Review : Section 114, Order 47 CPC

What is Review?

Review literally and even judicially means re-examination or re-consideration of its own decision by the very same court. Basic philosophy inherent in it is the universal acceptance of human fallibility. An application for review may be necessitated by way of invoking the doctrine ‘actus curiae neminem gravabit’ which means an act of the court shall prejudice no man. The other maxim is, ‘lex non cogit ad impossibillia’ which means the law does not compel a man to do that what he cannot possibly perform.

Section 114 of the Code of Civil Procedure (in short CPC) provides for a substantive power of review by a civil court and consequently by the appellate courts. Section 114 of the code although does not prescribe any limitation on the power of the court but such limitations have been provided for in Order 47, Rule 1 of the CPC.

The grounds on which review can be sought are enumerated in Order 47, Rule 1 CPC, which reads as under:

Application for review of judgment 

(1)   Any person considering himself aggrieved

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, 

(b) by a decree or order from which no appeal is allowed, or 

(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the court which passed the decree or made the order.

So the circumstances when review lies are

(a) cases in which appeal lies but not preferred, 

(b) cases in which no appeal lies, 

(c) decisions on reference from Court of Small Causes; and

the grounds are

(i) discovery of new and important matter or evidence, or 

(ii) mistake or error apparent on the face of the record, or 

(iii) any other sufficient reason.

Scope of an application for review is much more restricted than that of an appeal.  The Supreme Court in Lily Thomas vs. Union of India, AIR 2000 SC 1650 held that the power of review can only be exercised for correction of a mistake and not to substitute a view and that the power of review could only be exercised within the limits of the statute dealing with the exercise of such power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained.

For review an application has to be made by the aggrieved party. Where an appeal has been preferred a review application does not lie. But an appeal may be filed after an application for review. In such event the hearing of the appeal will have to be stayed. If the review succeeds the appeal becomes infructuous.

After the amendment in Section 141 of the Code of Civil Procedure and insertion of Explanation to that Section it is clear that the provisions of Order 47 of the code do not apply to writ petitions filed in a High Court under Article 226 of the Constitution.  However, there are definitive limits to the exercise of the power of review by the High Courts.

The legal propositions set out by the Apex Court in Gujarat University vs. Sonal P. Shah, AIR 1982 Guj 58, are as follows:-

(1) The provisions of the Civil Procedure Code in Order 47 are not applicable to the High Court’s power of review in proceedings under Article 226 of the Constitution,

(2) The said powers are to be exercised by the High Court only to prevent miscarriage of justice or to correct grave and palpable errors. (The epithet ‘palpable’ means that which can be felt by a simple touch of the order and not which could be dugout after a long drawn out process of argumentation and ratiocination).

 (3) The inherent powers, though ex facie plenary, are not to be treated as unlimited or unabridged, but they are to be invoked on the grounds analogous to the grounds mentioned in Order 47, Rule 1; namely:

(i) discovery of new evidence, 

(ii) existence of some mistake/error, 

(iii) analogous ground.

These are the very three grounds referred to in Order 47, Rule 1 CPC and by declaration of law at the hands of the Supreme Court in the above case they are the hedges or limitations of the High Court’s power.

Review by the Supreme Court:

The provisions 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 judgments subject to the provisions of any law made by Parliament or the Rules made under clause (c) of Article 145. The power of the Supreme Court, therefore, cannot be curtailed by the Code of Civil Procedure.

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