Injunction Written by Ayesha Islam Kanta Department of Law Z. H. Siker !ni"ersity of Science An #echnolo$y %. Int Introu ucction ion
The law of injunction in our country is having its origin in the Equity Jurisprudence inherited from England who borrowed it from Roman Law. It is basic principle of our law that if there is a right there should be a remedy. n injunction is a specific order of the court forbidding forbidding the commission of a wrong threatened threatened or the continuance continuance of a wrongful wrongful course of action already begun. It is a well settled principle of law that interim relief can always be granted in the aid of and as ancillary to the main relief available to the party on final determination of his rights in a suit or any other proceeding. Therefore! a court undoubtedly possesses the power to grant interim relief during the pendency of the suit. Temporary injunctions are thus injunctions issued during the pendency of proceedings. &. Defi Defini niti tion on of inju injunc ncti tion on 'aitlan says! "injunction which was far more fle#ible and far more generally applicable! obtain obtained ed not merely merely certain certain particula particularr field field of justic justice! e! but a power power of ma$ing ma$ing its own doctrines to prevail at the e#pense of the common law% Lor Halsbury says! "an injunction is a judicial process whereby a party is ordered to refrain from doing or to do a particular acts or things% ()for ()for ictionar ictionary y meaning of word Injunction is "a Judicial warning or a judicial order restraining a person from an action or compelling a person to carry out a certain act.%
ccording to ol chancery practice ! an injunction may be described as a prohibitory writ issuing out of chancery to restrain the defendant from using some legal right! the e#ercise of which would be contrary to equity and conscience. ccording to story ! " if one were disposed to be scrupulously critical on such a subject he might object to the apparent contrast between justice in the first part of the sentence and equity and good conscience in the latter. This truth is that in this connection the word has the same identical meaning.&
*. +harac +haracter terist istic ic featur featuree of injunc injunctio tion n a. It is is a proc process ess of the the cou court. rt. b. It is the discretionary power of the court. c. The purpose purpose attained attained thereby thereby is is control control or prevent prevention. ion. d. The thin thing g restrain restrained ed or preve prevente nted d is a unlawf unlawful ul act. act. 1 Story’s Equity Jurisprudence, Arce 118
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,. +lassification of injunction
There are si# type of injunction a. b. c. d. e. f.
Temporary injunction 'erpetual injunction (andatory injunction Interlocutory injunction d interim injunction 'rohibitory injunction
). #emporary injunction temporary injunction is an order by which a party to an action is required to refrain from doing a particular thing until the suit is disposed of or until further orders of the court. They may be granted at any period of a suit! and are regulated by the code of civil procedure.
-. (bject of temporary injunction
The primary purpose of granting interim relief is the preservation of property in dispute till legal rights and conflicting claims of the parties before the court are adjudicated. In other words! the object of ma$ing an order regarding interim relief is to evolve a wor$able formula to the e#tent called for by the demands of the situation! $eeping in mind the pros and cons of the matter and stri$ing a delicate balance between two conflicting interests! i.e.! injury and prejudice! li$ely to be caused to the plaintiff if the relief is refused* and injury and prejudice li$ely to be caused to the defendant if the relief is granted. The court in the e#ercise of sound judicial discretion can grant or refuse to grant interim relief. The object of temporary injunction is to $eep matters status quo until the question at issue between the parties is determined.+ It is a $ind of preventive relief. Temporary injunction in its nature and its sole objective is to preserve the subject matter in controversy without determining the rights of the parties and to prevent the doing of act whereby the subject matter in controversy may be endangered. ,
. /roun of $rantin$ temporary injunction
The following condition are essential for granting of a temporary injunctiona. The paints must ascertain prima facie case. b. e must show that there is a substantia question to be investigated and that matters should be preserved in status quo until the question can be finally disposed of. / c. The plaintiff must show that irreparable injury will arise to him if the injunction is not granted. 2 B.M. Gandhi, Equity , TRUST and Specific Relief, 4 th edition 3 Mizanur v. Serajuddin !"R 4 #one$ v. %ecaya co. &.B 4''
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d. 0alance of inconvenience must be in favor of conceding the injunction. e. The plaintiff must gratify the court two ma#ims of equity1 2&3 e who see$s equity must do equity 2+3 e who comes into equity must come with clean hand .
