§ Section 113, CPC 1908

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.

§ The two limbs

The section contains a discretion and a duty:

• The general power, in the body of the section. Any court may state a case and refer it, subject to the conditions prescribed by Order XLVI. The power is discretionary, and the High Court may make such order on it as it thinks fit.

• The compulsory reference, in the proviso. Where the case involves a question as to the validity of an Act, Ordinance or Regulation, that question is necessary for the disposal of the case, and the court is of opinion that the provision is invalid or inoperative but no superior court has so declared, it shall state a case setting out its opinion and reasons and refer it.

• Why the proviso exists. A subordinate court cannot strike down legislation. But it also should not be obliged to apply a law it believes to be invalid. The proviso resolves the tension by requiring it to say so and send the question upwards, with its opinion and its reasons.

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

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 four conditions

All must be present:

• A pending proceeding. A suit, an appeal, or the execution of a decree must be pending before the referring court. A reference cannot be made in the abstract or after the proceeding has ended.

• A question of law or usage having the force of law. A question of fact cannot be referred, however difficult. Nor can a mixed question be split so as to refer the facts.

• A reasonable doubt. The court must genuinely entertain doubt on the point. It is not enough that the question is arguable or that counsel have differed; the court itself must be unable to resolve it with confidence.

• No appeal, or no appeal preferred. Rule 1 confines the power to a suit or appeal in which the decree is not subject to appeal, or to the execution of such a decree. Where an appeal lies and can be taken, the ordinary appellate route is the answer, not a reference.

Rule 2

The court may either STAY the proceedings, or proceed in the case notwithstanding the reference, and may pass a decree or make an order contingent upon the decision of the High Court; but it shall not execute the decree or order until the High Court's decision is received

Rule 3

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 that court shall, on receiving it, proceed to dispose of the case CONFORMABLY to the decision

Rule 4

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

Rule 5

Where a case is referred to the High Court under Rule 1 or Rule 4, the High Court may return the case for amendment, and may alter, cancel or set aside the decree or order and make such order as it thinks fit

Rule 6

Where a question is referred under the proviso to Section 113, the High Court may, on such terms as it thinks fit, allow the parties to appear and be heard before it decides the question

Rule 7

The costs, if any, consequent on a reference for the decision of the High Court shall be costs in the case

§ Two consequences worth stating

The case does not move. Only the question goes up. The referring court retains the suit, and by Rule 2 it may stay the proceedings or carry on and pass a contingent decree, but it may not execute anything until the answer arrives.

The answer binds it. By Rule 3 the court must dispose of the case conformably to the decision. It has no discretion to prefer its own earlier opinion, which is the whole point of having referred the question.

Who moves

The SUBORDINATE COURT itself, of its own motion or on a party's application

The aggrieved PARTY

The aggrieved PARTY

When

While the case is still PENDING, before it is decided

After a decree or an appealable order

After a case has been decided by a subordinate court

What goes up

A QUESTION of law, with the referring court's own opinion on it

The WHOLE CASE, on fact and law in a first appeal, on a substantial question of law in a second

The ORDER complained of, on jurisdictional grounds

What the High Court does

Answers the question and sends the answer back

Decides the appeal and passes its own decree

Varies or reverses the order, subject to the 1999 proviso

Who decides the case

The SUBORDINATE COURT, conformably to the answer

The APPELLATE COURT

The subordinate court, after the order is corrected

Ground

A reasonable doubt on a question of law, or the validity of a statute

A right of appeal conferred by statute

An error of jurisdiction, not of merits

§ The distinction in one line each

Reference is the court's own doubt, sent up before the case is decided.

Appeal is the party's grievance against a decision already made, and the superior court decides the case.

Revision is the party's complaint that the subordinate court went outside its jurisdiction, and the High Court corrects the order without deciding the case.