Injunction

Written by Ayesha Islam Kanta

Department of Law
Z. H. Sikder University of Science And Technology
1. Introduction

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. An injunction is a specific order of the court
forbidding the commission of a wrong threatened or the continuance of a 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.

2. Definition of injunction
Maitland says, injunction which was far more flexible and far more generally applicable,
obtained not merely certain particular field of justice, but a power of making its own
doctrines to prevail at the expense of the common law
Lord 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
Oxford dictionary 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.
According to old 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 exercise of
which would be contrary to equity and conscience.
According 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.1

3. Characteristic feature of injunction

a. It is a process of the court.
b. It is the discretionary power of the court.
c. The purpose attained thereby is control or prevention.
d. The thing restrained or prevented is a unlawful act.

1 Storys Equity Jurisprudence, Artice 118

Page 1 of 18
4. Classification of injunction
There are six type of injunction
a. Temporary injunction
b. Perpetual injunction
c. Mandatory injunction
d. Interlocutory injunction
e. Ad interim injunction
f. Prohibitory injunction

5. Temporary injunction
A 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.

6. Object 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 making an order regarding interim relief is to evolve a workable formula
to the extent called for by the demands of the situation, keeping in mind the pros and cons of
the matter and striking a delicate balance between two conflicting interests, i.e., injury and
prejudice, likely to be caused to the plaintiff if the relief is refused; and injury and prejudice
likely to be caused to the defendant if the relief is granted. The court in the exercise of sound
judicial discretion can grant or refuse to grant interim relief.
The object of temporary injunction is to keep matters status quo until the question at issue
between the parties is determined.2 It is a kind 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.3

7. Ground of granting temporary injunction

The following condition are essential for granting of a temporary injunction:
a. The paints must ascertain prima facie case.
b. He 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.4
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, 4th edition
3 Mizanur v. Serajuddin 33 DLR
4 Jones v. Pecaya co. K.B 455

Page 2 of 18
 d. Balance of inconvenience must be in favor of conceding the injunction.
e. The plaintiff must gratify the court two maxims of equity-
(1) He who seeks equity must do equity
(2) He who comes into equity must come with clean hand .

Case law
In Agricultural Produce Market Committee Case, the Apex Court has held that "a temporary
injunction can be granted only if the person seeking injunction has a concluded right, capable
of being enforced by way of injunction."

Prima facie case

It is well settled that in granting or refusing to grant temporary injunction, the Court has very
wide discretion. The exercise of the discretion should be in a judicial manner, depending
upon the circumstances of each case. No hard and fast rule can be laid down for the guidance
of the Court to that effect. It is well settled that while granting injunction plaintiff must show:
(i) existence of prima facie case,
(ii) balance of convenience and

(iii) the injury must be of an irreparable loss that cannot be compensated in terms of money.

The first rule is that the applicant must make 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 existence 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 existence 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 'irreparable injury' to the party seeking relief and he needs to
be protected from the consequences of apprehended injury. Granting of injunction is an
equitable relief and such a power can be exercised when judicial intervention is absolutely
necessary to protect rights and interests of the applicant. The expression 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. An injury will be regarded as irreparable where there exists no certain pecuniary
standard for measuring damages.

Balance of convenience

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 likely to be caused to the applicant by refusing
the injunction will be greater than that which is likely to be caused to the opposite party by
granting it.

Others 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. As per amended Sec.9-A (2) of the C.P.C.
The Court is empowered to grant such interim relief as it may consider necessary, pending
determination by it of the preliminary issue as to the jurisdiction.

8. Duration of temporary injunction

An order of temporary injunction takes effect only from the time when it is communicated to
the party injuncted. And 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 except in the case of suit for perpetual injunction wherein the order
becomes permanent as part of the decree passed.

9. Effect of temporary injunction

In interlocutory proceedings, the court takes the decision on a tentative view. The view so
expressed tentatively does not influence the final decision in the suit and such tentative view
does not cause prejudice to the concerned party.

Page 4 of 18
10. Perpetual injunction
A 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.

11. Ground of granting perpetual injunction

A perpetual injunction may be granted to prevent the breach of an obligation existing in favor
of the applicant, whether expressly or by implication.
When 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 namely5
a. Where the defendant is trustee of the property for the plaintiff,
b. Where there exist no standard for ascertain the actual damage caused, or likely to be
caused, by the invasion,
c. Where the invasion is such that pecuniary compensation woud not afford adequate
relief.
d. Where it is probable that pecuniary compensation cannot be got for the invasion.
e. Where the injunction is necessary to prevent a multiplicity of judicial proceedings.

Example
A lets certain lands to B and B contacts not to dig sand or gravel there out. A may sue for an
injunction to restrain B from digging in violation of this contract.

