Simple Notes Of Cpc

PROCEDURE OF CIVIL TRIAL

SEVEN PARTS

INSTITUTION OF SUITS

REJECTION OF PLAINT

JUDGEMENT/ DECREE

SUMMON

STAY OF SUIT, RES JUDCATA

EXECUTION

APPEALS, REFERENCE, REVIEW, REVISION

I.

INSTITUTION OF SUIT (SECTION 15,16,20,26 of The Code of Civil Procedure, 1908) a. Where to file the case1: i. Territorial jurisdiction of the court:  Every civil suit in regards to recovery partition/sale/mortgage or claim or compensation from any immovable/movable property in dispute shall be instituted within whose local limits the property is situated.  If the plaintiff is obtaining compensation from the property of defendant then the suit is instituted either within the local limits where property is situated or where defendant resides or carries business. 2 ii. Pecuniary jurisdiction of the court depends upon the subjectmatter of the suit:

1

Section 16 of The Code of Civil Procedure, 1908 20 of The Code of Civil Procedure, 1908

2Section



Pecuniary jurisdiction means whether a court can try cases and suits of the monetary value/amount of the case or suit in question  Every state have their own act regarding the pecuniary jurisdiction of the court. b. Filing of the suit/plaint:  Sec. 15. Every suit shall be instituted in the court of the lowest grade competent to try: There is a hierarchy of the court. The suit must be filed in the lowest court i.e., district court and then appeal lies in high court to Supreme Court.  Plaint is a written complaint/allegations3.  Particulars of plaint4: 1. The name of the plaintiff, 2. The name, description and place of residence of the plaintiff, 3. The name, description and place of residence of the defendant, 4. Where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect, Judicial Officers’ Examination Course Material 5. The facts constituting the cause of action and when it arose, 6. The facts showing that the Court has jurisdiction, 7. The relief which the plaintiff claims, 8. Where the plaintiff has allowed to set off or relinquished a portion of his claim, the amount so allowed or relinquished, and 9. A statement of the value of the subject matter of the suit for the purpose of jurisdiction and of Court fee. 10. Verification from plaintiff, that contents of plaint are true & correct (Affidavit) 

One who a file it is called “Plaintiff” against whom it is filed is called “Defendant”.  Vakalatnama: It is a written document by which person filing the case authorises the Advocate to represent on their behalf. It contains:  The advocates will not be responsible for any decision of court. Section 26 of The Code of Civil Procedure Code, 1908: (1) Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. (2) In every plaint, facts shall be proved by affidavit. 4 Order VII, R 1: Particulars to be contained in plaint. 3

  

All cost incurred during proceeding will not be paid by advocate. Advocate can retain the documents. Vakalatnama affixed on last page of plaint/suit.

c. Remitting court fees:  According to The Court Fees Act, 1870 a prescribed amount for court fees is given.  It can be done by two methods: i) A percentage of the value of compensation claimed or the value of the property. ii) Fixed amount in certain categories. For example: Miscellaneous application prescribed court fees is Rs. 10/Arbitration case under Section 34 prescribed court fees is Rs. 300/d. Suit Valuation:  Value of the subject matter of the suit is called “valuation of suit” or “suit-value”.  It is to determine the court jurisdiction which have the competent to try it.  It is dealt by the act of The Suit Valuation Act, 1887.  e. Limitation period:  It is dealt by the act of The Limitation Act, 1963.  Generally, limitation for the civil suit is 3 years from the cause of action in the cases related to contract or movable properties. f. Documents submitted to registrar:  The plaint along with the other documents should first be submitted to the Registrar of the Court.  The Registrar is the person authorized by the Court of law to check the error and raise the objections.  After scrutiny by Registrar, if there is no objection then the case will be listed before the judge.  If there is any objection and need of correction, the Registrar rejects the plaint and asked for the correction.

II.

5

REJECTION OF PLAINT (ORDER VII RULE 11) a. Rule 11 says that the plaint will be rejected in the following casesi. Where it does not disclose the cause of action:  If a plaint is filed and court after reading the plaint get to know that the plaintiff does not disclose the cause of action and is not entitled to any relief. The court may reject the plaint without issuing the notice to the defendant.  The plaint should be rejected as a whole if it does not disclose cause of action. A part of it cannot be rejected.5 ii.

