Decided on June 16,1969

STATE Respondents


- (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."


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