1. This is a reference by the Civil Judge of Udaipur in a civil suit No. 147 of 2005 Samvat. The suit was for pre-emption. An objection was raised by the defendant that in view of Article 19(1)(f) of the Constitution of India, read with Article 13(1), the right or custom of pre-emption was inconsistent with these provisions and the suit should be dismissed on this ground. The Civil Judge thereupon said in his order that he had read Article 13(1) and Article 19(1)(f) of the Constitution and was of the opinion that the question related to the interpretation of the Constitution and was of great public importance. Consequently, he sent the file to this Court under Section 113 of the Civil P. C. This order was passed on the 28th of August, 1950.
2. We arc of the opinion that this reference was completely incompetent on the date on which it was made. The learned Civil Judge who looked up Section 113 of the Civil P. C. never cared to look up Order XLVI Rule 1 which provided the procedure for making references to this Court. Order XLVI, Rule 1 reads as follows:
'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 any 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 any 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 decision of the High Court.'
3. A mere glance at this rule shows that references under Section 113 C. P. C. can only be made in suits where there is no appeal provided from the decree or in such appeals where there is no further appeal provided. In the present case, there is obviously an appeal provided from the decree which will be passed by the Civil Judge and under the circumstances no reference could be made to this Court under Section 113 read with Order XLVI Rule 1 of the Civil P. C. We may also point out that it, is the duty of the Court making a reference to record its own opinion on the point before making such reference. This does not mean that the Court should merely say that the case is one about the interpretation of the Constitution and of great public importance. It should record its own opinion on the point raised which in this case was whether the custom of pre-emption was invalid and could not be enforced in view of the provision of the Constitution. Even if the reference had been competent, we would have sent it back to the Court below for recording its opinion and giving reasons therefore before we considered it ourselves.
4. This reference must, therefore, be dismissed and the record will be returned for disposal of the suit according to law.
5. We may, however, draw the attention of the trial Court to Central Act No. XXIV of 1951 which has added a proviso to Section 113 of the Civil P. C. That proviso read as follows:
'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 that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the opinion of the High Court.'
6. The trial Court will consider this proviso andif it is of the opinion that the case is covered bythis proviso, it should make a reference in accordance with the terms of this proviso. We may,however point out that such a reference is onlypossible where there is an Act, Ordinance or Regulation and it will not be right to make a reference under this proviso if the law of pre-emptionin Mewar is merely based on custom and not onany Act of the former Mewar State or of Rajasthan.