Subject-Wise Law Notes
Civil Procedure Code Reference Under CPC
Reference under CPC
Civil Procedure Code Subject-Wise Law Notes
Aishwarya Agrawal ●
November 22, 2023
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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
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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.
Contents [ hide ]
1. Definition of Reference under CPC
2. Section 113 of the Civil Procedure
Code
3. Objectives of Reference in CPC
4. Conditions for Reference under CPC
5. Types of Questions for Reference in
CPC
6. Who Can Apply for Reference under
CPC?
7. Powers and Duties of the Referring
Court
8. Power and Duty of the High Court
9. Effects of Reference under CPC
10. Procedure at Hearing
10.1. Rule 1: Statement and Formulation
10.2. Rule 2: Stay or Contingent Decree
10.3. Decree Confirmation or Dismissal
10.4. Rule 3: High Court Decision
Transmission
10.5. Rule 5: High Court’s Authority to
Alter Decrees or Orders
11. Cost
12. Conclusion
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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.
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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).
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Importantly, the reference in CPC should be
made before the lower court passes its
judgment to ensure a proper legal
understanding.
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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
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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:
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a. The decision on the question is essential
for resolving the case.
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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
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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
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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
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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.
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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.
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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
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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.
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