Reference under CPC

Reference under CPC holds paramount importance by serving as a legal avenue for subordinate courts to seek the High Court’s guidance on complex legal questions during ongoing cases.

This process ensures the correct interpretation of the law, preventing errors and enhancing legal clarity. By allowing lower courts to refer specific legal issues to higher authorities, the CPC promotes fair and informed judgments.

The High Court’s opinion, obtained through a reference in CPC, contributes to the resolution of legal uncertainties, upholding the integrity of the judicial process and fostering consistency in legal decision-making throughout the legal system.

Definition of Reference under CPC

The concept of reference in CPC occurs when a lower court seeks guidance from the High Court on a legal matter. This typically happens when the lower court encounters reasonable doubt regarding a legal question during a civil suit, appeal or execution proceeding. In simple terms, a reference involves asking the High Court for its opinion on a legal issue.

Section 113 of the Civil Procedure Code

Section 113 grants authority to a lower court to present a case to the High Court and request its opinion. Such a request is made when the lower court harbours uncertainty about a legal question.

It’s important to note that parties involved in the civil suit do not have the right to request a reference; only the lower court possesses the ability to initiate it on its own. The reference is exclusive to questions of law and the judge presiding over the case must genuinely doubt the legal aspect in question.

Objectives of Reference in CPC

The main purpose of reference under CPC is to enable lower courts to seek the High Court’s opinion in non-appealable cases, ensuring clarity on legal matters and preventing irreversible errors. The provision also serves to guarantee that the highest court in the state interprets and decides the validity of legislative provisions (Acts, Ordinances or regulations).

Importantly, the reference in CPC should be made before the lower court passes its judgment to ensure a proper legal understanding.

Conditions for Reference under CPC

The process of making a reference to the High Court, as outlined in Order 46 of the Civil Procedure Code, involves certain conditions that the subordinate court must meet. Here are the key conditions:

• The suit or appeal must be actively underway in the court at the time of making the reference and no further appeal from the court’s order or decree should be pending.
• The question regarding the validity of a legal provision must have arisen during the proceedings of the suit in the court.
• The court must be actively handling the suit when the doubt about the validity of the legal provision emerges.
• During the reference under CPC, the district court has the authority to either stay the case or issue a contingent order. After considering the High Court’s opinion, the subordinate court may then proceed to pass a final order or decree.

Types of Questions for Reference in CPC

There are two categories of legal questions that may lead to doubts in the subordinate court:

• Questions related to the validity of Acts, Ordinances or Regulations.
• Other legal questions.

Under the first category, reference in CPC is mandatory if the following conditions are met:

a. The decision on the question is essential for resolving the case.

b. The subordinate court believes that the Act, Ordinance or regulation is beyond its legal authority.

c. There is no previous determination by the Supreme Court or the relevant High Court on the vires of the Act.

Who Can Apply for Reference under CPC?

The court of civil judicature has the authority to refer a case to the High Court either based on a party’s application or suo moto (on its own initiative). It’s important to note that a tribunal does not have the power to make a reference, as established in the case of Ramakant Bindal v. State of U.P.

Powers and Duties of the Referring Court

A reference under CPC can only be made in a suit, appeal or execution proceeding pending before the court when there is a genuine doubt of law. It was emphasised in the case of Banarasi Yadav v. Krishna Chandra that the legal question causing doubt must have actually arisen in the case for adjudication and should not be a hypothetical issue. Therefore, references cannot be made based on hypothetical questions or points that may or may not arise in the future. However, if such a situation does arise, it may be considered for reference.

Power and Duty of the High Court

Consultative Jurisdiction: The High Court possesses consultative jurisdiction when a reference is sought. It is not obligated to solely decide the specific legal question in doubt. As established in the case of S.K. Roy v. Board of Revenue, the High Court can also consider new aspects of the law if they emerge during the proceedings.

Discretion in Answering Questions: The High Court has discretion in answering the referred question under CPC. According to Order 46 of the Code, the High Court may choose to answer the question and send the case back to the referring court for disposal in line with the law. Alternatively, the High Court has the authority to refuse to answer the question and can even quash it.

Effects of Reference under CPC

Impact on Decree: In the case of L.S Sherlekar v. D.L. Agarwal, it was established that if the High Court answers the question in favour of the plaintiff, the decree is confirmed. Conversely, if the High Court’s response is unfavorable, the suit is dismissed.

Decision Transmission: Rule 3 of Order 46 stipulates that after hearing the parties, if the High Court desires, it shall decide the referred points and send a copy of its judgment to the subordinate court. The subordinate court then disposes of the case in accordance with the decisions outlined in the judgment.

Procedure at Hearing

Rule 1: Statement and Formulation

The referring court, under Rule 1, 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 and provide its own opinion on the matter.

Rule 2: Stay or Contingent Decree

Rule 2 allows the referring court to take certain actions. It may choose to stay the proceedings or issue a decree or order contingent upon the High Court’s decision on the referred point. Importantly, this decree or order cannot be executed until the referring court receives a copy of the High Court’s judgment on the reference.

Decree Confirmation or Dismissal

If the High Court favours the plaintiff’s position in its response, the decree will be confirmed.

Conversely, if the High Court’s response is unfavourable, the suit will be dismissed.

Rule 3: High Court Decision Transmission

Rule 3 stipulates that 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, which will then dispose of the case in accordance with the High Court’s decision.

Rule 5: High Court’s Authority to Alter Decrees or Orders

According to Rule 5, the High Court has the authority to alter, cancel or set aside any decree or order made by the referring court. The High Court can then issue any order it deems appropriate.

Cost

Rule 4: Costs of Reference under CPC

Under Rule 4, the cost of the reference in CPC is considered as part of the overall costs of the case.

Exception:

However, in the judgment of L.S. Sherlekar v. D.S. Agarwal (AIR 1968 Bom 439), it was determined that if the reference is deemed altogether unwarranted, the High Court has the discretion to direct the referring judge to personally bear the costs.

Conclusion

A reference under CPC occurs when a subordinate court seeks the High Court’s opinion on a legal matter during a pending suit, appeal or execution proceeding. Governed by Order 46, the referring court formulates a legal question, stays proceedings or issues a contingent order and sends the question to the High Court.

After hearing parties, the High Court provides an opinion, confirming a decree if favourable or dismissing the suit if not. The referring court then disposes of the case accordingly. The cost of reference is typically part of the overall case costs unless the reference in CPC is deemed unwarranted, leading to potential personal cost responsibility for the referring judge.