Review under CPC

Introduction :

According to the Code of Civil Procedure (CPC), 1908, a party who is unhappy with the judgement rendered by the court may file an appeal against the judgement before the superior court. Typically, the appellate court rehearses the entire case during an appeal.

Meaning :

Review means consideration, inspection or re-examination of a subject or thing. So, the review of judgment is to examine or study again the facts and judgment of the case. Review of judgment is the substantive power of review by the court mentioned in Section 114 of CPC.

This section doesn’t provide any limitations and conditions for review. The limitations and conditions are provided in Order 47 of the Civil Procedure Code. Order XLVII contains nine rules which impose some condition for the review. The power to review is conferred by law and inherent power to review vests in court only. A Government officer has no inherent power to review his/her orders. All decrees or orders cannot be reviewed. The right of review has been conferred by Section 114 and Order 47, Rule 1 of the Code.

NATURE  AND  SCOPE

The normal principle of law is that once a judgment is pronounced or order is made, the court becomes functus officio. Such judgment or order is final and it cannot be altered or changed. As a general rule, once an order has been passed by a court, a review of such order must be subject to the rules of the game and cannot be lightly entertained. 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 like grave error has crept in earlier by judicial fallibility. A power of review should not be confused with appellate powers which enable an appellate court to correct all errors committed by the subordinate court. In other words, it is beyond dispute that a review cannot be equated with the original hearing of the case, and finality of the judgment by a competent court cannot be permitted to be reopened or reconsidered, unless the earlier judicial view is manifestly wrong. It is neither fair to the court which decided the matter nor to the huge backlog of dockets waiting in the queue for disposal to file review petitions indiscriminately and fight over again the same battle which has been fought and lost. Public time is wasted in such matters and the practice, therefore, should be deprecated.Greater care, seriousness and restraint is needed in review applications. If a review application is not maintainable, it cannot be allowed by describing such an application as an application for “clarification” or “modification”. A right of review is both, substantive as well as procedural. As a substantive right, it has to be conferred by law, either expressly or by necessary implication. There can be no inherent right of review. As a procedural provision, every court or tribunal can correct an inadvertent error which has crept in the order either due to procedural defect or mathematical or clerical error or by misrepresentation or fraud of a party to the proceeding, which can be corrected ex debito justitae (to preventthe abuse of process of court).

OBJECT

The remedy of review, which is a reconsideration of the judgment by the same court and by the same judge, has been borrowed from the courts of equity. The concept was not known to common law. The remedy has a remarkable resemblance to a writ of error. The basic philosophy inherent in the recognition of the doctrine of review is acceptance of human fallibility. If there is an error due to human failing, it cannot be permitted to perpetuate and to defeat justice. Such mistakes or errors must be corrected to prevent miscarriage of justice. Justice is above all. It is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can come in its way. The law has to bend before justice Rectification of an order stems from the fundamental principle that justice is above all. It is exercised to remove an error and not to disturb finality.

Section 114 and Order XLVII of the Code of Civil Procedure, 1908 deals with the Review. Section 114 may be classified into following heads in order to understand it in simple terms

WHO MAY APPLY 

As per section 114 of Code of civil procedure A person aggrieved by a decree or order may apply for review of a judgment. 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 or wrongfully refused him something or wrongfully affected his title to something. The expression “person aggrieved” denotes an elastic, and to some extent, an illusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. Generally speaking, a person aggrieved has been understood to mean one who has a genuine grievance because an order has been made which prejudicially affects his interests. But the concept of “person aggrieved” varies according to the context, purpose and provisions of the statute. However leniently one may construe the expression “party aggrieved”, a person not affected directly and immediately cannot be so considered, otherwise an interpretation of service rules and regulations may affect several members and they will also be considered “persons aggrieved”. 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.  But in the case of Savithramma v. H. Gurappa Reddy, AIR 1996 if third party is affected or prejudiced by a judgment or order, he can seek review of such order. Again, a person who is a necessary party to the suit and yet not joined and the order passed in such suit affects him, may seek review thereof.

WHEN REVIEW LIES ? : CIRCUMSTANCES

According to section 114,  A review petition is maintainable in the following cases:

