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C PC ASSIGNMENT ON Analysis of statutory provision relating to refrence under CPC

ASSIGNMENT
For
Civil Procedure Code (CPC)
TOPIC:
Analysis of statutory provision relating to refrence under CPC

Prepared By
Name: Mir Farhan Quasimi
ID: GI6571

17BALLB45

Department of Law

Aligarh Muslim University

Submission Date: 16 NOVEMBER, 2020

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Acknowledgement
I would like to express my special thanks of gratitude to my teacher Dr HASMAT ALI KHAN for
able guidance and support by allocating such assignment.
I would also like to express my gratitude to my parents for providing me resources because of
which I am able to complete it on time.

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Introduction
In order to understand concepts such as Reference, review and revision, as per Code of Civil
Procedure, 1908 (CPC), a party, who is offended by the decision of the court, can reach out to
higher court by way of appeal against the decision given by the trial court/lower court. In case of
appeal, the entire judgement is scrutinized and heard again by the higher authority. However, in the
case, where there is a prima facie error on technical or procedural ground, the parties are not
required to file a fresh case and appeal. In such cases, CPC has the provision of reference review
and revision under section 113, 114 and 115 of CPC.

Synopsis

Every human being commits a mistake and judges are also human beings. So, the provisions of
reference, review and revision are given under the Civil Procedure Code in order to maintain the
fairness and accuracy of the justice system.

Reference

Section 113 of Civil Procedure Code deals with the provision of reference. Under the provision of
Section 113, a lower or subordinate court can reach out to higher court for the doubt in order to
avoid the misinterpretation of the law which is called reference. Parties through an application can
move the reference to the High court. Lower Court can apply the provision of reference suo-moto in
case of any doubt with respect to any legal provision. The lower court is not bound to refer to the
High Court other than in case of validity of legal provision. It helps the lower court to avoid
commission of error while pronouncing the judgement. The subordinate court can use its right to
reference in the following situation:

In case of any question arising in the court at the time of entertaining the suit with respect to the
validity of any act, rules, order, ordinance etc.

Where the court has the opinion or feels that any provision of the law is invalid or not in the power
of court (“ultra-virus”).

The High Court or Supreme Court must have not made such question on the provision of law
invalid.

The court feels that it is important to take the reference of high court for ascertaining the validity of
the provisions mentioned in the law before disposal of any case.

There can be two types of doubts which need to be referred under this section.

In case, the doubt has arisen with respect to any Act or law, it is mandatory for the lower court to
take the reference or opinion from the High court.

However, in case the doubt has come up during proceedings, it is not mandatory for the lower court
to take the opinion of the High Court. The lower court can suo-moto refer to the High Court.

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Object

The object behind the provisions of Reference is to empower the subordinate court to obtain the
opinion of the High Court in non-appealable cases when there is a question of law so that any
commission of error could be avoided which couldn’t be remedied later on.

As held in the case of Diwali Bai v. Sadashivdas, the reference must be made before passing of the
judgement of the case

Conditions for seeking reference

Order 46 of CPC mentions the procedure of making a reference. In order to make a reference to
High Court, subordinate court needs to satisfy the condition mentioned in Order 46 of Civil
Procedure Code which has been produced as follows:

The suit or appeal must be pending before the court while making a reference and no further appeal
from the order of such suit or decree is lying before the court.

The question of the validity of provision of law must have arisen during the pendency of the suit i.e.
during proceeding of the suit in the court.

When such doubt regarding the validity of the provision of law has arisen, the court must have been
entertaining the suit.

While making the reference, the district court can put the case on stay, or it can pass a contingent
order. The subordinate court, after taking into account the opinion of the high court where such
reference has been made, may pass order or decree.

Under the second condition, reference is optional but in the first condition i.e., a question related to
any Act, Ordinance or Regulations, reference is obligatory. Reference is obligatory in such
condition when the following conditions are fulfilled:

In order to dispose of the case, the decision of such question is necessary.

The subordinate court seeking reference is of the view that the Act, Ordinance or regulation is ultra
vires.

There is no determination that such Act is ultra vires either by the Supreme Court or the High Court
to which the court is subordinate to.

A reference can be made by the judge only in the case when the judge who is dealing with that case
has a reasonable doubt about it. When any matter is already decided by the High Court to which the
court seeking reference is subordinate to then it is not considered as a reasonable question of doubt.

Who can apply for reference?

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The court of civil judicature can refer the case to the High Court either on an application made by a
party or suo moto. As held in the case of Ramakant Bindal v. State of U.P, no reference can be
made by a tribunal.

Powers and duty of the referring court

A reference can be made in a suit, appeal or execution proceeding pending before the court only
when there is a doubt of law. As held in the case of Banarasi Yadav v. Krishna Chandra it was
held that the question of law about which the subordinate court is doubtful, must have actually been
called upon in the case for adjudication and it shouldn’t be a hypothetical question.

Therefore, no reference can be made on a hypothetical question or a point that may or may not arise
in future. But, if the situation arises it may be considered for reference.

Power and duty of the High Court

The High has consultative jurisdiction in this context. When reference is sought from the High
Court and while dealing it the High Court is not bound to decide only the question of law 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 new aspect arises.

To answer the question for which reference is sought totally upon the discretion of the High Court
as discussed under Order 46 of the Code. The High Court may answer the question and send the
case back to the referring court to dispose of it in accordance with the law. It is also upon the
discretion of the High Court to refuse to answer the question and it has even power to quash it.

Effects of Reference

In the case of L.S Sherlekar v. D.L. Agarwal, it was held that when the reference is sought 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.

Rule 3 of Order 46 states the provision that after hearing the parties if the High Court desires, it
shall decide the referred points and transmits a copy of its judgement to the subordinate court which
shall dispose of the case in reference to said decisions.

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Conclusion

The provisions for reference, review and revision provided under the Code of Civil Procedure are
different ways by which the court can work more efficiently for fairness of justice system even
when there is no provision of appeal.

Whenever a matter is decided is the Court and the judge passes a decree or order then there might
be circumstances where there has been any mistake or error, or a party is aggrieved by the order or
decree or, there can also be circumstances where the subordinate court is doubtful on such question
of law. And, a general rule once a judgement is pronounced it cannot be altered by the same court.

So the provision of review, reference and revision have been inserted under the legal system to
avoid a miscarriage of justice.

Where the reference is sought by the subordinate court itself when there is a doubt on the question
of law to the High Court, revisional power is exercised when there is a jurisdictional error by the
subordinate court. The power of review is vested in the subordinate court itself which has passed
the decree or order.

The process of Review, reference and revision are also very different from Appeal or Second
appeal. The subordinate court can seek reference from the High Court on its own but for review or
revision, an application is required to be filed. So, all three procedures have different grounds,
conditions and procedures.

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BIBLIOGRAPHY
1-Civil Procedure with Limitation Act,1963 C K Takwani, Eighth Edition, EBC

2- Code Of Civil Procedure and Limitation Act ,Dr S R Meyneni, 4th Edition

REFRENCES

Sitaramasastry v. Sunderamma [(1996) AIR 173 AP]

Diwali Bai v. Sadashivdas, [(1900) ILR 24 Bom 310]

Reliance Industries Ltd. v. Pravinbhai, [(1997) 7 SCC 300]

Takwani, C.K, Civil Procedure, Eighth Edition, 2017

The Code of Civil Procedure, 1908