is non-appealable or the
execution of such decree is still pending. T
2. here must arise a question of law of such proceeding, suit or appeal.
3. There must be a reasonable doubt on such question by the court trying the suit or
appeal or, by the court executing the decree.

There are two classes of the question of law on which the subordinate court may entertain the
doubt

1. Questions related to the validity of any Act, Ordinance or Regulations.

2. Any other questions.

Under the second condition, reference is optional but in the first condition i.e., a question
related to any Act, Ordinance or Regulations, reference is obligatory. Reference is obligatory
in such condition when the following conditions are fulfilled:

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 1. In order to dispose of the case, the decision of such question is necessary.
2. The subordinate court seeking reference is of the view that the Act, Ordinance or
regulation is ultra vires.
3. There is no determination that such Act is ultra vires either by the Supreme Court or
the High Court to which the court is subordinate to.

A reference can be made by the judge only in the case when the judge who is dealing
with that case has a reasonable doubt about it. When any matter is already decided by the
High Court to which the court seeking reference is subordinate to then it is not
considered as a reasonable question of doubt.

Who can apply for reference?

The court of civil judicature can refer the case to the High Court either on an application
made by a party or suo moto. As held in the case of Ramakant Bindal v. State of U.P 1, no
reference can be made by a tribunal.

Powers and duty of the referring court

A reference can be made in a suit, appeal or execution proceeding pending before the
court only when there is a doubt of law. As held in the case of Banarasi Yadav v. Krishna
Chandra2 it was held that the question of law about which the subordinate court is
doubtful, must have actually been called upon in the case for adjudication and it
shouldn’t be a hypothetical question.

Therefore, no reference can be made on a hypothetical question or a point that may or

may not arise in future. But, if the situation arises it may be considered for reference.

Power and duty of the High Court

The High has consultative jurisdiction in this context. When reference is sought from the
High Court and while dealing it the High Court is not bound to decide only the question
of law in doubt. As held in the case of S.K. Roy v. Board of Revenue, the High Court can
consider the new aspects of law also if any new aspect arises.

To answer the question for which reference is sought totally upon the discretion of the
High Court as discussed under Order 46 of the Code. The High Court may answer the
question and send the case back to the referring court to dispose of it in accordance with

1
AIR 1973 All 23
2
AIR 1972 Pat 49

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 the law. It is also upon the discretion of the High Court to refuse to answer the question
and it has even power to quash it.

Effects of Reference

In the case of L.S Sherlekar v. D.L. Agarwal, 3it was held that when the reference is
sought from the High Court and the decree is confirmed if the High Court answers the
question in favour of the plaintiff. If the answer of the High Court is against him, the suit
is dismissed.

Rule 3 of Order 46 states the provision that after hearing the parties if the High Court
desires, it shall decide the referred points and transmits a copy of its judgement to the
subordinate court which shall dispose of the case in reference to said decisions.

3
AIR 1968 Bom 439, (1968) 70 BOMLR 100

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 REVIEW

A substantive right to review is provided to be exercised in certain circumstances under

section 114 of the Code of Civil Procedure and the procedure to be followed for review
procedure is laid down under Order 47 of the Code. The general rule laid down by Order
20 R. 3 of the Code which is followed in a legal procedure is that once a judgement is
signed and pronounced by the court, that court ceases to have control over the matter.
The court passing judgement or order cannot later alter its pronouncement. But, the
power of review is an exception to this general rule.

The meaning of “review” is “the process of judicial re-examination of a case by the

same court and by the same judge who has passed the judgement or order earlier”.

Review of an order once passed by the Court is a serious step and it cannot be taken
lightly. This power requires to be applied with great care and seriousness.

Object

Any human being can make a mistake or error and so do the judges. So, the procedure of
Review has been embedded in the legal system to correct the mistakes and prevent any
miscarriage of justice as held in the case of S.Nagraj v. State of Karnataka 4. The review
application is not an appeal or revision made to the superior court, but it is a request to
recall and reconsider the decision made before the same court.

Circumstances when a review petition is maintainable

A review petition is maintainable before the court under the following circumstances:

When no appeal lies in the case

According to section 114 of the code, when no appeal lies from an order or a decree then it
can be reviewed by the Court. In the case of Ganeshi Lal v. Seth Mool Chand 5, it was held
that taking into consideration sub-clause(c) of Section 114, the application of review against a
decree passed by a Small Causes Court is eligible.

Even if an appeal is dismissed on the ground of being incompetent or time-barred, the party
can go for review procedure as held in the case of Ram Baksh v. Rajeshwari Kunwar.

When appeal lies in a case but not preferred

4
JT 1993 (4) SC 27
5
AIR 1935 All 435

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When the provision of appeal is available but it is not preferred by the aggrieved party then
also a review petition is maintainable. As held in the case of Sitaramasastry v. Sunderamma
an application for review can be presented before the court only till no appeal is preferred
against that order. The court cannot entertain an application for review when an appeal is
already instituted before making an application for review.

Reference from Small Causes Court

The court may review the judgement on a reference made by the Small Causes Court.

Grounds of Review

There are certain grounds laid down under Rule 1 of Order 47 on which an application made
for the review of a judgement is maintainable:

 On the discovery of new and important matter or evidence

A court can review its judgement when some new and important matter or evidence is
discovered by the applicant which couldn’t be produced or was not available at the
time of passing the decree.

 When the mistakes or errors are apparent on the face of the record

When there is an apparent error on the face of record then the court may review its
judgement or decree. As decided in the case of Karutha Kritya v. R. Ramalinga Raju,
the error includes an error of fact as well as an error of law.

