Reference
Section 113 of CPC deals with the provision of reference i.e. a lower or
subordinate court can reach out to higher court for doubt in order to avoid
the misinterpretation of the law. The two types of questions of law on which
the high court may entertain the doubt
1. Questions related to the validity of any Act, Ordinance or
Regulations.
2. Any other questions.
Under the second condition, reference is optional but in the first condition
reference is obligatory under the following conditions:
1. In order to dispose off the case, the decision of such question is
necessary.
2. The subordinate court seeking reference is of the view that the Act,
Ordinance or regulation is ultra vires.
3. There is no confirmation that such Act is ultra vires either by the
Supreme Court or the High Court.
Power and duty of the High Court
The High court has consultative jurisdiction in this context. When reference is
granted from the High Court, it is not bound to decide only the question of
law which is in doubt. As held in the case of S.K. Roy v. Board of Revenue,
the High Court can consider the new aspects of law also if any arises.
To answer the question, it is totally upon the discretion of the High Court as
discussed under Order 46 of the Code. It is also upon the discretion of the
High Court to refuse to answer the question and it even has the power to
quash it.
In the case of L.S Sherlekar v. D.L. Agarwal, it was held that when the
reference is granted from the High Court and the decree is confirmed if the
High Court answers the question in favour of the plaintiff. If the answer of the
High Court is against him, the suit is dismissed.
Procedure at Hearing
Rule 1: Statement and Formulation
The referring court is required to draft a statement outlining the facts of the
case. It should also formulate the specific legal question on which it seeks the
High Court’s opinion.
Rule 2: Stay or Contingent Decree
The referring court may choose to stay or order contingent upon the High Court’s
decision. If the High Court favours the plaintiff’s position, the decree will be
confirmed and if the High Court’s response is unfavourable, the suit will be
dismissed.
Rule 3: Decision
After hearing the parties, if they wish to be heard, the High Court must decide
the referred point. Following this decision, the High Court must send a copy of its
judgment to the referring court.
Rule 4: Costs
The cost of the reference is a part of the overall costs of the case.
Rule 5: High Court’s Authority to Alter Decrees or Orders
High Court has the authority to alter any decree or order made by the referring
court.
Distinctions
Reference and Revision
S.No
Reference Revision
.
For revision, the application is made to the
For reference, a case is transferred by a
1. High Court either by the aggrieved party or
subordinate court to the High Court.
by High Court suo moto.
The grounds for reference is when there is
The ground for revision is jurisdictional errors
2. reasonable doubt on the question of law by
by the subordinate court.
the subordinate court.
Review and Revision