+ase law
In Agricultural Produce Market Committee Case! the pe# 4ourt has held that 5a temporary injunction can be granted only if the person see$ing injunction has a concluded right! capable of being enforced by way of injunction.5
0rima facie case
It is well settled that in granting or refusing to grant temporary injunction! the 4ourt has very wide discretion. The e#ercise of the discretion should be in a judicial manner! depending upon the circumstances of each case. 6o hard and fast rule can be laid down for the guidance of the 4ourt to that effect. It is well settled that while granting injunction plaintiff must show2i3 e#istence of prima facie case! 2ii3 balance of convenience and 2iii3 the injury must be of an irreparable loss that cannot be compensated in terms of money. The first rule is that the applicant must ma$e out a prima facie case in support of the right claimed by him. The court must be satisfied that there is a bonafide dispute raised by the applicant! that there is a strong case for trial which needs investigation and a decision on merits and on the facts before the court there is a probability of the applicant being entitled to the relief claimed by him. The e#istence of a prima facie right and infraction of such right is a condition precedent for grant of temporary injunction. The burden is on the plaintiff to satisfy the court by leading evidence or otherwise that he has a prima facie case in his favor.
Irreparable injury
The e#istence of the prima facie case alone does not entitle the applicant for a temporary injunction. The applicant must further satisfy the court about the second condition by showing that he will suffer irreparable injury if the injunction as prayed is not granted! and that there is no other remedy open to him by which he can protect himself from the consequences of apprehended injury. In other words! the court must be satisfied that refusal to grant injunction would result in 7irreparable injury7 to the party see$ing relief and he needs to be protected from the consequences of apprehended injury. 8ranting of injunction is an equitable relief and such a power can be e#ercised when judicial intervention is absolutely necessary to protect rights and interests of the applicant. The e#pression irreparable injury however does not mean that there should be no possibility of repairing the injury. It only Page 3 of 18
means that the injury must be a material one! i.e.! which cannot be adequately compensated by damages. n injury will be regarded as irreparable where there e#ists no certain pecuniary standard for measuring damages.
1alance of con"enience
The third condition for granting interim injunction is that the balance of convenience must be in favor of the applicant. In other words! the court must be satisfied that the comparative mischief! hardship or inconvenience which is li$ely to be caused to the applicant by refusing the injunction will be greater than that which is li$ely to be caused to the opposite party by granting it.
(thers factor
There are some other factors which must be considered by court while granting injunction. The relief of injunction may be refused on the ground of delay! laches or acquiescence or whether the applicant has not come with the clean hands or has suppressed material facts! or where monetary compensation is adequate relief. s per amended 9ec.:1 2+3 of the 4.'.4. The 4ourt is empowered to grant such interim relief as it may consider necessary! pending determination by it of the preliminary issue as to the jurisdiction.
2. Duration of temporary injunction
n order of temporary injunction ta$es effect only from the time when it is communicated to the party injuncted. nd unless its duration is specified or vacated earlier! it terminates as soon as the suit in which it is granted comes to an end! even though it may have been stated until further orders e#cept in the case of suit for perpetual injunction wherein the order becomes permanent as part of the decree passed.
3. 4ffect of temporary injunction
In interlocutory proceedings! the court ta$es the decision on a tentative view. The view so e#pressed tentatively does not influence the final decision in the suit and such tentative view does not cause prejudice to the concerned party.
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%5. 0erpetual injunction
perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit! the defendant is thereby perpetually enjoyed from the assertion of a right! or from the commission of an act! which would be contrary to the rights of the plaintiff.