12. When perpetual injunction refused

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.

13. Mandatory injunction

When 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 Section 54, Specific Relief Act, 1887

Page 5 of 18
Example
a. A build a house with eaves projecting over Bs land. B may sue for an injunction to
pull down so much of the eaves as so project.
b. A, being Bs medical adviser, threatens to publish Bs written communications with
him, showing that B has led an immoral life. B may obtain an injunction to restrain
the publication.

Grounds for granting mandatory injunction

The following grounds must be noted in regard to the grant of mandatory injunction, such as-
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 plaintiffs right.
c. Notice has been given by the plaintiff to the defendant and the work is still being
carried out.

Grounds of refusing mandatory injunction

a. Where the injury can be fairly compensated by damages.
b. Where the balance of inconvenience is in favor of the defendant
c. Where the alleged obstruction is of temporary nature.
d. If the plaintiff stands by and allows the obstruction to be completed before he comes
to the court

Case law
In Akter Mahal Hasna Banu v. T&T Board6
Since 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. For
non-service of notices upon the chairman and the director of the T&T Board the order of
mandatory injunction passed by the subordinate judge cannot be frustrated.

14. Interlocutory injunction

An 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.

15. Ad interim injunction

6 46 DLR 452

Page 6 of 18
Whenever the Court does grant an injunction without notice to the opposite party i.e. ex-parte
the proviso to Rule 3, Order 39, C.P.C. provides duty on the Court 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.

Case law
The Supreme Court in Ramrameshwari Devi and ors. Vs. Nirmala Devi and ors., Civil
Appeal No.49/2011 has held that: the Court should be extremely careful and cautious in
granting ex parte ad interim injunctions or stay orders. Ordinarily short notice should be
issued to the defendants or respondents and only after hearing concern parties appropriate
order should be passed.

16. Prohibitory injunction

Prohibitory 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 applicants undertaking in damages. The court finally has to
consider the merits of the case. There are however some exceptions.

17. Injunction when refused

An injunction cannot be granted-
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. When equally efficacious relief can certainly be obtained by any other usua mode of
proceeding except in case of breach of trust.
j. When the conduct of the applicant on his agents has been such as to disentitle him to
the assistance of the court.
k. Where the applicant has no personal interest in the matter.

Example
A seeks an injunction to restrain his partner, B from receiving the partnership debts and
effects. It appears that A had improperly possessed himself of the books of the firm and
refused B access to them. The court will refuse the injunction.

18. Inherent power

There was a conflict of Judicial opinion on the question whether the Court could issue a
temporary injunction U/s.151 of Civil Procedure Code when the case did not fall within the
term of Order XXXIX Rule 1 and 2 of Civil Procedure Code. However now that point is
concluded by the Hon'ble Apex Court in the case of Manmohanlal Vrs. Seth Hiralal reported
in A.I.R. 1962 Supreme Court 527 by observing that the Court has powers U/s.151 of Civil
Procedure Code to issue an injunction in cases not falling within Order XXXIX Rule 1 and 2;
however that discretion should be exercised judiciously.

19. Enforcement of a decree for injunction

The wording as framed in Order 21, Rule 32(1) would indicate that in enforcement of the
decree for injunction a judgment-debtor can either be put in civil prison or his property can be
attached or both the said courses can be resorted to. But Sub-rule (5) of Rule 32 shows that
the Court need to resort to either of the above two courses and instead the Court can direct the
judgment-debtor to perform the act required in the decree or the Court can get the said act
done through some other person appointed by the Court at the cost of the judgment-debtor.
Thus, in execution of a decree the Court can resort to a three-fold operation against
disobedience of the judgment-debtor in order to compel him to perform the act. But, once the
decree is enforced the judgment-debtor is free from the tentacles of Rule 32. A 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 32 gets dissolved.

20. Difference between perpetual injunction and temporary injunction

a. 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.

Page 8 of 18
 b. A 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. A temporary injunction restrains the defendant for a particular time , while a perpetual
injunction restrains him forever.
f. Temporary injunction are regulated by the Code of Civil Procedure, 1908, while
perpetual injunctions are regulated by section 52, 53 of Specific Relief Act.

21. Situation in which temporary injunction can be granted

An 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 execution 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 kind,
d. Where the court is of the opinion that the interest of justice so requires.

22. Injunction against a person in possession

In jurisprudence possession in land is said to be three fourth of the law. A 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.7 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 rank trespasser as he has no equity in his favor to ask for the relief. A 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
except by recourse of law.

