Reference, Review and Revision

Rule 3: the High Court, after hearing the parties if they appear, shall decide the point referred and transmit a copy of its judgment, and the Court shall dispose of the case conformably to that decision.

Rule 4: the costs of a reference are costs in the case.

Rule 5: the High Court may, where it thinks fit, alter, cancel or set aside any decree or order passed or made by the Court making the reference, and make such order as it thinks fit.

Rule 7 allows a Court of Small Causes to refer a question, and Rule 6 covers the power to refer where the question is one on which the Court entertains doubt in a suit not otherwise open to appeal.

Review: section 114 and Order XLVII

Who may apply, and against what

Section 114: subject as aforesaid, any person considering himself aggrieved:

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred (b) by a decree or order from which no appeal is allowed (c) by a decision on a reference from a Court of Small Causes

may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.

The three clauses matter. Review is available where an appeal lies but has not been filed, and where no appeal lies at all. It is not available to a person who has already appealed, because the matter has moved.

The three grounds: Order XLVII Rule 1

Rule 1(1): any person considering himself aggrieved as in section 114 and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review to the Court which passed it.

So there are exactly three grounds, and they must be stated in these terms:

One, discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced at the time. The due diligence requirement is the whole of it: a party who could have found the material and did not is out.

Two, some mistake or error APPARENT ON THE FACE OF THE RECORD. This is the ground that is most often misused. An error apparent on the face of the record is one that is self-evident and needs no elaborate argument to establish. A point on which two views are possible is not such an error, because demonstrating it would require exactly the argument that an appeal exists for.

Three, any other sufficient reason, which is read as a reason analogous to the first two rather than at large.

The Explanation to Rule 1 settles a recurring question: the fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case shall NOT be a ground for the review of such judgment.

That Explanation is worth quoting. A later change in the law does not reopen decided cases.

Rule 1(2): a party who is not appealing may apply for a review notwithstanding the pendency of an appeal by some other party, except where the ground of that appeal is common to the applicant and the appellant, or the appellant could but for the review have taken that ground.

Procedure

Rule 2 deals with an application for review of a decree or order of a court not being a High Court, on the ground of the discovery of new matter.

Rule 3 requires the application to be in the form prescribed for a memorandum of appeal, so far as circumstances admit.

Rule 4(1): where the Court sees no sufficient ground for a review, it shall reject the application.

Rule 4(2): where it grants the application, it shall record its reasons, and the grant may be at once or after notice, but no application shall be granted without previous notice to the opposite party to enable him to appear and be heard in support of the decree. And where the ground is the discovery of new matter or evidence, the Court shall require the applicant to prove strictly that the matter was not within his knowledge or could not be adduced by him when the decree was passed, notwithstanding the exercise of due diligence.

Rule 5: where the Judge who passed the decree is still attached to the Court, the application shall ordinarily be heard by him. That is the point of review: the same judge reconsiders.

Rule 7(1): an order rejecting the application is not appealable; but an order granting an application may be objected to on the grounds the rule specifies, including that the application was in contravention of Rule 2, or was granted on a ground other than the discovery of new matter or a mistake apparent on the face of the record.

Note the asymmetry, and note the connection to the previous chapter: an order granting a review is appealable under Order XLIII Rule 1, and an order rejecting one is not. See [Appeals from Orders].

Rule 8: where an application for review is granted, a note is made in the register and the Court may at once rehear the case or make such order as it thinks fit.

Revision: section 115

Section 115(1): the High Court may call for the record of any case which has been decided by any Court subordinate to it and in which no appeal lies thereto, and if such subordinate Court appears:

(a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

the High Court may make such order in the case as it thinks fit.

Those three clauses are the whole of revisional jurisdiction and must be quoted. Every one of them is about jurisdiction: taking a jurisdiction it did not have, refusing one it did have, or exercising one it had in a manner that is illegal or materially irregular. A wrong decision within jurisdiction is not revisable, however wrong.

The proviso to sub-section (1) narrows it further: the High Court shall not vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding.

So an interlocutory order is revisable only where deciding it the other way would have ended the case. That is a deliberate restriction designed to stop revisions being used to interrupt trials.

Section 115(2): the High Court shall not vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate to it. Revision is a residuary remedy: where an appeal is available, revision is not.

Section 115(3): a revision shall not operate as a stay of the suit or other proceeding except where it is stayed by the High Court.

The Explanation: "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.

The comparison

This table is the answer to the standing question, and it is the reason the three are in one chapter.

Three things students most often get wrong, and each is worth a sentence:

Review lies to the same court. It is not an appeal to a higher one.

Revision is confined to jurisdiction. An error of fact or of law within jurisdiction is for appeal, not revision.

Revision is not available where an appeal lies. Section 115(2) says so expressly.

A worked example

Kavita loses a small suit in which no appeal lies to the High Court.

