1

DAMODARAM SANJIVAYYA
NATIONAL LAW UNIVERSITY
SABBAVARAM, VISAKHAPATNAM, AP., INDIA.

PROJECT TITLE:

‘REFERENCE UNDER CIVIL PROCEDURE CODE’

SUBJECT

CIVIL PROCEDURE CODE

NAME OF THE FACULTY

Prof. N. Bhagyalakshmi

NAME OF THE CANDIDATE: JAHNAVI GOPALUNI

ROLL NO. 2020LLB035

SEMESTER V
 2

CERTIFICATE

Title of the subject: CPC

Name of the faculty: Prof. Bhagyalakshmi

I, Jahnavi Gopaluni, hereby declare that the project named ‘Reference under
“

CPC’ that I have submitted is my own work. All of the sources from which the ideas
were derived have been properly cited. To the best of my knowledge, there is no
issue of plagiarism in the projects.

Name: Jahnavi Gopaluni

Roll No. 20LLB035

Semester V
 3

ACKNOLEDGEMENT

I am grateful to our Labour Law Teacher Prof. N. Bhagya Lakshmi Ma’am, for his valuable guidance,
significant suggestions and help for accomplishing this project. I'd also like to express my thankfulness to
my classmates for their excellent contributions and cooperation. To the best of my knowledge, I have sought
to gather information and have compiled it here. ”
 4

TABLE OF CONTENTS
CONTENTS Pg. No

1. SYNOPSIS 5-6

2. INTRODUCTION 6-10

3. POWERS AND DUTY OF HIGH COURT AND 10-13

REFERRING COURT

4. PROCEDURE AT HEARING 13-14

5. CASE ANALYSES 15-116

6. CONCLUSION 16

7. BIBLIOGRAPHY 16
 5

ABSTRACT

A lower or subordinate court may contact a higher court for advice regarding any ambiguity in
order to avoid a legal misunderstanding, as per Section 113 of the Civil Procedure Code of
1908 As a reference, this is understood. Through an application, parties can choose to refer a
case to the High court. The lower Court may instead use the section 113 stipulation of reference
by way of Suo moto if there is any uncertainty regarding a legal issue.

The nature, application, and purpose of the concept of reference as well as the definition of
reasonable doubt are discussed in the current study. Conditions for referral, the referring court's
authority and obligations, and hearing procedure are all in-depthly covered. Additionally, a
brief explanation of the concept of reference as it is provided in many other legislations is
given. Analyses of case laws pertaining to the idea of reference have been conducted.

OBJECTIVES OF RESEARCH:

The objective of the study is to:

1. Discuss the aspects like the nature, scope and objective of the concept of reference and
the meaning of reasonable doubt
2. Explain Conditions for reference, power and duties of referring court, procedure at
hearing.

SCOPE OF THE STUDY:

The study is limited to examining the rules relating to concept of reference under Civil
Procedure Code.

RESEARCH QUESTION:

1. Whether referrals can only be made to a question in law if the judge hearing the case
has reasonable doubt about the matter orders.
 6

SOURCES REFERRED TO:

1. Civil Procedure Code, 1908.

2. Lexis Advanced.
3. SCC Online.
4. CK Takwani ‘Code of Civil Procedure Code, 1908’.
5. Law Times Journal
6. Indian Kanoon

LITERATURE REVIEW:

Singh, Yogendra. ‘Reference and revision under CPC’ Law Times Journal:

In this paper, the author inquired into the concept of reference. This paper helped the researcher
of the present study understand the importance of concept of reference, importance of reference
and how they aid in reducing errors and miscarriage of justice.

This study’s scope is limited to the discussion of legal character and nature of reference in
general, the rules and procedures with respect to reference etc., have not been elaborated.
Whereas the present study enumerates procedure for reference with including relevant judicial
pronouncements for broader understanding of the law relating to the concept.

RESEARCH TYPE:

Analytical research.

RESEARCH METHODOLOGY:

Doctrinal method of research.