%%. /roun of $rantin$ perpetual injunction
perpetual injunction may be granted to prevent the breach of an obligation e#isting in favor of the applicant! whether e#pressly or by implication. ;hen the defendant invades! or threatens to invade the plaintiffs right to! or enjoyment of! property! the court may grant a perpetual injunction in the following case namely ) a. ;here the defendant is trustee of the property for the plaintiff! b. ;here there e#ist no standard for ascertain the actual damage caused! or li$ely to be caused! by the invasion! c. ;here the invasion is such that pecuniary compensation woud not afford adequate relief. d. ;here it is probable that pecuniary compensation cannot be got for the invasion. e. ;here the injunction is necessary to prevent a multiplicity of judicial proceedings.
4)ample
lets certain lands to 0 and 0 contacts not to dig sand or gravel there out. may sue for an injunction to restrain 0 from digging in violation of this contract.
%&. When perpetual injunction refuse
The following cases perpetual injunction cannot be granted a. To restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought! unless such restrain is necessary to prevent a multiplicity proceedings. b. To restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought.
%*. 'anatory injunction
;hen to prevent the breach of an obligation! it is necessary to compel the performance of certain acts which the court is capable of enforcing! the court may in its discretion grant an injunction to prevent the breach complained of! and also to compel performance of the requisite acts. 5 Secon 54, Specic !e"ief Act, 188#
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4)ample
a. build a house with eaves projecting over 0
/rouns for $rantin$ manatory injunction
The following grounds must be noted in regard to the grant of mandatory injunction! such as1 a. There is a legal obligation on the part of the defendant to perform certain acts. b. That the act of the defendant has interfered with the plaintiff
/rouns of refusin$ manatory injunction
a. b. c. d.
;here the injury can be fairly compensated by damages. ;here the balance of inconvenience is in favor of the defendant ;here the alleged obstruction is of temporary nature. If the plaintiff stands by and allows the obstruction to be completed before he comes to the court
+ase law
In ()ter Mahal *a$na Banu v. T+T Board 9ince specific order of mandatory injunction was issued upon local officers for giving the petitioner immediate telephone connection! they are bound to obey the order of the court. =or non1service of notices upon the chairman and the director of the T>T 0oard the order of mandatory injunction passed by the subordinate judge cannot be frustrated.
&/. Interlocutory injunction n interlocutory injunction is a court order to compel or prevent a party from doing certain acts pending the final determination of the case. It is an order made at an interim stage during the trial! and is usually issued to maintain the status quo until judgment can be made.
%6. A interim injunction $ 4$ %&! 452
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;henever the 4ourt does grant an injunction without notice to the opposite party i.e. e#1parte the proviso to Rule ,! ?rder ,:! 4.'.4. provides duty on the 4ourt to record the reasons for its opinion as to the object of granting the injunction would be defeated by delay. It also puts an obligation on the party in whose favor such order is passed to communicate the order along with all relevant documents to the other side by registered post and to file an affidavit stating that! he complied the requirement.
+ase law
The 9upreme 4ourt in Ra-ra-e$hari !evi and or$. /$. 0ir-ala !evi and or$., 4ivil ppeal 6o./:@+A&& has held that- "the 4ourt should be e#tremely careful and cautious in granting e# parte ad interim injunctions or stay orders. ?rdinarily short notice should be issued to the defendants or respondents and only after hearing concern parties appropriate order should be passed.%
&B. 0rohibitory injunction 'rohibitory injunction requires the other party to refrain from doing something e.g. ordering the other party not to publish an article etc. The case law has created guidelines for imposing prohibitory injunctions. The guidelines consist of various issues to consider and are as follows*< there must be a serious question to be tried.< The court then has to consider where the balance of convenience lies and in order to decide this! the court must consider the following* whether the damages are adequate remedy and whether the respondent is adequately compensated by the applicant
%. Injunction when refuse
n injunction cannot be granted1 a. To stay a judicial proceeding pending at the institution of the suit in which injunction is sought! unless such restrain is necessary to prevent a multiplicity of proceedings. b. To stay proceeding in a court not subordinate to that from which the injunction is sought! c. To restrain person from applying to any legislative body d. To interfere with the public duties of any department of the government! or with the sovereign acts of foreign government. e. To stay proceedings in any criminal matter. f. To prevent the breach of a contact the performance of which would not be specifically enforced. g. To prevent on the ground of nuisance! an act of which it is not reasonably clear that it will be a nuisance. h. To prevent a continuing breach in which the applicant has aqiesced. Page 7 of 18
i.
