Section 113 CPC — Reference to High Court

Introduction

Section 113 of the Code of Civil Procedure, 1908 deals with the reference of a question to the High Court. It allows a subordinate civil court to refer a question of law to the High Court for its opinion when the conditions prescribed by the CPC are satisfied.

The provision is mainly concerned with situations where the court has a legal doubt that is appropriate for determination by the High Court. The detailed procedure for making and dealing with such references is provided under Order XLVI CPC.

Section 113 also contains a special proviso dealing with cases where the validity of an Act, Ordinance, Regulation or a provision contained in one is questioned and the subordinate court considers it invalid or inoperative.

Section at a Glance

Particular	Details
Section	Section 113 CPC
Subject	Reference to High Court
Nature	Procedural
Main purpose	To obtain the High Court’s decision on a question of law in appropriate cases
Related provision	Order XLVI CPC
Part of CPC	Part VIII — Reference, Review and Revision

Statutory Provision

Section 113 provides that, subject to the prescribed conditions and limitations, a court may state a case and refer it to the High Court for its opinion.

The provision is therefore a mechanism through which a subordinate court can seek the authoritative determination of the High Court on a legal question arising in a pending proceeding.

The proviso to Section 113 deals with a special situation involving the validity of legislation.

Where a case involves a question concerning the validity of an Act, Ordinance, Regulation or a provision contained in one, and the determination of that validity is necessary for disposing of the case, the court must consider whether the conditions contained in the proviso are satisfied.

If the court is of the opinion that the enactment or provision is invalid or inoperative, and it has not already been declared invalid by the High Court to which the court is subordinate or by the Supreme Court, the court is required to state a case and refer it to the High Court.

Meaning of Section 113 CPC

In simple terms, Section 113 allows a subordinate civil court to ask the High Court to decide a specified legal question.

The entire case is not transferred to the High Court merely because a reference is made. The subordinate court identifies the question of law requiring determination and places that question before the High Court in the manner prescribed by Order XLVI.

The High Court then decides the referred question and communicates its decision to the subordinate court. The subordinate court proceeds with the case in accordance with the High Court’s decision.

Purpose and Object of Section 113

The main purposes of Section 113 are:

• To obtain authoritative determination of difficult questions of law.
• To maintain consistency in the interpretation of law by subordinate courts.
• To prevent subordinate courts from proceeding on an incorrect interpretation of an important legal question.
• To provide a procedural mechanism for questions concerning the validity of legislation.
• To maintain the supervisory and authoritative role of the High Court over subordinate civil courts.

The provision is therefore concerned with the proper administration of civil justice where a question of law requires determination by the High Court.

Essential Requirements of Section 113

1. A question of law must arise

The reference mechanism primarily concerns a legal question arising in a civil proceeding.

Under Order XLVI Rule 1, the question may also relate to a usage having the force of law.

2. The prescribed conditions must be satisfied

Section 113 itself makes the power subject to the conditions and limitations prescribed by law. These conditions are principally found in Order XLVI CPC.

3. The court must entertain a reasonable doubt

For an ordinary reference under Order XLVI Rule 1, the court must entertain a reasonable doubt regarding the legal question.

A party cannot obtain a reference merely by asserting that the question is difficult or important.

4. The question must arise in the proceedings contemplated by Order XLVI

Order XLVI Rule 1 provides the circumstances in which a reference may be made, including proceedings in a suit, certain appeals and execution proceedings.

5. Special conditions apply to the proviso

Where the validity of legislation is involved, the specific requirements of the proviso to Section 113 must be satisfied.

How Section 113 CPC Works

The ordinary reference mechanism can be understood as follows:

1. A question of law arises in a civil proceeding.
2. The court considers whether the conditions for reference are satisfied.
3. The court entertains a reasonable doubt regarding the question of law.
4. The relevant facts and the legal question are stated.
5. The question is referred to the High Court.
6. The High Court determines the question.
7. The High Court communicates its decision to the referring court.
8. The subordinate court proceeds with the case in conformity with the High Court’s decision.

