Order XLVI Rule 4A CPC - Reference to High Court under Section 113
Order XLVI Rule 4A explains which procedural rules govern a reference made to the High Court under the proviso to Section 113 of the Code of Civil Procedure, 1908 (CPC).
Text of Order XLVI Rule 4A CPC
Reference to High Court under proviso to section 113
The provisions of rules 2, 3 and 4 shall apply to any reference by the Court under the proviso to section 113 as they apply to a reference under rule 1.
The rule extends the procedural consequences of a reference under Order XLVI Rules 2, 3 and 4 to a reference required by the proviso to Section 113. It does not itself set out the conditions that trigger a mandatory reference.
Section 113 CPC: Meaning and scope
Section 113 (Reference to High Court) generally allows a court, subject to prescribed conditions and limitations, to state a case for the opinion of the High Court. Its proviso requires a reference where the court is satisfied that all the relevant statutory conditions are present:
- The pending case raises a question concerning the validity of an Act, Ordinance, Regulation or a provision in one of them.
- Deciding that validity question is necessary to dispose of the case.
- The referring court considers the enactment or provision invalid or inoperative.
- The relevant High Court or the Supreme Court has not already declared it invalid or inoperative.
In those circumstances, the court must state the case, explain its opinion and reasons, and refer the question to the High Court. The statutory explanation defines the term Regulation for the purpose of Section 113.
Effect of Rules 2, 3 and 4
Rule 2 - Proceedings pending the reference
The referring court may stay proceedings or continue with the case and pass a decree or order contingent on the High Court's decision. A decree or order in a referred case cannot be executed until a copy of the High Court's judgment on the reference is received.
Rule 3 - Decision of the High Court
The High Court decides the referred point after hearing parties who appear and wish to be heard. Its judgment is transmitted through the Registrar to the referring court, which must dispose of the case in conformity with that decision.
Rule 4 - Costs
Costs, if any, arising from the reference are treated as costs in the case.
Difference between Rule 1 references and Section 113 proviso references
Order XLVI Rule 1 deals generally with a court's reasonable doubt about a question of law or usage having the force of law in the proceedings specified by that rule. By contrast, the proviso to Section 113 deals specifically with the validity of legislation or a statutory provision and makes a reference mandatory when its requirements are met.
Rule 4A expressly applies Rules 2, 3 and 4 to the latter category. It does not say that the distinct preconditions of Rule 1 govern a mandatory reference under the proviso.
Further powers under Order XLVI Rule 5
Rule 5 authorizes the High Court, in a reference under Rule 1 or the proviso to Section 113, to return the case for amendment and to alter, cancel or set aside a decree or order passed by the referring court in the case, and make an appropriate order.
Official statutory source and further reading
Read the Code of Civil Procedure, 1908 on India Code (official PDF), including Section 113 and Order XLVI, Rules 1 to 7. For judicial discussion of the distinction between references, see Sherly Mathai v. Susamma Mathai (Kerala High Court, 2024).