Application for review of judgment: O47 R1

 

Code of Civil Procedure

 

Review

1. 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.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applied for the review.

¹[Explanation.—The fact that the decision on a question of law on which the judgment 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 the review of such judgment.]

Note: 1. Ins. by Act 104 of 1976, s. 92 (w.e.f. 1-2-1977).

Part in Red is original provisions from CPC reproduced here for reference.

Code of Civil Procedure

Simplified explanation:

Order XLVII Rule 1 deals with the power of review. Section 114 read with O.47 R.1 C.P.C. prescribes the limitations for entertaining a review petition. The same are: that the party filing the application for review has discovered a new and important matter or evidence after exercise of due diligence which was not within its knowledge or could not be produced by it 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.’

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Complete note on "Review Application"

Judgments on Review Application

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Reference: http://www.nja.nic.in/16%20CPC.pdf

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Judgments on Cause of Action

Code of Civil Procedure Section 20. Other suits to be instituted where defendants reside or cause of action arises.

 Judgments on Cause of Action:

(a) In Muhammad Hafiz v. Muhammad Zakariya, AIR 1922 PC 23, the “cause of action” was explained as under:-

“....the cause of action is the cause of action which gives occasion for and forms the foundation of the suit....”

(b) In Read v. Brown, (1889) 22 QBD 128, “cause of action” was explained as under:- “Every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court.”

(c) A similar view has been reiterated by the Supreme Court in Swami Atmananda & Ors. v. Sri Ramkrishna Tapovanam, & Ors., AIR 2005 SC 2392, wherein the apex Court held that the “cause of action” means every fact, which, if traversed, would be necessary for the plaintiff to prove in order to support his right for a judgment of the Court. In other words, it is a bundle of fact which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue. It is not limited to the actual infringement of the right to sue, but would include all the material facts on which it is found.

(d) In Kunjan Nair Sivaraman Nair V. Narayanan Nair, AIR 2004 SC 1761, the meaning of ‘cause of action’ has been explained by the Apex Court compendiously observing that the term has acquired a judicially settled meaning. In the restricted sense ‘cause of action’ means the ‘circumstance forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit including not only the infraction of the right but the infraction coupled with the right itself. The expression means every fact which would be necessary for the plaintiff to prove, if traverse, in order to support his right to the judgment of the Court. 

(e) In New Moga Transport Co. V. United India Insurance Co. Ltd. & Ors., AIR 2004 SC 2154, the Supreme Court explained the scope of Section 20 C.P.C. observing that where the party enters into an agreement it is permissible to institute the suit in two or more Courts, but if by agreement parties restrict jurisdiction only to one place, such an agreement is binding upon the parties not being contrary to public policy. However, the parties by consignment note cannot confer jurisdiction on a court which otherwise does not have jurisdiction to deal with the matter.

(f) In Kusum Ingots & Alloys Ltd. V. Union of India & Anr., AIR 2004 SC 2321, the Supreme Court explained the scope of clause (2) of Article 226, comparing it with Section 20 (c) of the Code of Civil Procedure and dealt with territorial jurisdiction of the writ court, observing that a court in whose territorial jurisdiction the cause of action has partly or fully arisen, would have the jurisdiction to deal with the case, though the original order might have been passed outside the territorial jurisdiction of the said court.

Rameshwar Lal Ram Karan & Ors. v. Gulab Chand Puranmal

 

(d) In Rameshwar Lal Ram Karan & Ors. v. Gulab Chand Puranmal, AIR 1960 Raj. 243, it was held that a suit can be filed in a court within whose jurisdiction a negotiable instrument was executed and the Court, in whose territorial jurisdiction an assignment was made, could not have jurisdiction as no cause of action, even in part, occurred therein, for the reason that such an assignment might have been made to defeat the statutory provisions contained in Section 20 (c) of the Code.

While deciding the said case, the learned Single Judge of this Court considered two contrary judgments by the Division Bench of this Court on the same point, viz., Mishrimal v. Moda, 1951 R.L.W. 433 and Abdul Gafoor v. Sensmal & Ors., AIR 1955 Raj. 53 and followed the former one, observing as under:-

“..... If the assignment were to be treated as forming part of cause of action for the purpose of giving jurisdiction, the defendant could be compelled to defend the suit at the choice of the plaintiffs and this would cut at the basic principle underlying Section 20 CPC.”

Subodh Kumar Gupta v. Shrikant Gupta & Ors.

 

(a) In Subodh Kumar Gupta v. Shrikant Gupta & Ors., (1993) 4 SCC 1, the Supreme Court considered a case wherein a partnership firm having its registered office at Bombay and factory at Mandsore. Two partners - defendants were residing at Mandsore while the third partner-plaintiff shifted to Chandigarh and an agreement had been drawn up between the partners at Bhilai for dissolution of the firm and distribution of assets. The suit was filed by the plaintiff in the Court at Chandigarh for dissolution of the firm and rendition of account on the ground that the defendants at Mandsore misappropriated partnership’s fund and the aforesaid agreement was void and liable to be ignored. The Court held that in view of the provisions of Section 20 of CPC, suit can be entertained in a place where cause of action had arisen fully or partly. The mere bald allegation by the plaintiff for the purpose of creating jurisdiction would not be enough to confer jurisdiction or allege that the agreement was void would not be enough unless the agreement was set-aside by the competent court. The court must find out by examining the provisions carefully, as to whether the suit can be entertained by it. Generally, cause of action would arise at the place where the defendant resides, actually and voluntarily, or carries on business or personally works for gain or the cause of action arises wholly or in part.

