Order XLVI Rule 4 CPC - Costs of Reference to High Court
Order XLVI Rule 4 of the Code of Civil Procedure, 1908 (CPC) addresses how costs arising from a reference to the High Court are treated in the underlying civil case.
Order XLVI Rule 4 CPC - Statutory provision
The costs (if any) consequent on a reference for the decision of the High Court shall be costs in the case.
The rule is part of Order XLVI, titled Reference, in the First Schedule to the CPC. It deals specifically with costs consequent upon seeking the High Court's decision on a referred legal question.
Meaning and practical effect of Rule 4
The expression "costs in the case" means that costs attributable to the High Court reference are treated as part of the costs of the underlying proceedings rather than necessarily being awarded as a separate, immediate liability at the reference stage.
The provision does not itself prescribe a fixed amount, an automatic entitlement to reimbursement, or which party must ultimately pay. Questions of assessment and allocation of costs remain subject to applicable procedural rules and the court's orders, including the general framework of Section 35 CPC.
What expenses may be relevant?
Depending on the circumstances and applicable court rules, relevant costs may include permissible filing or procedural charges and other expenses properly attributable to the reference. Whether a particular item is recoverable is a matter for the court under the applicable costs regime.
Illustrative example
Suppose a civil court refers a doubtful question of law to the High Court under Order XLVI Rule 1. The High Court decides the question and the case returns to the referring court. Any allowable costs occasioned by the reference are treated as costs in that civil case under Rule 4, subject to the court's eventual costs determination.
Section 113 CPC and connected provisions
Section 113 CPC - Reference to High Court: Subject to prescribed conditions and limitations, a court may state a case and refer it for the High Court's opinion. Its proviso requires a reference in specified circumstances involving the validity of an Act, Ordinance, Regulation or provision not already declared invalid or inoperative by the relevant High Court or Supreme Court.
Order XLVI Rule 1: Describes the ordinary reference procedure when a qualifying court has reasonable doubt about a question of law or usage having the force of law.
Order XLVI Rule 2: Permits the referring court to stay or continue proceedings and make a contingent decree or order, but restricts execution pending receipt of the High Court's judgment.
Order XLVI Rule 3: Requires transmission of the High Court's judgment to the referring court and disposal of the case in conformity with that decision.
Order XLVI Rule 4A: Extends Rules 2, 3 and 4 to references under the proviso to Section 113. Consequently, the costs treatment in Rule 4 also applies to such references.
Section 35 CPC - Costs: Provides the broader statutory framework for the court's discretion concerning costs, subject to applicable amendments and rules.
Frequently asked questions
Does Rule 4 require the High Court to award costs immediately?
No. Rule 4 states that costs consequent on a reference are costs in the case. It does not, by itself, require a separate immediate costs award.
Does Rule 4 apply to references under the proviso to Section 113?
Yes. Order XLVI Rule 4A expressly applies Rule 4, along with Rules 2 and 3, to references under that proviso.
Is a reference to the High Court the same as an appeal?
No. A reference is a procedure for obtaining the High Court's decision or opinion on a qualifying legal question. An appeal is a distinct statutory remedy challenging a decision, subject to its own requirements.
Official text and further reading
Read the Code of Civil Procedure, 1908 on India Code and the official CPC text (PDF) for Section 113, Section 35 and Order XLVI. Local High Court amendments and applicable procedural rules should also be checked where relevant.
This article explains the central CPC provisions for general information. State amendments, High Court rules and case-specific orders may affect their application.