MODE OF CITATION:

The researcher has employed Oxford University Standard for the Citation of Legal Authorities
(OSCOLA), Fourth Edition.
 7

INTRODUCTION

Each day, a large number of cases are brought before the courts by individuals. There are
unique circumstances in every case. As the court hears these cases, various questions come up,
and the court must rule on each one in accordance with the law. However, occasionally such
issues do come up that call for the High Court's opinion. When the court has some doubts about
a legal issue, it may request such an opinion. The High Court has the right to issue any relevant
orders it sees fit.

The judges in the courts hear many cases each day, and they must render decisions in each case
in accordance with the law. As a result, it's possible that they could make some mistakes. To
correct a mistake or error made in a case, the Civil Procedure Code, 1908 contains provisions
for reference and revision. The provisions for reference and revision are covered in Part VIII
of the CPC. Reference is covered in Section 113 and Order XLVI, and revision is covered in
Section 115.

Significance of Reference:

Certain cases may be transferred to a High Court under the provisions of Article 228 of the
Constitution. Questions pertaining to the legality of "any Act, Ordinance, Regulation, or any
provision" are specifically mentioned in Section 113. Article 228 of the Constitution, in
contrast, refers to a legal issue involving the "interpretation" of the constitution. A statute or
Act being interpreted does not always imply that the constitution is doing the same. However,
a constitutional interpretation may be necessary in some way when a doubt over the legality of
a law or provision arises. A subordinate court may investigate the legality of an Act, Ordinance,
or Regulation, according to Code Section 113. A lower Court, however, is prohibited under
Article 228 from looking into such a matter. If a lower court determines that the dispute
includes a legal issue involving the reading of the constitution, it must be referred to the High
Court. Any inferior court must have such a matter removed by the High Court.
 8

Referring a case to the High Court for its legal opinion on a legal issue signifies that the lower
court has done so. When there is a justifiable uncertainty during any litigation, appeal,
execution proceeding, etc., the High Court is referred to.

Here, the term "reference" refers to sending a matter to the Supreme Court for a ruling on a
legal issue.

Under Section 113, the case may be referred by a court to the High Court. According to Section
113, the term "court" refers to a court with original civil jurisdiction. A reference can only be
requested in an ongoing lawsuit, appeal, or other procedure when there is a legal dispute
regarding the legality of any Act, Ordinance, or Act provision in question. Revision is covered
in Section 115. It gives the High Court the authority to request the case file in any case
determined by a court below it.

"Transfer of certain proceedings to the High Court," reads Art. 228.

Let's say the High Court believes that a matter before a lower court raises a significant legal
issue as to how this constitution should be interpreted. The High Court can then decide to drop
the case.

You have two options: a. You can decide the case; or b. You can decide the legal issue, send
the case to the court where it was withdrawn, together with a copy of the ruling on the legal
issue, and the courts will handle the case in accordance with that ruling once they receive it.

Objectives of reference:

The fundamental goal of the laws relating to the reference is to give lower courts the ability to
consult the High Court for guidance in non-appealable matters when there isn't a legal issue at
stake, preventing them from making a mistake that can't be corrected afterwards. The highest
court in the state should interpret and decide on the legality of the legislative provision (Act,
Ordinance, or Regulation), according to provisions. Therefore, before rendering a decision in
the matter, reference must be made.

The primary goal of a reference is to give the lower court the opportunity to hear the High
Court's perspective on a particular issue. If a party wishes to appeal a court's decision or order,
 9

they must do so to the higher court; however, if there has been a procedural, technical, or
jurisdictional error, they may refer the matter to the higher court for review instead.

Conditions for Reference:

A referral occurs when the High Court is asked by the lower court to provide an op inion on an
issue involving a significant legal question. A court may refer a case to the High Court for
review under Section 113, and the High Court may then issue an order as it sees fit, subject to
a number of restrictions and requirements.

