Discussion On Maintainability Of Second Appeal Beyond Substantial Question Of Law
There is nothing to suggest that the judges are infallible on law or facts. In such circumstances, prescribing that a second appeal would not be maintainable on the question of fact and even on the question of law would not be in the interest of general public. But the Section-100 CPC seems to restrict the appellate avenue so far as second appeal is concerned. It provides opportunity of second appeal only on substantial question of law. This definitely is different from a question of law as the word “substantial” restricts the nature of questions of law. There may be two situations in which a litigant may prefer a second appeal. First, when both the courts subordinate to Hon’ble High Court give concurrent findings. In this situation, one may say that concurrent findings returned by two courts should be given some weightage and therefore the same should not be open for challenge in a second appeal. The justification given may be that two courts are simultaneously less likely to make mistake. It would however be doubtful if this can be accepted as justification. Infallibility remains attached. The second situation however is more dangerous which is when the court of first instance gives finding in his favour but first appellate court reverses the finding. In this situation, two different opinions already have existence. It would therefore be not in the interest of justice to close the door for challenge. Law should provide a satisfactory opportunity to every litigant. And therefore, the highest court in the state should be approachable for second appeal as far as possible. One should bear in mind that everyone cannot approach the ultimate level i.e. Hon’ble Supreme Court.
With the above in mind, the present paper is trying to ascertain if a litigant in Delhi can approach the Hon’ble High Court through a second appeal in a civil suit on questions which are beyond the scope of substantial question of law. This paper is humble attempt to project a relatively different theory through an apparently innocuous point.
We may for convenience formulate following questions to arrive at a clear answer for the main question i.e. does a second appeal lie in Delhi even beyond substantive question of law:
- Whether the Punjab Courts Act, 1918 as applicable to Delhi is a Central Act so far as Delhi is concerned;
- Whether Punjab Courts Act, 1918 as applicable to Delhi is a local or special law for Delhi;
- Whether Section 97 of Amendment Act 1976 also affects any amendment made in CPC by any central law;
- Whether Section 4 CPC saves local or special law related to procedure and to what extent;
- Whether Section-41 Punjab Courts Act is impliedly repealed;
- Effect of Kulwant Kaur vs Gurdial Singh Mann.
Whether the Punjab Courts Act, 1918 as applicable to Delhi is a Central Act so far as Delhi is concerned:
Interestingly, the answer is very simple. Yes, it is. Why? We may find reasoning in the following judgments of Hon’ble Supreme Court and Hon’ble High Court of Delhi.
In Mithan Lal vs The State Of Delhi 1958 AIR 682, a Constitution Bench held as under:
“The Bengal Finance (Sales Tax) Act, 1941, was a law passed by the Legislature of the Province of Bengal and applied only to sales effected within that Province, and, after the partition of the Country, to sales effected within the State of West Bengal. Under the Government of India Act, 1935, Delhi was a Chief Commissioner's Province administered by the Governor General, and under the Constitution, it became a Part C State, and Art. 239 vested its administration in the President acting through a Chief Commissioner or a Lieutenant-Governor as he might think fit.
Moreover, when a notification is issued by the appropriate Government extending the law of a Part A State to a Part C State, the law so extended derives its force in the State to which it is extended from s. 2 of the Part C States (Laws) Act enacted by Parliament. The result of a notification issued under that section is than, the provisions of the law which is extended become incorporated by reference, in the Act itself, and therefore a tax imposed thereunder is a tax imposed by Parliament.”
In The State Of Andhra Pradesh vs New Delhi Municipal Committee AIR 1975 Delhi 223 it was held:
“The various Punjab enactments which were then in force in the territory of Delhi continued to be in force by virtue of the Delhi Laws Act of 1912 and later by the Part C States Laws Act of 1950 and the Union Territories Laws Act of 1950. The application and the later extension of this law to the Union Territory of Delhi was therefore, not by the authority of the State Legislature but that the Central Legislature, that is, the Central Legislature under the Government of India Act followed by the Central Legislature under the Constitution of India, that is, the Parliament of India. This was by virtue of the powers of Parliament under Article 246(4) of the Constitution of India. It is true that at no stage was the Act as such enacted by Parliament and the provision of Clause (4) of Article 246 of the Constitution of India was not invoked but that would not change the character of the Statute in relation to the Union Territory of Delhi. This is so because the Act was extended to the Union Territory of Delhi under the various Statutes which were central Statutes. The Delhi Laws Act. 1912, the Union Territories (Laws) Act, 1950 as indeed the Part C States (Laws) Act. 1950 were all central statutes and when a provincial Act or an Act which may be treated as a provincial Act or State Act was extended to a territory by a particular legislature, it would be deemed to be the enactment of such a legislature and this principle is clearly recognized by the Supreme Court in the case of Mithan Lal v. State of Delhi, where the Supreme Court was concerned with the constitutionality of the Bengal Sales Tax.