 Other sufficient reason

The last ground for review is any sufficient reason. Any sufficient ground considered
for review by the court comes under this ground. It could be any reason which the
court feels sufficient to review its judgement in order to avoid a miscarriage of justice.
In the case of Bank of Bihar v. Mahabir Lal, the Supreme Court laid down certain
reasons which can be considered as a sufficient reason for review such as- when there
has been any misapprehension of the true state of circumstances, or when the party
has not been given fair chance to produce any statement or evidence, or no notice was
sent to the party, or the court has failed to consider a material fact or evidence, or the
court has omitted any statutory provisions.

The limitation period for Review

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The limitation period for filing an application for review as given under Article 124 of the
Limitation Act, 1963 is thirty days for a court other than the Supreme Court from the date of
decree or order.

Is the power to review an inherent power?

It is a well-settled matter that the power to review is not an inherent power. It is required to
be either expressly conferred by law or by necessary implications.

Inherent power to review of a Court of plenary jurisdiction

The Court of plenary jurisdiction such as a writ court, in order to prevent a miscarriage of
justice and to correct grave errors, has been empowered to review its orders. On the leading
case law regarding this context is Shivdeo Singh v. State of Punjab in which the same was
discussed.

Being the final court of the country who is the last and final to decide on a matter, it has been
empowered to review and to undo injustice. In exceptional circumstances, it can even
exercise the power suo moto.

Who can make a review?

As discussed till now, a review is the reconsideration of the same matter by the same judge
who has decided the matter. If the judge who decided is present in the court, then he alone
has jurisdiction to review the matter decided by him. He is considered to be the best to
reconsider the case as only he will be able to remember what arguments were done and what
reason he used to decide that case.

However, if there is a situation that the same “judicial officer” cannot be available and any
unavoidable reason might prevent the judge who decided the case to review it, then in such
exceptional circumstances any judge or court of the concurrent jurisdiction can review it and
give decision as held in the case of Reliance Industries Ltd. v. Pravinbhai.

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 REVISION

If we go to the literal meaning, “to revise” stands for “to look again” or “to look repeatedly
at” or “to go through a matter carefully and correct where necessary”. The High Court has
been empowered with the revisional jurisdiction under section 115 of the Code of Civil
Procedure,1908.

Object

The object behind empowering the High Court with revisional jurisdiction is to prevent
arbitrary illegal or irregular exercise of jurisdiction by the subordinate court. Under section
115 the High Court is empowered to keep an eye on the proceedings of subordinate courts
that the proceedings are being conducted in accordance with the law, under its jurisdiction for
which it is bound for and in furtherance of justice as held in the case of Major S.S Khanna v.
Brig. F.J. Dillion.

But, the judges of the subordinate court have absolute jurisdiction to decide a case and even
when they have wrongfully decided a case, they do not commit any “jurisdictional error”.
With the power of revision, the High Court can correct the jurisdictional error when
committed by the subordinate court. The provision of revision provides an opportunity to the
aggrieved party to get their non-appealable orders rectified.

Conditions

Section 115 of the Code of Civil Procedure Code lays down all the conditions when the High
Court can exercise its revisional jurisdiction:

1. The case must be decided.

2. The revisional jurisdiction is exercised when no appeal lies in the case decided by the
subordinate court.
3. The subordinate court has decided such case by:
4. Exercise of jurisdiction which is not vested to that court by law., or
5. It has failed to exercise the vested jurisdiction, or
6. Illegal exercise of the vested power or with immaterial irregularity.

The High Court is not entitled to vary or reverse the order or decision of the subordinate court
unless such order is in favour of the party who has applied for revision. Also, the revisional
jurisdiction is not to be exercised if in that matter appeal lies to the High Court.

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So, by analysing section 115, we can observe that the revision is done mainly on
jurisdictional errors by the subordinate Court.

Can the power of Revision be exercised if an alternative remedy is available?

The exercise of revisional jurisdiction is upon the discretion of the court and the parties
cannot claim it as a right. In the leading case of Major. S.S. Khanna v. Brig. F.J. Dillion, it
was held by the Supreme Court that the court has to take into consideration several factors
before exercising the revisional jurisdiction. One of the that is considered is the availability of
an alternative remedy. When an alternative and efficacious remedy is available to the
aggrieved party, then the court may not exercise its revisional power under section 115 of the
Code.

The limitation period for Revision

According to article 131 of the Limitation Act, 1963 for a revision of the decree or order, the
limitation period is 90 days. The revision application is required to be made before the High
Court within the limitation period.

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 CONCLUSION

The provisions for reference, review and revision provided under the Code of Civil Procedure
are different ways by which the court can work more efficiently for fairness of justice system
even when there is no provision of appeal.

Whenever a matter is decided is the Court and the judge passes a decree or order then there
might be circumstances where there has been any mistake or error, or a party is aggrieved by
the order or decree or, there can also be circumstances where the subordinate court is
doubtful on such question of law. And, a general rule once a judgement is pronounced it
cannot be altered by the same court.

So the provision of review, reference and revision have been inserted under the legal system
to avoid a miscarriage of justice.

Where the reference is sought by the subordinate court itself when there is a doubt on the
question of law to the High Court, revisional power is exercised when there is a jurisdictional
error by the subordinate court. The power of review is vested in the subordinate court itself
which has passed the decree or order.

The process of Review, reference and revision are also very different from Appeal or Second
appeal. The subordinate court can seek reference from the High Court on its own but for
review or revision, an application is required to be filed. So, all three procedures have
different grounds, conditions and procedures.

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