For the purpose of reference, Rule 1 Order XLVI specifies a number of requirements and
restrictions that must be met before the High Court will consider the subordinate court's
reference. These prerequisites are listed below:

• Where the decree is not appealable, there should be an ongoing lawsuit or appeal.

The court hearing the lawsuit, the appeal, or the person enforcing the decree must consider a
reasonable doubt regarding the existence of a question of law or custom having the force of
law.

According to the proviso to Section 113, the question of law includes inquiries into the legality
of any Act, Ordinance, or Regulation as well as inquiries into other issues.

There are two categories of legal questions that a lower court may consider if there is any doubt:
(1) those that pertain to the legality of any Act, Ordinance, or Regulation, and (2) other
questions.

The reference is not required in the latter case, but it is required in the former case if the
following criteria are met: a. It is necessary to decide this issue in order to resolve the case; b.
The subordinate Court believes the challenged Act, Ordinance, or Regulations are ultra vires;
and c. Neither the Supreme Court nor the High Court to which such Court is subordinate has
determined it.
 10

Who May Apply?

A case can only be referred by a court, either on a party's application or on its own initiative.
Court refers to a Civil Judicature court. A tribunal or persona designate cannot be referred to
as a "court" and cannot make any references.

POWERS AND DUTY OF HIGH COURT AND REFERRING COURT

Referrals may only be made in relation to a court-pending proceeding, appeal, or execution. If

a lower court is uncertain about a legal issue, it may refer the case. This issue must have come
up throughout the litigation, and the court must be asked to rule on it. It is not permissible to
refer to hypothetical concerns or address potential issues. The Proviso is drawn when the
question "arises," rendering any Act, Ordinance, or Regulation void. The case must be sent to
the High Court because the referring judge is inferentially convinced that any Act, Ordinance,
or Regulation that is alleged to be ultra vires is being contested.

to consider the possibility of a legal doubt. In Banarsi Yadav v. Krishna Chandra Dass, 1 it
was decided that when there is a plausible dispute about an Act's constitutionality, a lower court
may refer the issue to the High Court.

In the case of A Sreenivasa Rao and Ors v. Govt. of Andhra Pradesh, 2 it was determined
that the subordinate court lacked the authority and authority to determine the legality of any
Act, Ordinance, or Regulation. Additionally, Section 113 requires the subordinate court to refer
the pending case to the High Court for adjudication of the legality issue, along with its reasons
and opinions for doing so.

The High Court's powers and duties:

1
Banarsi Yadav v. Krishna Chandra Dass
2
A Sreenivasa Rao and Ors v. Govt. of Andhra Pradesh
 11

When the case is referred to it by the lower court, it has the following authority: • To issue any
orders it sees fit.

• Refuse to answer a question in a case and return it to the court that referred it for resolution.

• To dismiss the referred case.

Section 113 and Article 228

In Ranadeb Choudhuri v. Land Acquisition officer, 3 the court noted that while Article 228
is a constitutional provision, Section 113 of the Civil Procedure Code is a legislative one. The
issue of an Act's legality is what is covered by Section 113, not how the Constitution should be
interpreted. Although they are not coextensive, both Section 113 and Article 228 may be
relevant to a similar circumstance.

In the case of Rama Sundari Devi v. Indu Bhusan Bose, 4 it was decided that Section 113 of
the Indian Constitution allows courts to state cases and ask the High Court for an opinion under
certain circumstances. The proviso to this section specifically refers to cases involving the
legality of Acts. In contrast, under Article 228 the High Court may intervene in a case that is
pending in a lower court and concerns the resolution of a crucial legal issue related to the
interpretation of the Constitution. The case will be withdrawn by the High Court, which will
then decide the legal issue or decide the case itself before returning it to the court from which
it was originally withdrawn.

Powers and duties of courts to refer to the High Court jurisdictional issues
in small causes:

(1) If, at any time before to rendering judgement, the court where the matter was initially filed
has any concerns regarding whether the suit is cognizable by a Court of Small Causes or not,
it may submit the record to the High Court with a statement of those reservations.

