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REFERENCE OR CASE STATED

Order 35 of rules empowers a subordinate court to state a case and refer the same for the opinion of the High Court.  Such an opinion is sought when the court itself feels some doubt about a question of law.  The High Court may make such order as it may deem fit.  The right of reference is fundamentally different from the right of appeal.


The Right of Appeal vests in the person instituting the suit while the right of reference is fundamentally vested in the court.  The object for this provision is to enable the subordinate court to obtain in non-appealable cases, the opinion of the High Court on a question of law so as to avoid commission of an error which could not be rectified later.  Kamburu V. R. gives a good example of when a reference may be used.  The question in this case was whether the Armed Forces Act provided reference from a court martial to the court of appeal.


CONDITIONS FOR REFERENCE


There must be a pending suit or appeal in which the decree is not subject to a decree or a pending process in execution of such a decree
It has to be on a question of law which must have arisen in the course of proceedings or the appeal;
The court trying the suit or appeal must entertain reasonable doubt on that question of law.


PROCEDURE


An application for reference over a question of law is either made by the court on its own motion or on the application of any of the parties.  The court if it agrees to refer the matter will draw up the statement of facts of the case and formulate the questions of law to which an opinion is sought.  Usually when the court makes this reference it will stay proceedings in the matter until it gets a response on the reference.  Sometimes people refer to this reference as case stated but reference is the correct word.


REFERENCE TO ARBITRATION


There are situations where matters are referred to arbitration under an order of the court.  This happens where the parties may during the proceedings or hearing at any stage of the hearing agree to have any dispute between them referred to arbitration.  A matter may be referred to arbitration by the court in exercise of its own discretion so as to enable it make a decision.  Reference to arbitration as set out in a prior agreement between the parties is different from where parties agree in the course of litigation to take the same to arbitration but the parties must inform the court.


Order 46 rule 20 allows for parties to resort to other forms of ADR. If no solution comes from the other forms of ADR the matter is to be disposed off in the normal manner.

 
 
 

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