§ Order XXXVI Rule 1, CPC 1908 (in substance)

(1) Persons claiming to be interested in the subject matter of a question of fact or law may enter into an agreement in writing, stating such question in the form of a case for the opinion of the Court, and providing that, upon the finding of the Court with respect to such question, a sum of money fixed by the parties, or to be determined by the Court, shall be paid by one of the parties to the other, or that some property shall be delivered by one of them to the other, or that one or more of them shall do, or refrain from doing, some particular act specified in the agreement.

(2) Every case stated under this rule shall be divided into consecutively numbered paragraphs, and shall concisely state such facts and specify such documents as may be necessary to enable the Court to decide the question raised thereby.

§ The four requirements

A special case is entertained only where:

• There is a real question, of fact or of law, and the persons stating it claim to be interested in its subject matter. The court will not answer a question got up for the occasion.

• There is an agreement in writing, stating the question in the form of a case, and providing for what is to follow from the answer: a payment, a delivery of property, or the doing or not doing of an act.

• The facts are agreed and stated. By Rule 1(2) the case must set out, in numbered paragraphs, the facts and documents necessary to enable the court to decide. There is nothing left to try.

• The court is competent. Under Rule 2, the agreement is filed in a court which would have jurisdiction to entertain a suit, the amount or value of the subject matter of which is the same as that of the subject matter of the case, and it is accompanied by an affidavit that the agreement has been entered into bona fide.

Rule 2

Where the parties are numerous and have the same interest, one or more may sue or be sued on behalf of the others with the permission of the court; the agreement is filed in a court of competent jurisdiction and is accompanied by an affidavit that it was entered into bona fide, together with, where the parties are so represented, the necessary permission

Rule 3

Where it appears to the court that the parties are not really interested in the question stated, or that they have not a bona fide interest in its decision, the court shall refuse to proceed with the case, and may make such order as to costs as it thinks fit

Rule 4

Where the court is satisfied that the parties are interested and that the agreement was entered into bona fide, the case shall be set down for hearing as a suit instituted in the ordinary manner, and the court shall proceed to hear and determine the question

Rule 5

The case shall be heard, and the judgment delivered, and the decree drawn up and executed, as in an ordinary suit, so far as the nature of the case admits

Rule 6

Where the court passes a decree on a special case, the parties are bound by the finding on the question stated, and the agreement takes effect according to its terms

§ Rule 3: the refusal power, and why it exists

The court shall refuse to proceed where the parties are not really interested in the question, or have no bona fide interest in its decision.

The reason is fundamental to the judicial function. A court decides disputes between parties with a stake in the outcome; it does not settle abstract questions of law for the convenience of those who would like to know the answer.

Rule 3 therefore guards the same boundary that the requirement of a cause of action guards in an ordinary suit. The parties may agree to dispense with a trial; they cannot agree to convert the court into an advisory body.

The affidavit of bona fides required by Rule 2 is the material on which the court forms its view, and the power to refuse is exercised where that material does not satisfy it.

§ The distinction, which is the heart of the topic

An advisory opinion is a pronouncement on a legal question that binds no one and resolves no dispute. Indian civil courts do not give them. Under Article 143 of the Constitution the President may refer a question to the Supreme Court for its opinion, and even that opinion is advisory in character; no comparable jurisdiction exists in the civil courts.

A special case is different in three ways. The parties are really interested, and Rule 3 makes the court test that. They have agreed in advance on the consequence of the answer: money to be paid, property to be delivered, or an act to be done or not done. And by Rules 5 and 6 the proceeding ends in a decree, which is executable and appealable in the ordinary way.

So it is a real adjudication with the trial left out. The parties supply the facts instead of proving them, and take the law from the court. What is saved is the evidence, not the decision.

Special case, Order XXXVI

The facts, the question, and the consequence of the answer, by a written agreement before the proceeding

Hears the question as a suit and passes a decree that binds the parties

Compromise, Order XXIII Rule 3

The whole outcome: the parties settle the dispute themselves

Records the lawful compromise and passes a decree in its terms; it decides nothing itself

Admissions, Order XII Rule 6

Certain facts, admitted in pleadings or otherwise, during the proceeding

May at any stage pass judgment on the admissions, without waiting for the determination of other questions

Preliminary issue, Order XIV Rule 2

Nothing; the court itself decides to take one issue first

Tries an issue of law relating to jurisdiction or a bar to the suit before the rest of the case

Reference, Section 113 and Order XLVI

Nothing by the parties; the subordinate court entertains a doubt

The High Court answers the question referred, and the subordinate court disposes of the case conformably