23. Grounds for continuing 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. When 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

24. Concluding remark and comment

7 SS Fasners v. Shaailesh , 1996

Page 9 of 18
The grant of injunction is a purely discretionary. The Court may grant or refuse to grant the
same taking into account various factors like 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. An injunction is
ther2efore 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. Whether or
not an injunction will be granted varies with the facts of each case.
This discretion, however, should be exercised 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 thinks fit. Such conditions, however, must be
reasonable so as not to make 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. However, the discretion has to be exercised in a judicious manner and in
accordance with the provisions relating to the grant of injunction contained in the specific
Relief Act. It is well settled that no interim injunction would be issued if final relief cannot be
granted. When plaintiff has no personal interest in the matter, injunction cannot be granted.

25. Conclusion
An injunction is an equitable remedy and as such attracts the application of the maxim that he
who seeks equity must do equity. Granting of injunction is entirely in the discretion of the
Court, though the discretion is to be sound and reasonably guided by Judicial Principles. The
power to grant a temporary injunction is at the discretion of the court.

Appeal, Review, Revision and Reference

Page 10 of 18
1. Introduction
Any 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. A right to appeal is
not a natural or an inherent right. An appeal is a creature of the statute and there is no right of
appeal unless it is given clearly and in express terms. It is a vested right and accrues to the
litigant and exists as on and from the date the commences.

2. Definition and meaning

The expression appeal has not been defined in the code, but it may be defined as the
judicial examination 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. As said, the right to appeal is a statutory right and any
such right must have the express authority of a law. The right to sue or to file a suit is,
however, an inherent right and no express authorization from any statute may be required to
institute a suit. It is enough that no statute expressly bars the institution of such suit.
Appeal is a judicial examination 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. An appeal is a continuation of the suit filed.

3. Who can file appeal?

a. Any 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. An auction purchaser from an order in execution of a decree to set aside the same on
the grounds of fraud.
c. Any person who is bound by the decree and decree would operate res judicata against
him.8

Case law
Kaleidoscope India Pvt. Ltd. V. Phoolan Devi 9

8 AIR 1995 Delhi 316

9 AIR 1995 Delhi 316

Page 11 of 18
In this case, the Trial Court judge prohibited the exhibition of film both in India and abroad.
Session Judge permitted the exhibition of film in abroad. Subsequently, 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.

4. Where appeal lies

(1).An appeal from a decree or order of a joint district judge shell lie-

a. to the district judge where the value of the original suit in which or in any proceeding arising out of
which the decree or order was made did not exceed five lac taka and

b. to the high court division in any other case.

(2)An appeal from a decree or order of a senior assistant judge or an assistant judge shall lie to the
district judge.

(3). Where the function of receiving any appeals which lie to the district judge under sub-section (1)
or sub-section (2) has been assigned to an additional district judge the appeals may be preferred to
the additional district judge.

(4) An appeal from a decree or order of a district judge or additional district judge shall lie to the
high court division.

5 .Powers of appellate court

Subject to such conditions and limitations as may be prescribed, an appellate court shall have power

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 such evidence to be taken;

6. Jurisdiction of appellate division

Article-103 of the constitution of Bangladesh deals with the jurisdiction of appellate division, as
follows:

a. The appellate division shall have jurisdiction to hear and determine appeals from judgments,
decrees, orders or sentences of the high court division.
b. An appeal to the appellate division from a judgment, decree order or sentence of the high court
division shall lie as of right where the high court division-
(a) Certifies that the case involves a substantial question of law as to the interpretation of this
constitution ; or
(b) Has sentenced a person to death or to 62 Imprisonment for life; or
(c) Has imposed punishment on a person for contempt of that division; and in such other cases
as may be provided for by Act of parliament.

Page 12 of 18
 c. An appeal to the appellate division for a judgment, decree, order or sentence of the high court
division in a case to which clause (2) does not apply shall lie only if the appellate division grants
leave to appeal.
d. Parliament may be law declare that the provisions of this article shall apply in relation to any
other court or tribunal as they apply in relation to the high court division.

Apart from these the appellate division shall also have power to issue such directions, decrees or
writs as may be necessary for doing complete justice in any cause or matter pending before it,
including orders for the purpose of securing the attendance or any person or the discovery or
production of any document.

7. Grounds of demanding security

It is the discretion of the appellate court to demand security costs. Great caution is to be
exercised 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 bankrupt 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
well-to-do relatives who can pay the decretal amount is no ground of passing an order under
the rule.