Where the relief claimed by the plaintiff is undervalued and on correction asked by Court failed to do so:  The claim of the plaintiff must be properly valued.

iii.

Where it is insufficiently stamped: Sometimes the relief claimed by the plaintiff is properly valued, but the plaint is written upon a paper insufficiently stamped and the plaintiff fails to pay the requisite Court fees within the time fixed prescribed. In that case, the plaint will be rejected.

iv.

Where the Suit appears to be barred by any Law: Where the suit appears from the statements in the plaint to be barred by any law, the Court will reject the plaint. Barred by law means obstructed or prevented from legal remedy.

v. vi.

Where the plaint is not filed in duplicate Where the plaintiff fails to comply with the provision of Rule 9: In Rule 9 it is provided that when court is satisfied with the facts admitted by the Plaintiff and Court orders to served the summons to the defendant then plaintiff need to submit as

Rooplal Lal Sathi vs. Nachttar Singh Gill 1982 (3) SCC 487

many copies of the plaint as there are defendant within the seven days from the date of order. b. Rule 12 Procedures on Rejection of Plaint: Where a plaint is rejected by the Court, the Judge will pass the order to that effect and will record the reason for it. c. Rule 13 Effect of Rejection of Plaint: If the plaint is rejected on an of the above grounds, the plaintiff is not allowed the fresh plaint on the same cause of action. Any order rejecting a plaint is a ‘decree’ and is appealable.

III.

WRITTEN STATEMENT AND SUMMON (Section 27, Order V) If the court thinks there is a merit in the case then notice will be issued to the defendant under Order 5 summoning his appearance & directing him to file his reply. SUMMON: A summon is a legal document that is issued by a Court to a person involved in a legal proceeding. When a legal action took place against a person or when any person is required to appear in the court as a witness in a proceeding, to call upon such person and ensure his presence on the given date of the proceeding, summons are served. According to Section 26 summon be issued to defendant to appear before the court within the 30 days from the date of the institution of the suit. Procedure: a. Summon issued as the manner prescribed in Order V of the Act, 1908 with the copy of plaint and other documents. b. Court must authorised a person to issue summon. c. Summon be made on plaintiff expense. d. Every summon shall be signed by the Judge or the officer appointed by the Judge and shall have the seal of the court. Various modes of Summon: 1. Personal or direct service: Rules 10 to 16 and 18 deal with the personal or direct service of summon upon the defendant. This is an ordinary service of summon.

The rules are:  The summon must be served to the defendant in person or to his authorized agent. (Rule 12)  When there are more than one defendant, service of summon shall be made to each defendant. (Rule 11)  When the defendant is not present at the place of his residence then the service of summon must be given to adult male member of the defendant’s family. (Rule 15) 2. Service by Affixation (Rule 17): When the defendant or his agent refuses to accept personal service of summons, this method is to be used when the defendant or his agent refuses to accept personal service, the serving officer shall affix a copy of the summons to on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain. 3. Service by Post: Rule 19B specifies that the court shall, in addition to, and simultaneously with, the issue of summons for personal service, also direct the summons for personal service, also direct the summons to be serve, by registered post with acknowledgement due addressed to the defendant or his agent at the place where the defendant or his agent actually and voluntarily resides or carriers or business. 4. Substituted Service: The Provision for substituted service is provided for in Rule 20 or order 5 of the C P C. Rule 20 specifies that in two situations the method of substituted service may be restore to:  When there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or  When for any other reason summons cannot be served in the ordinary way.  the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the

house in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit.  Orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain. 5. When defendant reside in the foreign territory (Rule 26):  The summon shall be sent to the Political Agent in that country through the Ministry of Foreign Affairs where the defendant is residing or place of business by post or otherwise, or if so directed by the Central Government  Those Political Agent must sent the summon to that person and if those Political Agent return the summon with an endorsement, then it will be seen as the summon is duly served on the Defendant.  The endorsement shall deemed as evidence that summon was duly served to him. 6. Summon to the Company (Order 29 Rule 2) Summon duly be served to: a. On the secretary or on any director or other principal officer of the corporation. b. By leaving or sending it by post addressed to Registered office, if no Registered office then be served to the corporate office. In the case of Parasarampuriya Synthetic Ltd. vs. Shankar Prasad6 it was held by Delhi High Court that a summon must be sent to the Registered Office only. Order 29 Rule 1 clearly states that Secretary, Director or a Principal Officer of a company would be treated as duly authorised to institute suits on behalf of company. Any person mentioned who signed and verified on behalf of corporation shall be answerable to the court who is able to depose the facts of the case. In the case of United Bank of India vs. Naresh Kumar7 held that a company is a juristic person, some person must be

