- S.113 and Order 46 deal with reference to the High Court.
- Reference is where a subordinate court refers a matter involving a question of law to the High Court where it has a reasonable doubt during any suit, appeal, execution proceedings, etc.
- The High Court shall then make an order on the same.
- S.113 also provides that where the subordinate court is of the opinion that a particular Act, Order or Regulation or a part of it is invalid and the same has not been declared by the High Court to which it is subordinate or by the Supreme Court, it shall give its opinion and refer the matter to the High Court.
- However, in such cases the proof of validity of the Act, Order or Regulation must necessary to dispose off a case before the subordinate court.
- Rule 1 of Order 46 provides that there may be a reference where there is a suit or an appeal pending in which the decree is not appealable or where there is an execution of any such decree.
- In such case if any question of law or usage which has the power of law arises, a reference to the High Court may be made either on application made by the parties or suo moto by the Court.
- A statement of facts shall be drawn up and the point on which the doubt has arisen must be highlighted.
- The court may give its opinion as regards the question as well while sending the same for reference to the High Court.
- The court may either decide to stay the proceedings or may continue with the case.
- It may even pass a decree or order contingent upon the decision of the High Court.
- However, no final decree or order shall be passed until the High Court gives a judgment on the reference.
- The High Court shall determine the question after hearing the parties if they wish to appear and be heard.
- Thereafter, it shall transmit a copy of its decision to the lower court which shall pass a decree or order in conformity with the High Court’s judgment.
- The High Court may even make an amendment or may alter, cancel or set aside a decree or order passed by the lower court in the case referred to the High Court. It shall make an order in this regard as it deems fit.
- Rule 6 applies to cases pending before Courts of Small Causes. Where such court is doubtful as to whether the case at hand is cognizable by it, it shall refer the same to the High Court.
- The High Court may then either order the Court to proceed with the suit or to submit the plaint for presentation before any other court as the High Court specifies.
- Rule 7 deals with a similar situation. It states that where the District Court is of the opinion that a subordinate court has exercised a jurisdiction which is not exercisable by a Court of Small Causes or where it has not exercised a jurisdiction which ought to have been exercised by it, it shall refer the matter to the High Court where any party to the suit so requires.
- Thereafter, the High Court shall make such order as it deems fit.
- Reference to the High Court is dealt with under Art.228 of the Constitution and S.395 of the CrPC.
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(Editor @ Legal Bites)
Author: Mayank Shekhar
Mayank is a student at Faculty of Law, Delhi University. Under his leadership, Legal Bites has been researching and developing resources through blogging, educational resources, competitions, and seminars.