;hen equally efficacious relief can certainly be obtained by any other usua mode of proceeding e#cept in case of breach of trust. j. ;hen the conduct of the applicant on his agents has been such as to disentitle him to the assistance of the court. $. ;here the applicant has no personal interest in the matter.
4)ample
see$s an injunction to restrain his partner! 0 from receiving the partnership debts and effects. It appears that had improperly possessed himself of the boo$s of the firm and refused 0 access to them. The court will refuse the injunction.
%2. Inherent power
There was a conflict of Judicial opinion on the question whether the 4ourt could issue a temporary injunction C@s.&)& of 4ivil 'rocedure 4ode when the case did not fall within the term of ?rder DDDID Rule & and + of 4ivil 'rocedure 4ode. owever now that point is concluded by the on7ble pe# 4ourt in the case of (anmohanlal rs. 9eth iralal reported in .I.R. &:B+ 9upreme 4ourt )+F by observing that the 4ourt has powers C@s.&)& of 4ivil 'rocedure 4ode to issue an injunction in cases not falling within ?rder DDDID Rule & and +* however that discretion should be e#ercised judiciously.
&:. 4nforcement of a ecree for injunction The wording as framed in ?rder +&! Rule ,+2&3 would indicate that in enforcement of the decree for injunction a judgment1debtor can either be put in civil prison or his property can be attached or both the said courses can be resorted to. 0ut 9ub1rule 2)3 of Rule ,+ shows that the 4ourt need to resort to either of the above two courses and instead the 4ourt can direct the judgment1debtor to perform the act required in the decree or the 4ourt can get the said act done through some other person appointed by the 4ourt at the cost of the judgment1debtor. Thus! in e#ecution of a decree the 4ourt can resort to a three1fold operation against disobedience of the judgment1debtor in order to compel him to perform the act. 0ut! once the decree is enforced the judgment1debtor is free from the tentacles of Rule ,+. reading of that rule shows that the whole operation is for enforcement of the decree. If the injunction or direction was subsequently set aside or if it is satisfied the utility of Rule ,+ gets dissolved.
&5. Difference between perpetual injunction an temporary injunction a. temporary injunction may be granted at any time after the initiation of the suit! while a perpetual injunction can be granted only after the plaintiff has established his right.
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b. temporary injunction is passed by an order! while a perpetual injunction can only be granted by a decree. c. perpetual injunction is a final determination of the rights of the parties and restrained the defendant forever from doing the act complained of! while the temporary injunction lasts till the pendency of the suit. d. The effect and object of a temporary injunction is to preserve the property in dispute in status quo! while perpetual injunction is to give effect to and protect the plaintiffs right. e. temporary injunction restrains the defendant for a particular time ! while a perpetual injunction restrains him forever. f. Temporary injunction are regulated by the 4ode of 4ivil 'rocedure! &:AG! while perpetual injunctions are regulated by section )+! ), of 9pecific Relief ct.
&%. Situation in which temporary injunction can be $rante
n order of temporary injunction under cpc can be granted where a. The property in dispute is in danger of being wasted! damaged! alienated or wrongfully sold in e#ecution of a decree b. The defendant threatened or intends to remove the property to defend his creditors c. The defendant is about to commit a breach of contract or other injuryof any $ind! d. ;here the court is of the opinion that the interest of justice so requires.
