Reference: Provisions under the Code of Civil Procedure (CPC).

हिंदी में पढ़ें:

The provision regarding reference in the CPC is given under Section 113 and Order 46 (Rules 1 to 7), which empowers the subordinate court to refer any doubt or question arising in respect of law during the hearing of a case to the High Court and obtain clarification from it. This provision covers all the basic points regarding reference, i.e., when the reference is made, who has the power to make the reference, which court has the power to consider the reference, etc.

The concept of reference has been introduced to reduce misinterpretation of law or multiple interpretations of law to the same question and to maintain judicial discipline, reduce wrong decisions, clarification of doubts arising during hearing, protecting the interests of the parties to the case, etc. This concept allows the subordinate court to ask doubts directly from the High Court, but it is required to follow the required procedure.

What is a reference?

A reference is a legal procedure or mechanism that allows a lower court to refer a legal doubt or question that arises during the hearing of a matter to the High Court. The High Court then considers the doubt or question and provides a definitive answer, and the lower court proceeds with the matter accordingly. This procedure is used less frequently than other methods (such as review, revision, etc.) and is considered/entertained exclusively by the High Court.

The provision for reference applies only when a matter is pending before the Honorable Court and it is used by the court itself, either suo motu (on its own initiative) or upon an application by a party to the matter. A party does not have the power to directly invoke the provision for reference without the involvement of the court. If a party wishes to utilize the reference provision, they must file an application with the court where the matter is pending.

A reference is used only when a unique question or doubt of law arises during a hearing, and that question has not been previously considered by the High Court. In simpler terms, if the High Court has already addressed the doubt, the lower court cannot use a reference for the same question or doubt without providing compelling reasons.

Objectives of Reference

Following are the objectives of reference:

1. Uniform interpretation of law:

The objective of this is to ensure a uniform interpretation of the law by subordinate courts, as multiple interpretations of the same law can lead to conflicting judgments on the same legal question, potentially disrupting the justice system.

2. Prevent erroneous judgment:

Another objective of a reference is to prevent erroneous judgments/decisions, as a misinterpretation of the law can lead to an erroneous judgment in a matter. A ​​reference helps ensure consistent interpretation of the law, enabling subordinate courts to make correct decisions by applying the law as interpreted by the High Court.

3. Provides judicial discipline:

Maintaining judicial discipline is also one of the objectives of a reference, as it helps subordinate courts raise questions or doubts regarding points of law during the hearing of a matter before the High Court. This helps ensure that subordinate courts stay within their limits and do not decide on complex or unresolved legal issues themselves.

4. Clarification of the doubt:

One of the main objectives of the reference is to clarify legal doubts or questions that arise during the hearing of a matter, as it allows subordinate courts to raise any legal doubts or questions before the High Court and obtain clarification.

5. Protect the rights of the parties:

Protecting the rights of the parties is also one of the objectives of the reference, as it helps protect the parties to a matter from erroneous decisions made by subordinate courts due to misinterpretation of the law.

Procedure of Reference

Following are the procedure of reference:

Step 1: Framing the question

The first step in the reference procedure is to formulate the questions or doubts that arise during the hearing of the matter. In this step, the subordinate courts explain the facts in detail and raise questions about the doubts so that the High Court can understand the issues and make correct decision accordingly.

Step 2: Refer to the High Court

The second step in the reference procedure is to send the questions or doubts that have been raised to the High Court so that the High Court can consider them, begin the validation process, and resolve the doubts.

Step 3: High Court’s view

In this stage, the High Court takes cognizance of the matter and initiates the validation process, and once the validation process is complete, the High Court pronounces a decision/ruling on the question or doubt raised, which is binding on the subordinate court.

Step 4: Act according to the ruling

This is the final step of the reference procedure, and at this stage, the subordinate court acts in accordance with the High Court’s judgment/decision/ruling and proceeds with the matter to the next stage. The subordinate court does not go beyond the High Court’s decision on the question that was raised.

Provisions for reference under CPC

Following provisions for reference are available under the Code of Civil Procedure (CPC):

Section 113 – Reference to the 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 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 therefor, 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.]

Order 46 – Reference:

Rule 1: Reference of question to the High Court:

• Whenever a question of law becomes necessary for the disposal of the case.
• Whenever the subordinate court has any reasonable doubt in the case.
• Cases where appeal is not possible can only be referred.

“Where, before or on the hearing of a suit or an appeal in which the decree is not subject to appeal, or where, in the execution of any such decree, any question of law or usage having the force of law arises, on which the Court trying the suit or appeal, or executing the decree, entertains reasonable doubt, the Court may, either of its own motion or on the application of any of the parties, draw up a statement of the facts of the case and the point on which doubt is entertained, and refer such statement with its own opinion on the point for the decision of the High Court”

– Bare Language

Rule 2: Court may pass decree contingent upon decision of High Court:

When a subordinate court refers a question of law to the High Court for its opinion, the subordinate court has discretion regarding the continuation of the proceedings. It may

• Stay the proceedings
• Proceed with the case despite the reference
• Pass a contingent decree or order

The Proviso – No decree or order can be executed while the reference is pending. Execution is strictly prohibited until the subordinate court receives a certified copy of the High Court’s judgment on the reference.

