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1.

INTRODUCTION
Part viii of The Code of Civil Procedure section 113, 114 and 115 states about reference, review and revision
which are as follows:

Reference: Section 113 of the CPC provides that any court may state a case and refer the same for the
opinion of the High Court Division, and the High Court Division may make such order thereon as it may
think fit. Conditions of civil revision are that:

1. Only a court can make reference to the HCD.


2. Reference is to be made only when an important issue of law has arisen.
3. The power of reference by the HCD is discretionary.

Review: Review means a judicial re examination of a case in certain specified and prescribed
circumstances. Review is possible almost in every judicial organ. It is done by the same court which gave
the order or judgment against which review is sought for. Section 114 of the CPC provides that if a person is
aggrieved:

by a decree or order from which an Appeal is allowed but no Appeal has been preferred.
by a decree or order from which no Appeal is allowed ; or
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.

Revision: Section 115 of the CPC provides for the revisional power of the High Court Division and of the
District Judge. This section as amended in 2003 has brought about some fundamental changes in the
substantive provisions of the civil revision. Unlike before revisional power can now be exercised by the
District Judge. Secondly, there is now provision for second revision under sub-section 115 (4). The nature of
revisional power is as follows:

1. Under section 115 of the Code of Civil Procedure (as amended in 2003) civil revisional power can be
exercised by the High Court Division and the District Judge.
2. This power is also called supervisory power or power to do complete justice or power to call for records.
3. Exercise of this power can be only at the instance of a party. Previously this power could have been
exercised suo mota by the High Court Division.
4. It is purely a discretionary remedy and this cannot be claimed as of right.
5. Normally questions of facts are not considered by a court under its revisional jurisdiction.
6. A revision is not a continuation of the original proceeding like an Appeal.
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7. Being it a purely discretionary remedy, the HCD or the District Judge may not interfere even after the
fulfilment of all the conditions of revision.
8. The revisional power under section 115 is concerned with error of law committed by trial court or
appellate court occasioning failure of justice.

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2.REFERENCE

I. NATURE AND SCOPE


Section 113 of the code empowers a subordinate court to state a case and refer the same for the opinion of
the High Court. Such an opinion can be sought when the court itself feels some doubt about a question of
law. The high court may make such order thereon as it thinks fit.

Such opinion can be sought by a court when the court trying a suit, appeal or execution proceedings
entertains reasonable doubt about the question of law.

II. OBJECT
The underlying object for the provision for reference is to enable subordinate courts to obtain in non -
appealable cases the opinion of High Court in the absence of a question of law and thereby avoid the
commission of an error which could not be remedied later on. Such provision also ensures that the validity of
a legislative provision should be interpreted and decided by the highest court in the state. The reference
must, therefore, be made before passing of the judgement in the case.

III. CONDITION
The right of reference however, is subject to the conditions prescribed by Order 46 rule 1 and, unless they
are fulfilled, the High Court cannot entertain a reference from a subordinate court. The rule requires the
following conditions to be satisfied to enable a subordinate court to make a reference:

1. There must be a pending suit of appeal in which the decree is not subject to appeal or a pending
proceedings in execution of such decree;
2.
3. A question of law or usage having the force of law must arise in the course of such suit, appeal or
proceedings; or
4. The court trying the suit or appeal or executing the decree must entertain a reasonable doubt on such
question.

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Question of law on which a subordinate court may entertain a doubt may be divided into two classes:

a. Those which relate to the validity of any act, Ordinance or Regulation; and
b. Other questions.

In the latter case, the reference is optional, but in the former case it is obligatory if the following conditions
are fulfilled:

i) It is necessary to decide such question in order to dispose of the case;


ii) The subordinate court is of he view that the impugned Act, Ordinance of Regulation in ultra
vires; and
iii) 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 vires.

The object of this provision is to see that the Act of legislature should be interpreted by the Supreme Court
in the State

IV. WHO MAY APPLY


Only a Court can refer a case either on an application of a party or sou moto. Court means a court of Civil
Judicature. A tribunal or persona designata cannot be said to be a court and no reference can be made by
them.

V. POWER AND DUTY OF REFERRING COURT


A reference can be made only in a suit, appeal or execution proceedings pending before the court. Such
reference can be made when a subordinate court entertain a doubt on a question of law. Further, such
question must have actually arisen between the parties litigating and the court must have been called upon to
adjudicate the list. No reference, hence, can be made on a hypothetical question or to provide an answer to a
point likely to arise in future.

