📘 CIVIL PROCEDURE CODE : ORDER XVII

TOPICS:

• The doctrine of Actus curiae neminem gravabit
• Scope of the power of review
• Scope of the expression ‘for any other sufficient reason’ in Rule 1
• Distinction between an erroneous decision and an error apparent on the face of record
• Scope of the expression ‘error apparent on the face of record’ in Rule 1

SUPREME COURT JUDGMENTS DISCUSSED IN THIS POST:

• BCCI v. Netaji Cricket Club [2005 SC]
• Haridas Das v. Smt. Usha Rani Banik [2006 SC]
• Thungabhadra Industries v. Andhra Pradesh [1964 SC]

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⚖️ ORDER XLVII REVIEW

Order of rejection not appealable
Rule 7(1)

• An order rejecting the application
• shall not be appealable
• but an order granting the application
• may be objected to
• at once, by an appeal from the order granting the application or
• in an appeal from the decree or order finally passed or made in the suit

Rule 7(2)

• Where the application has been rejected
• in consequence of the failure of the applicant to appear
• he may apply for an order
• to have the rejected application restored to the file..
• where it is proved to the satisfaction of court
• that he was prevented by any sufficient cause
• from appearing when such application was called on for hearing
• the court
• shall order it to be restored to the file and
• shall appoint a day for hearing the same

Bar of certain applications
Rule 9

• No application to review
• an order made on an application for a review or
• a decree or order passed or made on a review
• shall be entertained

📝 Explanatory Notes by DLA on REVIEW

Rationale behind review: The doctrine of Actus curiae neminem gravabit:

• Actus curiae neminem gravabit meaning: An act of the Court shall prejudice no one
• Review may be necessitated by invoking the doctrine of actus curiae neminem gravabit. It is the duty of the court to see that no one is suffered by its order.

❓ Question

What is the scope of the expression ‘for any other sufficient reason’ in Rule 1?

Ans

• “Sufficient reason” is wide enough to include a misconception of fact or law by a court or even by an advocate.

Authority: BCCI v. Netaji Cricket Club [2005 SC]

Scope of the power of review

• Section 114 of the CPC does not even adumbrate the ambit of interference expected of the Court since it merely states that it “may make such order thereon as it thinks fit.
• The former part of Rule 1 deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible.
• Neither of them postulates a rehearing of the dispute because a party had not highlighted all aspects of the case or could perhaps have argued them more forcefully or cited binding precedents and thereby could have enjoyed a favourable verdict. This is amply evident from the explanation in Rule 1.
• Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the Court should exercise the power to review its order with the greatest circumspection.

Authority: Haridas Das v. Smt. Usha Rani Banik [2006 SC]

❓ Question

What is the scope of the expression ‘error apparent on the face of record’ in Rule 1?

Ans

• Where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.

❓ Question

What is not an error apparent on the face of record’?

Ans

• An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of record.
• An error which is not self-evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of record.

Authority: Thungabhadra Industries v. Andhra Pradesh [1964 SC]

❓ Question

Bring out the distinction between an erroneous decision and an error apparent on the face of record?

Ans

• An erroneous decision can only be corrected by an appellate court, whereas a decision which could be characterized as vitiated by “error apparent” can be corrected by the same court which made it in the first place.

Limitations of the power of review

• A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for a patent error.
• The power of review may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal.
• A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court.
• Where an alleged error is far from self-evident and if it can be established, it has to be established by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari.
• An error which has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order XLVII, Rule 1.

Authority: Thungabhadra Industries v. Andhra Pradesh [1964 SC]

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