&&. Injunction a$ainst a person in possession
In jurisprudence possession in land is said to be three fourth of the law. person in possession of property! as a general rule! cannot be restrained from use of the property even at the instance of the rightful owner. F If the rightful owner threatens his peaceful possession! the person in possession can approach the court for the equitable relief of the possession of a person who is a ran$ trespasser as he has no equity in his favor to as$ for the relief. right full owner has always the right to evict a trespasser without recourse to law! but where the trespasser is in settled possession of the property he cannot be ousted by the true owner e#cept by recourse of law.
&*. /rouns for continuin$ injunction
Temporary injunction should be continued where it is necessary to protect the plaintiffs right especially where the action is for sole purpose of injunction. ;hen the circumstances of the case are such that dissolution of injunction would amount to denial of relief to which plaintiff might show himself entitle in final hearing
&,. +oncluin$ remark an comment
# SS 'asners () S*aai"es* , 1++$
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The grant of injunction is a purely discretionary. The 4ourt may grant or refuse to grant the same ta$ing into account various factors li$e the balance of convenience! possibility of adequate relief by way of damages! the conduct of the parties! and the possibility of enforcing its order. The service of temporary injunction order on opponent is necessary. n injunction is ther+efore only valid when the opponent has been served with the court order. Injunctive relief is not a matter of right! but its denial is within the discretion of the court. ;hether or not an injunction will be granted varies with the facts of each case. This discretion! however! should be e#ercised reasonably! judiciously and on sound legal principles. Injunction should not be lightly granted as it adversely affects the other side. The grant of injunction is in the nature of equitable relief! and the court has undoubtedly power to impose such terms and conditions as it thin$s fit. 9uch conditions! however! must be reasonable so as not to ma$e it impossible for the party to comply with the same and thereby virtually denying the relief which be would otherwise be ordinarily entitled to. The general rule is that grant of an injunction is a matter of discretion of the court and it cannot be claimed as of right. owever! the discretion has to be e#ercised in a judicious manner and in accordance with the provisions relating to the grant of injunction contained in the specific Relief ct. It is well settled that no interim injunction would be issued if final relief cannot be granted. ;hen plaintiff has no personal interest in the matter! injunction cannot be granted.
&6. +onclusion
n injunction is an equitable remedy and as such attracts the application of the ma#im that he who see$s equity must do equity. 8ranting of injunction is entirely in the discretion of the 4ourt! though the discretion is to be sound and reasonably guided by Judicial 'rinciples. The power to grant a temporary injunction is at the discretion of the court.
Appeal7 8e"iew7 8e"ision an 8eference
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%. Introuction
ny person who feels aggrieved by any decree or order of the court may prefer an appeal in the superior court if the appeal is provided against that decree or order. right to appeal is not a natural or an inherent right. n appeal is a creature of the statute and there is no right of appeal unless it is given clearly and in e#press terms. It is a vested right and accrues to the litigant and e#ists as on and from the date the commences.
&. Definition an meanin$
The e#pression "appeal% has not been defined in the code! but it may be defined as the judicial e#amination of the decision by a higher court of the decision of an inferior court. It means removal of a cause from an inferior to a superior court for the purpose of testing the soundness of the decision of the inferior court. It is thus a remedy provided by law forgetting the decree of the lower court set aside. In other words! it is a complaint made to the higher court that the decree passed by the lower court is unsound and wrong. The right to appeal must! at this juncture! be compared and distinguished from a right to file a suit. s said! the right to appeal is a statutory right and any such right must have the e#press authority of a law. The right to sue or to file a suit is! however! an inherent right and no e#press authoriHation from any statute may be required to institute a suit. It is enough that no statute e#pressly bars the institution of such suit. ppeal is a judicial e#amination of the decision of a lower court by the higher court. It is a complaint made to the higher court and that the decree passed by the lower court is unsound and wrong. n appeal is a continuation of the suit filed.
