The occasion and procedure relating to Reference have been provided in Section 113 [Part VIII] and Order 46 in Rules 1, 2 3, 4, 4A, 5, 6and 7 of the Code of Civil Procedure. As usual, an in every other provisions, Section 113 contains, “subject to such conditions and limitations as may be prescribed…” And also expression “as it deems fit – have not been carefully omitted – indicating uncertainty – occasioned in the civil judicial process. The Court, in any place in the legal hierarchy, “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.”

A necessity for stating a case arises in a situation where the Court is to deal with the case sending before it and according to it the case, “involves a question as to the validity of any Act or Ordinance, etc., or any other provision contained in such Act etc., and also the determination of such question of validity is necessary for the disposal of the case, further the Court shall be of the opinion that such Act etc., for provision of the Act, etc., had not declared that it is invalid or inoperative by the High Court or Supreme Court.”

The Trial Court should state the case and its own opinion and refer it to the High Court for opinion.

Here the Trial Court has been given the power to form its own opinion on the enactment, it is a wrong conferment. It has been stated by Sir Alladi Krishnaswamy Iyer at the Constituent Assembly seven decades ago that the Court shall not act like a super legislature – it is a supreme fallacy to encourage a subordinate court to interpret by character and competence of any Act and it is equally untenable to expect the High Court to state its opinion and thereby advise its own course contrary to the course established by the Law. It is curious to understand no guiding principles have been prescribed for the Trial Court in the matter of deciding the validity or operative nature of a case, there is no guiding ideas and there cannot be and also should not be.

After a Reference, the guiding procedure for a High Court is totally absent for the better performance of judicial process as far as order and rules in Order 46. There is a change with the judicial mood, the Court trying the Suit shall entertain a reasonable doubt acquiring it to send the case for opinion by High Court. Rule 2 imposes an incorrect task whereby decree be passed contrary to the original Trial Procedure by the imposition of interpretation of the High Court. To avoid further discussion, I feel that it would be just and appropriate if entire order 46 is deleted without much ado to avoid dilatory and delaying procedure much to the inconvenience of litigants and also the super litigant namely rendition of justice according to the procedure discussed by law.