3
Ranadeb Choudhuri v. Land Acquisition officer
4
Ranadeb Choudhuri v. Land Acquisition officer
 12

(2) After obtaining the record and statement, the High Court may direct the court to either
continue the lawsuit or return the plaint for presentation to any other court it de ems qualified
to hear the case in its order.

The District Court has the authority to submit a case for revision if the jurisdiction over the
case was incorrect.

(1) Where it appears to a District Court that a Court subordinate thereto has, by mistakenly
determining that a suit is cognizable by a Court of Small Causes or not to be so cognizable,
failed to exercise a jurisdiction vested in it by law, or exercised a jurisdiction not so vested, the
District Court may, and if required by a party shall, submit the record to the High Court with a
statement of its reasons for considering the opinion of the

(2) The High Court may issue the order it deems appropriate in the case after receiving the
record and statement.

(3) The High Court may issue any order that, in the circumstances, it deems to be just and
appropriate with regard to any procedure after the decree in any case brought to it pursuant to
this rule.

(4) For the purposes of this rule, a Court subordinate to a District Court must abide by any
request for any record or information made by the District Court.

Power of the court to modify or reverse a decree or order:

When a case is referred to the High Court pursuant to Rule 1 or the proviso to Section 113, the
High Court may return the case for modification and may amend, reverse, or vacate any decree
or order that the Court making the referral has passed or made in the case out of which the
referral arose, as well as issue any orders that it deems appropriate.
 13

PROCEDURE AT HEARING

The referring court should write a statement of the facts, respond to the relevant issue, and then
express its judgement. Depending on the High Court's ruling on the preferred point, the court
may decide to halt the proceedings or issue a judgement or order. Before the High Court
receives a copy of its decision in the case, this cannot be done. In the event that the High Court
rules in favour of the plaintiff, the decision will be upheld. If the plaintiff is responded against,
the lawsuit will be dropped. The High Court will reach a decision on the referred issue after
hearing from the parties and sending a copy to the court. The case will then be resolved by the
court in accordance with the ruling. If the referring judge has not satisfied the requirements for
referring, the High Court may return the case to the court for amendment. An order of reference
may be overturned or cancelled by the High Court. Any order or decree made by the court
making reference may be changed, revoked, or suspended at the High Co urt's discretion. It has
the authority to issue such orders as well.

At the time of the hearing, the following process must be followed:

• In accordance with Rule 1, the court trying the case, hearing the appeal, or carrying out the
decree will prepare the facts and issues in dispute for the case and issue a decree or order subject
to review by the high court on the issues raised.

• The High Court will decide the referred points after hearing from the parties. According to
Rule 3, a copy of the judgement and the registrar's signature will be sent to the referring court.

• After receiving a copy, the referring court will go forward in accordance with the High Court's
judgement to end the matter.

• Rule 5 gives the High Court the authority to issue such orders as well as to amend, alter,
annul, or set aside any decree or order that the referring court has issued or passed.

• In accordance with Rule 7, a record containing a statement of the reasons for doubt will be
sent to the High Court in the event that the jurisdiction of the small causes court is questioned.
 14

Costs:

The costs of a referral to the High Court are covered by Rule 4 of Order XLVI. It states that
any expenditures incurred as a result of a referral for the High Court's ruling shall be regarded
as case costs.

Revision:

The High Court's revisional jurisdiction is discussed in Section 115. In general, revision refers
to going over something again to find and fix errors. In accordance with Section 115, the High
Court may request the record of any case determined by a lower court and, in certain
circumstances, may issue an order in which no appeal is allowed.

• The jurisdiction over the case has been exceeded by not having jurisdiction.

• Having jurisdiction but not exercising it.

• The party in possession of jurisdiction acted impermissibly or improperly. For instance, a trial
may end with a major procedural error that could have an impact on the court's final judgement.

