Introduction

In a civil suit, there are certain remedies other than appeal, available to an aggrieved party. Reference is one such remedy and Section 113 of the Code of Civil Procedure, 1908 (CPC) deals with it.

Section 113, CPC

• This Section deals with reference to the High Court. It states that -

Subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit:

Provided that where the Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefore, and refer the same for the opinion of the High Court.

Explanation. - In this section, "Regulation" means any Regulation of the Bengal, Bombay or Madras Code or Regulation as defined in the General Clauses Act, 1897, or in the General Clauses Act of a State.

Object of Section 113, CPC

• To enable the subordinate court to obtain in non – appealable cases, the opinion of the High Court in advance on a question of law and thereby avoiding the commission of an error which could not be remedied later on.
• It also ensures that the validity of a legislative provision should be interpreted and decided by the highest Court in the state.

Power and Duty of Referring Court

• 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.
• The reference must be made before passing of the judgment in the case.
• The Court making reference may either stay the proceedings or pass a decree contingent upon the decision of the High Court.
• The High Court, after hearing the parties decide the point, transmit a copy of its judgment to the court which made the reference.
• The High Court may on reference return the case for amendment or alter, cancel or set aside any decree/order which the court making the reference has passed or made and make such order as it thinks fit.
• When the High Court hears a reference, it acts like a court of appeal, but 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 arises, the High Court can consider it.
• The High Court may also refuse to answer the reference or even quash it.
• A tribunal cannot make a reference.

Conditions for Reference

• Order 46 of CPC prescribes the conditions to be satisfied to enable a subordinate court to make a reference, either of its own motion or on the application of any of the parties. The conditions which permit reference are:
  • There arises a question of law in any suit, appeal or execution from which no appeal lies.
  • There is reasonable doubt on such a question.
  • The Court draws up a statement of the facts of the case and the point on which doubt is entertained.
  • The Court expressed its own opinion on the point.