Cpc Final

REVISION A final research draft submitted in the fulfillment of the course Civil Procedure Code (CPC), semester V during the academic year 2018-19.

SUBMITTED BY:-

SUBMITTED TO:-

Name- SHAURYA KASHYAP

Dr. Meeta Mohini

Roll No- 1645

Faculty of CPC

BBA LLB

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA Month Of Submission – September

DECLARATION I Shaurya Kashyap, student of B.B.A., LL.B. (Third year) in Chanakya National Law University declare that the research project entitled “Revision” submitted by me for the fulfillment of Civil Procedure Code course is my own work. This project has not been submitted for any other Degree / Certificate / Course in any Institution / University.

ACKNOWLEDGEMENT

I would like to thank my faculty Dr. Meeta Mohini, whose assignment of such a relevant topic made me work towards knowing the subject with a greater interest and enthusiasm and moreover he guided me throughout the project. I owe the present accomplishment of my project to my friends, who helped me immensely with sources of research materials throughout the project and without whom I couldn’t have completed it in the present way. I would also like to extend my gratitude to my parents and all those unseen hands that helped me out at every stage of my project.

OBJECTIVE The main aim of this project is to know about the power of revision by the courts under civil procedure code.

HYPOTHESIS

1. Revision is similar to that of appeal. 2. It is done by higher courts.

RESEARCH METHODOLOGY

Researcher will follow the doctrinal methods of research for this project topic.

SOURCES OF DATA

The researcher will gather information from primary and secondary sources that include judgments, internet, law books, journal and papers.

SCOPE OF THE STUDY

This project has its usefulness in knowing about the power of revision,

TENATIVE CHAPTERISATION

1. Introduction 2. Jurisdiction 3. Appeal 4. revision 5. Conclusion & Suggestion 6. Bibliography

1. INTRODUCTION1

Procedural law is aimed to shorten litigation and grant expedient justice, its object is to grant final justice and not to weave spider web to entangle for immemorial time, the parties into litigation for occasioning proverbial delays. Procedural law is not a tool to refuse a just relief for a mere infraction of a rule of procedure which in no way cause prejudice to the complaining party. It cannot be allowed to occasion injustice or go against good conscience. Legal niceties cannot be permitted to hang the sword of uncertainty on the litigant’s rights and also waste the precious time. Code of Civil Procedure, is an example of adjective law which forms an indispensable part of the legal mechanism. It operates as an essential tool for enforcing legal rights and claims, for redressing or preventing legal wrongs, for asserting legal defences and also for the other ancillary purposes, with its inherent complexity and occasional technicalities. History of liberty has largely been the history of observance of procedural safe guards to the people and the society. Code of Civil Procedure represents the orderly, regular and public functioning of the 1

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legal mechanism, and also the operation of due process of law. It sustains and secures every person, his life, liberty, reputation, livelihood and property, and is keen to ensure that he does not suffer any deprivation of his rights, except in the due process of law.

The words, ‘civil’ and ‘procedure’ are words of classification. They define the residuary nature of civil procedure by demarcating it from other parts of law, which together with civil procedure, go to form the legal system. The word, ‘civil law’ would denote the whole law of the State governing the relations among its citizens inter se or between the State and its subjects. ‘Law of procedure’ may thus be defined as that branch of law which governs the process of litigation .

2. JURISDICTION

JURISDICTION AND STRUCTURE OF CIVIL COURTS 2. Section 3 of the civil procedure code lays down the structure of the codes in below manner – • High courts • District courts • Civil courts The High Court stands at the head of the state’s judicial administration. Each state is divided into judicial districts presided over by a district judge, who is the highest judicial authority in a district. Below him, there are courts of civil jurisdiction, known in different states as munsifs, subjudges, civil judges and the like. As compared to this, criminal judiciary comprises of sessions and assistant sessions judge, chief judicial magistrate and judicial magistrates of first and second class. In cities there are metropolitan and chief metropolitan magistrates. Jurisdiction of Courts and Venue of Suits Jurisdiction may be defined to be the power or authority of a court to hear and determine a matter brought before it for adjudication and 2

C.K Takwani

exercise any judicial power in relation to it. The limit of the authority is imposed by the statute. If the court has no jurisdiction, consent of parties cannot confer that jurisdiction. But if two or more courts have jurisdiction to try the suit, it is open to the parties to select a particular court and exclude other courts. Kinds of Jurisdiction A limitation on the jurisdiction of a civil court may be of four kinds. These are as follows– (i) Territorial Jurisdiction – A territorial limit of jurisdiction is fixed by the Government. For e.g. the district judge has to exercise jurisdiction within his district and not outside it. The High Court has jurisdiction over the territory of a state within which it is situate and not beyond it. (ii) Pecuniary Jurisdiction – Section 6 of the Code provides that a court will have jurisdiction only over those suits the value or amount of the subject matter of which does not exceed General and Commercial Laws the pecuniary limits of its jurisdiction. Some courts have unlimited pecuniary jurisdiction e.g. High Courts and District Courts have no pecuniary limitations. But there are other courts having jurisdiction to try suits upto a particular amount.