6 7

AIR 2003 Del 348 AIR 1997 SC 3

authorised by Boards of Directors to sign on their behalf the legal documents. WRITTEN STATEMENT (Order 8 Rule 1) When notice is issued, the defendant required to appear before the court on the date mentioned in the notice. Before such date, the defendant have to file “written statement” within 30 days from the issue of the notice or can be extended to 90 days if court may thinks fir. The written statement should specifically denied all the allegations or admit. It also contains the verification by the defendant, stating that, the contents of written statement are true and correct. REPLICATION BY PLAINTIFF: It is a legal document filed by the plaintiff after written statement. "Replication" should also specifically deny the allegations raised by the Defendant in written statement. Anything not denied is deemed to be accepted. Replication should also contain “verification" from the plaintiff, stating that contents of "Replication" are true and correct. Once Replication is filed, pleadings are stated to be complete.

FILING OF OTHER DOCUMENTS: If parties want to file more documents they can file additional document supporting it with an affidavit. The documents filed by one party may be admitted by other party. If admitted by both the party it shall form a part of record of court. (Order 13, Rule 49). Document should be filed in original and a spare copy be given to opposite party. IV.

RES JUDICATA, STAY ON SUIT:

Stay of Suit (Res Sub-judice)(Sec. 10): It provides that no court shall proceed with any of the matter which is directly or substantially in issue in a previously instituted suit between same parties or pending in same or other court. The intention is to avoid two parallel litigations that are similar in respect of cause of action, subject matter and relief in two courts at the same time; it protects the person from multiplicity of proceedings.8 Res Judicata (Sec. 11)

8

Indian Bank v. Maharashtra State Cooperative Marketing Federation Limited AIR 1998 SC 1952

COMMENCEMENT OF TRIAL PROCEEDINGS 1. FRAMING OF ISSUES (ORDER 14): Issue arise when material fact of the case is affirmed by one party and denied by other party. After reading the plaint, written statement or after hearing the plaintiff or their counsel, the court shall ascertain upon what material proposition of fact/law the parties are at variance and shall then proceed to frame & record issue on which decision of the case depends. While passing the order the court will deal with each issue separately & pass the judgement. 2. CALLING UPON THE WITNESSES: Both the parties file the list of witness within 15 days from the date on which issues were framed. Witness can be called upon on their own or through summon. Party calling the witness shall deposit money for their expenses known as DIET MONEY. 3. FILING DOCUMENTS AND LEADING EVIDENCES: A party, by the means of discovery, is enabled to obtain from his opponent material facts or information in the form of documents or admissions which will support his own case or damage his opponent’s case. Though the nature of each party’s case is set out in the plaint and the written statement, they may not sufficiently disclose their respective cases. Under Order 11, with the leave of court, one can present the additional documents to make their case strong. Although every document is already annexed with the plaint or written, but sometimes there was need to add more document. 4. ARGUMENTS FROM BOTH SIDES: The right to begin or the privilege of opening the case is determined by the rules of evidence. The general rule is that the party on whom the burden of proof lies should begin first. In every case who instituted the suit (plaintiff) have to proof his case. Arguments by both sides are intended to brief the judge with a summary of the evidences produced by each side. At this stage there are examinations and submissions by the parties in order to prove their point or substantiate their argument.

V.