It is, thus. Clear that on the extension of the Act to the Union Territory of Delhi by the various Central Legislative enactments referred to above, it became a Central Act or an Act of Parliament as if made by virtue of power of Parliament to legislate for the Union Territory of Delhi by virtue of clause (4) of Article 246 of the Constitution of India.”
This reasoning remained unchallenged before a nine judges bench of Hon’ble Supreme Court in NDMC vs State of Punjab dated 19.12.1996 which through majority observed as under:
“The correctness of the above factual statement has not been disputed by anyone before us.”
In National Association of Motion Pictures Exhibitors v. Union of India, C.W. No. 368 of 1981, decided on December 20, 1982 it was held:
“On a parity of reasoning, it must be held that when Punjab Act is extended to Delhi. It is not the exercise of rule making authority. In reality, this power of extending an Act owes its legislative authority to Union Laws Act, 1950, which in its turn derives its efficacy from the legislation passed by Parliament.... The position that emerges in law is that whether Parliament itself had passed an Act like Punjab Act and made applicable to Union Territory of Delhi or whether the Central Government by virtue of section 2 of the Union Territories Laws Act has extended an enactment like Punjab Act to the Union Territory of Delhi, both of them would owe their source to the same authority, namely the Parliament.”
The ultimate answer however lies in a judicial pronouncement of three judges bench of Hon’ble Supreme Court in Delhi Bar Association vs Union Of India & Ors on 15 May, 2008 wherein it was held:
“The enforcement of the Government of National Capital Territory of Delhi Act, 1991 from 01.02.1992 does not hinder the continuing application of the Punjab Courts Act, 1918 to Delhi.
The Punjab Courts Act, 1918 has been extended to the National Capital Territory of Delhi and there is no notification, order or legislation brought to our notice whereby application of the Punjab Courts Act, 1918 to the National Capital Territory of Delhi has been repealed or curtailed. Therefore, in the absence of any provision in the Government of National Capital Territory of Delhi Act or in the absence of any other notification, order or legislation, the Punjab Courts Act, 1918, has continuous application to Delhi along with the laws made by the Delhi Legislative Assembly.
The Punjab Courts Act, 1918, though only extended to Delhi, has the status of a central legislation directly enacted for Delhi. When a provincial Act or an Act which may be treated as a provincial Act was extended to the territory by a legislature, it would be deemed to be the enactment of such legislature. This principle has been clearly recognised by this Court in the case of Mithan Lal etc. v. State of Delhi, AIR 1958 SC.
It is, thus, clear that on the extension of the Punjab Courts Act, 1918, to the U.T. of Delhi, it becomes a Central Act or an Act of Parliament as it is made by virtue of powers of Parliament to legislate for the U.T. of Delhi by virtue of clause (4) of Article 246 of the Constitution of India. Therefore, the Punjab Courts Act, 1918 assumes the position of central legislation enacted specifically for Delhi and is the law operative in the NCT of Delhi.”
Needless to say that the above discussion and the three judges bench decision do not give scope for any further probe and we are bound to arrive at a definite conclusion that the Punjab Courts Act is a central legislation so far as Delhi is concerned.
Whether Punjab Courts Act, 1918 as applicable to Delhi is a local or special law for Delhi:
The three judges bench in Delhi Bar Association (supra) has clearly used “the Punjab Courts Act, 1918 assumes the position of central legislation enacted specifically for Delhi”. So we can safely say that the Punjab Courts Act is a law specifically for Delhi. However, we can discuss the matter in some detail to find the meaning of special or local law and may then arrive at any finding in respect of the Punjab Courts Act uninfluenced by the aforestated decision.
Special law simply denotes a specific subject and a local law denotes a specific area. Since the Punjab Courts Act is a central enactment applicable only to the area of Delhi, it has to be accepted that its applicability is confined to a specific local area. One would then say, No, the Punjab Courts Act is also applicable to Punjab and Haryana and therefore it cannot be treated as having local applicability to Delhi only. The assumption would however be wrong. When the Act operates in Punjab or Haryana, it operates as a state enactment and not as a central enactment. Both the enactments are therefore different and even their enforcement point of time are also different. Central enactment of Punjab Courts Act only extends to Delhi and therefore it has to be treated as local law for Delhi.
In Life Insurance Corporation vs D J Bahadur, (1981) 1 SCC 315, a three judges bench speaking through Krishna Iyer J. has pointed out as under:
“In determining whether a statute is a special or a general one, the focus must be on the principal subject matter plus the particular perspective. For certain purposes, an Act may be general and for certain other purposes it may be special and we cannot blur distinctions when dealing with finer points of law”.
Punjab Courts Act was primarily enacted as a law relating to courts. Now doubt a state legislature may or may not confer additional powers on a High Court in respect of cases due to restriction on law making power in view of Schedule-7 of the Constitution. The Parliament exercises all the powers over a Union Territory to make all the laws irrespective of Schedule-7. Therefore, it can by one single law make changes in powers of all the courts including High Court so far Union Territory is concerned. As such, parliament can confer some additional power of appeal on the High Court so far as Union Territory is concerned. If this is done, power of appeal so conferred shall fall under special category i.e. Special Law for that Union Territory as it is enacted as specially to the subject of appeal. We have seen that for some purpose, one statute may be general and for other, it may be special. When the Punjab Courts Act became the central enactment for Delhi, whether or not the entire Act could be treated as special but with certainty it can be said that the provision of second appeal was special one i.e. Special Law.