(iii) Jurisdiction as to subject matter – The jurisdiction to decide certain matters by certain court is limited by the statute; e.g. a small cause court cannot try suits for specific performance of a contract, redemption of mortgage etc. Similarly in respect of divorce cases, only District or subordinate court judge has the jurisdiction. (iv) Original and Appellate Jurisdiction – In the exercise of original jurisdiction, a court entertains and decides suits and in its appellate jurisdiction, it entertains and decides appeals. Munsif Courts, Courts of Civil judges and Small Cause Courts possess original jurisdiction only; while District Courts and High Courts have original as well as appellate jurisdiction.

3. APPEAL3 Appeal is provided under Section 96 of the CPC, which says that except as provided in CPC or any other law for timbering in force, an appeal shall lie from any decree passed by court exercising Original Jurisdiction to appeal Court authorized to hear the appeal from the decision of the Court i.e. Section 96 makes it clear that no appeal lies from appeal decree passed by the Court with the consent of the parties. However, an appeal may lie fro original decrees which is passed exparte i.e. without hearing of the parties. No appeal lies against the decree passed by small cause court, if the value of the subject-matter does not exceed Rs. 1,00,000 except on appeal question of law. Ordinarily, only appeal party to the suit adversely affected by appeal decree or any of his representatives in interest may file an appeal. However, appeal person who is not appeal party to the decree or order may prefer an appeal with leave of the court, if he is bound or otherwise prejudicially affected by such decree or odder, as in such an eventuality he may be said to be an “aggrieved person. Right to appeal is statutory and substantive right. It is not merely appeal procedural right. Statutory right means must be conferred by statute unless it provides there won’t be any right to appeal. While right to institute a suit is not conferred by law. The right is inherent. But right to 3

Vol 2, Mulla, THE CODE OF CIVIL PROCEDURE, 17th edition, B.M. Prasad, Lexis Nexis, Butterworth

appeal has to be conferred by appeal statute. Where statute provides for right to appeal, it may constitute appeal machinery where shall the appeal lie. While the same isn’t true for right to sue. A civil suit has to be filed subject to condition of jurisdiction. An appeal is appeal substantive right. Right to appeal can’t be taken retros0pectively because general rule of specific interpretation. Substantive law operates prospectively unless an express statute provides so.

Who can appeal?  Any party to the suit, who is adversely affected by the decree or the transferee of interest of such party has been adversely affected by the decree provided his name was entered into record of suit.  An auction purchaser from an order in execution of a decree to set aside the same on the grounds of fraud.  Any person who is bound by the decree and decree would operate res judicata against him. Kaleidoscope India Pvt. Ltd. v. Phoolan Devi AIR 1995 Delhi. In this case, the Trial Court judge prohibited the exhibition of film both in India and abroad. Session Judge permitted the exhibition of film in abroad. Subsequently, a party who moved in appeal did not have locus standi. It was reversed by division bench saying that its not proper on the part of judge as he entertained the suit on which party has no locus standi.

Appeal is a process of re-examination of the judgment and decree, or order or the decisions passed by the original court is a suit or in a case. The expression “appeal” has not been defined in the code, but it may be defined as “the judicial examination of the decision by a higher court of the decision of an inferior court”. Revision is re-working and re-writing. Revision, meaning "to see again," takes place during the entire writing process as we change words, rewrite sentences, and shift paragraphs from one location to another in our essay. Revision means the action of revising, especially critical or careful examination or perusal with a view to correcting or improving. The distinction between the appeal and revision in the following: (1) An appeal lies to a superior court, which may not necessary be a High Court, while a revision application under the code lies only to the High Court. (2) An appeal lies only from the decrees and appealable order, but a revision application lies from any decision of a court subordinate to the High Court from which no appeal lies to the High Court or to any subordinate court. (3) A right of appeal is a substantive right conferred by the statute, while the revisional power of the High Court is purely discretionary.

(4) An appeal abates if the legal representatives of a deceased party are not brought on record within the prescribed period. A revision application however does not abate in such case. The High Court may at any time bring the proper parties on the record of the case. (5)The grounds for an appeal and revision application are also different. An appeal lies on a question of fact or law or of fact and law, while a revision application lies only on the ground of jurisdictional error. (6) In case of appeal the memorandum of appeal must be filed before the appellate court by the aggrieved party, but filing of an application is not necessary in case of revision. (7) Ordinarily appellate jurisdiction involves rehearing on question of law as well as on facts of the case whereas revisional jurisdiction involves only the question of law and this jurisdiction is never considered a rehearing. (8) An appeal is considered to be a consideration of the original proceeding whereas unlike appeal revisional is not the constitution of the original proceeding. (9)An appeal is a right based remedy and can be claimed as of right if there is statutory existence of it, where the revision is the purely discretionary

remedy

and

cannot

be

claimed

as

of

right.

