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2/17/19

Reference under Section 113 and Order 46 of the CPC


                 Reference under Section 113 and Order 46 of the CPC



In this article, we are going to discuss the topic Reference under Section 113 of the CPC. In this article, we discuss the matter relating to the reference like; its meaning, its object, its conditions, who may apply, the power of the referring court and power of the High Court etc.



Introduction:-

                        In the courts, every day so many cases are instituted by persons. Every case has a different circumstance. While hearing of these cases different questions arise before the court and court has to decide all the questions according to the law. But sometimes such questions arise that deserve 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.

Meaning of Reference:-


                                                 Reference means where the subordinate Court refers the case involving the questions of law to the High Court for the opinion on that matter. Reference is made to the High Court where it has a reasonable doubt during any suit appeal execution proceeding etc.
                     Here the reference means that the referring a case to high court for the opinion on a question of law. 


Object of the Reference:-

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

Requirements for Reference:-

                                                                Order 46 Rule 1 of the Code has provided some conditions or requirement for entertaining a Reference by the High Court from a subordinate Court. Unless they are fulfilled, the high court cannot entertain a reference from a subordinate Court. The rule requires the following conditions to be satisfied to enable the subordinate Court to make a reference:-

  1. There must be a pending Suit or appeal in which the degree is not subject to appeal or a pending proceeding in execution of such decree:
  2. A question of law or usage having the force of law must arise in the course of such suit, appeal or proceeding; and
  3. The court trying the suit or appeal or executing the decree must entertain a reasonable doubt on such question.


    Questions of law on which a subordinate Court may entertain a doubt may be divided into two classes:-
i.                Those which relate to the validity of any Act, Ordinance or Regulation; and
     ii.                   Other questions.

     In the latter case, the reference is optional, but in the former case it is obligatory if the following conditions are fulfilled:-
a.      It is necessary to decide such a question in order to dispose of the case;
b.      The subordinate Court is of the view that the impugned Act, Ordinance or Regulations is ultra virus; and
c.     There is no determination either by the Supreme Court or by the High Court to which such Court is subordinate that such Act, Ordinance and Regulation is ultra-vires.

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 cannot be said to be “court” and no reference can be made by them.

Procedure at the hearing:-

                                              Statement of the fact of the case should be drawn up by the referring court and formulate the question of law on which opinion is sought and give its opinion thereon. The court may either stay the proceeding or continue it.
           
              Court may pass degree or order contingent upon the decision of the High Court on the point referred, which cannot be executed until receipt of a copy of the judgment of the High Court on the reference. If the high court answers the question in the favour of plaintiff, the decree will be confirmed or if it is against him the suit will be dismissed.
     
               In a situation, where the referring Court has not complied with the condition laid down for making reference, the High Court has power to return the case for the amendment. The High Court even can quash the order of reference, the High Court may alter, cancel or set aside any decree or order passed or made by the court making the reference and make such order, as it thinks fit.

Costs:- 

As a general rule, the cost of reference shall be the cost in the cause. In the reference is altogether unwarranted, the High Court may direct the referring judge to personally pay the costs.

Revision:-

                            An order refusing to make reference to the High Court is the “cases decided” under Section 115 of the Code and is revisable.


                                                                                                           Thanks for reading



Related Articles:-

                              1.  What is Review under Section 114 and Order 47 of the CPC;
                              2.  What is Revision under Section 115 of the CPC; 
                              3.  Difference between Reference, Review, Revision.



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