The trial court doubted a question of law before deciding. Under section 113 and Order XLVI Rule 1 it could have stated a case and referred the point, being a case in which the decree is not subject to appeal and a question of law arose on which it entertained reasonable doubt. Under Rule 2 it could stay the proceedings or pass a contingent decree, but could not execute it until the High Court's judgment was received.

The trial court thought a State Act under which the claim arose was invalid. The proviso to section 113 made a reference mandatory. It could not simply hold the Act invalid itself.

Kavita finds a document after the decree. Section 114(b) and Order XLVII Rule 1: she may apply for review to the same court, on the ground of the discovery of new and important matter or evidence, but under Rule 4(2) she must prove strictly that despite due diligence it was not within her knowledge and could not be produced earlier.

She instead says the judge misread the evidence. That is not an error apparent on the face of the record, since establishing it needs argument, and review is not a substitute for an appeal that the Code has denied her.

A superior court later takes a different view of the law in another case. The Explanation to Rule 1: that is not a ground for review.

Her review application is rejected. Order XLVII Rule 7(1): no appeal lies from that rejection.

Her review is granted and her opponent objects. An order granting a review is appealable under Order XLIII Rule 1, on the grounds set out in Rule 7(1).

She says the trial court had no jurisdiction over the subject matter at all. Section 115(1)(a): the High Court may call for the record and interfere, since no appeal lies to it.

She says the trial court decided an interlocutory issue wrongly. The proviso to section 115(1): the High Court will not vary that order unless, had it been made in her favour, it would have finally disposed of the suit.

She has an appeal available to the District Court. Section 115(2): the High Court shall not vary or reverse the decree in revision, because an appeal lies.

What it does not mean

A reference is not an appeal by the court. It is a question stated for opinion, and the referring court then disposes of the case conformably.

Review is not a rehearing at large. It is confined to three grounds, and an error apparent on the face of the record must be self-evident.

A change in the law is not a ground for review. The Explanation to Order XLVII Rule 1.

Revision is not available for an error within jurisdiction. All three clauses of section 115(1) are about jurisdiction.

Revision is not available where an appeal lies. Section 115(2).

A revision does not stay anything by itself. Section 115(3).

Quick revision

Reference, section 113 and Order XLVI: any Court may state a case for the High Court's opinion; mandatory where the Court thinks an Act, Ordinance or Regulation invalid and it has not been so declared. Order XLVI Rule 1: a question of law or usage having the force of law, reasonable doubt, in a case not subject to appeal; Rule 2: stay or pass a contingent decree, but no execution until the High Court's judgment is received.

Review, section 114 and Order XLVII: to the same court, where an appeal lies but none has been preferred, where no appeal lies, or on a decision on a reference from a Small Causes Court. Three grounds: new and important matter or evidence not within knowledge despite due diligence; mistake or error apparent on the face of the record; any other sufficient reason. Explanation: a later reversal of the law by a superior court in another case is not a ground. Rule 4(2): notice to the opposite party, and strict proof of the new-evidence ground. Rule 5: ordinarily heard by the same judge. Rule 7: rejection is not appealable; granting is.

Revision, section 115: the High Court over a subordinate court where no appeal lies to it, on three jurisdictional grounds: exercised a jurisdiction not vested, failed to exercise one vested, or acted illegally or with material irregularity. Proviso: an interlocutory order only where deciding it the other way would have finally disposed of the case. (2) not where an appeal lies. (3) no automatic stay.

Test yourself

1. When must a court make a reference to the High Court? Under the proviso to section 113, where it is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation, or a provision of one, the determination of which is necessary for the disposal of the case, and is of opinion that it is invalid or inoperative but it has not been so declared by the High Court to which that court is subordinate or by the Supreme Court. It shall then state a case setting out its opinion and reasons and refer it.

2. On what grounds may a review be sought? On the 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 by him at the time the decree was passed; on account of some mistake or error apparent on the face of the record; or for any other sufficient reason: Order XLVII Rule 1.

3. Is a later change in the law a ground for review? No. The Explanation to Order XLVII Rule 1 provides that the fact that the decision on a question of law on which the judgment is based has been reversed or modified by a subsequent decision of a superior court in any other case shall not be a ground for review.

4. To whom is an application for review made, and who hears it? To the Court which passed the decree or made the order, under section 114; and under Order XLVII Rule 5 it shall ordinarily be heard by the Judge who passed the decree, if he is still attached to the Court.

5. State the grounds of revision under section 115. That the subordinate court appears to have exercised a jurisdiction not vested in it by law; to have failed to exercise a jurisdiction so vested; or to have acted in the exercise of its jurisdiction illegally or with material irregularity.

6. Can the High Court revise an interlocutory order? Only where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding: the proviso to section 115(1).

7. Give three differences between review and revision. Review lies to the same court that passed the decree, whereas revision lies to the High Court over a subordinate court. Review is applied for by an aggrieved party on the three grounds in Order XLVII Rule 1, whereas revision is confined to jurisdictional error under section 115 and may be taken up by the High Court of its own motion. And review is available where an appeal lies but has not been preferred, whereas revision is expressly not available where an appeal lies.