Therefore, there cannot be any dispute that central enactment of Punjab Courts Act is special and local law for Delhi.
Whether Section 97 of Amendment Act 1976 also affects any amendment made in CPC by any central law:
In a division bench decision of Hon’ble High Court of Delhi in S.C. Jain vs Union Of India 23 (1983) DLT 467, Justice Rajinder Sachar opined (with which Justice D.R. Khanna agreed) as under:
“The question for decision in this petition is whether clause (ccc) inserted in sub-s. (1)(in the proviso) of s. 60 of the Code of Civil Procedure (hereinafter called as "the Code") by means of s. 35 of the Punjab Relief of Indebtedness Act, 1934, as amended by Punjab Amendment Act XII of 1940, and Punjab Amendment Act VI of 1942, as extended to the State of Delhi, stands repealed after the passing of the Amendment Act, 104 of 1976, amending the Code, especially in the light of s. 97(1) of Amendment Act, 1976…..
Section 2 of the "Part C States" (substituted by "Union Territories" w.e.f. November 1, 1956)(Laws) Act, 1950, empowers the Central Govt. that it may by notification in the Official Gazette extend to the Union Territory of Delhi, Himachal Pradesh, Manipur or Tripura, or any part of such territory with such restrictions and modifications as it thinks fit, any enactment which is in force in a State at the date of the notification. In exercise of the said powers, the Central Govt. extended to the State of Delhi, the Punjab Relief of Indebtedness Amendment Act VII of 1940 and Amendment Act VI of 1942, by means of a notification dated June 8, 1956, published in the Gazette of India, June 16, 1956, the result was that the protection of clause (ccc) in the proviso to s. 60(1) of the Code also became available in Delhi from this date onwards
As mentioned above, clause (ccc) in the proviso to s. 60(1) of the Code does exempt one main residential house. But Mr. Wazir Singh, the learned counsel for the Revenue, says that this exemption is no longer available in view of s. 97(1) of the Amendment Act 104 of 1976. The contention that clause (ccc) was inserted in the Code by the State Legislature of Punjab and that it is not consistent with the provisions of the Code as amended in 1976, because there is no exemption from attachment of a min residential house to be found in the principal Act, the result being that clause (ccc) in the proviso to s. 60(1) of the Code, as applicable in Delhi, stands repealed. This contention of counsel for the Revenue finds support from a decided of Luthra J. in S. Rau's I.A.S. Study Circle v. Smt. Sushila Nanda  Delhi Law Times 174, and Sultan Singh J. in Tikkan Lal v. Govind Lal  Rajdhani Lal Reporter (Note) 9. Where both the learned judges have held that clause (ccc) in the proviso stands repealed and exemption for a main residential house is no longer available in Delhi.
Now, s. 97(1) of the 1975 Act only purports to repeal amendments in stated circumstances but only if inserted by Act of Legislature or a High Court. The contention of Mr. Tikku is that the insertion of clause (ccc) in the proviso to s. 60(1) of the Code, though effected by Punjab Amendment Act XII of 1940 and Punjab Act VI of 1942, a State amendment, cannot be treated to be so, when extended to Delhi by a notification of 1956 issued by the Central Government as mentioned above. The extension in Delhi, it is claimed, is by an Act of Parliament and thus is outside the ambit of s. 97(1) of 1976 Act. So far as Punjab is concerned, there is no dispute that the insertion of clause (ccc) in the proviso is by virtue of a legislation by the State Legislature. If the view of Luthra J. and Sultan Singh J. that the provisions of the Code as amended by 1976 are inconsistent with clause (ccc) may no longer be available so far as the State of Punjab is concerned. But the same consequences does not follow in the Union Territory of Delhi.
In this view of the matter it is indisputable that Punjab Act XII of 1940 and Punjab Act VI of 1942, which inserted clause (ccc) in proviso to sub-s. (1) of s. 60 of the Principal Act (namely, the Code, when extended to the Union Territory of Delhi, by means of Central Govt's. notification of June, 1955, must be deemed to be, in so far as Delhi is concerned, insertions made not by the State Legislature but by Parliament itself. If so, amendment is made by the State Legislature or a High Court.
In that view it has to be held that s. 97(1) of 1976 Act is of no assistance to the Revenue. Thus the benefit of clause (ccc) in proviso to s. 60(1) of the Code, as applicable to Delhi, continues to be available to a judgment-debtor provided he satisfies the conditions mentioned therein. We must, therefore, overrule the decisions of Luthra and Sultan Singh JJ. mentioned above, though on different grounds, as not laying the correct law.