Ordinary Reference and Reference Under the Proviso

One of the most important aspects of Section 113 is the distinction between the ordinary reference and the reference under the proviso.

Basis	Ordinary Reference	Reference under Proviso
Provision	Main part of Section 113 read with Order XLVI	Proviso to Section 113
Nature	Generally discretionary	Mandatory when statutory conditions are satisfied
Subject	Question of law or usage having force of law	Validity of an Act, Ordinance, Regulation or provision
Court’s position	Court entertains reasonable doubt	Court is of opinion that the enactment or provision is invalid or inoperative
Previous declaration	No such specific requirement	It must not already have been declared invalid by the concerned High Court or Supreme Court

The difference between may and shall is particularly important. The ordinary provision gives the court the power to refer a question, whereas the proviso requires a reference when its specified conditions are fulfilled.

Reference Concerning Validity of Legislation

The proviso to Section 113 deals with a more serious situation.

Suppose a civil court is deciding a case and the result depends upon the validity of a statutory provision. The court considers that provision invalid or inoperative. If the validity of that provision has not already been determined by the High Court to which the court is subordinate or by the Supreme Court, and the determination is necessary for disposing of the case, the matter must be referred to the High Court.

The subordinate court therefore does not finally determine the validity of the legislation in such circumstances. It states the case, records its reasons and refers the question to the High Court.

Related Provision — Order XLVI CPC

Section 113 should always be studied along with Order XLVI CPC because Order XLVI provides the procedural framework for references.

Order XLVI Rule 1

Deals with reference of a question to the High Court where the prescribed conditions are satisfied.

Order XLVI Rule 2

Deals with the power of the referring court to stay proceedings or pass a decree or order contingent upon the High Court’s decision.

Order XLVI Rule 3

Provides for the High Court’s decision on the referred question and communication of its judgment to the referring court.

Order XLVI Rule 4

Deals with the costs of the reference.

Order XLVI Rule 4A

Provides the procedure relating to references under the proviso to Section 113.

Order XLVI Rule 5

Deals with the High Court’s power to alter, cancel or set aside the decree or order of the referring court in appropriate circumstances.

Effect of a Reference

A reference does not mean that the subordinate court loses control over the entire case.

The High Court decides the question referred to it. After receiving the High Court’s decision, the subordinate court continues the proceedings in conformity with that decision.

The reference therefore separates the question requiring authoritative determination from the remaining issues in the civil proceeding.

Important Case Law

Sherly Mathai v. Susamma Mathai

Principle: An ordinary reference under Section 113 read with Order XLVI Rule 1 is different from a reference under the proviso to Section 113.

Relevance: The case helps explain the distinction between an ordinary reference involving a question of law and the special reference mechanism concerning the validity of legislation.

Sukh Dev v. Geeta Devi

Principle: A reference under Section 113 is subject to the conditions prescribed under Order XLVI.

Relevance: The case emphasises that the statutory requirements must be satisfied before the reference mechanism can properly be invoked.

Practical Example

Example: A civil court is hearing a suit involving an important question of law. The court entertains a reasonable doubt about the correct legal position and the requirements under Order XLVI Rule 1 are satisfied.

The court may state the relevant facts and the legal question and refer it to the High Court. Once the High Court decides the question, the subordinate court proceeds with the case according to that decision.

Now assume that the question concerns the validity of a statutory provision and the court considers the provision invalid. If the conditions of the proviso to Section 113 are fulfilled, the court must make a reference to the High Court.

Section 113 and Appeal, Review and Revision

Section 113 should not be confused with Sections 114 and 115.

Provision	Function
Section 113 — Reference	Subordinate court refers a question of law to the High Court
Section 114 — Review	Permits reconsideration of a decree or order by the court in specified circumstances
Section 115 — Revision	Gives the High Court revisional jurisdiction over certain subordinate-court proceedings

A reference is not an appeal. The subordinate court is not asking the High Court to hear the entire case as an appellate court. It is seeking determination of a specified question falling within the reference mechanism.

