Report No. 54
46.1. Order 46 deals with reference to the High Court.
The Court trying any suit or appeal in which the decree is final, i.e. which cannot come before the High Court on appeal, may either of its own motion or on the application of any of the parties, draw up a statement of the facts and the question, and refer such statement, with its own opinion on the point, for the decision of the High Court.
Order 46, rule 1
46.2. Order 46 rule 1, is 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 a 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."
46.3. A suggestion was made during our discussion that a subordinate court should have power to refer to the High Court a substantial question of law of first impression even where the case is one in which appeal lies. We have discussed it at some length, but are unable to accept it. The likely effect of such an amendment would be that numerous references would be made to the High Court on the slightest pretext, and the situation resulting from it would be impossible to deal with. No doubt, it would be in the interests of the public if questions of law could be settled by a final and binding decision of the highest court of the State. But there are overriding practical considerations in the way of the proposed amendment. Moreover, the suit would remain pending till the High Court decides the issue. Lastly, it is not correct to assume that the trial court will decide the question wrongly in every case.
We do not, therefore, recommend any such change.