Mr. Wazir Singh then urges that even if s. 97(1) of 1976 Act is out of way, it must still be held that clause (ccc) as extended to Delhi has been impliedly repealed. His argument is that Parliament when passing Act, 104 of 1976, made some amendment in clause (c) in the proviso to s. 60(1) of the Code, and this necessarily meant that all amendments in s. 60 whether inserted by Parliament or the State Legislature stood repealed, the former by implication and the latter specifically. We cannot agree. By s. 97(1) of 1976 Act, only amendments made by a State Legislature are covered. Mr. Wazir Singh's argument in fact asks us to hold that there is an implied repeal of clause (ccc) as extended to Delhi, even if it be taken as Parliament Act. We cannot agree.
Moreover, the 1976 Act gives a clear signal that when the Legislature desired repeal of certain amendments it said so specifically in s. 97(1). This is another indication that Parliament did not by the Amendment Act of 1976 intend to repeal any amendment to the Code other than made by the State Legislature and the High Court. We are, therefore, unable to sustain the argument of repeal by implication.”
Though in different context but the scope of Section-97 of Amending Act was also commented upon by the Hon’ble Supreme Court subsequently in Iridium India Telecom Ltd vs Motorola Inc (2005) 2 SCC 145 as under:
“It is obvious that what was done by Section 97(1) of the Amending Act was to sweep away amendments made or provisions inserted in the principal Act by the State Legislature, or the High Court in exercise of its delegated powers of legislation, and to declare that all such amendments inconsistent with the provisions of the Code would stand repealed. We are afraid that Section 129 is neither an amendment made by the State legislature, nor by the High Court, and as such, it does not get overridden by Section 97(1) of the Amending Act of 1976. Though, both the sections Section 122 and 129 were noticed in this judgment, it does not hold that the impact of Section 129 was, in any way, watered down by Section 122.
Kulwant Kaur (supra) was concerned with a situation where Punjab Courts Act, 1918 had a special right of appeal and the question was whether the amended provisions in Section 100 of the CPC, as amended by Act 104 of 1976, would exclude appeals under Section 41 of the Punjab Courts Act, 1918. The view taken was that there was inconsistency between the provisions of the Punjab Courts Act and the provisions of Section 97(1) of the CPC. By reason of Article 254, the Section 97(1) of the CPC, being the Central Act, was held to prevail. It was pointed out in the judgment that though Section 4 of the Civil Procedure Code, 1908 saved special or local laws in the absence of any specific provision to the contrary, Section 97(1) was such a provision to the contrary, and, therefore, the saving under Section 4 would no longer be available to the local Act. Consequently, it was held "language of Section 97(1) of the Amendment Act clearly spells out that any local law which can be termed to be inconsistent perishes, but if it is not so, the local law would continue to occupy its field." We do not think that this decision carries forward the argument.”
Above is a clear illustration that Section-97 of 1976 Amending Act does not affect any amendment in the CPC made by a central legislation.
For the present purpose, though not necessary, we may note that a three judges bench of Hon’ble Supreme had already held that Section-97 of Amending Act was limited in application to the provisions in which amendments were made and was not of sweeping nature (see Pt. Rishikesh And Anr. Etc vs Smt. Salma Begum (1995) 4 SCC 718).
Whether Section 4 CPC saves local or special law related to procedure and to what extent:
Section-4(1) of CPC reads as under:
“4. Savings- (1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time in force.”
In the context of Section-5 of CrPC which is similarly worded, a constitution bench of Hon’ble Supreme Court in Maru Ram Etc. Etc vs Union Of Lndia & Anr AIR 1980 SC 2147 had made following observation:
“The next submission, pressed by Shri Kakkar with great plausibility, is that s. 5 of the Procedure Code saves all remissions, short-sentencing schemes as special and local laws and, therefore, they must prevail over the Code including. 433A. Section 5 runs thus :
- Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
The anatomy of this savings section is simple, yet subtle. Broadly speaking, there are three components to be separated. Firstly, the Procedure Code generally governs matters covered by it. Secondly, if a special or local law exists covering the same area, this latter law will be saved and will prevail. The short-sentencing measures and remission schemes promulgated by the various States are special and local laws and must over-ride. Now comes the third component which may be clinching. If there is a specific provision to the contrary, then that will over-ride the special or local law. Is s. 433A a specific law contra? If so, that will be the last word and will hold even against the special or local law.
Three rulings were cited by the learned Solicitor General to make out that s. 433A is a specific law. A Bombay case in AIR 1941 Bom. 146, he frankly stated, takes a contrary but scrappy view. The Judicial Committee in Pakala Narayana Swamy v. The King Emperor inconclusively considered what is a specific law, in a similar setting. Two later cases of Lahore [a full bench of five judges] and of Allahabad [a bench of three judges] discussed almost an identical issue and held that some provisions of the Procedure Code were specific sections to the contrary and would repeal any special law on the subject.
