Author
Introduction
Review is the discretionary power of the Higher courts to re-view the decision passed by the courts. Review would thus mean to reconsider the decision passed by the courts. According to the Blacks Law’s Dictionary, review means ‘to re-examine judicially. A re consideration; second view of examination; revision; consideration for purposes of correction.’ The power is granted to the courts under Section 114 r/w Order 47 of the Code of Civil Procedure, 1908.
The concept of review is based upon the doctrine ‘actus curiae neminem gravabit’ which means that the act of court shall prejudice no one. Further the Judiciary follows the cardinal doctrine of ‘Stare decisis,’ which state that once any matter is decided then it attains the finality.
The objective of providing such discretionary power to the courts is based on the principle that even the judges are human beings and thus there can be human fallibility, which should be corrected in order to uphold justice. Judgement once delivered cannot be altered later, which means once the legal authority decides a particular case, then is considered Functus officio after delivering its judgement, that is, the judgement attains its finality when it is delivered by the rightful legal officer. However, review is one such exception where the alteration of the Judgement is allowed for the reason that the mistake made should be altered and to prevent the Courts from acting arbitrarily. Appeal and review are themselves different concepts for the reason that appeal is decided by the Higher courts either on issue of fact or law and in review, the courts reconsider the decision passed by them in order to determine whether any error has been committed on their part.
The provision that deals with the notion of review finds its mention under Section 114 read with Order 47 of the Code of Civil Procedure, 1908. Section 114 of the Code of Civil Procedure, 1908, states the preconditions to seek the review, which are mentioned as follows:
- Decree is issued and no appeal has been preferred
- Where no appeal is provided under any provisions of Code of Civil Procedure, 1908
- On reference from Court of Small Causes
It is vital to be noted that any person who is aggrieved by the decision of the court can prefer an appeal; therefore, it is not necessary that such an aggrieved person has to be the party to the suit to apply for review.
There are various grounds for invoking the review, which are mentioned in rule 1 to 4 of Order 47 of the Code of Civil Procedure, 1908, as follows:
- a. ‘Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;
- b. Mistake or error apparent on the face of the record
- c. Any other sufficient reason.
The term “due” has been defined in the case of A.K Gopalan vs State of Madras as just and proper in the view of facts and circumstances. Apparent error means and includes failure to apply the law of limitation as to the facts which the Court upon the inspection found or circumstances where the court failed to apply the statutory application of the law. Rule 6 states that when the application of the review is heard by an even number of judges and the decision regarding the same is divided, then the application shall be deemed to be rejected. Further, any rejection order cannot be appealed or again reviewed; however, an order granting the review application can be appealable. The review petition needs to be filed within 30 days from the date of the judgement/ decree; however, such a term is extended in a few exceptions. The power to exercise review granted to the Supreme Court under Article 137 is wide and therefore the concept under the civil procedure is narrow in its scope. The Supreme Court Rules 2013 as well provide for a limitation period of 30 days from the date of the decree to file a review petition.
Analysis through lens of Judicial Pronouncement
In the case of Vasim vs. Bahadur, the court stated that ‘mere disagreement with the view of the judgement cannot be the ground for invoking the ‘same‘. Therefore, there should exist a major error on the face of the order passed. The error should be patent and not latent; that is, the error should be visible on the face of the record and should not require long-drawn process as to whether there is any error or not. In the case of Principal Commissioner of Customs vs M.S.S Foods Processors, the court held that ‘review can only be done when some mistake or error is apparent on the face of the record or some other sufficient reasoning.’ In the case of Col. Avaratar Singh Sarkhon vs Union of India and Ors., the court stated that ‘For review to be exercised, there should be material error, which should result in the miscarriage of justice.’ The discovery of the new evidence being one of the factors to invoke review should be exercised meticulously. That is, the evidence which is argued to be new or discovered later should be proved by the party that it was not within the knowledge and the due diligence was exercised on its part. The ground any sufficient reason is very broad in its ambit and needs to be interpreted so as to restrict the scope of the Review. The court in the case of Board of Control for Cricket in India vs Netaji Cricket Club held that the ‘Term any other sufficient reason is to be is to be interpreted as misconception of fact or law.’ through judicial interpretation and relying upon the doctrine ejusdem generis, the meaning of the term has been derived. In case of Chhajju Ram vs Neki, Mohmmad Hasan Khan vs Ahmad Hafiz Ahmad Ali Khan, the court held that the scope of the ‘word’ sufficient’ is used to enlarge so as to ‘mean’ requisite for the ends of justice.’ It was held in the case of N. Ananthan Reddy vs. Anshu Kathuria and Ors. that ‘The review jurisdiction is extremely limited and unless there is a mistake apparent on the face of the record, the order/judgement does not call for review. The mistake apparent on record means that the mistake is self-evident, needs no search and stares at the face. Surely review jurisdiction is not an appeal in disguise and does not permit rehearing of the matter on merits.’In the case of M.P Electricity Board and Dev Narayan Patel, the high court, in the review application under section 114, decided an issue which was extraneous wand was not raised or decided in the main petition. Therefore, the Supreme Court, in the appeal against the Review application set aside the order passed by the High court. Parison Devi and Ors. Vs Sumitra Devi and Ors. The court held that there is difference between erroneous decisions and errors apparent on the face of the record and review is only applicable in the latter part. The Supreme Court said in the case of Perry Kansagra v. Smriti Madan Kansagra, ‘the power of review can be exercised for correction of a mistake but not to substitute a view.’ Further, this utmost concept of the review is enforceable only upon the courts and not upon the tribunals; however, through the judicial interpretation in the case of K. Ajit Babu and Ors. Vs Union of others the application was extended to the Tribunals. Therefore, there should be amendments necessary in the Code of Civil Procedure, 1908.
Suggestive Changes
The suggestive changes in the provision of Review under Code of Civil Procedure 1908, proposed by me upon the perusal of the provision and the case laws, are mentioned as follows:
- 1. The ambit of the Review is quite narrow and thus does not include cases where justice is denied due to the reason of procedural irregularities. There is no such remedy provided for such cases even under appeal, revision or review, therefore it thus should be incorporated under this section.
- 2. The term ‘Another sufficient reason’ has been defined under numerous judgments as to be interpreted as analogous to the other grounds. However, it is to understand that the legislature might have made the third ground so as to broaden the ambit.
- 3. Further the legislature has not provided any sufficient grounds as to whether what is to be considered as sufficient reason, therefore this should be defined correctly to cancel any ambiguities.
4. There are no such penalties provided under the statute where frivolous applications are filed for delay of the proceedings or without any proper grounds. Therefore, strict penalties should be imposed to lessen the burden of the courts.
5. The rule 6 of the order 47 should be amended as it is unjustified. The failure of the even judge bench to come to same consensus or majority leads to rejection of the review application. The provision should be amended and clause should be added that in
– If failure of the Even Judge Bench to form a majority opinion arises then the same matter shall be referred to the larger Judge bench for adjudication upon rejection or granting of the review application.
or
– Such case shall be referred to single judge bench where his opinion will be taken into consideration along with that of even judge bench to decide whether such application should be rejected or granted.
6. The rule 7 of the order 47 should be amended as well as it grants the right to appeal only to the decision of granting the review application and not to the rejecting the review application, therefore the same is biased and unfair without proper reasoning as to why such discrimination is made. The provision should be amended and the order of granting and rejecting the review application both should be given the right to appeal.
