December 30, 2023

Individuals file a great deal of cases in the courts every day. There are unique circumstances in each situation. Different questions come up during the court hearings on these instances, and the court must decide each one in accordance with the law. However, occasionally inquiries of this nature come up that call for the High Court’s opinion.

A court may request an opinion of this kind in cases where it is uncertain about a legal matter. The High Court may issue any orders it deems appropriate in this regard.

section 113 c.p.c.: Reference

When a subordinate court asks the High Court for advice on a legal issue, this is known as the idea of reference in the CPC. This usually occurs in a civil litigation, appeal, or execution proceeding when the lower court has reasonable doubts about a legal matter. A reference, to put it simply, is a request for the High Court’s opinion on a particular legal matter.

reference under cpc: its Objective

  • The primary goal of the reference clauses is to prevent mistakes that cannot be corrected later on by allowing lower courts to seek the High Court’s opinion in matters that are not subject to appeal where there is no legal issue at hand.
  • Provisions further guarantee that the state’s highest court will interpret and rule on the legality of the legislative provision (Act, Ordinance, or Regulation).
  • As a result, before the case’s decision is rendered, a reference must be made.

grounds of reference under cpc

Order 46 Rule 1 stipulates requirements for the right to reference. If these requirements are not met, the High Court will not consider a referral from a lower court.

The requirements that must be met are as follows:

  • A question of law or usage containing the five elements of the law must arise during the course of the suit, appeal, or proceedings; 
  • The court trying the suit, appeal, or executing a decree has to entertain a reasonable doubt on such question; 
  • There must also be a pending proceeding in the execution of the decree or in a suit in which the decree is not subject to appeal.

in what matters is a reference under section 113 made?

There are two categories of legal questions that a subordinate court may consider: 

  • questions pertaining to the legality of any Act, Ordinance, or Regulation; and 
  • questions pertaining to other matters

The reference is required in the former scenario if the following criteria are met, whereas it is optional in the latter:

  • To resolve the matter, a decision on the question is necessary.
  • The subordinate court considers the Act, Ordinance, or regulation to be outside the scope of its legal jurisdiction.
  • The scope of the Act has never before been decided upon by the Supreme Court or the pertinent High Court.

Reference under cpc: Who May Apply?

  • A case can only be referred by a court, either on a party’s request or on its own initiative. A civil judgment court is referred to as a “court.” It is not possible to refer to a tribunal or persona designate as a “court” and they cannot make any references.

Referring Court: Its Powers

  • When there is a real doubt concerning the law, a reference under the CPC may only be filed in a suit, appeal, or execution process that is currently pending before the court.
  • In the Banarasi Yadav v Krishna Chandra case, it was emphasized that the legal matter raising doubts should not be a hypothetical one; rather, it should have truly come up in the case for adjudication. As a result, references cannot be made in light of speculative queries or issues that could or might not come up in the future. If such a circumstance does occur, though, it might be taken into consideration as a guide.

Reference under cpc: Its Effects

  • It was established in L.S. Sherlekar v D.L. Agarwal case that the decree is confirmed if the High Court rules in favor of the plaintiff. In contrast, the suit is dismissed if the High Court responds negatively.
  • Rule 3 of Order 46 states that the High Court may consider the relevant points and provide a copy of its ruling to the subordinate court following the parties’ hearing. The case is subsequently resolved by the subordinate court in conformity with the rulings specified in the verdict.

When a subordinate court requests the High Court’s opinion on a legal issue while a lawsuit, appeal, or execution action is ongoing, this is known as a reference under the CPC. Order 46 governs this process: the referring court formulates a question of law, either by staying the action or by issuing a contingency order, and then forwards the question to the High Court.

The High Court hears parties and then renders a decision, dismissing the lawsuit if it finds the decree to be unfavorable or confirming it if it is. The case is then handled appropriately by the referring court. Unless the reference in CPC is found to be unjustified, in which case the referring judge may be held personally liable for the expenses, the cost of the reference is normally included in the total case costs.

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