Section 1(2) of the Criminal Procedure Code, 1898, is the previous incarnation of s. 5 of the Present Code and contains virtually the same phraseology. The expression 'specific provision to the contrary' in the Code of 1898 was considered in the two Full Bench Decisions (supra). The setting in which the issue was raised was precisely similar and the meaning of 'specific provision to the contrary' was considered by Young, C.J. in the Lahore case where the learned Judge observed :
The word 'specific' is defined in Murray's Oxford Dictionary as 'precise or exact in respect of fulfillment, conditions or terms; definite, explicit'.
In a similar situation, the same words fell for decision in the Allahabad case where Braund, J., discussed the meaning of 'specific provision' in greater detail and observed :
I have, I confess, entertained some doubt as to what exactly the words 'specific provisions' mean. I think first, that they must denote something different from the words 'express provision'. For a provision of a statute to be an 'express' provision affecting another statute or part of it, it would have, I think, to refer in so many words to the other statute or to the relevant portion of it and also to the effect intended to be produced on it. Failing this, it could hardly be said to be 'express'.... But the word 'specific' denotes, to my mind, something less exacting than the word 'express'. It means, I think, a provision which 'specifies' that some 'special law' is to be 'affected' by that particular provision. A dictionary meaning of the very 'to specify' as given in Murray's New English Dictionary, is 'to mention, speak of or name (something) definitely or explicitly; to set down or state categorically or particularly....' and a meaning of the adjective 'specific' in the same dictionary is 'precise definite, explicit.. exactly named or indicated or capable of being so, precise, particular.' What I think the words 'specific provision' really mean therefore is that the particular provision of the Criminal Procedure Code must, in order to 'affect' the 'special.. law,' clearly indicate, in itself and not merely by implication to be drawn from the statute generally, that the 'special law' in question is to be affected without necessarily referring to that 'special law' or the effect on it intended to be produced in express terms. Lord Hatherley in (1893) 3 AC 933 at 938 has defined the word 'specific' in common parlance of language as meaning 'distinct from general' .. 'It would, no doubt, be possible to multiply illustrations of analogous uses of the words 'specify' and 'specific'. But this is I think sufficient to show that, while requiring something less than what is 'express', they nevertheless require something which is plain certain and intelligible and not merely a matter of inference or implication to be drawn from the statute generally. That, to my mind, is what is meant by the word 'specific' in s. 1(2), Criminal P.C.
In an English case Buckley J., has interpreted the Word 'specific' to mean explicit and definable. While Indian usage of English words often loses the Atlantic flavour and Indian Judges owe their fidelity to Indian meaning of foreign words and phrases, here East and West meet and 'specific' is specific enough to avoid being vague and general. Fowler regards this word related to the central notion of species as distinguished from genus and says that it is 'often resorted to by those who have no clear idea of their meaning but hold it to diffuse an air of educated precision'. Stroud says 'specifically...' means 'as such'. Black gives among other things, the following meaning for 'specific': definite, explicit; of an exact or particular nature... particular; precise. While legalese and English are some times enemies we have to go by judicialese which is the draftsman's lexical guide.
The contrary view in the Bombay case is more assertive than explanatory, and ipse dixit, even if judicial, do not validate themselves. We are inclined to agree with the opinion expressed in the Lahore and Allahabad cases (supra). A thing is specific if it is explicit. It' need not be express. The anti-thesis is between 'specific' and 'indefinite' or 'omnibus' and between 'implied' and 'express'. What is precise, exact definite and explicit is specific.
Sometimes, what is specific may also be special but yet they are distinct in semantics. From this angle, the Criminal Procedure Code is a general Code. The remission rules are special laws but s. 433A is a specific, explicit, definite provisions dealing with a particular situation. Or narrow class of cases, as distinguished from the general run of cases covered by s. 432 Cr. P. C. Section 433A picks out of a mass of imprisonment cases a specific class of life imprisonment cases and subjects it explicitly to a particularised treatment. It follows that s. 433A applies in preference to any special or local law because s.5 expressly declares that specific provisions, if any, to the contrary will prevail over any special or local law. We have said enough to make the point that 'specific' is specific enough and even though 'special' to 'specific' is near allied and 'thin partition do their bounds divide' the two are different. Section 433A escapes the exclusion of s. 5.”
The above clearly shows a way to interpret Section-4 of CPC. It would also have three components. Firstly, the Procedure Code generally governs matters covered by it. Secondly, if a special or local law exists covering the same area, this latter law will be saved and will prevail. Now, comes the third component which may be clinching. If there is a specific provision to the contrary, then that will over-ride the special or local law.
We know that Section-41 of the Punjab Courts Act provides for second appeal on several grounds. Is there any specific provision to the contrary in CPC? Section-97 of Amending Act 1976 may be considered. It says that any amendment made by any state enactment in the CPC shall be deemed to be repealed if found inconsistent with central amendment. Section-100 is governed by a central amendment and therefore if any state law shows any provision inconsistent with Section-100, it would be deemed to be repealed. As such, Section-97 of Amending Act would be a specific provision to the contrary and therefore the third component of Section-4 CPC will play its role whereby the local law would not be saved. This is apparently one of the reasons given by the Hon’ble Supreme Court in Kulwant Kaur case. However, in Delhi, Section-97 of Amending Act has no applicability at all. It is the central enactments which have made amendments in CPC for Delhi. Reason is obvious. We now know that any enactment extended by the union in Delhi has to be treated as a central enactment for Delhi. Delhi State has not made any amendment in CPC and therefore there cannot be a question for deemed repeal through Section-97. As such, for Delhi, Section-97 cannot be treated as specific provision for the purpose of Section-4 CPC.