4. REVISION

Scope: In the exercise of revisional powers it is not the duty of the High Court to enter into the merits of the evidence; it has only to see whether the requirements of the law have been duly and properly obeyed by the court whose order is the subject of the revision and whether the irregularity as to failure or exercise of jurisdiction is such as to justify interference with the order. The remedy by way of revision cannot be denied in a case where the order is not appealable and in which one or the other condition stated in S. 115 is satisfied. Error of law: The section is not directed against conclusion of law or fact in which the question of jurisdiction is not involved. Error of law is by itself no ground for revision unless it either results in a failure or wrong exercise of jurisdiction or amounts to a material irregularity in the exercise of jurisdiction. Where a decree is erroneous in the sense that some technical rule of law has been overlooked which could have been remedied, the High Court does not ordinarily interfere in revision, but where there is a prohibition in a statute and a claim could not have been decreed according to law,

the High Court would not be justified in importing any abstract considerations of justice and overlooking the principle that justice should be administered according to law. The powers of the High Court in revision are not available for correction of errors of law, however gross those errors may be, and whatever may be the result of those errors on the merits of the case. Errors of ‘subordinate courts, however gross and palpable they may be, would escape correction in the court of revision. The cause of justice has no place in the framework of the revisional power and cannot prevail.

Section 115 empowers the High Court to satisfy itself on three matters : (a) that the order of the subordinate court is within its jurisdiction 4; (b) that the case is one in which the court ought to exercise jurisdiction; (c) that in exercising jurisdiction the court has not acted illegally, that is, in breach of some provision of law, or with material irregularity by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. In accordance with the provisions of S. 115, C.P.C. it is necessary to establish three conditions precedent for calling upon and for requesting 4

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the revisional court to exercise the revisional jurisdiction under S. 115 of the Code and the fourth condition is to be considered by the court while making up its mind whether to interfere with the order under challenge or not. These conditions are as under: (a) That the order impugned amounts to be a case decided; (b) That the order impugned is not directly liable to be challenged by way of appeal from the order itself before the same court before which the revision has been filed; (c) That the order impugned suffers from jurisdictional error, i.e.,: (i) Either excess of jurisdiction, i.e., exercise of jurisdiction by the court not vested; (ii) Failure or illegal refusal to exercise the jurisdiction vested or the court below is alleged and proved to have acted illegally or with material irregularity in exercise of its jurisdiction in passing the order impugned. If these conditions are shown to exist even then the Court is not bound to interfere with an order impugned under S. 115 of the Code,

5. CONCLUSION & SUGGESTION

Code of Civil Procedure, 1908 withstood the test of time, worked well, did match the needs of the changing society, served the system admirably, protected the interests of both the suitor and the sued and remained as a truly admirable piece of legislation throughout the century. Those who pleaded for radical reforms in procedural aspects could suggest only peripheral changes. The ‘Code’ is considered to be the ‘bible’ among the legal fraternity. Though the ‘Code’ stood the test of time, several aspects need further scrutiny and consideration. Various Amendments kept the ‘Code’ intact with time and changing needs of the litigant polity. Amendments aimed mainly at reduction of back logs, check on docket explosion and for speedy disposal of cases. Several other aspects were lost sight of by the legislators. They are, of course, simple in nature, but still keep the areas grey and require chiseling with architectural symphony. Conflicting judicial pronouncements by various High Courts made the situation more complex. Law Commission of India in its 144th Report sought to

resolve the conflicts by various recommendations. It is sad to say that many of the recommendations were unaccepted and not implemented. Those recommendations were aiming at the removal of divergent interpretations to the very same provisions and to give the Code a color of uniformity.

Thus the researcher like to conclude that:

 Revision is different to that of appeal.  It is done by higher courts.

The researcher doesn’t want to conclude anything as the present provision under CPC is enough.

BIBLIOGRAPHY

In making of this project, I have taken help from various sites and books: www.indiankannon.org  www.sodhganga.com  www.educationalhub.com

 Civil Procedure – C.K Takwani  Vol 2, Mulla, THE CODE OF CIVIL PROCEDURE, 17th edition, B.M. Prasad, Lexis Nexis, Butterworth.  Vol. 2, Banerjee, A. K., COMMENTARY ON CODE OF CIVIL PROCEDURE,

1908’,

Edition-2007,

Dwivedi&

Company,

Allahabad.  Vol. 3, Doabia, T. S. Justice, ‘CODE OF CIVIL PROCEDURE’, Edition 13, LexisNexis ButterworthsWadhwa Nagpur