Reference Section 113 Order 46 of Code of Civil Procedure

INTRODUCTION:

Civil procedure code neither creates nor take away any right. It is intended to regulate the procedure followed by the civil court. The procedure must not be complex and the litigant must get a fair trial in accordance with the accepted principles of natural justice. Preamble of the code says that it was enacted to consolidate and amend the laws relating to the procedure to be followed in the civil court having civil jurisdiction in India.

The district, High court and the Hon’ble supreme court of India. Every day so many cases are filed and each case having different circumstances. When hearing is going on different questions rises before the court and the court has to decide all the questions according to law. Sometimes such questions require the opinion of High Court, such doubtful question can be cleared from the superior courts.

Meaning of Reference:

Section 113 and Order XLVI of the Code of Civil Procedure, 1908 deals with reference. Reference means referring a case to the higher court to seek the opinion of the higher court when there is a doubt in the question of law.

Nature and Scope:

SECTION 113 of the Code empowers a subordinate court to state a case and refer the same for the opinion of the High Court. Such an opinion can be sought when the court itself feels some doubt about a question of law. The High Court may make such order thereon as it thinks fit. Such opinion can be sought by a court when the court trying a suit, appeal or execution proceedings entertains reasonable doubt about a question of law.

OBJECT:

The underlying object for the provision for reference is to enable subordinate courts to obtain in non-­ appealable cases the opinion of the High Court in the absence of a question of law and thereby avoid the commission of an error which could not be remedied later on. Such provision also ensures that the validity of a legislative provision (Act, Ordinance or Regulation) should be interpreted and decided by the highest court in the State. The reference must, therefore, be made before passing of the judgment in the case.

Sec-113 of code of Civil Procedure :

A court, at any time before judgement, subject to such conditions as may be prescribed, may state a case and refer the same for the opinion of the High Court and High Court may make such order thereon as it thinks fit. When a lower court has a doubt over a question of law, it may refer the same to the High Court for an opinion. A hierarchy exists between the courts in matters of jurisdiction and position of law.

For instance, the higher the court, greater is the ambit of jurisdiction. The interpretation given to a law by a higher court becomes binding on the lower court.  A subordinate Court may state a case and refer it to the High Court for an opinion if there is a doubt over a question of law.

Analysis of section 113

When a subordinate Court may refer case to High Court: Order 46 prescribes the conditions to be satisfied to enable a subordinate court to make a reference, either of its own motion (suo motu) or on the application of any of the parties. A tribunal or persona designata cannot make a reference. The conditions which permit a reference are:

1. There arises a question of law in any suit, appeal or execution from which no appeal lies;
2. There is reasonable doubt on such question;

• The court draws up a statement of the facts of the case and the point on which doubt is entertained; and

1. The court expresses its own opinion on the point.

Thus, the referring court should draw up a statement of facts of the case, formulate the question of law on which opinion is sought and give its opinion thereon [O. 46, R. 1 & 4A].

A question of law is of two types:

1. Doubts about the validity of the Act/ordinance/regulation itself:
   As to whether it is compatible with the Constitution of India, and does not violate or take away any of the rights guaranteed under the Constitution or any other law. There may also be other questions that amount to those dealing with the law.
2. Other questions: May include whether a law is applicable, or it is an ultra vires application of the law, or it may be a question of whether the law is being implemented in the right manner.

Under the second condition reference is optional, but in the first condition it is obligatory, if the following conditions are fulfilled:

1. It is necessary to decide such question in order to dispose of the case.
2. The subordinate court is of the view that impugned Act, ordinance or regulation is ultra- virus and.
3. There is no determination either by the supreme court or by the High Court to which such court is subordinate that such Act, Ordinance or Regulation is ultra virus.
   It is also essential that only a court can make a reference on 9 application of parties or Suo moto, on its own discretion having fulfilled the above conditions.

REASONABLE DOUBT:

Ralia Ram v Sadh Ram AIR 1952 Pepsu 1 (F.B)

There can be no reasonable doubt on a question decided by the High Court to which the judge making reference is subordinate. But if such decision is doubted in a later decision by the same court or by a higher court (e.g. Privy Council, Supreme Court), there is room for reasonable doubt to make reference.

Banarsi Yadav v Krishna Chandra Dass AIR 1972 Pat 49 (F.B.):

It was held that questions must have actually arisen between the parties litigating; no reference can be made on a hypothetical question or to provide an answer to a point likely to arise in future.

Procedure at Hearing:

A reference may be made by any Court –

• Where in a suit or an appeal in which the decree is not subject to appeal OR
• Any question of law or usage having the force of law arises OR
• There is doubts whether the suit is cognizable by a Court or is not so cognizable.
• Court can refer a case for reference suo moto or application made by a party.
• The Court must draw up a statement of the facts of the case and the point on which doubt is entertained. Such statement must be referred to High Court along with its own opinion.

Order 46, Rule 2

The reference must be made before passing of the judgment in the case. The court making a reference may either stay the proceeding or pass a decree contingent upon the decision of the High Court on the point referred, which cannot be executed until receipt of a copy of the High Court’s judgment

WHO MAY APPLY:

Only a court can refer a case either on an application of a party or suo motu. “Court” means a Court of Civil Judicature. A tribunal or persona designate can not be said to be a “court” and no reference can be made by them.

POWER AND DUTY OF REFERRING COURT :

A reference can be made only in a suit, appeal or execution proceeding pending before the court. Such reference can be made when a subordinate court entertains a doubt on a question of law. Further, such question must have actually arisen between the parties litigating and the court must have been called upon to adjudicate the lis. No reference, hence, can be made on a hypothetical question or to provide an answer to a point likely to arise in future.

But once the question “arises” and the Proviso is attracted and validity of any Act, Ordinance or Regulation is challenged, and the referring court is prima facie satisfied that such Act, Ordinance or Regulation is ultra vires, the case has to be referred to the High Court.

POWER AND DUTY OF HIGH COURT :

The jurisdiction of the High Court is consultative. In dealing with and deciding the reference the High Court is not confined to the questions referred by a subordinate court. If a new aspect of law arises, the High Court can consider it. The High Court may answer the question referred to it and send back the case to the referring court for disposal in accordance with law. It may also refuse to answer the reference or even to quash it. The High Court, however, cannot make any order on merits nor can it make suggestions.

When the High Court hears a reference, it acts like a ‘court of appeal. However, the jurisdiction of the High Court is consultative. In dealing with and deciding the reference the High Court is not confined to the question referred by a subordinate court. If a new aspect of law arises, the High Court can consider it as held in the case of CIT v Scindia Steam Navigation Co. Ltd. AIR 1961 SC 1633).

Rule 5 order 46: The High Court may also refuse to answer the reference or even to quash it.

DIFFERENCE BETWEEN REFERENCE AND APPEAL

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