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'Substantial Question Of Law' Requirement Not Mandatory In Second Appeals Before Punjab & Haryana HC: SC [Read Order]

Ashok Kini
18 May 2019 7:52 AM GMT
Substantial Question Of Law Requirement Not Mandatory In Second Appeals  Before Punjab & Haryana HC: SC [Read Order]
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"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."

A Supreme Court bench of Justice Sanjay Kishan Kaul and Justice Indira Banerjee has observed that two judgments delivered by another bench 'would not hold the field' as they are contrary to the Constitution Bench judgment in Pankajakshi (Dead) Through L.Rs Vs. Chandrika. In these judgments [Chand Kaur (D) through Lrs. Vs. Mehar Kaur (D) through Lrs. and Surat Singh (Dead) Vs....

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A Supreme Court bench of Justice Sanjay Kishan Kaul and Justice Indira Banerjee  has observed that two judgments delivered by another bench 'would not hold the field' as they are contrary to the Constitution Bench judgment in Pankajakshi (Dead) Through L.Rs Vs. Chandrika.

In these judgments [Chand Kaur (D) through Lrs. Vs. Mehar Kaur (D) through Lrs. and Surat Singh (Dead) Vs. Siri Bhagwan & Ors], the bench, while considering appeals arising from orders of Punjab and Haryana High Court (in a second appeal), observed that the sine qua non for allowing the second appeal is to first frame the substantial question(s) of law arising in the case and then decide the second appeal by answering the question(s) framed.

These judgments were relied on by the appellant in the present case Kirodi vs. Ram Prakash to contend that the Punjab and Haryana High Court order is liable to be set aside since the regular second appeal has been decided without framing a question of law. The bench, taking note of the constitution bench judgment in Pankajakshi (Dead), observed:

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

The court said that, though the Code of Civil Procedure requires the second appeal to mandatorily contain a substantial question of law considering the same, but as far as state of Punjab is concerned, Section 41 of the Punjab Courts Act, 1918 does not require the framing of such a substantial question of law.

The Constitution bench, in Pankajakshi, overruled the judgment in Kulwant Kaur & Ors. Vs. Gurdial Singh Mann in which had held that Section 41 of the Punjab Act is expressly in conflict with Section 100 of the Code of Civil Procedure, it would be deemed to have been repealed. The bench held 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. 

Taking note of this the bench, said:

"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."
In view of the legal position enunciated above, the judgments of this court in Chand Kaur(D) through Lrs.'s case (supra) and Surat Singh (Dead)'s case (supra) being contrary to the Constitution Bench of this Court in Pankajakshi (Dead) through L.Rs. & Ors. (supra) and 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."

Read Order


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