THE RIGHT AND PROCEDURE FOR REVIEW UNDER CPC

    The Indian Constitution, under Article 137, provides the constitutional power to the Supreme Court to re-examine its own judgment to ensure justice. Reviewing or reconsidering of a determined case by the court is also provided under Section 114 and Order 47 of the CPC, herein the right and procedure to review a judgment, upon an application of the affected person, has been provided.

    The objective behind reviewing a case is to correct or rectify an order which stems from the fundamental principle that justice is above all and it should be practiced to correct any miscarriage which occurred due to some accident without blaming anyone. The Supreme Court also said that review of any case is to correct the grave mistakes and not to replace the new approach[1].  It is true to say that the law should bend before justice. In this article the right to review under Section 114 of CPC and its limitations and conditions under Order 47 will be discussed.

    RIGHT TO REVIEW

    Review means reconsideration or re-examination of a determined case by the judiciary to provide justice and ensure no unreasonable hardship to anyone. Reviewing of a case is revisiting the facts and evidence related to the case because there is a miscarriage which resulted in injustice to the aggrieved person. Review of a judgment by the judiciary is done to correct the mistake in its previous judgment, so to ensure that because of a mistake or any other factor the injustice is not done to any person.

    WHO MAY APPLY?

    The aggrieved person who suffered an unjust punishment from the judgment of the court may apply for the review of the same.

    AGGREIVED PERSON

    Order XLVII Rule 1 and Section 114 of Code of Civil Procedure, 1908 states that a review is a subject as aforesaid, any person considering himself aggrieved:

    1. by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
    2. by a decree or order from which no appeal is allowed, or
    3. by a decision or reference from a Court of Small Causes,

    The aggrieved party might 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. This right of review under section 114 of CPC is based on discretion of the court and conscience of the judges; still they can reject the review petition based on their discretion.

    The review application is to be allowed by the court if the court feels that there is a miscarriage of justice and the mistake is to be corrected by the court for the sake of justice as it thinks may deemed fit in the given circumstances. Here the aggrieved person is someone against whom the judgment is pronounced which deprived him of his rights wrongfully. If an appeal has already been made against a judgment then a review cannot be admitted against it because the appeal or a PIL also includes revision. [2].

    Review is the exception to the legal phrase of functus officio which states that, the order or judgment declared after a lawful hearing and proceeding should be deemed as final and binding on the parties because the judge after pronouncing the order has discharged from his duty and once he give the order his authority is over hence cannot make the changes to the order.

    REVIEW PROCEDURE

    APPLICATION

    Rule 1 of Order 47 under CPC states that any person who is aggrieved by the decision of the court can apply for review to the same court.

    The court held that under Order 47 Rule 1(2), the party not appealing from a decree can apply for review only on grounds other than the grounds of appeal which already were appealed before the appellate court, and during the pendency of the appeal. In the present case the issues raised under the review appeal is the same as the appeal in special leave petition in Tribunal and that time Tribunal already has discussed those issues. Since the special leave petition is dismissed the same issues and facts cannot be again appealed for, under review.[3]

    Rule 3 of the Order XLVII deals with the form of applications for review. – The provisions as to the form of preferring appeals shall apply mutatis mutandis that is the orders and judgments should be changed if it requires to ensure the justice, to applications for review.

    Rule 5 provides for application for review in Court consisting of two or more judges. – Usually the application for review is heard by the bench which heard the case before, because they are already well versed with the facts and evidences of the case also they also know the reasoning for their judgment and they are in better situation to understand the case hence the review application is required to hear by the same bench as before or anyone of them whosoever is attached to the court at that time . 

    GROUNDS

    The grounds for a review application are as follows;

    1.  Discovery of any new material fact or important evidence, when there is a new fact or evidence comes into cognizance of the applicant against whom the order is passed, he can apply for a review application if the new fact or evidence were known before the order pronounced the outcome would be different. The basic points are there should be a new fact or evidence which is important in the case, these facts or evidence should not be known by the applicant prior within his due diligence .  
    2. Mistake and error apparent on the face of the record, the mistake or error in the order should be overt and self-evident to make it a ground for review. An error which is not prima facie and has to be detected by a process of reasoning which is analyzed by the number of statements or reasons which conclude to some inference is not a ground but if the error is apparent and justified then the review application should be allowed under Order 47 Rule 1 CPC[4]. The court in another case held that the fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error.” [5] ,
    3.  Any other sufficient reason, that the lordship may deem fit for the justices and fairness should be allowed.

    It states the grounds for the review application as if there is no sufficient grounds the application is rejected.

    https://legalreadings.com/internship/

    REJECTION OF REVIEW PETITION AND ITS LIMITATIONS

    Rule 4 of Order 47 provides the grounds for the rejection of applications, which include: 

    (1) Where it appears to the Court that there is not sufficient ground for the review, it shall reject the application.

    (2) No such application is to be made without previous notice to the opposite party,

    (3) No such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree was passed. 

    Rule 6 of Order 47 states that where 

    (1) the application for a review is heard by more than one judge and the Court is equally divided, the application shall be rejected.

    (2) there is a majority, the decision shall be according to the opinion of the majority.

    Judges or courts can reject the review application when they are satisfied that the application of review is not based on any of the grounds that are provided under Rule 3 of the Order.

    After the prescribed time for application of review is expired the application is considered to have no standing without any reasonable excuse.

    • The review of the already reviewed order is not maintainable, if the application is applied for the review of the review order it is not entertained by the court of law.
    • If the applicant is not available or did not available to the court at the date decided for reviewing the order the application is not further allowed if there is no reasonable excuse for the absence.
    • In the case of two or more judges the order or decree of majority is considered.

    Rule 7 of Order 47 states that rejection of review application is not appealable. Objections to order granting application are appealable, it states that application for review of order which is already rejected by the court is not appealable, once the judge already dismissed the review of an order the review of the same is not maintainable.

    Rule 9 of Order 47 states bar of certain applications. – No application to review an order made on an application for a review or a decree or order passed or made on a review shall be entertained.

    CONCLUSION

    The right to review is a constitutional right and considered one of the main principles to ensure justice as the justice should not be seen to be done but actually done with this the provision for review for order and decree is provided under section 114 and order 47 of CPC. The section 114 of the CPC provides for the substantive right of any aggrieved person to appeal before the court for the reviewing the order whereas the Order XLVII provides the procedure for the review application before the court as to what are the conditions and limitations for filing review application. The justice hurried is justice buried and hence many times some factors are left out, so to rectify these errors the provision for review of decree is provided.

    REFERENCES

    [1] Lily Thomas v. UOI, AIR 2000 SC 1650.

    [2] Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat, AIR 1970 SC 1.

    [3] Sri Gopabandhu Biswal v. Krishna Chandra Mohanty & Ors., Civil Appeal Nos. 3451-3455 of 1996.

    [4] Parsion Devi v. Sumitri Devi, (1997) 8 SCC 715.

    [5] Thungabhadra Industries Ltd. v. Govt. of A.P., AIR 1964 SC 1372.


    BY SURYANSH GAUR  | LAW COLLEGE DEHRADUN, UTTARANCHAL UNIVERSITY

    Leave a Reply

    Your email address will not be published. Required fields are marked *

    ADVERTISE WITH LEGAL READINGS :)
    WEEKLY NEWSLETTEREnter your email address below to subscribe to LEGALREADINGS newsletter.