But once the question arises and the proviso is attracted and validity of an Act, Ordinance or Regulation is
challenged, and the referring court is prima facie satisfied that such Act, Ordinance or Regulation is ultra
vires, the case has to be referred to the High Court.

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VI. POWER AND DUTY OF HIGH COURT
The jurisdiction of the High Court is consultative. In dealing with and deciding the reference the High Court
is not confined to the question referred by a subordinate court. If a new aspect of law arises, the High Court
can consider it. The High Court may answer the question refereed to it and send back the case to the
referring court for disposal in accordance with law. It may also refuse to answer the reference or even to
quash it. The High Court, however, cannot make any order on merits nor can it make suggestion.

VII. PROCEDURE AT HEARING


The referring court should draw up a statement of the facts of the case, formulate the question of law on
which opinion thereon. The court may either stay the proceedings or pass a decree or order contingent upon
the decision of the High Court on the point referred, which cannot be executed until receipt of a copy of the
judgement of the High Court on the reference. If the High Court answers the question in favour of the
plaintiff, the decree will be firmed. If it is answered against him, the suit will be dismissed. The High Court
after hearing the parties, if they so desire, shall decide the point so referred and transmit a copy of its
judgement to the court which shall dispose of the case in accordance with the said decision. Where the
referring court has not complied with the condition laid down for making reference, the High Court bas
power to return the case for amendment. The High Court can even quash the order of reference. The High
Court may alter, cancel or set aside any decrees of order passed or made by the court making the reference
and make such order as it thinks fit.

VIII. COSTS
As a general rule, the cost of reference shall be the costs in the cause. But if the reference is altogether
unwarranted, the High Court may direct the referring judge to personally pay the costs.

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3. REVIEW
Section 114 of the Code of Civil Procedure gives a substantive right of review in certain circumstances and
Order 47 provides the procedure thereof. The provision relating to review constitutes an exception to the
general rule that once the judgement is signed and pronounced by the court it becomes functus officio( cease
to have control over the matter) and has no jurisdiction to alter it.

I. MEANING
Stated simply, review means to reconsider, to look again or to re examine. In legal parlance, it is a judicial
re examination of the case by the same court and by the same judge. In review, a judge who has disposed
of the matter review an earlier order passed by him in certain circumstances.

II. NATURE AND SCOPE


The normal principle of law is that once a judgement is pronounced or order is made , the court becomes
functus officio. Such judgement or order is final and it cannot be altered or changed.

As a general rule, once an order has been passed by a court, review of such order must be subject to the rules
of the game cannot be lightly entertained. A review of a judgement is a serious step and reluctant resort to it
is called for only where a glaring omission, patent mistake or like grave error has crept in earlier by judicial
fallibility.

A power of review should not be confused with appellate powers which enable an appellate court to correct
all errors committed by the subordinate court. In other words, it is beyond dispute that a review cannot be
equated with the original hearing of the case, and finality of the judgement by a competent court cannot be
permitted to be reopened or reconsidered, unless the earlier judicial view is manifestly wrong. It is neither
fair to the court which decided the matter nor to the huge backlog, of dockets waiting in the queue for
disposal to life review petitions indiscriminately and fight over again the same battle which has been fought
and lost. Public time is wasted in such matters and the practice, therefore, should be deprecated. Greater
care, seriousness and restraint is needed in review application.

If a review application is not maintainable, it cannot be allowed by describing such an application as an


application for clarification or modification.

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A right of review is both, substantive as well as procedural. As a substantive right, it has to be conferred by
law, either expressly or by necessary implication . There can be no inherent right of review. As a procedural
provision, every court or tribunal can correct an inadvertent error which has crept in the order either due to
procedural defect or mathematical or clerical error or by misrepresentation or fraud of a party to the
proceedings, which can be corrected ex debito justitae (to prevent the abuse of process of court).

III. OBJECT
The remedy of review, which is a reconsideration of the judgement by the same court and by the same judge,
has been borrowed from the courts of equity. The concept was known to common law. The remedy has a
remarkable resemblance to a writ of error.

The basic philosophy inherent in the recognition of the doctrine of review in acceptance of human fallibility.
If there is an error due to human failing, it cannot be permitted to perpetuate and to defeat justice. Justice is
above all. It is a virtue which transcends all barriers. Neither the rule of procedure nor technicalities of law
can come in its way. The law has to bend before justice. Rectification of and order stems from the
fundamental principle that justice is above all. It is exercised to remove an error and not to disturb finality.