*. Who can file appeal9 a. ny 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. b. n auction purchaser from an order in e#ecution of a decree to set aside the same on the grounds of fraud. c. ny person who is bound by the decree and decree would operate res judicata against him.G
+ase law
&aleido$cope 1ndia %vt. "td. /. %hoolan !evi 8 IR
&::) elhi ,&B
+ IR
&::) elhi ,&B
2
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In this case! the Trial 4ourt judge prohibited the e#hibition of film both in India and abroad. 9ession Judge permitted the e#hibition of film in abroad. 9ubsequently! 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.
/. Where appeal lies 1-)An appea" fro. a decree or order of a /oint district /udge s*e"" "ie0 a) to t*e district /udge *ere t*e (a"ue of t*e origina" suit in *ic* or in any proceeding arising out of *ic* t*e decree or order as .ade did not eceed (e "ac taa and ) to t*e *ig* court di(ision in any ot*er case) 2-An appea" fro. a decree or order of a senior assistant /udge or an assistant /udge s*a"" "ie to t*e district /udge) 3-) *ere t*e funcon of recei(ing any appea"s *ic* "ie to t*e district /udge under su0secon 1or su0secon 2- *as een assigned to an addiona" district /udge t*e appea"s .ay e preferred to t*e addiona" district /udge) 4- An appea" fro. a decree or order of a district /udge or addiona" district /udge s*a"" "ie to t*e *ig* court di(ision)
5 .Powers of appellate court
Su/ect to suc* condions and "i.itaons as .ay e prescried, an appe""ate court s*a"" *a(e poer a) ) c) d)
6o deter.ine a case na""y7 6o re.and a case7 6o fra.e issues and refer t*e. for tria"7 6o tae addiona" e(idence or to require suc* e(idence to e taen7
6. Jurisdico of appellate di!isio
Arc"e013 of t*e constuon of 9ang"ades* dea"s it* t*e /urisdicon of appe""ate di(ision, as fo""os: a)
6*e appe""ate di(ision s*a"" *a(e /urisdicon to *ear and deter.ine appea"s fro. /udg.ents,
decrees, orders or sentences of t*e *ig* court di(ision) ) An appea" to t*e appe""ate di(ision fro. a /udg.ent, decree order or sentence of t*e *ig* court di(ision s*a"" "ie as of rig*t *ere t*e *ig* court di(ision0 a- ;eres t*at t*e case in(o"(es a sustana" queson of "a as to t*e interpretaon of t*is constuon 7 or -
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c)
An appea" to t*e appe""ate di(ision for a /udg.ent, decree, order or sentence of t*e *ig* court di(ision in a case to *ic* c"ause 2- does not app"y s*a"" "ie on"y if t*e appe""ate di(ision grants
"ea(e to appea") d) Par"ia.ent .ay e "a dec"are t*at t*e pro(isions of t*is arc"e s*a"" app"y in re"aon to any ot*er court or triuna" as t*ey app"y in re"aon to t*e *ig* court di(ision) Apart fro. t*ese t*e appe""ate di(ision s*a"" a"so *a(e poer to issue suc* direcons, decrees or rits as .ay e necessary for doing co.p"ete /usce in a ny cause or .a>er pending efore it, inc"uding orders for t*e purpose of securing t*e a>endance or any person or t*e disco(ery or producon of any docu.ent)
. /rouns of emanin$ security
It is the discretion of the appellate court to demand security costs. 8reat caution is to be e#ercised in ordering security for costs and there should be very satisfactory ground for such an order. The mere fact that the appellant may lose and may not pay the costs or that he is an undischarged ban$rupt or that he is a poor man from whom it would be difficult to recover the costs or that a relation of the appellant is financing the litigation or that the appellant has well1to1do relatives who can pay the decretal amount is no ground of passing an order under the rule.