JUDGEMENT/ DECREE (SECTION 33, ORDER 20):

After the hearing of a matter is completed the judge pronounces the judgment in open court.9 A decree is followed by the judgment.10 Within fifteen days of the pronouncement of a judgment, the concerned court is required to draw up the decree.11 Order XX Rule 6 of the CPC lays down, that the decree shall agree with the judgment. Copies of the judgment and decree ought to be provided to the parties to a suit.12 In the case of R.C. Sharma v. Union of India13, “ it should be declared within thirty days from the day of conclusion of the hearing and in case some extreme situation arises then the provision is also there to extend this declaration of pronouncement till the sixtieth day from the conclusion of hearing. Thus judges have a discretionary power for the pronouncement of judgment for these sixty days but after that declaration becomes mandatory on the part of the judge.” Contents of judgment: Judgments of courts other than a court of small causes shall contain: (a) a concise statement of the case; (b) the points for determination; (c) the decision thereon; and (d) the reasons for such decision. Judgements of a court of small causes need not contain more than (b) and (c), i.e., the points for determination and the decision.14 Alteration of judgment: The judgment once when pronounced and signed by the judge in the open court shall not afterwards be altered or added except in cases like: (l)(a) clerical or arithmetical mistake; or (b) errors arising from any accidental slip or omission (section 152); or (2) on review (section 114). There is no inherent jurisdiction in the court to rehear a case and alter or add to a judgment which has been duly pronounced and deliberately signed and sealed in accordance with law even with the consent of the parties. Decree: Order XX Rule 1, Code of Civil Procedure, 1908 Section 33 of Code of Civil Procedure, 1908 11 Order XX Rule 6-A, Code of Civil Procedure, 1908 12 Order XX, Rule 6-B 13 1976 AIR 2037 14 (Order XX, Rule 4). 9

10

Decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not includea) any adjudication from which an appeal lies as an appeal from an order, or b) any order of dismissal for default. The decree forms the last part of the judgment and is extracted from the entire judgment by the decree clerk who contains the basic details and the result of the case. Contents of Decree: (1) The decree shall agree with the judgment, it shall contain the number of the suit, the names and descriptions of the parties, their registered addresses, and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit. (2) The decree shall also state the amount of costs incurred in the suit, and by whom or out of what property and in what proportions such costs are to be paid. (3) The Court may direct that the costs payable to one party by the other shall be set off against any sum which is admitted or found to be due from the former to the latter.15 Preparation of decree: (1) Every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible and, in any case, within fifteen days from the date on which the judgment is pronounced. (2) An appeal may be preferred against the decree without filing a copy of the decree and in such a case the copy made available to the party by the Court shall for the purposes of Rule 1 of Order XLI be treated as the decree. But as soon as the decree is drawn, the judgment shall cease to have the effect of a decree for the purposes of execution or for any other purpose. 16 Copies of the decree should be provided to the parties. Date of decree: 15 16

(Order XX, Rule 6) (Order XX, Rule 6-A).

The decree shall bear date the day on which the judgment was pronounced, and, when the Judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree.17 An appeal maybe preferred against the decree without filing a copy of the decree. To that effect a copy of the judgment would be treated as the decree.

VI.

EXECUTION (Section 36, Order 21) Execution means enforcing or giving effect to the judgement of the court. Execution is the medium by which a decree-holder compels the judgement-debtor to carry out the obligations of the decree. The execution is complete when the judgement-creditor or decree-holder gets money or other thing awarded to him by judgement, decree or order. If the judgement-debtor fails to honour the decree passed against him, the decree holder can seek execution of the decree by filing an execution petition in the court. The court which passes the decree may execute it.

Procedure in Execution: Section 51 to 54 talks about procedure in execution or mode for execution. Application for execution of decree under this section may be either oral (order 21 rule 10) or written (order 21, rule 11). Application must be given within 2 years from the date of the decree. Party has to choose the mode of implementation of decree. Court may execute decree as per the choice prayed by the decree-holder or as court may thinks fit. Objections will be heard by the court by judgement-debtor or parties having interest in property by way of application. If the objection will be accepted by the court then suit of execution of decree will be set aside or otherwise will pass a decree for execution against the judgement-debtor.

17

(Order XX, Rule 7).