Common Confusions

Can every difficult question of law be referred?

No. The conditions under Section 113 and Order XLVI must be satisfied. The reference procedure is not a general method of obtaining the High Court’s opinion whenever a subordinate court finds a question difficult.

Can a party ask the court to make a reference?

A party can request the court to make a reference, but the reference is ultimately made by the court. The statutory requirements must be satisfied.

Is reference the same as revision?

No. Reference involves placing a specified legal question before the High Court. Revision involves the High Court exercising revisional jurisdiction in the circumstances provided under Section 115.

Is reference under the proviso discretionary?

The ordinary part of Section 113 uses the expression may, while the proviso uses shall where its statutory conditions are fulfilled. This is an important examination distinction.

Practical Importance in Civil Litigation

Section 113 becomes relevant when a civil court encounters a legal question that falls within the statutory reference mechanism.

An advocate dealing with such a situation should examine:

1. What precise question of law has arisen?
2. Does Order XLVI apply?
3. Does the court entertain a reasonable doubt?
4. Are the statutory conditions for reference satisfied?
5. Does the question concern the validity of legislation?
6. If the proviso applies, are all its requirements fulfilled?
7. What effect will the reference have on the pending proceeding?

The provision is particularly relevant where the determination of a legal question may affect the manner in which the subordinate court must ultimately decide the case.

Importance for Law Students and Judiciary Exams

What to Remember

• Section 113 CPC deals with Reference to the High Court.
• The procedure is mainly governed by Order XLVI CPC.
• An ordinary reference involves a question of law or usage having the force of law.
• Under Order XLVI Rule 1, the court must entertain a reasonable doubt.
• The ordinary reference is generally discretionary.
• The proviso to Section 113 deals with the validity of legislation.
• When the conditions of the proviso are satisfied, the reference is mandatory.
• The High Court decides the referred question.
• The subordinate court proceeds in conformity with the High Court’s decision.
• Reference, appeal, review and revision are distinct procedural mechanisms.

Important Questions to Prepare

1. What is the object of Section 113 CPC?
2. Explain the scope of Section 113 read with Order XLVI Rule 1.
3. What are the essential requirements for making a reference to the High Court?
4. Explain the proviso to Section 113 CPC.
5. Distinguish ordinary reference from reference under the proviso to Section 113.
6. What is the effect of the High Court’s decision on a reference?
7. Distinguish reference, review and revision under the CPC.

Key Legal Principles

1. Reference is a statutory procedure

A subordinate court can refer an appropriate question of law to the High Court when the requirements of the CPC are satisfied.

2. Order XLVI supplements Section 113

Section 113 provides the statutory basis for reference, while Order XLVI establishes the principal procedural conditions and consequences.

3. The proviso is mandatory when its conditions are fulfilled

Where the conditions relating to the validity of legislation are satisfied, the subordinate court is required to make the reference.

4. The High Court’s decision binds the subsequent proceedings

After receiving the High Court’s decision, the referring court proceeds with the case in conformity with that decision.

Key Takeaways

Concept	Principle
Section 113	Reference to High Court
Ordinary reference	Question of law or usage having force of law
Order XLVI Rule 1	Conditions for ordinary reference
Proviso	Deals with validity of legislation
Mandatory reference	Applies when conditions of the proviso are satisfied
High Court’s role	Determines the referred question
Effect	Referring court proceeds according to the High Court’s decision
Related provisions	Order XLVI, Sections 114 and 115

ALSO READ: Section 112 – Savings

Conclusion

Section 113 CPC provides a mechanism through which a subordinate civil court can obtain the High Court’s decision on a question of law. Its ordinary operation is governed by Section 113 read with Order XLVI, while the proviso creates a special mandatory mechanism where the validity of legislation is in question.

For examination purposes, the key distinction to remember is between the ordinary reference, which is generally discretionary, and the mandatory reference under the proviso, which applies when its statutory conditions are satisfied.