IV. WHO MAY APPLY


A person aggrieved by a decree or order may apply for review of a judgement. A person aggrieved means
a person who has suffered a legal grievance or against whom a decision has been pronounced which has
wrongfully deprived him of something wrongfully refused him something or wrong fully affected his title to
something. It cannot be confined within the bounds of a rigid, exact and comprehensive definition.

Generally speaking, a person aggrieved has been understood to mean one who has a genuine grievance
because an order has been made which prejudicially affects his interest. But the concept of person
aggrieved, varies according to the context, purpose and provision of the statute.

A person who is neither a party to the proceedings nor a decree or order binds him, cannot apply for review
as the decree or order does not adversely or prejudicially affected him. But if third party is affected or
prejudice by a judgement or order, he can seek review of such order. Again, a person who is a necessary
party to the suit affects him, may seek review thereof.

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V. GROUNDS FOR APPLICATION OF REVIEW
1. DISCOVERY OF NEW EVIDENCE

A review is permissible on the ground of discovery by the applicant of some new and important matter or
evidence which, after exercise of due diligence, was not within his knowledge or could not be produced by
him at the time when the decree was passed.

It is very easy for the party who has lost the case to see the weak points in his case and he would be tempted
to try to fill in gaps by procuring evidence which will strengthen that weak part of his case and put a
different complexion upon that part.

The underlying object of this provision is neither to enable the court to write a second judgement nor to give
a second innings to the part who has lost the case because of his negligence or indifference. Therefore a
party seeking review must show that there was no remiss on his part in adducing all possible evidence at the
trial.

The new evidence must be such as is presumably to be believed, and if believed to be conclusive. In other
words, such evidence must be :

a) Relevant; and
b) Of such a character that if it had been given it might possibly have altered the judgement.

Thus, the discovery of a document containing ass admission of liability by the defendant would be a good
ground for review.

2. ERROR APPARENT ON THE FACE OF RECORD

Another ground for review is a mistake or an error apparent on the face of the record. What is an error
apparent on the face of the record cannot be defined precisely or exhaustively, and it should be determined
judicially on the facts of each case. Such error apparent on the fact or of law. However, no error can be said
to be an error apparent on the face of the record if it is not self evident and requires an examination or
argument to establish it. In other words, an error cannot be said to be apparent on the face or record where
one has to travel beyond the record to see if the judgement is correct or not.

The following have been held to be errors apparent on the face of the record:

Pronouncement of judgement without taking into consideration the fact that the law was amended
retrospectively, or without considering the statutory provision, or on the ground of omission to try a material
issue in the case, or on the ground that the court decides against a party on matters not in issue, or where the

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judgement is pronounced without notice to the parties, or where that want of jurisdiction is apparent on the
face of the record, or taking a view contrary to the law laid down by the supreme court.

The explanation to Rule 1 has been inserted by the Amendment Act of 1976. It clarifies the fact that the
decision on a question of law on which the judgement 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 review of such
judgement.

3. OTHER SUFFICIENT REASON

The last ground for review is any other sufficient reason. The expression any other sufficient reason has
not been defined in the Code. However, relying on the judgement of the Privy Council and the Federal
Court, the Supreme Court has held the words any other sufficient reason must mean a reason sufficient
on grounds, at least analogous to those specified in the rule.

The following have been held sufficient reason for granting review:

Where the statement in the judgement is not correct, or where the decree or order has been passed under a
misapprehension of the true state of circumstances, or where a party had no notice or fair opportunity to
produce his evidence, or where the court had failed to consider a material issue, fact or evidence, or where
the court has omitted to notice or consider material statutory provisions, or a ground which goes to the root
of the matter and affects inherent jurisdiction of the court, or misconception by the court of a concession
made by the advocate, or where a part of his pleader, or a manifest wrong has been done and it is necessary
to pass an order to do full and effective justice.

VI. PROCEDURAL AT HEARING


An application for review may be divided into the following three stages:

(i) First stage

An application for review commences ordinarily with an ex parte application by the aggrieved party. The
court may reject it at once if there is no sufficient ground or may issue rule calling upon the opposite party to
show the cause why review should not be granted.

(ii) Second stage

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The application for review shall then be heard by the same court and by the same judge who passed the
decree or made the order, unless he is no longer attached to the court, or is precluded from hearing it by
absence or other cause for a period of six months after the application. If, on the other hand, the rule is made
absolute, the application will be granted for rehearing of the matter.

(iii) Third stage

In the third stage, the matter will be reheard on merits by the court either at once or at any time fixed by it.
After rehearing the case, the court may either confirm the original decree or vary it.