2. Difference between appeal7 re"iew7 re"ision an reference 8e"ision an 8e"iew of :u$ment3
a. The poer of revision i$ eerci$ed 5y the court $uperior to the court hich decided the ca$e 5ut the poer of revie i$ eerci$ed 5y the very court hich pa$$ed the decree or order. b. The power of revision is conferred on the igh 4ourt only! which is not so in the case of review. ny court can review its judgment. c. Revisional powers by the igh 4ourt can be e#ercised only in a case when there is no appeal to the igh 4ourt! but review can be made even when appeal lies to the igh 4ourt therein. d. The grounds on which the powers of revision and review can be e#ercised are different. The ground for revision relates to jurisdiction! viH.! want of jurisdiction! failure to e#ercise a jurisdiction! or illegal or irregular e#ercise of jurisdiction! while the ground of review may be 2a3 The discovery of new and important matter or evidence! 2b3 9ome apparent mista$e or error on the face of the record! or 2c3 any other sufficient reason.
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e. In revision the igh 4ourt can! of its own accord! send for the case! but for review an application has to be made by the aggrieved party. f. 6o appeal lies from an order made in the e#ercise of revisional jurisdiction! but the order granting review is appealable.
Appeal an 8eference;
a. right of appeal is a right conferred on the suitor! while the power of reference is vested in the court. b. Reference is always made to the igh 4ourt! while an appeal is preferred to a superior court which need not necessarily be igh 4ourt. c. The grounds of appeal are wider than the grounds of reference. d. Reference is made in a pending suit! appeal or e#ecution proceeding in order to enable the court to arrive at a correct conclusion! while an appeal is preferred after the decree is passed or an appealable order is made.
Appeal an 8e"ision
a. n appeal lies to a superior court! which may not necessarily be a igh 4ourt* but an application for revision lies only the igh 4ourt. b.n appeal lies only from appealable orders and decree! but an application for revision can be made only when the relief by way of appeal to the igh 4ourt is not available. c. right of appeal is a substantive right given by statute. There is no right of revision. It is only a privilege. party may move the igh 4ourt to invo$e its revisional jurisdiction or the igh 4ourt may of its own motion e#ercise revisional jurisdiction! but the power is discretionary. d. n appeal abates if the legal representatives of a deceased party are not brought on the record within the time allowed by law. revision does not abate in case of the death of a party even if the legal representatives are not brought on the record. The igh 4ourt has a right to bring the proper parties before the 4ourt at any time. Page 14 of 18
e.The grounds of appeal and revision are different. n application in revision can lie only on the ground of jurisdiction! and the igh 4ourt in e#ercise of its revisional jurisdiction is not a court of appeal on a question of law or fact. In an appeal the court has the power to decide both questions of fact and law. f. 9ection &&) does not require that there should be an applicat ion in revision. The igh 4ourt can move of its own accord in e#ercising revisional jurisdiction. In case of appeal there must be a memorandum of appeal filed before the same can be considered by the appellate court. g. n essential distinction between an appeal and a revision is based on differences implicit in the said two e#pressions. Secon Appeal an 8e"ision;
a. second appeal lies to the igh 4ourt from every decree passed in appeal by a subordinate court only if the igh 4ourt is satisfied that the case involves a substantial question of law. The grounds of revision are! however! different. They relate to jurisdiction. b.The revisional powers of the igh 4ourt can be invo$ed in cases which no appeal or second appeal lies to the igh 4ourt. This is not so in second appeal. c.The 4ourt will not in its revisional jurisdiction enter into merits of the case however erroneous the decision of the lower court is on an issue of law or of fact but will interfere only to see that requirements of law have been properly obeyed by the court whose order is the subject of revision. lthough no second appeal can be preferred on a question of fact yet when such an appeal is already before the igh 4ourt! it may determine issues of fact where such issues have not been determined provided that the evidence on the record is sufficient for such determination. d.In revisional matters the igh 4ourt may decline to interfere if it is satisfied that substantial Justice has been done. 0ut on questions of law in second appeal! no discretion vests in the igh 4ourt and it has no right to decide merely on equitable grounds. Reference and Revisiona. In reference the case is referred to the igh 4ourt by a court subordinate to it. ?n the other hand! the party aggrieved moves the igh 4ourt in revision for the e#ercise of its revisional jurisdiction! or the igh 4ourt may sua motu send for the case and e#amine the record.
