2019 (5) TMI 1901 - SC - Indian Laws

Maintainability of second appeal - formulation of a substantial question of law in the second appeal or not - sole contention advanced is that the regular second appeal has been decided without framing a question of law - Section 97 of the Code of Civil Procedure (Amendment) Act, 1976 - HELD THAT - It is no doubt true that by virtue of Section 97 of the Code of Civil Procedure (Amendment) Act, 1976 (hereinafter referred to as the Amendment Act ) and Section 100 of the Code of Civil Procedure, 1976 was amended requiring the second appeal to mandatorily contain a substantial question of law considering the same. It was initially held in KULWANT KAUR ORS. VERSUS GURDIAL SINGH MANN (DEAD) BY LRS ORS. 2001 (3) TMI 1044 - SUPREME COURT case that Section 100 of the Code would take precedence over Section 41 of the Punjab Courts Act, 1918 (hereinafter referred to as the Punjab Act ) which conspicuously does not require the framing of such a substantial question of law. It was held that Section 41 of the Punjab Courts Act being repugnant to the amended provisions of Section 100 of the Code and Section 97 of the Amendment Act containing a saving clause, Section 41 of the Punjab Act would no longer hold the field and substantial question of law will be required to be framed. A Constitution Bench of this Court however in PANKAJAKSHI VERSUS CHANDRIKA 2016 (2) TMI 1063 - SUPREME COURT opined that Section 97 of the Amendment Act prohibited amendments made in the principal Act which were repugnant to the same and, therefore, if any state amendment to the Code was enacted by the state legislature or a rule was made by the High Court of State in respect of the provisions of the Code which ran counter to the Code, it would be hit by the provisions of the savings clause of the Amendment Act. The caveat, however, was that the legislation in question being the Punjab Act is a pre-Constitution Act and hence is not a legislation hit by the provisions of Article 254 of the Constitution of India which holds state enactments to be repugnant to the enactments when they run counter to the laws enacted by the centre through the concurrent list - The effect of the judgment of the Constitution Bench is that insofar as the State of Punjab is concerned, a second appeal does not require formulation of a substantial question of law since the Punjab Act would be applicable for the State. Hence, Section 100 of the Code would not hold the field having supervening effect. The Constitution Bench s decision not being brought to the notice of the Bench of this Court deciding the matters, they would not hold the field - Appeal dismissed.

Summary

Issues:
- Failure to frame a question of law in a regular second appeal judgment.
- Conflict between Section 100 of the Code of Civil Procedure and Section 41 of the Punjab Courts Act.
- Interpretation of Section 97 of the Code of Civil Procedure (Amendment) Act, 1976.
- Applicability of Article 254 of the Constitution of India to the Punjab Courts Act.

Analysis:
1. The main contention in this case was the absence of framing a question of law in a regular second appeal judgment. The appellant argued that the judgment was flawed due to this omission, relying on various judgments from different High Courts to support their claim.

2. The conflict between Section 100 of the Code of Civil Procedure and Section 41 of the Punjab Courts Act was a crucial aspect of the case. Initially, it was held that Section 100 of the Code would prevail over Section 41 of the Punjab Courts Act, requiring the framing of a substantial question of law. However, a Constitution Bench later clarified that the Punjab Act, being a pre-Constitution Act, would continue to be in force, and hence, a second appeal in Punjab does not need a substantial question of law.

3. The interpretation of Section 97 of the Code of Civil Procedure (Amendment) Act, 1976 was significant in determining the validity of state amendments to the Code. The Court clarified that Section 97(1) only applies to amendments made within the Code itself and not elsewhere, thereby impacting the applicability of conflicting provisions like Section 41 of the Punjab Courts Act.

4. The applicability of Article 254 of the Constitution of India to the Punjab Courts Act was discussed to determine if the Act was repugnant to laws enacted by Parliament. The Court established that the Punjab Courts Act, being a pre-Constitution enactment, was not subject to Article 254, and hence, continued to be in force despite conflicting with the amended provisions of the Code.

5. Ultimately, the Court dismissed the appeal, emphasizing that the judgments from the High Courts did not consider the Constitution Bench's decision regarding the conflict between Section 100 of the Code and Section 41 of the Punjab Act. Therefore, the decisions from the High Courts were overruled, and the legal position clarified by the Constitution Bench prevailed in this case.