Union of India & Ors. v. Adani Exports Ltd. & Anr

 

In Union of India & Ors. v. Adani Exports Ltd. & Anr., (2002) 1 SCC 567, the Supreme Court considered the scope of Section 20 of CPC and Clause (2) of Article 226 of the Constitution while examining whether in that case the Gujarat High Court had territorial jurisdiction. The Court held that the facts which may be relevant to give rise to the “cause of action”, are only those which have “a nexus or relevance with the lis involved in the case and none else.” In the said case, the respondent had filed an application before the Gujarat High Court claiming the benefit of Pass-book Scheme under the provisions of the Import Export Policy introduced w.e.f. 1-4-1995 in relation to certain credits to be given on export of shrimps. However, none of the respondents in the civil application was stationed at Ahmedabad. Even the Pass-book, was to be issued by an Authority stationed at Chennai; the entries in the pass-book under the Scheme concerned were to be made by the Authority at Chennai and the export of prawns made by them and import of the inputs, benefit of which the respondents had sought in the application, were also to be made at Chennai. The Court held that the Gujarat High Court had no territorial jurisdiction, in spite of the fact that the respondents were carrying on their business of export and import from Ahmedabad, the orders of export and import were placed from and were executed at Ahmedabad, documents and payments of export and imports were sent/made at Ahmedabad, the credit of duty claimed in respect of export were handled from Ahmedabad, the respondents had executed a bank guarantee through their bankers as well as a bond at Ahmedabad, non-grant or denial of utilization of the credit in the pass-book might affect the company’s business at Ahmedabad. The court held as under:-

“......In order to confer jurisdiction on a High Court to entertain a writ petition or a special civil application as in this case, the High Court must be satisfied from the entire facts pleaded in support of the cause of action that those facts do constitute a cause so as to empower the court to decide a dispute which has, at least in part, arisen within its jurisdiction...... each and every fact pleaded by the respondents in their application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the court’s territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the court concerned. If we apply this principle then we see that none of the facts pleaded in para 16 of the petition, in our opinion, fall into the category of bundle of facts which would constitute a cause of action giving rise to a dispute which could confer territorial jurisdiction on the courts at Ahmedabad. ...... the fact that the respondents are carrying on the business of export and import or that they are receiving the export and import orders at Ahmedabad or that their documents and payments for exports and imports are sent/ made at Ahmedabad, has no connection whatsoever with the dispute that is involved in the applications. Similarly, the fact that the credit of duty claimed in respect of exports that were made from Chennai were handled by the respondents from Ahmedabad have also no connection whatsoever with the actions of the appellants impugned in the application. The non-granting and denial of credit in the passbook having an ultimate effect, if any, on the business of the respondents at Ahmedabad would not also, in our opinion, give rise to any such cause of action to a court at Ahmedabad to adjudicate on the actions complained against the appellants.”

Rajasthan High Court Advocates’ Association v. Union of India & Ors

 

In Rajasthan High Court Advocates’ Association v. Union of India & Ors., AIR 2001 SC 416, the Supreme Court considered the question of territorial jurisdiction of the Principal Seat of the Court at Jodhpur and the Bench at Jaipur and explained the meaning of “cause of action” observing as under:-

“The expression ‘cause of action’ has acquired a judicially settled meaning. In the restricted sense, ‘cause of action’ means the circumstance forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the rights, but the infraction coupled with the right itself. Compendiously the expression means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. Every fact which is necessary to be proved, as distinguishing from every piece of evidence which is necessary to prove each fact, comprises in a ‘cause of action.’ It has to be left to be determined in each individual case as to where the cause of action arose.”

Navinchandra N. Majithia v. State of Maharashtra & Ors

 

In Navinchandra N. Majithia v. State of Maharashtra & Ors., AIR 2000 SC 2966, the Supreme Court while considering the provisions of Clause (2) of Article 226 of the Constitution, observed as under:-

“In legal parlance the expression ‘cause of action’ is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more basis for suing; a factual situation that entitles one person to obtain a remedy in court from another person......’Cause of action’ is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which, if traversed, the plaintiff must prove in order to obtain judgment......the meaning attributed to the phrase ‘cause of action’ in common legal parlance is, existence of those facts which give a party a right to judicial interference on his behalf.”

The Apex Court held that while considering the same, the court must examine as to whether institution of a complaint/ plaint is a mala fide move on the part of a party to harass and pressurise the other party for one reason or the other or to achieve an ulterior goal. For that consideration, the relief clause may be a relevant criterion for consideration but cannot be the sole consideration in the matter.