The caveat to this provision expressly states that, for the purposes of this sectio n, the High
Court shall not vary or reverse any decree or order that is the subject of an appeal before the
High Court or any subordinate Court. A modification will also not be regarded as a stay of the
action, excluding any proceedings that the High Court has ordered to be stayed.

The Supreme Court examined the applicability of Section 115 of the CPC in the case of Salem
Advocates Bar Assn v. Union of India 5and noted that the applicability of Section 115 is
restricted, and the revisional court should only be satisfied that the decisions granted are
covered by Section 115.

The Supreme Court ruled in Radhe Shyam v. Chhabi Nath 6 that even though the CPC
(Amendment) Act, 1999 limited the use of section 115, this did not increase the High Court's
authority to supervise.

5
Salem Advocates Bar Assn v. Union of India
6
Radhe Shyam v. Chhabi Nath
 15

CASE LAWS

1. Chandrappa vs. the State of Karnataka

The appellate court laid down the guiding principles for appeals against acquittals (proven
innocent). The principles are as follows: –
1. “Where the fact of the case is clearly wrong and warrants a miscarriage of
justice. In this instance, an acquittal can be appealed. This doctrine was
established in Bhagirath, 35 Cr LJ 1367.”
2. “In an instance where the trial court failed to make a clear distinction
between an indisputable conclusion from the facts of the case. Example,
Routhula 40 Cr LJ 458.”
3. “Where the trial court overlooked the material evidence in the decision of
the case which resulted in wrong judgment or miscarriage of justice.
Example, Dharnadas, A 1960 SC 734.”
4. “When the facts of the case presented were wrongly dismissed as evidence
by the trial court. An example is Dhulaji, A1963G 234.”
2. Hari Shankar vs. Rao Ghari Chowdhury
o “In this case, the Supreme Court highlighted the difference between
revision and appeal.”
o “The court held that difference between revision and appeal is real. The
right of appeal comes with a right of re-hearing on laws as well as facts,
unless the statute confers some limitations on the right to appeal in some
way.”
o “The power of revision is generally given to supreme court so that it may
satisfy itself that the judgement given in the particular case is in
accordance to the laws.”
3. Mohd. Afzal vs. Noor Nisha Begum on 5 February, 1997
o “In this case, the court held that it is mandatory for the Sessions Judge
and it is established law that when the power of revision is exercised, the
accused or the said person should be given an opportunity of being
heard.”
4. Amit Kapoor vs. Ramesh Chander & Anr
 16

o “In this case, the court held that the jurisdiction conferred on the Court
under section 397 may be exercised to inquire into the legality,
correctness or propriety of an order or judgment passed by the lower
court or any lower court. This section does not specifically use the words
“to prevent abuse of process of court and to secure justice” and the
jurisdiction under this section is very limited. Jurisdiction can be
exercised where there is error, if there is no compliance with the
provisions of law or if the judgment is wrong in nature or judicial
discretion is exercised arbitrarily.”

CONCLUSION

Whenever the judge passes a decree or makes an order there might be certain circumstances
“

where errors or mistakes relating to the jurisdiction or procedure are committed by the court.
Hence, the provisions relating to reference and revision ensures that the working of the courts
is carried out in an efficient manner. Referrals can only be made to a question in law if the
judge hearing the case has reasonable doubt about the matter. A question that has been decided
by the High Court and to which the referenced judge is subordinate cannot be considered
reasonable doubt. If such a decision is questioned in a subsequent decision of the same court
or by another higher court, e.g., there is room for reasonable doubt. Also, the provisions of
appeal are different from the provisions of reference and revision. An appeal is sought where
the party is aggrieved by the decision of the court and reference or review is sought in a case
where there is some procedural or jurisdictional error. ”

BIBLIOGRAPHY

1. Civil Procedure Code, 1908.

2. Lexis Advanced.
3. SCC Online.
4. CK Takwani ‘Code of Civil Procedure Code, 1908’.
5. Law Times Journal
6. Indian Kanoon