Ivil procedure code neither creates nor take away any right. It is intended
to regulate the procedure followed by the civil court. The procedure must not be
complex and the litigant must get a fair trial in accordance with the accepted
principles of natural justice. Preamble of the code says that it was enacted to
consolidate and amend the laws relating to the procedure to be followed in the
civil court having civil jurisdiction in India.
The main aim of CPC is to facilitate justice and seek an end to the litigation
rather than provide any form of punishment and penalties. So some inherent
powers are also given to the court to meet such circumstances according to the
principles of natural justice, equity and good conscience. In India we have
three tier of judiciary.
The district, High court and the Hon'ble supreme court of India. Every day so
many cases are filed and each case having different circumstances. When hearing
is going on different questions rises before the court and the court has to
decide all the questions according to law. Some times such questions requires
the opinion of High Court, such doubtful question can be cleared from the
Meaning of reference
Reference is mentioned under sec113 of CPC. Where the subordinate court
refers the case involving the question of law to the Highcourt for the opinion
on that matter, reference is made to the Highcourt when it has reasonable doubt
during any suit, appeal, execution proceeding etc.Reference means referring a
case to Highcourt on a question of law.
Sec113 of civil procedure code
Sec113 empowers a subordinate court to state a case and refer the same to the
Highcourt for its opinion. Such opinion can be seeked when the subordinate court
has a doubt on a question of law. so a reference can be made on a question of
law only when the judge trying the case has a reasonable 3 doubt about it.
No party to the suit has the right to apply for reference. It is only the
subordinate court as the power of reference suo moto. Where there is doubt
regarding the validity of any legal provision, for matters other than the
validity of legal provision, 4 the court is not found to refer to the High
Court. A Tribunal or persona designate cannot be said to be a court and no 5
reference can be made by them.
Object of Reference
The underlying object for this provision is to enable subordinate court to
obtain in non appealable cases the opinion of High court in the absence of a
question of law and there by avoid the commission of an error which could not be
6 remedied later on. Such provision also ensures that the validity of a
legislative provision (Act, Ordinance or regulation) should be interpreted and
decided by the highest court in the state and there wouldn't remain any chance
of misrepresentation. Reference should be made before passing of the judgment in
Conditions for Reference:Order 46 Rule 1 requires the following condition for a subordinate court to
make a reference:
The subordinate court having a doubt on question of law may be divided
into two classes:
- Suit or appeal must be pending in which the decree is not subject to
appeal or a pending proceeding in execution of such decree.
- There must arise a question of law in such suit, appeal or proceeding.
- The court trying the suit or appeal or executing the decree must have a
reasonable doubt on such question.
Under the second condition reference is optional, but in the first condition
it is obligatory, if the following conditions are fulfilled:
- The question related to the validity of any Act, Ordinance or regulation
and any other questions.
Power and Duty of The High Court
- It is necessary to decide such question in order to dispose of the case.
- The subordinate court is of the view that impugned Act, ordinance or
regulation is ultra- virus and.
- There is no determination either by the supreme court or by the High
Court to which such court is subordinate that such Act, Ordinance or
Regulation is ultra virus.It is also essential that only a court can make a
reference on 9 application of parties or sumoto, on its own discretion
having fulfilled the above conditions.
The apparent requirement of court to make sure such question must have been
arisen between parties to the suit and hence port leaves no scope for
reference on a hypothetical question which is based on pillars of may or
might on a point likely to arise to in future.
So it is clear that a reference can be made in a suit, appeal or execution
proceeding pending before the court only when there is a doubt of law.
The High Court has consultative jurisdiction in this regard. In deciding and
dealing with it High court is not found to decide only the question of law in
doubt,it can consider new aspects of law. So it is fully discretion of the
Highcourt as mentioned Order 46 of the civil procedure code.It as discretion to
refuse to answer the question are even power to quash it.