Mode of execution: The code lays down various mode of execution. After the decreeholder files an application for execution of decree, the executing court can enforce execution. A decree may be enforced by delivery of any property specified in the decree, by attachment and sale or by sale without attachment of the property, or by arrest and detention, or by appointing a receiver, or by effecting partition, or any such manner which the nature of relief requires. 1. Arrest And Detention: One of the modes of executing a decree is arrest and detention of the judgement-debtor in civil imprisonment. Where the decree is for payment of money, it can be executed by arrest and detention of the judgement-debtor. A judgement-debtor may be arrested at any time on any day in execution of a decree. After this arrest, he must be brought before the court as soon as practicable. For the purpose of making arrest, no dwelling house may be entered after sunset or before sunrise. Further, no outer door of a dwelling house may be broken open unless such dwelling house is in the occupancy of the judgement-debtor and he refuses or prevent access thereto. No order of detention of the judgement-debtor shall be made where the decretal amount does not exceed Rs.2000. Where the judgement-debtor pays the decretal amount and costs of arrest to the officer, he will be released. A women, judicial officers, the parties, their pleaders, member of legislative bodies, a judgement-debtor where the decretal amount does not exceed Rs 2,000, these person cannot be arrested and detained in civil imprisionment.

2. Attachment Of Property: A decree may also be executed on the application of the decreeholder by attachment and sale of the property of judgement-debtor. Sections 60 to 64 and rules 41 to 57 of Order 21 deals with the attachment of property. The code enumerates properties which are liable to be attached and sold in execution of a decree. It specifies which properties are liable to be attached and sold and which are not liable to be attached or sold. It also prescribes the procedure where the same. Section 60(1) declares what properties are liable to attachment and sale in execution of a decree, and what properties are exempted. All saleable property( movable or immovable) belonging to the judgement-debtor or over which or the portion of which he has a disposing power which he may exercise for his own benefit may be attached and sold in execution of a decree against him. Section 61 deals where the judgement-debtor is agriculturalist. Any agriculturalist produce is subject matter of agriculturalist. The quantum of attachment of agricultural product depends upon the quantum of decretal amount. 3. Percept: Section 46- “precept” means a command, an order, a writ or a warrant. A percept is an order or direction given by court which passed the decree to a court which has the power to attach any property belonging to the judgement-debtor. Section 46 provides that court which passed a decree may, upon an application by the decree-holder, issue a percept to that court within whose jurisdiction the property of the judgement-debtor is lying to attach any property specified in the percept. The interim order for attachment is valid for the period of only 2 months.

4. Sale Of The Property: A decree may be executed by attachment and sale or sale without attachment of any property. Section 65 to 73 and rules 64 to 94 of Order 21 deals with the subject relating to sale of movable and immovable property. 

Power of court: Rule 64-65 Rule 64: a court may sell the property, which he has taken into custody under an attachment under order 60. Rule 65: appointment of officer by the court who will be charged

to

sell

the

property.

Officer

will

be

the

representative of the court and will sell the property for execution of decree. 

Proclamation of sale: Rule 66-67 It is a kind of order or declaration. It operates as a public notice regarding the sale. It’s says that people can participate in auction and sale. Proclamation can be in writing or by customary mode.

Contents of proclamation:1. Time and place of sale 2. Property to be sold 3. Revenue, if any, assessed upon the property; 4. Encumbrance, if any, to which property is liable; 5. Amount to be recovered; 6. Details relating to property, such as title deed, length etc. 

Time of sale: Rule 68 No sale without the consent in writing of the judgementdebtor can take place before fifteen days in case of

immovable property and before 7 days in case of movable property from the date of proclamation in the courthouse. A sell can be conducted immediately if the property is of perishable nature. 

Adjournment of sale: rule 69 If the judgement-debtor after the issue of proclamation and before sell has paid the amount, or has partly promised to pay on the given date before completion of public order, if there is any justified reason, in those circumstances, court has discretionary power to postponed the sell. If it has been postponed for period of 30 days, fresh proclamation has to be issued and again the process of rule 67, 68 and 69 will follow. Sell cannot be postponed where judgement-debtor dies before the date of sell or after the issue of proclamation, or on the date of auction.

