WHAT IS REFERENCE?
Reference means to refer an issue to someone to obtain an opinion on it. A matter is generally referred to when its question can’t be decided by the court doing a trial of it. Reference is dealt under Section 113 of the Code. It mentions that a subordinate court can refer a doubt to the High court where the former thinks that there should not be misinterpretation with regard to any law. This is called a reference.
No party to the suit has the right to apply for reference. It is only the subordinate court which has the power of reference suo-moto (on its own motion) when there is doubt regarding the validity of any legal provision. The High Court is required to give its opinion on the matter concerned, along with the reasons. Reference to the High Court must be made through a judicial order and not a letter to the High Court. The matter can be referred only in a suit, appeal, or execution and not in any other proceedings.
So, when the court feels that it needs clarification regarding any matter which is pending, it can seek an opinion from the High court to avoid the commission of errors while rendering a judgement.
Order 46 of the Code lays down the conditions which should be satisfied by the subordinate court in order to make a reference to the High court. They are:
- – The suit or appeal must be pending wherein no further appeal lies from decree or order of such suit or appeal respectively
- – The question of law must arise during the course of proceedings, i.e., the pendency of the suit
- – The court must be entertaining the suit from which such doubt regarding the question of law has arisen.
The subordinate courts can exercise the right of reference under the following situations:
- – A question as to the validity of any act, rule, regulation, ordinance, etc., arises in the court where the suit is being entertained
- – The court is of the opinion that such act or any other provision of law is invalid (“ultra vires”) or inoperative
- – Such question on the provision of law is never before made invalid either by the High court or Supreme court
- – It is pertinent for determining the validity of such provision of law for disposal of the suit
Condition for seeking reference:
- Suit must be pending in court
- The question of validity of law must have arisen during pendency
- The court must have entertaining the suit when question arises
WHAT IS REVIEW?
Review means to look after a thing again. It means to re-examine again. A review is mentioned under Section 114 of the Code. An aggrieved party can file an application for review in the same court where the decree has been passed. This provision enables the court to review its own judgement in case of any error or mistake made with regard to the decision rendered, to rectify the same. While Section 114 is a substantive right, the procedure for the same has been provided for under Order 47 of the Code. The application for Review can be filed under the circumstances where:
- – a decree or order is appealable as provided by the law, but no such appeal has been preferred
- – there is no provision for appeal from certain decree or order
- – a decision is passed by the court of Small Causes
The grounds for filing review application are:
- 1. discovery of new facts when there is no knowledge about the same or could not produce the same due to negligence, prior to the time when the decree was passed
- 2. the error apparent on the face of the record which means errors which do not give rise to re-arguments of the whole case and those which are not related to erroneous decisions
- 3. any other sufficient grounds as provided by the Code, wherein the misconception of the court can be considered as sufficient ground
The application for review shall be filed within 30 days from the date of order/decree. The order or decree passed after such review shall be final and in force. As a matter of fact, the Supreme court can also review its own decisions under Article 137 of the Constitution of India. As per Supreme Court Rules, 1966, the review petition should be filed within thirty days from the date of judgment.
WHAT IS REVISION?
Revision literally means, “to look again” or “to repeatedly at” or “to go through a matter carefully and correct where necessary”.The High court has the power to call for a re-examination of any case which has been decided by the subordinate court without appropriate jurisdiction. This power of the High court is called Revisional Jurisdiction of only High court which is mentioned under Section 115 of the Code. The revisional jurisdiction is not a substantive right but is merely a privilege given to the applicant.
An application for revision can be made by the parties to the suit under the following circumstances where the subordinate court has:
- – not exercised jurisdiction as conferred by law (wrongful assumption of the court regarding the jurisdiction)
- – failed to exercise jurisdiction that is vested in it (non-exercise of jurisdiction by the court)
- – illegally exercised its jurisdiction (irregular exercise of jurisdiction by the court)
The High court cannot reverse a judgement where:
- – the whole suit has been disposed of by the parties
- – the reversal of such judgement shall cause irreparable injury/loss against whom it was made
According to article 131 of Limitation Act for a revision of the decree or order, the limitation period is 90 days. The revision is to be done within that limitation period.