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b. The ground for reference is the entertainment of some reasonable doubt by the 4ourt trying the suit! appeal or e#ecuting the decree with regard to a question of law or usage having the force of law. The ground for revision! on the other hand! relates to jurisdiction! viH.! want of jurisdiction! failure to e#ercise a jurisdiction or illegal or irregular e#ercise of jurisdiction. Reference and Revie3 a.In reference the subordinate court refers the case to the igh 4ourt while in review an application is made by the aggrieved party. b.The igh 4ourt alone can decide matters on reference while an application for review is made to the court which passed the decree or made the order. c. Reference is made during the pendency of the suit! appeal or e#ecution proceedings! while application for review is made to the court after it has passed the decree or made the order. d.The grounds of reference and review are different. Reference is made by the court trying the suit! appeal or e#ecuting the decree when it entertains reasonable doubt with regard to any question of law or usage having the force of law. The grounds of review may be the discovery of new and important matter or evidence! some apparent mista$e or error on the face of the record or any other sufficient reason.
Review and ppeala. n application for review lies to the same court while an appeal lies to a higher court. b.The main object of granting a review of judgment is reconsideration of the same matter by the same Judge! while an appeal is heard by another Judge. c.The grounds of review are narrower than the grounds of appeal. d.There is no second review! but there is second appeal on a substantial question of law
3. 8e"iew
once a court passes a decree! it becomes functus officio. The decision caanot be reopened and the matter cannot be reheard by the same judge or his successor! e#cept on review.
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owever the power of review is not an inherent power and must be conferred by law e#pressly or by necessary implication. %5. Scope of the re"iew
power of review should not be li$ened with the appellate power which enables a court to correct all errors communicated by the subordinate court. review is not an appeal in disguise.&A review of a judgement is a serious step and reluctant resort to it is proper only where glaring omission or patent mista$e or li$e grave error has crept in earlier by judicial fallibility. It is not because a conclusion is wrong but because something obvious has been overloo$ed! some important aspect of the matter has not been considered that a review petition will lie. The object of review is neither to enable a court to re hear the matter or write a second judgement or to give innings to the party who has lost the battle because of his negligence or indifference.
%%. Who can file re"iew application
ny party aggrieved by a decree or order can file review petition. 0ut a person who is not a party to the decree or order cannot apply for review as the decree or order is not binding on him. 9ince a decree or order passed in a suit where judgement are made in personam does not bind a thirt party! he cannot be said to be aggrieved and he cannot prefere a review application. owever where a third party is affected by a decree or order! the court may review it under its inherent power. pplication by stranger to set aside an e# party decree on the ground of fraud and cllution is competent if he is vitally interested in the subject matter. review application in representative suit cannot be filed by a person who is not a party to the suit.
%&. /rouns of re"iew
Review of a decree is permissible on the following grounda. iscovery of new or important matter or evidence which after due e#ercise of diligence was not in the $nowledge of the petitioner or could not be produced by him when the decree or order was passes. 1 ?ia &u@i
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b. Error apparent on the face of the record. c. ny other sufficient cause.
%*. +onclusion
To conclude that appeal is a substantive right! and it is a matter inter parties. The question as to whether the appeal is competent or not can only be decided by the court hearing the appeal. ppeal may be filed against original or appellate decree passed by a court subordinate to igh 4ourt. ppeal only lies against a decree and not against Judgment. The right of appeal is a creation of statute.
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