7. APPEAL, REFERENCE, REVIEW & REVISION:

A. APPEAL (Section 96 & 100) Any person who is aggrieved by any decree or order of the court may prefer an appeal to a superior court. Every person has a right of First Appeal against any decree passed by any court. In certain cases, a subordinate court may make a reference to a High Court. Essentials of an Appeal:  A decision (usually a decree of a court or the ruling of an administrative authority);  A person aggrieved, who is often, though not necessarily, a party to the original proceeding; and  An appellate body ready and willing to entertain an appeal. Who May Appeal:

a. The subject-matter of the appeal must be a “decree”, i.e. “the rights of the parties with regard to all or any of the matters in controversy in the suit b. The party appealing must have been adversely affected by such determination. Under the general principles of Section 92 of the CPC, the following persons are entitled to appeal:  A party to the suit who is aggrieved or adversely affected by the decree or, if such party is dead, his legal representative;  A person claiming under a party to the suit or a transferee of the interests of such a party, who, so far as such interest is concerned, is bound by the decree, provided his name is entered on the record of the suit;  A guardian ad litem appointed by the court in a suit by or against a minor;  Any other person, with the leave of the court, if he is adversely affected by the decree. 1. First Appeal (Section 96) An appeal lies against a decree passed by a court in exercise of its original jurisdiction. Appeal maintainable :  Against a decree  Against preliminary decree  Against final decree  Rejection of plaint under Order 7 Rule 11 C.P.C. Determination of any question within Section 144 (restitution)  Original decree passed ex-parte.  No appeal lies which passed with the consent of the parties.  No appeal lies in the matter less than Rs. 10,000/-/.

2. Second Appeal (Section 100)  Second appeal lies against a decree passed by a first appellate court. As per Section 100 of the CPC, a second appeal can be filed before a High Court from every decree passed in appeal by a subordinate court, if the High Court is satisfied that “the case involves a substantial question of law”.



An appeal may lie from an appellate decree passed ex parte.  Appeal must state a substantial question of law involved in the case. It is stated in the case if Govindaraja vs. Mariamman18 that the scope of High Court jurisdiction in second appeal under section 100 is limited to the substantial question of law. Power of Appellate Court (Section 107): First Appellate Court has got power to judge the correctness of findings of facts as well as of law recorded by the Trial Court. However, Second Appeal to the High Court under Section 100 C.P.C. lies only if the case involves substantial question of law. Following are the powers of Appellate Court provided under Section 107: a. To determine a case finally b. To remand a case c. To frame issues and refer them for trial d. To take additional evidence or to require sunch evidence to be taken. No appeal lies when: a. Suit is dismissed due to default. b. Determination of any question within Section 47. c. Decree passed by the court with the consent of the parties. d. Suit does not exceed Rs.10000/-. e. No appeal in trival defects under Section 99. It says no appeal lies when there is misjoinder or non-joinders of parties or defect or irregularity or error. Limitation: a. To any court within the 90 days from date of decree an appeal should be filed. b. To High Court it is 90 days. Procedure:

18

AIR 2005 SC 1008

a. If execution proceeding have started then an application to stay the proceeding must be initiated and then an application of appeal be filed. b. Appellant may require depositing some security (Process fee), fixing the date for hearing or it can be dismissed by the court if there is no substantial question of law. c. After date has been fixed, issue the notice to the opposite parties to appear on the next date. d. Also need to give notice to the lower court.

B. REFERENCE, REVIEW & REVISION: REFERENCE (Section 113) A suit or appeal or execution of decree where no further appeal lies, question of law arises, the court may on a reasonable doubt , either on its own or by the application of party, refer it for the opinion of High Court. Essentials: a. Reference is done only in non-appealable matter. b. In the meanwhile, the suit or appeal will in stay till the decision of high court. c. High court heard the parties, pass the copy of the decision to the court. d. The court will dispose the case in the conformity of the decision of High Court. e. Questions related to: (i) A question as to validity of any Act, ordinance or Regulation or any provision therein arises in a case before the court. (ii) The Court is of the opinion that the same is invalid or inoperative (iii) The same has not till then been declared invalid by the High Court to which the Court is subordinate or by the Supreme Court, and (iv) The determination of the validity thereof is necessary for the disposal of the case.

