KIRODI (SINCE DECEASED) THROUGH HIS LR versus RAM PARKASH & ORS. on 10 May 2019

Issues

O R D E R

1. Leave granted.

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2. The sole contention advanced is that the regular second appealhas been decided without framing a question of law.

3. In order to support the aforesaid plea, learned counsel for the-appellant(s) has relied upon the judgments in Civil Appeals No.3276

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A3281 of 2019 titled as Chand Kaur(D) through Lrs. Vs. Mehar Kaur(D) through Lrs.and in Civil Appeal Nos.9118-9119 of 2010 titled asSurat Singh (Dead) Vs. Siri Bhagwan & Ors, both emanating from thePunjab and Haryana High Court. He also relies upon two other judgmentsi.e Civil Appeal No.4451 of 2009 titled as Shrikant Vs. Narayan Singh(d) through Lrs. & Ors. and Civil Appeal No.1117 of 2001 titled asBSantosh Hazari Vs. Purushottam Tiwari (D) by Lrs, both emanatingfrom the Madhya Pradesh High Court to canvass the aforesaidproposition.

4. On the last date of hearing, we had pointed out to learnedcounsel for the appellant(s) that insofar as Punjab and Haryana HighCCourt is concerned, a different legal position will prevail in view of theConstitution Bench Judgment of this Court in Civil Appeal No.201 of2005 titled as Pankajakshi (Dead) through L.Rs. & Ors. Vs. Chandrika& Ors.1

5. Unfortunately, in respect of both the first two judgments,Demanating from second appeal in Punjab and Haryana High Court, theConstitution Bench decision has not been brought to the notice of theBench deciding the matters.

6. We are elucidating the position which emerges from theConstitution Bench Judgment to put the controversy at rest.E

7. It is no doubt true that by virtue of Section 97 of the Code ofCivil Procedure (Amendment) Act, 1976 (hereinafter referred to as the‘Amendment Act’) and Section 100 of the Code of Civil Procedure,1976 (hereinafter referred to as the ‘Code’) was amended requiring thesecond appeal to mandatorily contain a substantial question of lawFconsidering the same.

8. It was initially held in Kulwant Kaur & Ors. Vs. Gurdial SinghMann (Dead) by Lrs. Ors.2 case that Section 100 of the Code wouldtake precedence over Section 41 of the Punjab Courts Act, 1918(hereinafter referred to as the ‘Punjab Act’) which conspicuously doesGnot require the framing of such a substantial question of law. It was heldthat Section 41 of the Punjab Courts Act being repugnant to the amendedprovisions of Section 100 of the Code and Section 97 of the AmendmentAct containing a saving clause, Section 41 of the Punjab Act would no 1 (2016) 6 SCC 157H2 (2001) 4 SCC 262

longer hold the field and substantial question of law will be required to beframed. Section 41 of the Punjab Courts Act reads as under:

“Section 41 - Second Appeals

(1) An appeal shall lie to the High court from every decree passedin appeal by any Court subordinate to the High Court on any ofthe following grounds, namely :

(a) the decision being contrary to law or to some custom or usagehaving the force of law:

(b) the decision having failed to determine some material issue oflaw or custom or usage having the force of law:

(c) a substantial error or defect in the procedure provided by theCode of Civil Procedure 1908 [V of 1908], or by any other lawfor the time being in force which may possibly have producederror or defect in the decision of the case upon the merits:

1 [Explanation – A question relating to the existence or validityof a custom or usage shall be deemed to be a question of lawwithin the meaning of this section:]

(2) An appeal may lie under this section from an appellatedecree passed ex parte.

(3) [Repealed by Section 2B of Punjab Act 6 of 1941]

9. A Constitution Bench of this Court however in Pankajakshi(Dead) through L.Rs. & Ors. (supra) opined that Section 97 of theAmendment Act prohibited amendments made in the principal Act whichwere repugnant to the same and, therefore, if any state amendment tothe Code was enacted by the state legislature or a rule was made by theHigh Court of State in respect of the provisions of the Code which rancounter to the Code, it would be hit by the provisions of the savingsclause of the Amendment Act.The caveat, however, was that thelegislation in question being the Punjab Act is a pre-Constitution Act andhence is not a legislation hit by the provisions of Article 254 of theConstitution of India which holds state enactments to be repugnant tothe enactments when they run counter to the laws enacted by the centrethrough the concurrent list. The legislation was saved by Article 372(1)of the Constitution of India being a pre-Constitutional enactment whichwas to continue in to be force until altered or repealed or amended by a A

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Acompetent legislature. No such repeal took place, hence, the legislationcontinues to operate.

10. The effect of the judgment of the Constitution Bench is thatinsofar as the State of Punjab is concerned, a second appeal does notrequire formulation of a substantial question of law since the Punjab ActBwould be applicable for the State. Hence, Section 100 of the Codewould not hold the field having supervening effect.

11. The discussion of the Constitution Bench is as under:

24. The judgment in Kulwant Kaur case raised a question whicharose on an application of Section 41 of the Punjab Courts Act,1918. This Section was couched in language similar to Section100 of the Code of Civil Procedure as it existed before the Codeof Civil Procedure (Amendment) Act, 1976, which amendedSection 100 to make it more restrictive so that a second appealcould only be filed if there was a substantial question of lawinvolved in the matter. The question this Court posed before itselfwas whether Section 41 stood repealed by virtue of Section 97(1)ofthe Code of Civil Procedure (Amendment) Act, 1976, which readsas under:- C

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“97. Repeal and savings - (1) Any amendment made, or anyprovision inserted in the principal Act by a State Legislature ora High Court before the commencement of this Act shall, exceptinsofar as such amendment or provision is consistent with theprovisions of the principal Act as amended by this Act, standrepealed.