8. Difference between appeal, review, revision and reference

Revision and Review of Judgment:

a. The power of revision is exercised by the court superior to the court which decided the
case but the power of review is exercised by the very court which passed the decree or order.

b. The power of revision is conferred on the High Court only, which is not so in the case of
review. Any court can review its judgment.

c. Revisional powers by the High Court can be exercised only in a case when there is no
appeal to the High Court, but review can be made even when appeal lies to the High Court
therein.

d. The grounds on which the powers of revision and review can be exercised are different.
The ground for revision relates to jurisdiction, viz., want of jurisdiction, failure to exercise a
jurisdiction, or illegal or irregular exercise of jurisdiction, while the ground of review may be

(a) The discovery of new and important matter or evidence,

(b) Some apparent mistake or error on the face of the record, or (c) any other sufficient
reason.

Page 13 of 18
e. In revision the High Court can, of its own accord, send for the case, but for review an
application has to be made by the aggrieved party.

f. No appeal lies from an order made in the exercise of revisional jurisdiction, but the order
granting review is appealable.

Appeal and Reference:

a. 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 High Court, while an appeal is preferred to a superior
court which need not necessarily be High Court.

c. The grounds of appeal are wider than the grounds of reference.

d. Reference is made in a pending suit, appeal or execution 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 and Revision

a. An appeal lies to a superior court, which may not necessarily be a High Court; but an
application for revision lies only the High Court.

b.An 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 High Court is not available.

c. A right of appeal is a substantive right given by statute. There is no right of revision. It is

only a privilege. A party may move the High Court to invoke its revisional jurisdiction or the
High Court may of its own motion exercise revisional jurisdiction, but the power is
discretionary.

d. An appeal abates if the legal representatives of a deceased party are not brought on the
record within the time allowed by law. A revision does not abate in case of the death of a
party even if the legal representatives are not brought on the record. The High Court has a
right to bring the proper parties before the Court at any time.

Page 14 of 18
e.The grounds of appeal and revision are different. An application in revision can lie only on
the ground of jurisdiction, and the High Court in exercise 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. Section 115 does not require that there should be an application in revision. The High Court
can move of its own accord in exercising 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. An essential distinction between an appeal and a revision is based on differences implicit in

the said two expressions.

Second Appeal and Revision:

a. A second appeal lies to the High Court from every decree passed in appeal by a subordinate
court only if the High Court 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 High Court can be invoked in cases which no appeal or second
appeal lies to the High Court. This is not so in second appeal.

c.The Court 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.

Although no second appeal can be preferred on a question of fact yet when such an appeal is
already before the High Court, 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 High Court may decline to interfere if it is satisfied that substantial
Justice has been done. But on questions of law in second appeal, no discretion vests in the
High Court and it has no right to decide merely on equitable grounds.

Reference and Revision:

a. In reference the case is referred to the High Court by a court subordinate to it. On the other
hand, the party aggrieved moves the High Court in revision for the exercise of its revisional
jurisdiction, or the High Court may sua motu send for the case and examine the record.

Page 15 of 18
b. The ground for reference is the entertainment of some reasonable doubt by the Court trying
the suit, appeal or executing 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, viz., want of
jurisdiction, failure to exercise a jurisdiction or illegal or irregular exercise of jurisdiction.

Reference and Review:

a.In reference the subordinate court refers the case to the High Court while in review an
application is made by the aggrieved party.

b.The High Court 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 execution 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 executing 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 mistake or error on the face of the
record or any other sufficient reason.

Review and Appeal:

a. An 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

9. Review

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, except on review.

Page 16 of 18
However the power of review is not an inherent power and must be conferred by law
expressly or by necessary implication.

10. Scope of the review

A power of review should not be likened with the appellate power which enables a court to
correct all errors communicated by the subordinate court. A review is not an appeal in
disguise.10 A review of a judgement is a serious step and reluctant resort to it is proper only
where glaring omission or patent mistake or like grave error has crept in earlier by judicial
fallibility. It is not because a conclusion is wrong but because something obvious has been
overlooked, 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.

11. Who can file review application

Any party aggrieved by a decree or order can file review petition. But 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. Since 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.

However where a third party is affected by a decree or order, the court may review it under its
inherent power. Application by stranger to set aside an ex party decree on the ground of fraud
and cllution is competent if he is vitally interested in the subject matter. A review application
in representative suit cannot be filed by a person who is not a party to the suit.

12. Grounds of review

Review of a decree is permissible on the following ground:

a. Discovery of new or important matter or evidence which after due exercise of diligence
was not in the knowledge of the petitioner or could not be produced by him when the
decree or order was passes.

10 Mia Lutfi Hossain v. Bangladesh DLR 51

Page 17 of 18
b. Error apparent on the face of the record.

c. Any other sufficient cause.

13. Conclusion

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.
Appeal may be filed against original or appellate decree passed by a court subordinate to
High Court. Appeal only lies against a decree and not against Judgment. The right of appeal
is a creation of statute.

Page 18 of 18