1. Cases in which no appeal lies: A decree or order from which no appeal lies is open to review. Hence, an application for review against a decree passed by a Court of Small Causes is competent on the same principle, where an appeal is dismissed on the ground that it was incompetent or was time ­barred, the provisions of review would get attracted. there is no bar on the right to appeal i.e. In case an appeal is preferred before a review then the review is not permitted. If the review is taken at the initial stage, then the appeal is allowed.
2. Cases in which appeal lies but not preferred: A review petition is also maintainable in cases where appeal is provided but no such appeal is preferred by the aggrieved party. The fact that an order is subject to appeal is no ground to reject an application for review. An application for review can be presented so long as no appeal is preferred against the order. Where, however, an appeal is already instituted before making an application for review, the court cannot entertain such application. Likewise, where an appeal is preferred and is disposed of, no review would lie against the decision of the lower court. But if an application for review is preferred first and then an appeal is filed, the jurisdiction of the court to deal with and decide the review petition is not affected.
   The words “from which an appeal is allowed” should be construed liberally keeping in mind the underlying object of the provision that before making a review application, no superior court has been moved for getting the self-same relief, so that for one and the same relief two parallel proceedings before two forums are not taken.
   CASE LAWS :
   Ram Baksh v. Rajeshwari Kunwar, AIR 1948: It was held that if review is granted before disposal of the appeal, the decree or order ceases to exist and the appeal will not remain. Conversely, if appeal is decided on merits before an application of review is heard, such petition becomes infructuous and is liable to be dismissed.
   Shree Narayana Dharmasanghom Trust v. Swami Prakasananda, (1997) SC: The principle applies to dismissal of Special Leave Petitions by the Supreme Court. But if a Special Leave Petition is merely filed and is not decided, the bar would not apply.
3. Decisions on reference from Court of Small Causes The Code of Civil Procedure, 1908 allows a review of a judgment on a reference from a Court of Small Causes as contained in the Order XLII Rule 1 (c).
   If the review is granted and the order or decree is reversed, the appeal will lapse and vice versa.
   Example, the Kukrejas lost a case and decided to appeal it, but the Court told him that he would not be allowed to. They may apply to the Court for review of the matter.

GROUNDS:

An application for review of a judgment may be made on any of the following grounds as per Order 47 Rule 1 :-

1. Discovery of new and important matter or evidence; or
2. Mistake or error apparent on the face of the record; or
3. Any other sufficient reason.
   
   Let us consider the above grounds in detail.

1. 1. Discovery of new evidence : A review is permissible on the ground of discovery by the applicant of some new and important matter or evidence which, after exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed. As a general rule, where a litigant has obtained a judgment in a court of justice, he is by law entitled not to be deprived of the fruits thereof without very strong reasons. Therefore, where a review of a judgment is sought by a party on the ground of discovery of fresh evidence, utmost care ought to be exercised by the court in granting it. It is very easy for the party who has lost the case to see the weak points in his case and he would be tempted to try to fill in gaps by procuring evidence which will strengthen that weak part of his case and put a different complexion upon that part. The underlying object of this provision is neither to enable the court to write a second judgment nor to give a second innings to the party who has lost the case because of his negligence or indifference. Therefore, a party seeking review must show that there was no remiss on his part in adducing all possible evidence at the trial. Again, the new evidence must be such as is presumably to be believed, and if believed to be conclusive. In other words, such evidence must be
      (1) relevant; and
      (2) of such a character that if it had been given it might possibly have altered the judgment. Thus, the discovery of a document containing an admission of liability by the defendant would be a good ground for review.
      CASE LAWS:
      Mary Josephine v. James Sidney, AIR 1930: where the decree for restitution of conjugal rights was passed and subsequently it was discovered that the parties were cousins and the marriage was, therefore, null and void, the review was granted. Again, where the court issued commission for the examination of a witness in Pakistan and subsequently it was brought to its notice that there was no reciprocal arrangement in this respect between Pakistan and India, the court reviewed its earlier decision as held in the case of Mohd. Azizul v. Mohd. Ibrahim 1958.
      Mahabir Prasad v. Collector of Allahabad, AIR 1914: Before an application of review can be granted, the applicant must establish that even after exercise of due diligence, such evidence was not within his knowledge or could not be produced by him before the court at the time when the decree was passed.There must be sufficient evidence of diligence in getting all the evidence available.
2. When there is any mistake or error apparent on the face of the record:
   Another ground for review is a mistake or an 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. Such error may be one of fact or of law. However, no error can be said to be an error apparent on the face of the record if it is not self ­evident and requires an examination or argument to establish it. In other words, an error cannot be said to be apparent on the face of the record where one has to travel beyond the record to see if the judgment is correct or not.
   The following have been held to be errors apparent on the face of the record:
   1. 1. pronouncement of judgment without taking into consideration
      2. the fact that the law was amended retrospectively
      3. without considering the statutory provisions;
      4. on the ground that the court decides against a party on matters not in issue
      5. where the judgment is pronounced without notice to the parties;
      6. where the want of jurisdiction is apparent on the face of the record;
      7. taking a view contrary to the law laid down by the Supreme Court.
         The following have been held not to be errors apparent on the face of the record:
         1. an erroneous decision on merits;
         2. an erroneous view of law;
         3. the fact that the other High Court has taken a different view on the question;
         4. that a different conclusion would have been arrived at;
         5. where the judgment is based on two or more grounds, each of which is sufficient to sustain it and one of them is erroneous
3. Other sufficient reason:
   The last ground for review is “any other sufficient reason”. The expression “any other sufficient reason” has not been defined in the Code. However, relying on the judgment of the Privy Council and the Federal Court, the Supreme Court in the case of Moran Mar Basselios Catholicos v. Mar Poulose Athanasius 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 been held to be sufficient reasons for granting review:

• • • where the statement in the judgment is not correct;
    • where the decree or order has been passed under misapprehension of the true state of circumstances;
    • where a party had no notice or fair opportunity to produce his evidence;
    • where the court had failed to consider a material issue, fact or evidence;
    • where the court has omitted to notice or consider material statutory provisions;
    • a ground which goes to the root of the matter and affects inherent jurisdiction of the court;
    • misconception by the court of a concession made by the advocate;
    • where a party’s evidence has been closed owing to a misconception on the part of his pleader;
    • a manifest wrong has been done and it is necessary to pass an order to do full and effective justice.

BY WHOM REVIEW MAY BE MADE

Review is reconsideration of the same subject matter by the same court and by the same judge. If the judge who has decided the matter is available, he alone has jurisdiction to consider the case, and review the earlier order passed by him. He is best suited to remove any mistake or error apparent on the face of his own order. Moreover, he alone will be able to remember what was earlier argued before him and what was not urged. The law, therefore, insists that if he is available, he alone should hear the review petition.

CASE LAWS :

Reliance Industries Ltd. v. Pravinbhai, (1997): There may, however, be situations wherein this course is not possible. The same “judicial officer” may not be available. Death or such other unexpected or unavoidable causes might prevent the judge who passed the order from reviewing it. Such exceptional cases are allowable only ex necessitate and in those cases,  his successor or any other judge or court of concurrent jurisdiction may hear the review petitions and decide the same.

FORM OF APPLICATION:

Rule 3 of Order 47 says that an application for review should be in the form of a memorandum of appeal. The form of an application, however, is immaterial. The substance and not the form of an application is decisive.

SUO MOTU REVIEW
The power of review can be exercised by a court on an application by a “person aggrieved”. The Code does not empower the court to exercise power of review suo motu. It is settled principle of law that when a statute requires a particular thing to be done in a particular manner, it has to be done only in that manner and in no any other manner. “There is no provision either in Section 114 or in Order 47 of the Code providing for any suo motu review.”

PROCEDURE AT HEARING : An application for review may be divided into the following three stages:

1. First stage (Rule 4(1) Order 47) : An application for review commences ordinarily 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 rule calling upon the opposite party to show cause why review should not be granted.
2. Second stage (Rule 5 Order 47): The application for review shall then be heard by the same court and by the same judge who passed the decree or made the order, unless he is no longer attached to the court, or is precluded from hearing it by absence or other cause for a period of six months after the application. 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 (Rule 4 (2)Order 47).
3. Third stage (Rule 8 Order 47): In the third stage, 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.\

Case:

Sushil Kumar v. State of Bihar, (1975): The effect of allowing an application for review is to recall the decree already passed. Any order made subsequently whether reversing, confirming or modifying the decree originally passed will be a new decree superseding the original one.

LIMITATION

According to Article 124 of Limitation act 1963, The period of limitation for an application for review of a judgment by a court other than the Supreme Court is thirty days from the date of the decree or order.

REVIEW IN WRIT PETITIONS

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

There is nothing in Article 226 to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to   of justice or to correct grave and palpable errors committed by it.

At the same time, however, there are definitive limits to the exercise of the power of review. It cannot be forgotten that a review is not an appeal in disguise where by an erroneous decision is reheard and corrected. This general rule applicable to civil proceedings would apply to proceedings under Article 226 of the Constitution as well.

While exercising the power of review, a High Court may bear in mind the following principles:

1. The provisions of the Civil Procedure Code in Order 47 are not applicable to the High Court’s power of review in proceedings under Article 226 of the Constitution.
2. The said powers are to be exercised by the High Court only to prevent miscarriage of justice or to correct grave and palpable errors. (The epithet “palpable” means that which can be felt by a simple touch of the order and not which could be dug out after a long-drawn-out process of argumentation and ratiocination.)
3. The inherent powers, though ex facie plenary, are not to be treated as unlimited or unabridged but they are to be invoked on the grounds analogous to the grounds mentioned in Order 47 Rule l.

REVIEW BY SUPREME COURT

The provisions of Order 47 apply to orders passed under the Code of Civil Procedure. Article 137 of the Constitution confers power on the Supreme Court to review its judgments subject to the provisions of any law made by Parliament or the Rules made under Article 145. The power of the Supreme Court, therefore, cannot be curtailed by the Code of Civil Procedure.

Conclusion:

“The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. Whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the court will not be reconsidered except where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.