The effect of allowing an application for review is to recall the decree passed. Any order made subsequently
whether reversing, confirming or modifying the decree originally passed will be a new decree superseding
the original one.

VII. REVIEW BY SUMPREME COURT


The provision of Order 47 apply to orders passed under the code of Civil Procedure. Article 137 of the
constitution confers power on the Supreme Court to review its judgements subject to the provision of any
law made by the Parliament or the Rules made under Article 145.

The powers of the Supreme Court, therefore, cannot be curtailed by the Code of Civil Procedure.

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4. REVISION
Section 115 of the Code of Civil Procedure empowers High Court to entertain a revision in any case decided
by any subordinate court in certain circumstances. This jurisdiction is known as revisional jurisdiction of the
High Court.

I. MEANING
According to the dictionary meaning, to revise means to look again or repeatedly at, to go through and
correct where necessary, to look over with a view to improving or correcting. Revision means the
action of reversing, especially critically or carefully examination or perusal with a view to correcting or
improving .

II. SECTION 115


Section 115 invests all High Courts with revisional jurisdiction. It read as under:

(1) The High Court may call for record of any case which has been decided by any court subordinate to
High Court and in which no appeal lies thereto, and if such subordinate court appears:
(a) To have excercised a jurisdiction not vested in it by law, or
(b) To have failed to exercise a jurisdiction 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.

Provided that the High Court shall not, under this section, 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 proceedings.

(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies
either to the High Court or to any Court subordinate thereto.
(3) A revision shall not operate as a stay of suit or other proceeding before the , Court except where such suit or
other proceeding is stayed by the High Court.

Explanation.-In this section, the expression "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.

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III. NATURE AND SCOPE
Section 115 authorises the High Court to satisfy itself on three matters: (a)that the order of the subordinate court is
within jurisdiction; (b) that the case is one in which the court ought to exercise its jurisdiction; and (c) that in
excercising jurisdiction the court has not acted Illegalli, that is, by committing some error of procedure in the course of
the trial which is material in that it may have affected the ultimate decision.

If the High Court is satisfied with these three matters, it has no power to interfere because it differs, however
profoundly, from the conclusion of subordinate court on question of fact or of law.it is well established that where
there is no question of jurisdiction the decision cannot be corrected for a court has jurisdiction to decide wrongly as
well as rightly.

In Major S.S. Khanna v. Brig. F.J. Dillon, Shah, J. stated, The section consists of two parts, the first part prescribes
the conditions in which jurisdiction of High Court arises, i.e., there is a case decided by the subordinate court in which
no appeal lies to the High Court, the second sets out the circcumstances in whichmay be excercised.

In Pandurang Ramchandra Mandlik v. Maruti Ranchandra Ghatge Gajendragadkar, J. rightly pronounced: The
procisions of Sec. 115 of the Code have been examined by judicial decisions on several occassions. While excercising
its jurisdiction under Sec. 115, it is not competent to the High Court to correct errors of fact, however gross they may
be, or eved errors of law, unless the said errors have relation to the jurisdiction of the court to try the dispute itself.

IV. OBJECT
The underlying object of section 115 is to prevent subordinate courts from acting arbitrarily, or illegally, in exercise of
their jurisdiction. It clothes the High Court with the powers to see that the proceedings of the subordinate courts are
conducted in accordance with law within the bounds of their jurisdiction and in furtherance of justice. It enables the
High Court to correct, when necessary errors of jurisdiction committed by subordinate courts and provides the means
to an aggrieved party to obtain rectification of a non appealable order. In other words, for the effective exercise of its
superintending and visitorial powers, revisional jurisdiction is conferred upon the High Court.

At the same time, the judges of the lower courts have perfect jurisdiction to decide a case, and even if they decide
wrongly, they do not commit jurisdictional error. Revisional jurisdiction is not intended to allow the High Court to
interfere and correct errors of fact or of law.

V. WHO MAY FILE?


A person aggrieved by an order passed by a court subordinate to the High Court may file a revision against such order.
But the High Court may even suo motu exercise revisional jurisdiction under Sec. 115 of the Code.
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VI. CONDITIONS
The following conditions must be satisfied before revisional jurisdiction can be exercised by the High Court:
(i) a case must have been decided;
(ii) the court which has decided the case must be a court subordinate to the High Court;
(iii) the order should be an appealable one; and
(iv) the subordinate court must have (a) exercised jurisdiction not vested in it by law; or (b) failed to exercise
jurisdiction vested in it; or (c) acted in the exercise of its jurisdiction illegally or with material irregularity.

