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 that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the opinion of the High Court.
Legal Commentary & Landmark Judgments: Section 113
Section 113 of the Code of Civil Procedure, 1908 governs references to the High Court by subordinate civil courts on questions relating to the constitutional validity of Acts, Ordinances, or Regulations.
The Proviso enacts a mandatory constitutional obligation: where the subordinate court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance, or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such enactment is invalid or inoperative but has not been so declared by that High Court or by the Supreme Court, the court *shall* state a case setting forth its opinion and refer the same for the decision of the High Court.
Section 113 prevents subordinate civil judges from striking down parliamentary or state legislation. If a litigant challenges the vires of a statute or municipal rule in a civil suit, the trial judge must either reject the constitutional challenge or formulate a reference to the High Court under the proviso to Section 113.