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 there for, and refer the same for the opinion of the High Court.
Explanation:
ADVERTISEMENTS:
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.
Order XLVI, Rule 1, C.P.C., 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. It reads:
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It is serious error on record to grant relief to the plaintiff in suit for ejectment based on disputed title and possession merely on the basis of entries in revenue records without making inquiry or investigation of title to suit land and rewarding finding in that regard.
ADVERTISEMENTS:
Validity of interlocutory order can be challenged in an appeal against final decree unless such on order was appealable. The illegality of interlocutory order vitiating the disposal of suit cannot be ignored on the ground of non-filing of revision against it.
Reference of question to High Court:
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.
The conditions which permit a reference are:
ADVERTISEMENTS:
(1) There arises a question of law in any suit, appeal or execution from which no appeal lies;
(2) There is reasonable doubt on such question;
(3) The court draws up a statement of the facts of the case and the point on which doubt is entertained; and
(4) The court expresses its own opinion on the point.
A reference can be made to the High Court under this rule only in suit or appeal arising out of a suit or in the execution of any such decree, and not in every matter before the court in which a point arises on which the court entertains a reasonable doubt.
The object of S. 113 is 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 avoid the commission of an error which could not be remedied later on.
The court making a reference may either stay the proceedings or pass a decree contingent upon the decision of the High Court on the point referred, such decree or order not being executable until the receipt of a copy of the judgment of the High Court upon the reference. (Order XLVI, Rule 2).
The High Court after hearing the parties, if they desire to be heard, shall decide the points and transmit a copy of its judgment to the court which made the reference. Such court shall then dispose of the case in conformity with the decision of the High Court. The costs consequent on a reference for the decision of the High Court shall be costs in the case. (Order XLVI, Rules 3 and 4).
Reference to High Court was for decision of the vires of the provisions of Bombay Provincial Municipal Corporation Act for not providing hearing to tenant/occupant of premises likely to be demolished/acquired. High Court rejected the reference but suggested that notice may be fixed by Municipality on some conspicuous part of premises.
Reference must be decided within four corners of S. 113 and Order XLVI, Rule 3 and once reference was rejected there nothing survived for the High Court to decide and observations were unnecessary for decision of reference.
Power of the High Court:
The High Court may on reference return the case for amendment, or alter, cancel or set aside any decree or order which the court making the reference has passed or made, and make such order as it thinks fit (Order XLVI, Rule 5).
The above provision shows that when the High Court hears a reference it acts like a court of appeal.
Power to refer to High Court questions as to jurisdiction in small causes:
At any time before judgment a court in which a suit has been instituted may refer to the High Court questions as to jurisdiction in small causes where it entertains doubts whether the suit is cognizable by a court of small causes or not. (Order XLVI, Rule 6).
Reference to High Court regarding validity of Act:
Where conviction suit was filed under the Maharashtra Rent Control Act against nationalised Bank. Validity of Section 3 of Maharashtra Act was already upheld by High Court. Held, that in such a situation Small Causes Court or Appellate Court could not have referred question regarding validity of Section 3 of Mah. Act to High Court under Section 113, C.P.C.