(i) CASE DECIDED


The expression case decided was not defined in the Code of 1908. It gave rise to a number of conflicting
decisions on the question whether the said expression included an interlocutory order also.
In the case of Baldevdas Shivlai v. Filmistan Distributors (India)(P) Ltd., the Supreme Court held that a case may
be said to have been decided if the court adjudicates for the purpose of the suit some right or obligation of the
parties in controversy. Every order in the suit cannot be regarded as a case decided within the meaning of Section
115 of the Code.
On the recommendation of the Joint Committee of Parliament, an Explanation has been added to Sec 115 by the
Amendment Act of 1976 which makes it clear that the expression case decided includes any order made, or any
order deciding an issue in the course of a suit or other proceedings. Thus, the expression any case which has
been decided after the Amendment Act of 1976 means each decision which terminates a part of the controversy
involving the question of jurisdiction.
(ii) SUBORDINATE COURT
The High Court cannot exercise revisional jurisdiction unless the case is decided by a court and such court is
subordinate to the High Court. A court means a court of civil judicature. It does not include any person acting in
an administrative capacity.
As a general rule, where it is provided that a matter should be decided by a particular court, the presiding officer of
such court will act as a court. But where it is provided that a particular judge should decide a matter, provision of
the statute will have to be considered for the purpose of determining whether the judicial officer acts as a court as
a persona designate.
It is the intention that determines the question. If the intention is that the prescribed officers should enforce the
rights and liabilities created by the statute in the exercise of the existing jurisdiction of courts, they act as courts.
If, on the other hand the intention is to create new courts, they act as persona designate.
Again, while judicial functions are essential for a court, the mere fact that a person exercise judicial function I not
sufficient to constitute him a court. Further a court will be said to be subordinate to the High Court when it is
subject to its appellate jurisdiction.
(iii) NO APPEAL LIES

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The revisional jurisdiction of the High Court can be invoked in respect of any case in which no appeal lies to the
High Court. The word appeal includes first appeal as well as second appeal. Therefore, where an appeal lies to
the High Court either directly or indirectly, revision under Sec. 115 does not lie. On the other hand where no first
or second appeal lies to the High Court the revision is competent.
As has been rightly observed by the Supreme Court in the case of Major S.S. Khanna v. Brig F.J. Dillon, If an
appeal lies against the adjudication directly to the High Court, it has no power to exercise its revisional
jurisdiction, but where the decision itself is not applicable to the High Court directly or indirectly, exercise of the
revisional jurisdiction by the High Court would not be deemed excluded.
(iv) JURISDICTIONAL ERROR
The power conferred by Sec. 115 of the Code is clearly limited to the keeping of subordinate courts within
the bounds of their jurisdiction. Sec. 115 is concerned with jurisdiction and jurisdiction alone involving a
refusal to exercise jurisdiction where one exists, an assumption of jurisdiction where none exist and lastly
acting with illegality or material irregularity.
In order for the revisional jurisdiction to be exercised by the High Court the subordinate court must have
(a) Exercise of jurisdiction not vested in it by law
Where a subordinate court exercise jurisdiction not vested in it by law, a revision lies. In such cases, a
subordinate court assumes jurisdiction which it does not possess by misconducting statutory
provisions or by wrongly assuming existence of preliminary or collateral facts which do not exist. The
High Court in such cases will interfere with the orders passed by a subordinate court.
(b) Failure to exercise jurisdiction
A revision also lies where a subordinate court has failed to decide a jurisdiction vested in it by law. A
court having jurisdiction to decide a matter, thinks erroneously under a misapprehension of law or of
fact that it has no such jurisdiction and declines to exercise it; the High Court can interfere in revision.
(c) Exercise of jurisdiction illegally or with material irregularity
Finally, a revision also lies where the subordinate court has acted in the exercise of its jurisdiction
illegally or with material irregularity.

VII. PROCEDURE
No specific or express procedure is prescribed in the Code which is required to be followed in revision.
Grounds of revision can be couched as in an appeal. They should, however contain objections as to
jurisdiction. Ordinarily a certified copy of the order impugned should be filed in the revision. No cross
objection can be filed in revision. But if the High Court feels that a particular finding recorded by the
subordinate court is uncalled for, it can interfere suo moto. Once a revision is admitted, it ought to have been
decided on merits. It should not be dismissed on the ground that it ought not to have beenadmitted. If the
High Court holds that revision is not maintainable or is barred by limitation, it should not make any
observation on merits.

