In this blogpost, Sudhi Ranjan Bagri, Student, National Law Institute University, Bhopal, writes about what is reference to High Court mean, what are the conditions under which refernce can be made and the powers and duties of the court when a case is refered to it. 

Introduction

Section 113 of the Code of Civil Procedure (hereinafter referred to as CPC), 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 is doubtful 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 entertain reasonable doubt about a question of law.

The underlying object for the provision for reference is to enable subordinate court in non-appealable cases the opinion of the High court and thereby avoid the commission of 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 by passing of the judgment in the case.

 What Does reference mean

Section 113 of the code provides:

113. Reference to High Court

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 involve; 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 (10 of 1897) or in the General Clauses Act of a State.

Section 113 of the Code of Civil Procedure provides that reference should be made to the High Court only when the presiding judge has a reasonable doubt on the point of law or any usage having the force of law, and such reference needs to be decided for the proper disposal of the case. This makes it clear that the parties cannot ask the presiding judge to refer any question of law to the High Court.

The proviso which is attached to the Section states that only those questions must be referred to, whose decision is necessary for the proper disposal of the case in hand, and the Act/ordinance/regulation which is being challenged is in the opinion of that subordinate court is invalid or inoperative, but the same has not been declared by the Supreme Court or the High Court of that state.

The object behind this provision is to enable subordinate courts to do justice in cases which are non-appealable and thereby avoid the commission of error which cannot be remedied later on.[1]

 “Reasonable doubt on a point of law” explained- A subordinate court can refer any question on which it entertains a reasonable doubt on a point of law. Any doubt would be called ‘a reasonable doubt of law’ if it has not been decided by the High Court of that jurisdiction, or if decided then some doubt has been thrown on the correctness of the same by a ruling of the Supreme Court.OBJECT

Object

Section 113 of the civil 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 as it thinks fit. Such an opinion can be sought by a court when the court trying a suit, appeal or execution proceedings entertain reasonable doubt a question of law.

The underlying object  for the provision for reference  is to enable subordinate courts to obtain the opinion of the high court in non-appealable in the absence of a question of law thereby avoiding the commission of error which could not be remedied later on.

Conditions For Reference

The right of reference is usually limited by the procedure laid down in Order 46 Rule 1[2].  The rule specifies the following procedure to be followed before any reference is made:

• There must be a pending suit or appeal in which the decree is not subject to appeal or a pending proceeding in execution of such decree.
• A question of law or usage having the force of law must arise in the course of the suit, appeal or proceeding.

Questions of law can be divided into two classes:

• Those which relate to the validity of an Act, Ordinance and Regulation, and
• Other questions.

Power And Duties Of The Court In Reference

Referring Court: The reference should be made only when the subordinate court entertains doubt on any questions of law. Further, such question must have actually arisen between the parties to the suit, and the court should have been called upon by the parties to adjudicate on the suit.[3] No reference can be made hence on a hypothetical question or to provide an answer to a point likely to arise in future.[4]

High Court:  The jurisdiction of the High Court is consultative.[5] In dealing with the question referred to it, the High Court is not confined to the question referred it can consider a new aspect which may arise.[6]

The high court may answer the question so referred to it and send it back to the referring court to be disposed of in accordance with the law.[7] It may also refuse to answer the reference or even quash it.[8] The High Court, cannot however, make any decision on the merits of the case nor can it make any suggestions.[9]

Conclusion

The situation thus can be summarized as follows: the reference to the High Court can be made by any subordinate court within the jurisdiction of such High Court, and only those questions which deal with any point of law can be referred and not those who deal solely with the questions of fact. Further, only those questions related to law can be referred wherein the position of law is not clear, or where such subordinate court is of the opinion that any law or usage having the force of law is invalid but has not been declared so by any higher court. Only those questions can be referred whose adjudication is necessary so as to dispose of the case wherein such reference has been made.

[1] Chottubai v Bai Krishnan AIR 1941 Bom 365

[2] Garling v. Secretary of State ILR (1903) 30 Cal 458

[3] Banarsi v Krishna Chandra AIR 1972 Pat 49

[4] Ranganath v Hanumantha (1984) 1 Kant LC 243

[5] Delhi Financial Corporation v. Ram Pershad AI 1977 Del 80

[6] S.K.Roy v Board of Revenue AIR 1967 Cal 338.

[7] Order 46 rule 3 which states

[8] Order 46 rule 5 which states

[9] Municipal Corp. v Shivshankar AIR 1999 SC 2875