Q. What does the word ‘Review’ mean?
‘Review’ means “to look once again”. The main object of granting a review of judgment is reconsideration of the same matter by same judge under certain conditions. The provisions relating to review, thus, strikes down the general rule:
“Once the judgment is signed and pronounced by the Court it become ‘functus officio” and has no jurisdiction to alter it.”
Section 114 of the Code of Civil Procedure, 1908 lays down very general provisions for review of cases which is further elaborated and conditioned by provisions of Order XLVII of the Code.
Section 114 reads:
Subject as aforesaid, any person considering himself aggrieved,–
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed by this Code, or
(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.
According to rule 1 of Order XLVII:
(1) 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, or
(c) by a decision on a reference from a Court of Small Causes, 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 passed or order made against him; may apply for a review of judgment to the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.
Explanation.– 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.
Conditions Precedent to Allow Review Application
Q. What are the essential conditions to allow review application?
In every fit case, the Court allowing the review application should keep two points in mind:
(i) Notice should be given to the opposite party to enable him to appear and be heard in the matter; and
(ii) if the application is made on the ground of discovery of new matter/ evidence, which the applicant alleges, was not within his knowledge, or could not be adduced by him, when the decree was passed, or the order was made, the review application is not to be granted without strict proof of such allegation.
It should be noted that, lack of sufficient ground for review, the application is liable to be rejected by the Court. Subsequent event may be taken into consideration by the Court, while exercising review jurisdiction; BCCI v. Netaji Cricket Club, MANU/SC/0019/2005 : AIR 2005 SC 592: 2005 (2) AWC 1965 (SC): JT 2005 (1) SC 235: MANU/SC/0019/2005 : (2005) 4 SCC 741: 2005 (1) UJ 334 (SC).
The Kerala High Court in Pathrose v. Kuttan, AIR 1991 Ker 186, it has been held that error apparent on the face of record is not limited to the errors of fact only and it extends to errors of law as well. The Court further said that it matters not whether the error of law was apparent in the light of decision of the superior court which was existing at the time of the making of the decision or it was pronounced even after the decision in the case in question was made. In other words court said:
“Where a decision has been taken by a court and subsequent to that a pronouncement is made on the same point of law involved in the case in question, the same would be a good ground for the review of the judgment of the Court.”
Thus the following two grounds are good enough for the judicial review:
(1) If another binding decision interpreting the law differently was given before or after the judgment in the given case and the petitioner had no opportunity to bring it to the notice of the Court.
(2) If the legislature amends the existing law, the same can also be a good ground for judicial review. However, the principle is applicable where the statue is amended retrospective and not otherwise.
In Surinder Singh Arora v. Major Sohan Singh Arora, AIR 1986 Del 293: 28 (1985) DLT 28, the facts of this case are that Major Sohan Singh Arora (Respondent) filed on application in Delhi High Court to review its earlier order, on the ground that said order was passed without noticing the provisions of section 21 (2) of the Code of Civil Procedure, 1908. The earlier order by the High Court set aside, the order of remand by Additional District Judge and directed that the suit be retired and disposed by an Additional District Judge. The subsequent proceedings to remand order were also quashed on ground of being made without jurisdiction.
The contented provisions of section 21(2) were not brought to the notice of High Court when the earlier order was made and the Court quashed the proceeding on the basis of general principles of law with regard to the legality of the proceedings of court not competent to try the suit for want of requisite pecuniary jurisdiction. The High Court accepting the contention of the counsel of Respondent that in view of specific provision of section 21(2), an objection to the pecuniary jurisdiction of a court must be raised at the earliest stage of the proceeding in a suit and that it must be further shown that some prejudice has resulted to the aggrieved party before the proceedings of the Court having requisite pecuniary jurisdiction can be set aside. In the instant case it was only in the revision petition which was filed by petitioner in the High Court that he raised the objection regarding the pecuniary units of the Courts of subordinate judge for the first time.
If the said provisions of section 21(2) would have been brought to the notice of the High Court the proceedings before the subordinate judge after the remand order of Additional District Judge would not have been quashed especially when the trial of suit was in progress and there could be no question of failure of justice consequent upon the same.
As to maintainability of the review petition. It was urged that the inherent fact that order under review is wrong on a point of law will not, according to well-established principles furnish a ground for review by this court, more so when no new and important matter of evidence has been discovered.
Decision: The High Court on this contention held that:
The erroneous decision on a point of law in the sense that the Court has taken a view on a point of law which is erroneous is quite different from case where specific provision of law having bearing on the controversy between the parties has not been considered at all. May be because it was not within the knowledge of the counsel for the parties or for that matter the Court itself Hence, if it is brought to the notice of the Court that there was a specific provision of law interdicting an appellate or revisional court to entertain the plea, the Court would be failing in its duty if it refuse to rectify the error on pure technical grounds.
When the Court disposes of a case without adverting to or applying its mind to a provision of law which gives it jurisdiction to act in a particular way that may amount to an error analogous to be apparent on the face of the record sufficient to bring the case within purview of Order XLVII, rule 1 of the Code of Civil Procedure, 1908.
In Union of India v. B. Valluban, MANU/SC/8573/2006 : AIR 2007 SC 210, it is held that the High Court’s jurisdiction to review its own judgment is limited. The High Court, indisputably, has a power of review, but it must be exercised within the framework of section 114 read with Order XLVII of the Code of Civil Procedure. The High Court did not arrive at a finding that there existed an error on the face of the record. In fact, the High Court, despite noticing the argument advanced on behalf of Union of India that the Respondent had no legal right to be appointed, proceeded to opine that the panel prepared for filling up of future vacancies should be given effect to. The review of the High Court was not only contrary to the circular letter issued by Union of India, but also contrary to the general principles of law