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CASE STUDY
Major S. S. Khanna vs Brig. F.J. Dillon

1964 AIR 497

FACTS
1. Brig. F.J. Dillon and Major S.S. Khanna hereinafter called 'Dillon' and 'Khanna' respectively carried
on business in partnership as Construction Engineers. They agreed to dissolve the partnership with
effect from February 15, 1956.
2. By the deed of dissolution it was agreed that Dillon was to take over all the assets and properties of
the partnership as absolute owner and to pay all the debts and to discharge all the liabilities of the
partnership and to keep Khanna indemnified against all demands and claims in relation to the
partnership business.
3. But the deed did not terminate the disputes between the partners, and Khanna commenced an action
against Dillon in the Court of the Subordinate judge, 1st Class, Delhi "for dissolution of the
partnership and rendition of accounts".
4. On January 12, 1957, the parties arrived at a compromise (which was incorporated into a decree of
the Court) confirming the earlier dissolution of the partnership, subject to a scheme of winding up,
under which all outstanding realised from the debtors of the firm and the sale proceeds of certain
assets were to go into a banking account to be opened in the joint names of Dillon and Khanna and
were to be applied in the first instance to meet the liabilities of the dissolved firm, and the balance in
that joint account was to belong to Dillon. Some outstanding of the dissolved partnership were
collected by Dillon and were deposited in the joint account of Dillon and Khanna.
5. Dillon filed a suit in the Court of the Subordinate judge at Delhi for a decree for Rs. 54,250.00 with
future interest alleging that between the months of May 1957 and November 1957 he had, at the
request of Khanna, advanced in three sums an aggregate amount of Rs. 46,000.00 as short- term
loans which Khanna had promised to but had failed to repay.
6. Khanna pleaded that he did not borrow any loans- from Dillon, and that the amounts claimed in the
action being advanced, even on the pled of Dillon. out of joint funds belonging to the two partners,
action for recovery of those amounts was, in law not maintainable.

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7. The High Court of Punjab in exercise of its revisional jurisdiction set aside the order, and directed
that the suit be heard and disposed of according to law.
8. With special leave this appeal is preferred by Khanna.

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ISSUE

1. Whether this suit is not maintainable and the plaintiff is not entitled to
institute this suit?

2. Whether the case can be said to be "cases" "decided" where the suits
answer the description "in which no appeal lies"?

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RATIO

1. By the order passed by the Court of First Instance on the third issue it was held that the suit filed by
Dillon was not maintainable. That decision, in our judgment, affected the rights and obligations of the
parties directly. It was a decision on an issue relating to the jurisdiction of the Court to entertain the
suit filed by Dillon. In any event the decision of the Court clearly attracted cl. (c) of s. 115 Code of
Civil Procedure, for the Court in deciding that "the suit was not maintainable as alleged in paragraphs
15, 16, 17 and 18 of the written statement" purported to decide what in substance was an issue of fact
without a trial of the suit on evidence. Dillon alleged in his plaint that at the request of Khanna, he had
advanced diverse loans (from the funds lying in deposit in the joint account) and that the latter had
agreed to repay the loans. The cause of action for the suit was therefore the loan advanced in
consideration of a promise to repay the amount of the loan, and failure to repay the loan. By his
written statement Khanna had pleaded in paragraph 15 that Dillon had not advanced any money to
him and that Dillon had not claimed the amount for himself and therefore he was not entitled to file a
suit for recovery of the amounts. By paragraph 16 he pleaded that Dillon having admitted in the plaint
that the amounts in suit were to be paid back to the joint account he was not entitled to file the suit.
By paragraph 17 it was pleaded that a suit by one joint owner against the other joint owner for
recovery of the Joint Fund or any item of the joint fund was not maintainable and by paragraph 18 he
pleaded that Dillon could not institute a suit against him because the amount was not repayable. All
these contentions raised substantial issues of fact which had to be decided on evidence, and Dillon
could not be non-suited on the assumption that the pleas raised were correct.
2. It is however contended on the authority of the two decisions of the Rajasthan High Court that the
words 'in which no appeal lies' indicate a case in which no appeal lies to the High Court from the final
determination either directly or ultimately and it is pointed out that in these suits there would
ultimately have been decrees of dismissal which would have been appealable. It is thus urged that the
power under s. 115 of the Code of Civil Procedure could not rightly be invoked. The opinion of the
Rajasthan High Court has not been accepted in the other High Courts and it has been held in a very
large number of cases that the words 'case decided' and the phrase "in which no appeal lies" refer not
only to the final decision but are wide enough to include certain interlocutory orders involving
jurisdiction and from which no appeal lies under the Code or otherwise. The words "record of any
case...... decided" in this context refer to the record of the proceedings leading upto a decision in
which there is an assumption of unwarranted jurisdiction or a denial of an existing one or a material