“The Court may either stay the proceedings or proceed in the case notwithstanding such reference, and may pass a decree or make an order contingent upon the decision of the High Court on the point referred:

But no decree or order shall be executed in any case in which such reference is made until the receipt of a copy of the judgment of the High Court upon the reference.“

– Bare Language

Rule 3: Judgment of High Court to be transmitted and case disposed of accordingly:

• Hearing of parties is optional, but the opportunity to be heard must be available to the parties.
• The High Court does not decide the entire suit, only give the opinion on specific Question of Law.
• A certified copy of the judgment, signed by the Registrar of the High Court, is sent to the subordinate court.
• On receiving the judgment, the subordinate court must resume the proceedings of the case.
• The subordinate court is legally bound to decide the case in conformity with the High Court’s decision.
• The subordinate court cannot ignore or vary the opinion given by the High Court on the referred question.

“The High Court, after hearing the parties if they appear and desire to be heard, shall decide the point so referred, and shall transmit a copy of its judgment, under the signature of the Registrar, to the Court by which the reference was made; and such Court shall, on the receipt thereof, proceed to dispose of the case in conformity with the decision of the High Court.”

– Bare Language

Rule 4: Cost of reference to High Court:

• The High court will decide the cost of reference.
• Who will bear the cost is also decided by the high court.
• Main objective of imposing cost is to discourage frivolous or unnecessary reference.

“The costs (if any) consequent on a reference for the decision of the High Court shall be costs in the case.”

– Bare Language

Rule 4A: Reference to High Court under proviso to section 113 – “The provisions of rules 2, 3 and 4 shall apply to any reference by the Court under the proviso to section 113 as they apply to a reference under rule 1; and”

– Bare Language

Rule 5: Power to alter, etc., decree of Court making reference:

• Rule 5 provides: either the High Court will give its opinion on the question of law or if the High Court does not find the question of law necessary, it will return the matter.
• The High Court may alter any decree or order passed by the subordinate court in the case from which the reference arose.
• The High court can also cancel or set aside such decree or order passed by the subordinate court, if it is found incorrect in law.
• The High Court may pass any order it thinks fit, depending on the facts and legal issues of the case.

“Where a case is referred to the High Court under rule 5 [or under the proviso to section 113], the High Court may return the case for amendment, and may alter, cancel or set aside any decree or order which the Court making the reference has passed or made in the case out of which the reference arose, and make such order as it thinks fit.”

– Bare Language

Rule 6: Power to refer to High Court questions as to jurisdiction in small causes:

• Reference is made when subordinate court has the doubt about the jurisdiction of the suit, particularly whether the suit is cognizable by a court of small causes or not.
• The subordinate court may submit the entire record of the case and statement explaining the reasons for its doubt regarding jurisdiction to the High court.
• If the high court finds that the case is not before a competent court, high court directs the subordinate court to return the plaint to competent court or If the High Court finds that the subordinate court has the jurisdiction, it may direct the subordinate court to proceed with the suit.

“(1) Where at any time before judgment a Court in which a suit has been instituted doubts whether the suit is cognizable by a Court of Small Causes or is not so cognizable, it may submit the record to the High Court with a statement of its reasons for the doubt as to the nature of the suit.

(2) On receiving the record and statement, the High Court may order the Court either to proceed with the suit or to return the plaint for presentation to such other Court as it may in its order declare to be
competent to take cognizance of the suit.”

– Bare Language

Rule7: Power to District Court to submit for revision proceeding had under mistake as to jurisdiction in small causes:

Order 46, Rule 7 of the Code of Civil Procedure (CPC), 1908, empowers the District Court to refer cases to the High Court when the lower court has wrongly determined its jurisdiction in respect of small cause cases.

“(1) Where it appears to a District Court that a Court subordinate thereto has, by reason of erroneously holding a suit to be cognizable by a Court of Small Causes or not to be so cognizable, failed to exercise a jurisdiction vested in it by law, or exercised a jurisdiction not so vested, the District Court may, and if required by a party shall, submit the record to the High Court with a statement of its reasons for considering the opinion of the Subordinate Court with respect to the nature of the suit to be erroneous.

(2) On receiving the record and statement the High Court may make such order in the case as it thinks fit.

(3) With respect to any proceedings subsequent to decree in any case submitted to the High Court under this rule, the High Court may make such order as in the circumstance appears to it to be just and
proper.

(4) A Court subordinate to a District Court shall comply with any requisition which the District Court may make for any record or information for the purposes of this rule.”

– Bare Language

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Source:

• https://www.indiacode.nic.in/bitstream/123456789/13813/1/the_code_of_civil_procedure%2C_1908.pdf
• The Code of Civil Procedure, 1908