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This Court concluded that Section 41 of the Punjab Courts Actwas repealed because it would amount to an amendment made orprovision inserted in the principal Act by a State Legislature. ThisCourt further held that, in any event, Section 41 of the PunjabCourts Act being a law made by the Legislature of a State isrepugnant to a later law made by Parliament, namely, Section97(1) of the Code of Civil Procedure (Amendment) Act, 1976,and that therefore, by virtue of the operation of Article 254 of theConstitution of India, the said provision is in any case overridden.In arriving at the aforesaid two conclusions, this Court held: (SCCp.276, paras 27-29)

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“27. Now we proceed to examine Section 97(1) of theAmendment Act and the amendment of Section 100 CPC bythe said 1976 Act. Through this amendment, right to secondappeal stands further restricted only to lie where, ‘the caseinvolves a substantial question of law.’ This introductiondefinitely is in conflict with Section 41 of the Punjab Act whichwas in pari materia with unamended Section 100 CPC. Thus,so long there was no specific provision to the contrary in thisCode, Section 4 CPC saved special or local law. But after itcomes in conflict, Section 4 CPC would not save, on the contraryits language implied would make such special or local lawinapplicable. We may examine now the submission for therespondent based on the language of Section 100(1) CPC evenafter the said amendment. The reliance is on the followingwords:

‘100. Second appeal - (1) Save as otherwise expresslyprovided ...by any other law for the time being in force.…’

These words existed even prior to the amendment and areunaffected by the amendment. Thus so far it could legitimatelybe submitted that, reading this part of the section in isolation itsaves the local law. But this has to be read with Section 97(1)of the Amendment Act, which reads:

‘97. Repeal and savings - (1) Any amendment made, or anyprovision inserted in the principal Act by a State Legislature ora High Court before the commencement of this Act shall, exceptinsofar as such amendment or provision is consistent with theprovisions of the principal Act as amended by this Act, standrepealed.’ (Noticed again for convenience.)

28. Thus, language of Section 97(1) of the Amendment Act clearlyspells out that any local law which can be termed to be inconsistentperishes, but if it is not so,the local law would continue to occupyits field.

29. Since Section 41 of the Punjab Act is expressly in conflictwith the amending law, viz., Section 100 as amended, it would bedeemed to have been repealed. Thus we have no hesitation tohold that the law declared by the Full Bench of the High Court inthe case of Ganpat cannot be sustained and is thus overruled.”

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[at paras 27 – 29]

25. We are afraid that this judgment in Kulwant Kaur case doesnot state the law correctly on both propositions. First and foremost,when Section97(1) of the Code of Civil Procedure (Amendment)Act, 1976speaks of any amendment made or any provision insertedin the principal Act by virtue of a State Legislature or a HighCourt, the said Section refers only to amendments made and/orprovisions inserted in the Code of Civil Procedure itself and notelsewhere. This is clear from the expression “principal Act”occurring in Section 97(1). What Section 97(1) really does is tostate that where a State Legislature makes an amendment in theCode of Civil Procedure, which amendment will apply only withinthe four corners of the State, being made under Schedule VII ListIII Entry 13 to the Constitution of India, such amendment shallstand repealed if it is inconsistent with the provisions of the principalAct as amended by the Parliamentary enactment contained inthe1976 amendment to the Code of Civil Procedure. This is furthermade clear by the reference in Section 97(1) to a High Court.The expression “any provision inserted in the principal Act” by aHigh Court has reference to Section 122 of the Code of CivilProcedure by which High Courts may make rules regulating theirown procedure, and the procedure of civil courts subject to theirsuperintendence, and may by such rules annul, alter, or add to anyof the rules contained in the first schedule to the Code of CivilProcedure.

26. Thus, Kulwant Kaur decision on the application of Section97(1)of the Code of Civil Procedure Amendment Act, is not correct inlaw.

27. Even the reference to Article 254 of the Constitution was notcorrectly made by this Court in the said decision in Kulwant Kaurcase. Section 41 of the Punjab Courts Act is of 1918 vintage.Obviously, therefore, it is not a law made by the Legislature of aState after the Constitution of India has come into force. It is alaw made by a Provincial Legislature under Section 80A of theGovernment of India Act,1915, which law was continued, being alaw in force in British India, immediately before the commencementof the Government of India Act, 1935, by Section 292 thereof. Inturn, after the Constitution of India came into force and, by Article 395, repealed the Government of India Act, 1935, the PunjabCourts Act was continued being a law in force in the territory ofIndia immediately before the commencement of the Constitutionof India by virtue of Article 372(1) of the Constitution of India.This being the case,Article 254 of the Constitution of India wouldhave no application to such a law for the simple reason that it isnot a law made by the Legislature of a State but is an existing lawcontinued by virtue of Article 372 of the Constitution of India. Ifat all, it is Article 372(1)alone that would apply to such law whichis to continue in force until altered or repealed or amended by acompetent Legislature or other competent authority. We havealready found that since Section 97(1) of the Code of CivilProcedure (Amendment) Act,1976 has no application to Section41 of the Punjab Courts Act, it would necessarily continue as alaw in force. Shri Viswanathan’s reliance upon this authority,therefore, does not lead his argument any further.”

12. In view of the legal position enunciated above, the judgmentsof this court in Chand Kaur(D) through Lrs.’s case (supra) and SuratSingh (Dead)’s case (supra) being contrary to the Constitution Bench ofthis Court in Pankajakshi (Dead) through L.Rs. & Ors. (supra) and theConstitution Bench’s decision not being brought to the notice of the Benchof this Court deciding the matters, they would not hold the field.

13. The appeal is accordingly dismissed.

Devika Gujral

Appeal dismissed.

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