Is there any other provision in CPC which can be treated as specific provision to the contrary? Section-100(1) CPC reads as:
“100. Second appeal.(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.”
It is clear that Section-100 cannot be treated as specific provision to the contrary. This section itself says that if any other thing is provided in any other law, the same will be saved. So, it will not affect another central enactment i.e. Section-41 of Punjab Courts Act, 1918 so far as Delhi is concerned. Additionally, Section-100 also saves anything which is expressly provided in the body of the CPC. Section-4 CPC is expressly provided in the body of the CPC and therefore, where Section-4 applies, Section-100 will have no applicability at all. For Delhi, Section-41 of Punjab Courts Act is special & local law and therefore will fall under Section-4 CPC thereby excluding the applicability of Section-100.
As such, it has to be held that in the absence of specific provision to the contrary, Section-4 CPC saves the operation of Section-41 of the Punjab Courts Act so far as Delhi is concerned.
Whether Section-41 Punjab Courts Act is impliedly repealed:
In State of M P vs. Kedia Leather and Liquor Ltd & ors, (2003) 7 SCC 389, a two Judge Bench of the Supreme Court observed:
“There is presumption against a repeal by Implication; and the reason of this rule is based on the theory that the legislature while enacting a law has complete knowledge of the existing laws on the same subject-matter, and therefore, when it does not provide a repealing provision, the intention is clear not to repeal the existing legislation. (See Municipal Council, Palai v T J Joseph, AIR 1963 SC 1561, Northern India Caterers (P) Ltd v State of Punjab, AIR 1967 SC 1581, Municipal Corpn of Delhi vs Shiv Shankar, (1971) 1 SCC 442, and Ratan Lal Adukia v Union of India, (1989) 3 SCC 537). When the new Act contains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other laws is further strengthened on the principle expressio unius (persone vel rei) est exclusio alterius. (The express intention of one person or thing is the exclusion of another), as illuminatingly stated in Garnett v Bradley, (1878) 3 AC 944. The continuance of the existing legislation, in the absence of an express provision of repeal by implication lies on the party asserting the same. The presumption is, however, rebutted and a repeal is inferred by necessary implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act that the two cannot stand together. But, if the two can be read together and some application can be made of the words in the earlier Act, a repeal will not be inferred.
A division bench of Hon’ble High Court of Delhi in M/s. Lord Chloro Alkalies Ltd. vs. DGIT (Admn.) and Anr. (19.07.2013, Delhi HC) held:
“One well recognized principle of statutory construction is that when courts have to deal with conflicting or inconsistent laws, or inconsistent provisions of two separate enactments, the first approach should be to attempt at harmonization of the two provisions, to avoid, or minimize the conflict. The second line of approach is to see which of the two laws is a general law. A prior special law will prevail over a later and general law.”
Once, the Amending Act of 1976 itself provides the subjects which it intended to repeal, we should assume that other enactments were not contemplated. Expression of one is clearly exclusion of other. Repealing clause of Amending Act 1976 does not cover any central enactment and therefore Section-41 of Punjab Courts Act (so far as Delhi is concerned, it is a central enactment) cannot be treated as impliedly repealed.
Now, if we follow the above discussion, we can find that the Punjab Courts Act (so far as Delhi is concerned) being a central legislation is not affected by Section-97 of Amending Act 1976 and therefore there is no contrary provision in existence which is a pre-requisite for non-operation of saving clause in Section-4 CPC, and as such the special and local law providing different procedure through the Punjab Courts Act are clearly saved in & for Delhi. Section-41 of the Punjab Courts Act provides for second appeal on several counts and this is clearly special and local law for Delhi. This section is saved by Section-4 CPC so far as Delhi is concerned. As such, second appeal can be maintained even beyond substantial question of law envisaged in Section-100 CPC.
Effect of Kulwant Kaur vs Gurdial Singh Mann:
We can now discuss the famous judgment of Hon’ble Supreme Court in Kulwant Kaur & Ors vs Gurdial Singh Mann (2001) 4 SCC 262. However, we must bear in mind that it was dealing with a case from the High Court of Punjab & Haryana. In this judgment Hon’ble Supreme Court held that Section-41 of the Punjab Courts Act stood impliedly repealed being repugnant to Central Act and in view of existence of contrary provision in Section-97 of Amending Act 1976, Section-41 was not saved by Section-4 of CPC. Reasons were provided in following manner:
“Section 97 (1) thus has an overriding effect as against any amendment or provision being inconsistent with the provisions of the principal Act and the principal Act referred to in Section 97 is the Code of Civil Procedure. It is on this score that Article 254 of the Constitution of India also have a bearing and as such the same is noted hereinbelow for its field of operation and scope.