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irregularity or illegality in the exercise of jurisdiction. Where, however, an appeal lies from the final
determination to itself or to another court, the High Court in the exercise of its discretion may decline
to interfere at the interlocutory stage unless interference at the earlier stage tends to prevent reparable
injury is otherwise manifestly just and expedient. Since decisions in most cases tried by the
Subordinate Courts are subject to one or more appeals and one such appeal is to the High Court, and
where there is no appeal there are special provisions giving even wider powers of interference to the
High Court by way of revision than those under S. 115, the interpretation put by the Rajasthan High
Court on the section of the Code would make the power available in a remarkably small, number of
cases. This general power as shown above was intended to be used otherwise and the word case does
not mean a concluded suit or proceeding but each decision which terminates a part of the controversy
involving a matter of jurisdiction. Where no question of jurisdiction is involved the Court's decision
cannot be impugned under S. 115 for it has been said repeatedly a Court has jurisdiction to decide
wrongly as well as rightly.

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JUDGEMENT

J. SHAH

We are at this stage not expressing any opinion on the question whether the allegations made by Dillon
and Khanna are true ; we are only concerned to point out that what was regarded as an issue of law as to
maintainability of the suit could only be determined after several questions of fact in dispute between the
parties were determined. In proceeding to decide the third issue merely on the pleadings and on the
assumption that the allegations made by the defendant in his written statement were true and those made
by the plaintiff were not true, and on that footing treating the joint account as of the common ownership
of the two partners, the trial Judge acted illegally and with material irregularity in the exercise of his
jurisdiction.
The High Court was therefore right in setting aside the order passed by the Trial Court and in holding that
without investigation as to the respective claims made by the parties by their pleadings on the matters in
dispute the suit could not be held not maintainable.
The appeal therefore fails and is dismissed with costs. There will be one hearing fee for this appeal and
also C.A. 321 of 1963.

J. HIDAYATULLAH

It may be noticed that the last phrase does not speak of an appeal 'under the Code'. The description
therefore is a general one and applies to every decision of a court sub- ordinate to the High Court in
which no appeal lies, whether under the Code or otherwise. A decision of the Subordinate Court is
therefore amenable to the revisional jurisdiction of the High Court unless that jurisdiction is clearly barred
by a special law or an appeal lies therefrom.
In his opinion, the construction generally accepted in the High Courts is more in keeping with the letter
and spirit of the section considered as a whole than the view accepted in the two cited cases1. As I pointed

1
ILR (1953) 3 Raj 483: (AIR 1953 Raj 137)(FB) and ILR (1952) 2 Raj 608: (AIR 1953 Raj 90)
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out earlier, the section confers a power analogous to the power to issue a writ of Certiorari' but only with
a view to keeping Subordinate Courts within the bounds of their jurisdiction. This power is exercisable in
respect of all orders involving jurisdiction in which no appeal lies to the High Court. The present cases
answer the description as the Orders of the Subordinate Judge were erroneous in denying a Jurisdiction
and no appeal lay to the High Court against them. Even otherwise, the trial judge was in error in not
dismissing the suits. His decision that the suits were not maintainable and yet keeping them pending was
itself an exercise of jurisdiction with a material irregularity. If the trial judge had dismissed the suits and
passed decrees there would undoubtedly have been appeals and no revision would have lain. But the order
actually passed by him was not a decree nor even an order made appealable by s. 104 of the Code.
Involving as it did a clear question of jurisdiction it was revisable and the High Court was within its rights
in correcting it by the exercise of its powers under s. 115 of the Code.
The appeals must therefore fail and I agree with the order proposed by my learned brother Shah, J.

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5. DIFFERENCE BETWEEN:

I. Revision and Review

Revision Review

1. The power of revision is exercised by the court But the power of review is exercised by the very
superior to the court which decided the case. court which passed the decree or order.

2. The power of revision is conferred on the High Whereas in the case of review any court can review
Court only its judgment.