It is the process of judicial reexamination of a case by the same court and by
the same judge who has passed the judgment or order. Sec 114 of CPC gives a
substantive right of review in certain circumstances and the procedure to be
followed for review is laid down in Order 47 of the code.
The general rule is that once a judgment is signed and pronounced by the court,
that court ceases to have control over the matter. The court passing the
judgment or order cannot later alter its pronouncement. But the power to review
is an exception to this general rule. An aggrieved party can file an application
for review in the same court where the decree has been passed.
In the Common parlance the word review means to re consider, to look again or to
reexamine. This section enables the court to review its own judgment in case of
any error or mistake made with regard to the decision rendered, to rectify the
same. Section 114 is substantive, the procedure for which is provided in Order
47. Review is not to be taken lightly. It is a very serious step. The power of
review has to be taken with great care and caution.
Object of Review
The procedure of review has been embedded in the legal system to correct and
prevent miscarriage. 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. If the judge who decided is present in the court
then he alone has jurisdiction to review the matter decided by him. He is the
best to reconsider the case as he may be able to remember what was argued before
him and what was not mentioned in the case there fore he alone should hear the
Grounds of Review
Rule1 Order 47 lays down the grounds on which an application for review of a
judgment is maintainable:
The power of Review is not an inherent Right
- On the discovery of new important matter or evidence. Court can review
it's judgment. when some new and important matter or evidence is discovered
by the applicant which could not be produced or was not available at the
time of passing the decree.
- When the mistake or error are apparent on the face of the record then
the court may review it's judgment or decree. Error may be a fact or law. In
Thungabhadra industries limited V Government of AP , Supreme court observed
that "a review is by no means an appeal in disguise where by an erroneous
decision is reheard and correct, but lies only for patent error.
- Other sufficient reason: Any other sufficient reason must mean a" reason
sufficient on grounds specified in the rule" for example where the statement
in the judgment is not correct or where the court had failed to consider a
material issue, fact or evidence etc. So it could be of any reason which the
court feels sufficient to review it's judgment in order to avoid a
miscarriage of justice.
It is well settled matter that the power to review is not an inherent power. It
is conferred by law either expressly or by necessary implication. It is the duty
of the court to correct grave and palpable errors committed by it. So it is
empowered to review and to undo in justice.
Limitation period of Review
- The limitation period for filing an application for review is thirtydays
Sec115 of the CPC 1908 empowers the Highcourt with Revisional jurisdiction.
The dictionary meaning of the world revision is to revise, to look again, to go
through a matter 1 carefully and correctly and correct where necessary.
Object of Revision
The object of Sec 115 is to prevent subordinate court from acting arbitrarily,
capriciously and illegally or irregularly in the exercise of their jurisdiction.
The power of High court to see that the proceedings of the subordinate court are
conducted in accordance with law and within the bounds of 19 the jurisdiction
and in furtherence of justice.
It enables the High court to correct the error of jurisdiction commited by the
subordinate court. This provision of revision provides an opportunity to the
aggrieved party to get their non appealable orders rectified. Revisional power
is excercised when no appeal lies to the High court. High court can 20 exercised
the revisional power even suo moto.
- Limitation period for revision application is 90 days. The ground for
revision will be mainly on jurisdiction.
- Reference is made by a subordinate court to the High court where there
is doubt regarding the question of law.
- Review is made by the same court which has passed the decree to rectify
the mistake or error on the record.
- Revision application is made only to High court when the decree passed
by subordinate court is not in accordance 21 with appropriate jurisdiction.
Application for review revision and reference do not deal with facts or evidence
of the case they are only based on technical grounds. To err is human. Every
human being commits a mistake. Judges are also human beings so there are chances
for them to commit mistake. In such cases these provisions well help the judges
in order to correct the mistakes. So Sec 113,114,115 of CPC embedded in the
legal system in order to maintain the fairness and accuracy of the justice
- Pragati Goyal
- Rahul Khokhar