Section 254 thus maintains Parliamentary supremacy in matters under List I and List III (List I Union List and List III Concurrent List). And It is on this score that Mr. Mehta was very eloquent that doctrine of implied repeal will have its true impact on the situation and thus resultantly negatived the effect of Section 41 of the Punjab courts Act. Mr. Mehta contended that Section 100 of the Code and Section 41 of the Punjab Act without any pale of controversy have a common objective viz. authority and jurisdiction to hear Second Appeals and thus both operate on the same field and by reason of the factum of the Punjab Act being non-complimentary to Section 100 of the Code, it cannot but be said to be repugnant and hence the doctrine of repugnancy will have its full play in the matter of declaration of the Punjab Act being void.
On the doctrine of implied repeal, Mr. Mehta contended that procedural law must be having a meaningful existence without being in conflict with a parliamentary legislation. Undoubtedly, the doctrine of implied repeal is not to be favoured but where a particular provision cannot co-exist or intended to subsist in the event of there being the repugnancy between central and State Legislature the courts cannot but declare it to be so on the ground of repeal by implication. Uniformity of law, being the basic characteristics of Indian jurisprudence cannot be termed to be at sufferance by reason of a State Legislation which runs counter to the Central Legislation. It is not necessary that one legislation should be on the positive side whereas the other one in the negative: Such a stringent requirement is not the requirement in order to bring home the issue of repugnancy, but all the same it might result when both the legislations cover the same field.
The requirement is thus a clear and direct irreconcilable inconsistency between the Central Act and the State Act and the inconsistency would be of such an extent that it would be otherwise impossible to obey the one without disobeying the other. Needless to record here that prior to the Amendment Act of 1976, through which the amendment to Section 100 was brought in the statute book, the question of Section 100 being inconsistent with Section 41 of the Punjab Act did not arise, since the Punjab Act is in consonance with unamended Section 100 without there being any differentiation and are compatable to each other being pari materia. Since the relevant statutory provisions have already been noticed herein before in this judgment, we need not recapitulate the same, and suffice however, to notice what stands noticed already. The situation, however, stands differently on the incorporation of the amendment to Section 100. With the amendment, the power to entertain a Second Appeal by the High Court stands restricted only on such occasions when the High Court is otherwise satisfied about the involvement of a substantial question of law. The addition of this new concept of substantial question was not available in the Code of Civil Procedure prior to the amendment or in the Punjab Act.
The submission for the Respondent further proceeded to the effect that on a plain reading of this Section it depicts that in the event of there being any inconsistency, the special or local laws will have the precedence over the Code but in the event, there is no inconsistency between the two, the Code will prevail rather an attractive submission but on a closer scrutiny the same pales into insignificance. As aforesaid the special or local law as contained in Section 41 of the Punjab Code was in pari materia with unamended Section 100 so then there was no inconsistency. It is only after the amendment could be said to an inconsistency have developed between the two provisions, which is submitted to be saved by the aforesaid Section 4. While it is true, on its plain reading at the first glance local law seems to have been saved but we have to examine this in the light of Article 254 of the Constitution of India and the doctrine of repugnancy read with Section 97 of the Amending Act as noticed in the earlier part of this judgment. Incorporation of the Civil Procedure Code Amendment Act in the statute book is by virtue of conferment of power under Entry 13 of List III of the Seventh Schedule of the Constitution. The Constitution is the parent document and is supreme which has a binding effect on all and by virtue of the provisions of the Constitution, parliamentary supremacy in regard to the adaptation of laws if within the area of operation as provided under List I or List III is recognised.
Thus even in cases falling under Clause (2), where State law prevail, such law could be amended, varied or repealed by the Parliament by enacting law subsequently both by virtue of Clause (1) or proviso to Clause (2).
By this, special or local laws are protected and thus not to be effective in the absence of any specific provision to the contrary. In other words, special or local laws would be functional till any specific provision to the contrary stands engrafted. Since Section 100 CPC unamended was in pari materia with Section 41 of the Punjab Act, there was no conflict and Section 41 continued in its field unaffected.
Now we proceed to examine Section 97 (1) of the Amending Act and the amendment of Section 100 CPC by the said 1976 Act. Through this amendment right to Second Appeal further restricted only to lie where, the case involves a substantial question of law. This introduction definitely is in conflict with Section 41 of the Punjab Act which was pari materia with unamended Section 100 CPC. Thus so long there was no specific provision to the contrary in this Code Section 4 CPC saved special or local law. But after it comes in conflict Section 4 CPC would not save, on the contrary its language implied would make such special or local law applicable.
Thus language of Section 97(1) of the Amending Act clearly spells out that any local law inconsistent goes but what is not inconsistence, it could be said the local would still continue to occupy its field. But so far the present case Section 41 of the Punjab Act, it is expressly in conflict with the amending law, viz., Section 100 amended which would be deemed to have been repealed. Thus we have no hesitation to hold the law declared by the Full Bench of the High Court in the case of Ganpat (supra) cannot be sustained and is overruled.