Is Reference different from Appeal, Review and Revision? Reference is always made when a case is pending, whereas an appeal, review or reference is always made after the court has passed its judgment, decree or order. A reference is always made to the High Court, unlike an appeal which can be filed in any higher court or a review which is always filed in the same court that has passed the judgment. A reference can only be made to question the legality or validity of a law, but an appeal is filed to reverse a subordinate court’s decision, a review is filed to rectify or add any existing or additional fact and a revision is made when the lower court acts outside its power or jurisdiction. It is necessary that to remove error that is anticipated by a court of subordinate jurisdiction by referring the same to the court of higher jurisdiction. It has been observed that such provisions also ensure that the validity of a legislative provision under an Act, Ordinance or Regulation should be interpreted and decided by the highest court in the state.19 It is a consultative power of the High Court and therefore after looking into to matter may answer or may refuse to answer or even quash the question so referred by the subordinate court. The effect of answering it will amount disposal of the case. If the High Court answers the question in favour of the plaintiff, the decree will be confirmed but if it is answered against him the suit will be dismissed. But the High Court has no power of making any orders or suggestions regarding the case so referred. 20

REVIEW & REVISION:

1.

2.

TOPICS

REVIEW

REVISION

RELATED SECTIONS FROM CPC

SECTION 114 Order 47

SECTION 115 Order

Subject

as

aforesaid,

any (1) The High Court may call for

LANGUAGE person considering himself the record of any case which has OF THE aggrieved— been decide by any court SECTION

subordinate to such High Court (a) by a decree or order from and in which no appeal lies which an appeal is allowed thereto, and if such subordinate by this Code, but from which

19 20

Public Prosecutor v. B. Krishnasami AIR 1957 AP 567 Municipal Corporation of City v. Shivshanker Gaurishanker AIR 1999 SC 2874

no appeal has been preferred,

court appears—

(b) by a decree or order from (a) to have exercised a which no appeal is allowed jurisdiction not vested in it by by this Code, or law, or (C) by a decision on a reference from a court of small causes, which passed the decree or made the order, and the court may make such order thereon as it thinks fit, may apply for a review of judgment to the court.

(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 suitor other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.

3.

EXPLAINATI ON

-On an application by a party aggrieved by any:  Any decree or order in which appeal has been allowed but not preferred in the court (not presented)  Any decree or order where no appeal lies.  By a decision on reference -The application of review lies in the same court that passed the decree.

-

-

-

-

-

Only High Court have power of revision of any order or decree made by the subordinate court in the nonappealable matter. High court suo moto (on its own) have power of revision. In some cases on the application of party can call for revision. (Discretionary power of High Court) Revision of order or decre lies when the subordinate court:  Have acted outside the jurisdiction vested in it.  Have failed to exercise the jurisdiction vested in it.  Have exercised jurisdiction in illegally or material irregularity. High Court have power to vary, reverse, any order in

deciding the suit, only when it must be in favour of the party applying for revision. Revision will not lie when an appeal from the order/decree lies in the High Court or any other court.

4.

RELATED PROVISION FROM THE CONSTITUTI ON OF INDIA

1. Supreme Court: Art. 137 2. High Court: Art. 227

1. High Court: Art. 227

5.

PROCEDURE

1. Application by the parties to the same

1. Application by the party. 2. Suo moto on its own court exercise the revision power.

judge 6.

DIFFERENC ES

a. Meaning: to re-examina, reconsideration by the same court.

a. Meaning: re-examining over for correction or improvement.

7.

LIMITATIO N



b. Any court, which passed the decree or made order, can review the case. c. Review can be made when the matter is an appealable. d. The review can be made only one an application by an aggrieved party. e. Grounds: I. Discovery of new evidence II. Some apparent mistake or error on face of record. III. Other sufficient reason.

b. The High Court, only, can exercise the power the revision of any case which has been decided by any court subordinate21 to it. c. Revision power can be exercised only in nonappealable matter. d. Revision power can be exercised by the High Court on an application (if court permits on sufficient grounds) or on its own motion. e. Grounds: I. Fails to exercise a jurisdiction II. Want of jurisdiction III. Illegal or irregular exercise of jurisdiction.

30 DAYS from the date of order or decree under Section 124 of the Limitation Act, 1963.

90 days from the date of the decree or order of sentence sought to be revised. under section 131 of Limitation Act, 1963

A petition of review can be made by any person who is aggrieved by such judgement or order. It has been held that an aggrieved person means a person who has suffered a legal grievance or against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something.22

21 22

S.P. Gupta v. Union of India AIR 1982 SC 149