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Reference

 Reference

Section 113 read with Order 46 of Code deals with power of subordinate courts to refer a case to the High Court for its opinion.

Object: The object of such reference is to obtain opinion of High Court on question of law in order to avoid commission of any error which could not be remedied later on.

Grounds of reference: Section 113 and Order 46 Rule 1 lay down following grounds or circumstances when reference can be made to the High Court:

1. Where the court is satisfied that the case pending before it involves a question as to the validity of any Act, Ordinance or Regulation and,

(i) Such question is necessary to be determined for disposal of the case, and

(ii) The court is of the view that such Act, Ordinance or Regulation or any of its provision is ultra vires, and

(iii) There is no such determination of its validity by High Court or Supreme Court. [Proviso to Section 113] .

2. Where the subordinate court entertains a reasonable doubt as to any question of law or usage having the force of law [Order 46 Rule 1].

In the first case, above, the reference is obligatory and in second case it is optional.

Conditions for making reference: Before any reference is made to the High Court, the following conditions must be fulfilled:

1. There must be a pending suit or appeal in which the decree is not subject to appeal or a pending execution proceeding.

2. The question of law must arise in the course of such suit, appeal or proceeding and the court entertains reasonable doubt on such question.

Who may apply: According to Order 46 Rule 1, only a court can refer a case either on an application of a party or suo motu.

Procedure to be followed

Order 46 lay down following procedure to be followed in case of reference:

1. The referring court should draw up a statement of the facts of the case, formulate the question of law on which opinion is sought, give its opinion thereon and refer the case of High Court [Rule 1, 4A].

2. The court may either stay the proceedings or pass a decree or order contingent upon the decision of the High Court [Rule 2].

3. The High Court shall hear the parties and decide the point referred to it and transmit the copy of its judgment signed by Registrar to the court which made the reference.

4. Upon receiving the copy, the referring court shall dispose of the case in conformity with the decision of High Court [Rule 3].

Other instances where reference can be made: 

The court may also submit the record to the High Court in following cases:

1. Where the court doubts whether or not suit is cognizable by Court of Small Causes and such doubt is entertained before judgment is pronounced. [Order 46 Rule 6]

2. Where the District Court is of the opinion that a subordinate court has exercised jurisdiction not vested in it or failed to exercise jurisdiction so vested by reason of erroneously holding that a suit is or is not cognizable by Court of Small Causes. [Rule 7]

Alteration of decree of court making reference [Order 46 Rule 5]: Rule 5 empowers the High Court to return the case for amendment if referring court fails to comply with the conditions laid down for making reference. Furthermore, the High Court may alter, cancel or set aside any decree or order which the referring court has passed make such order as it thinks fit.

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