On the wake of the aforesaid we do find ourselves in agreement with the contention of Mr. Mehta that Section 41 of the Punjab Act cannot but be termed to be repugnant to Section 100 and as such cannot have its effect, since parliamentary supremacy renders Section 41 the Punjab Act devoid of any effect. Neither the saving clause in Section 100 (1) or Section 4 of the Code can come into the rescue of the respondents in view of Section97(1) of the amending Act.”
Certain specifics become immediately clear:
- It considered the Punjab Courts Act as a state legislation.
- It also brought into picture the concept of repugnancy enshrined in Article-254 which applies between Central Act on the one hand and State Act on the other.
- It further equated the Section-41 of the Punjab Courts Act as an amendment made in CPC by state legislature and therefore brought into play the Section-97 of Amending Act 1976 to hold that such state amendment stood repealed.
- It also taken Section-97 of Amending Act 1976 as a contrary provision envisaged under Section-4 CPC to hold that saving clause will not operate.
Our discussion in initial paragraphs contradicts each of the specific given above. For better appreciation, following table may be considered:
The above comparison shows that judgment of Hon’ble Supreme Court is confined only to the Punjab and Haryana where the Punjab Courts Act is treated as state legislation but has no applicability to Delhi where the Punjab Courts Act is to be treated as central legislation. As such, the initial conclusion arrived at in the present paper is not hampered by the judgment of Hon’ble Supreme Court in Kulwant(supra).
In the light of above discussion, we can safely say that despite the amendment made in Section-100 CPC, second appeal can lie beyond substantial question of law with the help of Section-41 of the Punjab Courts Act, 1918 so far as Delhi is concerned.
Finally, Constitution Bench of Hon'ble Supreme Court in Pankajakshi vs Chandrika (2016) 6 SCC 157 chosen to express itself on this issue though not directly and observed that Section-41 of Punjab Courts Act continues to apply and has also observed that the contrary judgment in Kulwant Kaur (supra) does not lay down correct proposition of law. Needless to say, if this is so, a second appeal will lie beyond the substantial question of law in Delhi, Punjab, Haryana, Chandigarh where the Punjab Courts Act is applicable. Following observations from the judgment of constitution bench are relevant:
“We are afraid that this judgment does not state the law correctly on both propositions. First and foremost, when Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976 speaks of any amendment made or any provision inserted in the principal Act by virtue of a State Legislature or a High Court, the said Section refers only to amendments made and/or provisions inserted in the Code of Civil Procedure itself and not elsewhere. This is clear from the expression “principal Act” occurring in Section 97(1). What Section 97(1) really does is to state that where a State Legislature makes an amendment in the Code of Civil Procedure, which amendment will apply only within the four corners of the State, being made under Entry 13 of List III of the 7 th Schedule to the Constitution of India, such amendment shall stand repealed if it is inconsistent withthe provisions of the principal Act as amended by the Parliamentary enactment contained in the 1976 amendment to the Code of Civil Procedure. This is further made clear by the reference in Section 97(1) to a High Court. The expression “any provision inserted in the principal Act” by a High Court has reference to Section 122 of the Code of Civil Procedure by which High Courts may make rules regulating their own procedure, and the procedure of civil courts subject to their superintendence, and may by such rules annul, alter, or add to any of the rules contained in the first schedule to the Code of Civil Procedure. Thus, Kulwant Kaur’s decision on the application of Section 97(1) of the Code of Civil Procedure Amendment Act, is not correct in law. Even the reference to Article 254 of the Constitution was not correctly made by this Court in the said decision. Section 41 of the Punjab Courts Act is of 1918 vintage. Obviously, therefore, it is not a law made by the Legislature of a State after the Constitution of India has come into force. It is a law made by a Provincial Legislature under Section 80A of the Government of India Act, 1915, which law was continued, being a law in force in British India, immediately before the commencement of the Government of India Act, 1935, by Section 292 thereof. In turn, after the Constitution ofIndia came into force and, by Article 395, repealed the Government of India Act, 1935, the Punjab Courts Act was continued being a law in force in the territory of India immediately before the commencement of the Constitution of India by virtue of Article 372(1) of the Constitution of India. This being the case, Article 254 of the Constitution of India would have no application to such a law for the simple reason that it is not a law made by the Legislature of a State but is an existing law continued by virtue of Article 372 of the Constitution of India. If at all, it is Article 372(1) alone that would apply to such law which is to continue in force until altered or repealed or amended by a competent Legislature or other competent authority. We have already found that since Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976 has no application to Section 41 of the Punjab Courts Act, it would necessarily continue as a law in force.....”
After the aforesaid conclusion of a Constitution bench, nothing remains for arguments and it has to be accepted that second appeal in Delhi will lie beyond substantial question of law but to the extent as provided in Section-41 of the Punjab Courts Act, 1918.