DIFFERENCE BETWEEN REFERENCE, REVIEW AND REVISION
| REFERENCE | REVEW | REVISION |
| Section 113 and Order 46 of the CPC provides the provisions relating the Reference. | Section 114 and Order 47 of the CPC provides the provisions relating the Review. | Section 115 of the CPC provides the provisions relating the Revision. |
| In the reference, the subordinate court refers the case to the High Court. | In the Review, the application made by the aggrieved party | In case of Revision, it can be exercised either on the application by the aggrieved party by the High Court even A review moto |
| The High Court alone can decide matters on the reference. | Review, on the other hand, is by the court which passed the decree or made the order. | Revision can only be entertained by the High Court. |
| It is made in the pending suit, appeal or execution proceedings | An application for review can be made for only after the decree is passed or order is made. | Revisional jurisdiction can be exercised when the case has been decided. |
| The grounds of reference relate to a reasonable doubt on a question of law. | The grounds for the review are as follows:- (i) discovery of new and important matter or evidence; (ii) mistake or error apparent on the face of the record; (iii) any other sufficient reason. | The grounds for the revision relate to jurisdictional errors of the subordinates court. |
RELEVANT CASE LAWS
Haridas Das v. Smt. Usha Rani Banik 2006 (3) SCALE 287
Facts: One Kalipada Das, (respondent No. 1 in the review petition) the original owner of the suit property, entered an oral agreement with the appellant on 19th August 1982 and on the same day, the appellant paid Rs. 14,000/- towards the agreed consideration of Rs. 46,000/- to sell his portion of the suit property, with a dwelling house standing thereon.The possession of the suit property was also handed over to the appellant, with a promise that a sale deed would be executed in favour of the appellant within three years. Again on 23rd August 1982 the appellant paid a further sum of Rs. 31,000/.In essence Rs. 45,000/- was paid leaving only a nominal sum of Rs. 1,000/- to be paid at the time of execution of the sale deed.As the time for execution of the sale deed was nearing, the appellant learnt that the said Kalipada Das with a view to defeat the appellant’s right was trying to sell part of the property to one Chunnilal Deb and to mortgage part of the suit property with the Housing Board of Karimganj.He started openly threatening the appellant to dispossess him of the suit property. The appellant paid the balance amount of Rs.1,000/- and asked Kalipada to execute the registered sale deed in his favour in respect of the property.In view of threatened dispossession, the appellant, with a view to protect his possession of the suit property filed a Title Suit.The appellant sought confirmation of possession over the suit land and premises, and for permanent injunction restraining Kalipada Das from dispossessing the appellant and from selling the suit property to any third party.In the said plaint the appellant exclusively reserved his right to file another suit for getting the sale deed executed.By an interim order, Kalipada Das was directed to maintain status quo regarding the suit property.The suit was dismissed for default, but later was restored by an order passed by learned Munsif.The appellant filed another suit being Title Suit No. 1 of 1986 (re-numbered as 13/90) for specific performance of the agreement for sale and for the execution of the proper deed of sale in respect of the suit property.During the pendency of the said proceedings, Kalipada Das executed and registered a sale deed in favour of one Usha Rani Banik, defendant No. 3 (Respondent No. 1 herein), while the possession of the suit property still remained with the appellant.Immediately thereafter, the appellant filed Title Suit No. 2 of 1987 for cancellation of the said sale deed as the same was illegal, fraudulent and void.
The respondent No. 1 also filed a suit being Title Suit No. 22/87 for declaring her title to the suit property based on the sale deed.Title Suit No. 2 of 1987 filed by the appellant was decreed whereby the sale deed executed in favour of the Respondent No. 1 was cancelled.
Against the said decree of the trial court, the respondent No. 1 preferred an appeal before learned District Judge, Karimganj, which was allowed setting aside the decree passed in Title Suit No. 2 of 1987.The appellant preferred Second Appeal No. 12 of 1993 before the High Court.
The Second Appeal was allowed restoring the judgment and decree passed in Title Suit No. 2 of 1987.The High Court held that no leave under Order II Rule 2 of Code of Civil Procedure, 1908 (CPC) was obtained by the respondent in Title Suit No. 201 of 1985.Therefore, Title Suit No. 1 of 1986 filed for specific performance of the agreement for sale of land is hit by the provisions of Order II CPC.
The appellant approached the Hon’ble Supreme Court by way of a civil appeal.
Issue: Whether the High Court has erred in reviewing the order in the second appeal?
Judgement: The court, in its deliberation, scrutinised the provisions of Section 114 of CPC to fathom the extent of review. Although the section lacked explicit delineation, Order 47 of CPC provided parameters for review, allowing a rehearing upon the discovery of a mistake or an error manifest on the records. Notably, the rule distinguished between errors attributable to the applicant and those pertaining to the inherent correctness of a judicial action.
The court emphasised that mere failure to exhaust all aspects of a case or to present arguments forcefully did not warrant a rehearing. This was underscored by the Explanation to Rule 1 of Order 47, which precluded review based on subsequent superior court decisions. Applying these principles to the case at hand, it was evident that the High Court erred in granting the review petition, as the grounds for review were not substantiated by the facts.
The Supreme Court set aside the judgement passed by the High Court in the review petition and restored the judgment and order passed in the Second Appeal.