3. Revisional powers by the High Court can be Review can be made even when appeal lies to the
exercised only in a case when there is no appeal to High Court therein.
the High Court

4. The grounds on which the powers of revision and The ground for revision relates to jurisdiction, viz.,
review can be exercised are different. want of jurisdiction, failure to exercise a
jurisdiction, or illegal or irregular exercise of
jurisdiction, while the ground of review may be

(a) The discovery of new and important matter or


evidence,

(b) Some apparent mistake or error on the face of


the record, or (c) any other sufficient reason.

6. In revision the High Court can, of its own accord, but for review an application has to be made by the
send for the case aggrieved party.

7. No appeal lies from an order made in the exercise but the order granting review is appealable.
of revisional jurisdiction

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II. Reference and Revision:

Reference Revision

1. In reference the case is referred to the High Court On the other hand, the party aggrieved moves the
by a court subordinate to it. High Court in revision for the exercise of its
revisional jurisdiction, or the High Court may sua
motu send for the case and examine the record.

2. The ground for reference is the entertainment of The ground for revision, on the other hand, relates
some reasonable doubt by the Court trying the suit, to jurisdiction, viz., want of jurisdiction, failure to
appeal or executing the decree with regard to a exercise a jurisdiction or illegal or irregular exercise
question of law or usage having the force of law. of jurisdiction.

III. Reference and Review:

Reference Review

1. In reference the subordinate court refers the case While in review an application is made by the
to the High Court aggrieved party.

2. The High Court alone can decide matters on While an application for review is made to the court
reference which passed the decree or made the order.

3. Reference is made during the pendency of the While application for review is made to the court
suit, appeal or execution proceedings after it has passed the decree or made the order.

4. The grounds of reference and review are different. The grounds of review may be the discovery of new
Reference is made by the court trying the suit, and important matter or evidence, some apparent
appeal or executing the decree when it entertains mistake or error on the face of the record or any
reasonable doubt with regard to any question of other sufficient reason.
law or usage having the force of law.

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6. CONCLUSION

Reference, Review & Revision Reference The underlying object for the provision for reference is to enable
subordinate courts to obtain in non-appealable cases the opinion of the High Court in the absence of a
question of law and thereby avoid the commission of an error which could not be 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. Section 113 of the Code of Civil Procedure
empowers a subordinate court to state a case and refer the same for the opinion of the High Court. Such an
opinion can be sought when the court itself feels some doubt about a question of law. The High Court may
make such order thereon as it thinks fit. Such opinion can be sought by a court when the court trying a suit,
appeal or execution proceedings entertains reasonable doubt about a question of law. Conditions The right of
reference, however, is subject to the conditions prescribed by Order 46 Rule 1 and, unless they are fulfilled,
the High Court cannot entertain a reference from a subordinate court. The rule requires the following
conditions to be satisfied to enable a subordinate court to make a reference: (i) There must be a pending suit
or appeal in which the decree is not subject to appeal or a pending proceeding in execution of such decree;
(it) A question of law or usage having the force of law must arise in the course of such suit, appeal or
proceeding; and (iii) The court trying the suit or appeal or executing the decree must entertain a reasonable
doubt on such question.

Review Stated simply, review means to reconsider, to look again or to re-examine. In legal parlance, it is a
judicial re-examination of the case by same court and by the same judge. In review, a judge, who has
disposed of the matter reviews an earlier order passed by him in certain circumstances. Nature and Scope
The normal principle of law is that once a judgment is pronounced or order is made, the court becomes
functus officio. Such judgment or order is final and it cannot be altered or changed. As a general rule, once
an order has been passed by a court, a review of such order must be subject to the rules of the game and
cannot be lightly entertained. A review of a judgment is a serious step and reluctant resort to it is called for
only where a glaring omission, patent mistake or like grave error has crept in earlier by judicial fallibility. A
power of review should not be confused with appellate powers which enable an appellate court to correct all
errors committed by the subordinate court. In other words, it is beyond dispute that a review cannot be
equated with the original hearing of the case, and finality of the judgment by a competent court cannot be
permitted to be reopened or reconsidered, unless the earlier judicial view is manifestly wrong

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. Revision Section 115 invests all High Courts with revisional jurisdiction. It reads as under: "115.
Revision.(1) The High Court may call for the record of any case which has been decided by any court
subordinate to such High Court 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: Provided that the High Court shall not, under this
section, 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 proceedings. (2) The High Court shall not, under this section, vary
or reverse any decree or order against which an appeal lies either to the High Court or to any court
subordinate thereto. (3) A revision shall not operate as a stay of suit or other proceeding before the Court
except where such suit or other proceeding is stayed by the High Court.

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