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In the Matter Of: District Munsif, Chittoor, Referring Officer - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberReferred Case No. 18 of 1967
Judge
Reported inAIR1970AP365
ActsCode of Civil Procedure (CPC), 1908 - Sections 113 - Order 46, Rule 1
AppellantIn the Matter Of: District Munsif, Chittoor, Referring Officer
Advocates:Govt. Pleader for State
Excerpt:
.....clearly states that it is subject to such conditions and limitation as may be prescribed. even on question of law, references can be made only in exceptional cases when the said conditions are satisfied. the proviso elaborates the same by saying that it should contain the opinion of the court as well together with the reason therefore. as already noticed, makes the provision of rules 2, 3 and 4 applicable to such reference in the same manner as they apply to a reference under rule 1. this proviso says that the court in order o make a reference should be satisfied that in the case pending before it, the validity of any act, ordinance or regulation or of any provision contained therein is involved, the determination of which is essential for the disposal of the case and that the high..........statement of case contemplated by section 113 should be a statement of facts of the case and the point or question of law that arises for determination in the lis. therefore, unless the lis is before the court and raises a question of law, which has to be necessarily determined, there can be no occasion for making a reference even under the main provision of section 113, civil p. c. it is further necessary that the court must have entertained a reasonable doubt in relation to the same. it is only then that it is open to the court to make a reference at it discretion. the proviso to that section which makes reference imperative states the essential prerequisites therefor and rule 4-a of order xlvi. civil p. c. as already noticed, makes the provision of rules 2, 3 and 4 applicable to.....
Judgment:

Kumaryya, C.J.

1. This is a reference made under Section 113 of the Civil P. C. made by the District Munisif, Chittoor for opinion of this Court on the question whether the government in appointing District Munsifs to function as Controllers under the Andhra Pradesh Buildings (Lease, Rent and eviction) Control Act, 1960, has exceeded its power under that Act and whether the District Munsifs so appointed have jurisdiction to entertain any matters under the said act.

2. It does not appear that any such controversy has arisen in any case pending before the said District Munsif, the determination of which became necessary fro him. The statement, at any rate, does not bear any mention to this. In fact, it dies not proceed on the basis that there is a case pending before him which involves determination of this issue. In these circumstances, the reference is unwarranted and wholly incompetent. Section 113, Civil P. C. is clear and categorical in this behalf. It reads thus;

'Subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit:

Provided that where the Court is satisfied that a case pending before it involves a question as to the validity of any Act. Ordinance or Regulation, or of any provision contained in an Act, Ordinance, or Regulation the determination of which is necessary for the disposal of the case, and is of opinion that such Act. Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which the court is subordinate or by the Supreme court, the Court shall state a case setting out its opinion and the reasons therefore, and refer the same for the opinion of the High Court.'

3. The section gives power to a court to refer a question for opinion or decision of the High Court and provides also for cases where such reference is but obligatory. It refers to cases wherein reference may be made at the discretion of the Court and also cases wherein it should necessarily be made. While the substantive provision enables a Court to make reference at it discretion, the proviso is concerned with cases where it is but obligatory on the court to make such reference. Both the component parts of the section are however, controlled by conditions and limitations prescribed by rules in the Civil P. C. In fact, the opening clause clearly states that it is subject to such conditions and limitation as may be prescribed. The word 'prescribed' as defined in sub-clause (16) of Section 2 means 'prescribed by rules'. What then are these rules? They are to be found in O. 46, Civil P. C. Rule 1 of O. 46, Civil P. C. reads thus:

'Where, before or on the hearing of a suit or an appeal in which the decree is not subject to appeal or where, in the execution of nay such decree, any question of law or usage having the force of law arises, on which the court trying the suit or appeal, or executing the decree, entertains reasonable, doubt, the court may, either of its own motion or on the application of nay of the parties, draw up a statement of the facts of the case and the point on which doubt is entertained and refer such statement with its own opinion on the point for the decison of the High Court.'

4. It is magnifies that enabling provision as this is, it prescribes the conditions or circumstances for exercise of power of reference and also the mode of exercise thereof. As a condition precedent for exercise of this power, it provides that there should be a lis before the court, that a question of law or usage having the force of law must arise therein and that the court trying the same must entertain a reasonable doubt thereon. It is only then that the Court either suo motu or on the petition of any of the parties may refer the point on which doubt its entertained for opinion of the High Court. It also lays down the procedure to eb followed. The Court should draw up a statement of the casts of the case and the point on which the doubt is entertained and its own view on the matter and then refer such a statement for the opinion of the High Court. On the clear language of the provision, no reference can be made on a question of fact.

Even on question of law, references can be made only in exceptional cases when the said conditions are satisfied. Then again, Rule 2 of Order 46, Civil P. C. prescribes certain limitation on the power of the court after reference is made, These in short are some of the conditions and limitations prescribed by rules referred to in the opening words of Section 113, Civil P. C. Rule 4-A makes the provisions of Rules 2 to 4 applicable to the compulsory reference under the proviso to Sec. 113, Civil P. C. Section 113 also, both in its main provision and the proviso, refers to the statement of the case. The proviso elaborates the same by saying that it should contain the opinion of the court as well together with the reason therefore. It is clear that the statement of case contemplated in this section is no other than what is enjointed in Rule 1 of O. XLVI. Civil P. C. at any rate, both are identical in their scope and meaning.

5. It follows that the statement of case contemplated by Section 113 should be a statement of facts of the case and the point or question of law that arises for determination in the lis. therefore, unless the lis is before the court and raises a question of law, which has to be necessarily determined, there can be no occasion for making a reference even under the main provision of Section 113, Civil P. C. It is further necessary that the court must have entertained a reasonable doubt in relation to the same. It is only then that it is open to the court to make a reference at it discretion. The proviso to that section which makes reference imperative states the essential prerequisites therefor and Rule 4-A of Order XLVI. Civil P. C. as already noticed, makes the provision of Rules 2, 3 and 4 applicable to such reference in the same manner as they apply to a reference under Rule 1. This proviso says that the court in order o make a reference should be satisfied that in the case pending before it, the validity of any Act, Ordinance or Regulation or of any provision contained therein is involved, the determination of which is essential for the disposal of the case and that the High Court or the Supreme Court has not expressed its opinion in that behalf. It is only in that event that it is obligatory on it to make a reference stating the case, setting out its opinion and the reasons therefor.

It is thus plain that whether on the language of Section 113 itself or that read with the provision relevant thereto or which have a bearing thereupon, unless there is a pending case before the Court which involves a point of law, the determination of which is essential for the disposal of the case, no question of reference can possibly arise. It is only question essential for disposal of a case pending before the court that can validly form subject-mater of reference. Reference of hypothetical or imaginary questions or of points likely to arise in cases that may be filed in future in view of the jurisdiction conferred on a court, is wholly incompetent. Evidently the point referred for opinion has not arisen in any case pending before the court. It has been referred in anticipation of cases wherein this point is likely to arise. The reference therefore is wholly misconceived and incompetent. Consequently it should not merit our consideration.

6. The reference, therefore, is rejected.

7. Reference rejected.


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