Ganpat v. Ram Devi

1. The two significant questions succinctly formulated in the Reference Order, which call for determination by this Full Bench are in the following terms:-1. Has the amended S. 100 of the Code in any way affected the provisions of S. 41 (1) of the Punjab Courts Act 2. What interpretation is to be placed on the phrase substantial question of law occurring in amended S. 100 of the Civil P. C.

2. It is evident from the above that the issues aforesaid are pristine legal ones and, therefore, any reference to the facts of the case is, indeed, unnecessary. It suffices to mention that they arise at the very threshold at the stage of the admission of innumerable Regular Second Appeals in this Court in view of the radical amendments introduced in S. 100 by the Code of Civil Procedure (Amendment) Act, 1976.

3. At the very outset it may be pointed out that we would first devote ourselves to question No. 1 because it is plain that if an answer is returned to the said question in the negative, the second question perhaps would hardly arise or in any case would become academic in nature.

4. To appreciate the issues in a correct perspective some reference to the legislative background of the two provisions appears inevitable. The history of the Civil P. C. in India now goes back beyond a century. The real predecessor of present S. 100 of the Civil P. C. was S. 372 of the Civil P. C. 1859 (Act No. 8 of 1859 ). It was followed by the Code of Civil Procedure, 1877, but its provisions were almost the same as those of the later Code of 1882, wherein S. 584 sharply corresponds to the unamended provisions of S. 100 of the Civil P. C. 1908. Substantial and material changes to the Code were envisaged in the Fifty--Fourth Report of the Law Commission. In particular, the Law Commission considered the right of second appeal under S. 100 and after study in depth thereof (Reference in this connection may be made to pages 74 to 93 of the Report, 1973) recommended the virtual re--drafting of S. 100. The Code of Civil Procedure (Amendment) Bill, 1974 by and large was drafted on the recommendation of Law Commission. In the statement of objects and reasons thereof, it was noticed with reference to section 100 that second appeals were now to be allowed only on such questions as are certified by the High Courts to be substantial questions of law. The Bill aforesaid was ultimately enacted as the Code of Civil Procedure (Amendment) Act, 1976 and the amended S. 100 is in the following terms:-" 100 (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. (2) An appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal be allowed to argue that the case does not involve such question: Provided that nothing in this sub--section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. "

5. It appears that within the State of Punjab (both prior to the partition of the country and thereafter as well) there has existed what may well be termed as parallel legislation within a limited field in the shape of a local statute. The earliest statute of this nature was the Punjab Courts Act, 1884 (Act No. 18) which was succeeded by a number of similar Acts. For our purposes it suffices to refer to the present Punjab Courts Act, 1918 which was notified on the 12th July, 1918, but was given retrospective effect from the first day of August, 1914. This provides for the creation of subordinate Civil Courts within, the State and Chapter IV further provides for the Appellate and Revisional Jurisdiction in civil cases. The material provision in the said Chapter is section 41 dealing with the Second Appeals, which is in the following terms:-" 41. (1) An appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court on any of the following grounds, namely:- (a) the decision being contrary to law or to some custom or usage having the force of law; (b) the decision having failed to determine some material issue of law or custom or usage having the force of law; (c) a substantial error or defect in the procedure provided by the Code of Civil Procedure, 1908, or by any other law for the time being in force which may possibly have produced error or defect in the decision of the case upon the merits. Explanation--A question relating to the existence or validity of a custom or usage shall be deemed to be a question of law within the meaning of this section. (2) An appeal may lie under this section from an appellate decree passed ex parte.

6. What deserves highlighting in this context is the fact that the Punjab Courts Act was enacted after the Code of Civil Procedure, 1908 and the above quoted S. 41 though not absolutely but is virtually in pari materia with the unamended provisions of S. 100 of the Code. The only material difference in the language is the addition of the word custom in Cls. (a) and (b) of sub--section (1) of S. 41 and the existence of an explanation therein, which does not find any place in the corresponding S. 100 of the Code. Because of this virtual identity in these two provisions the Second Appeals within the areas to which the Punjab Courts Act extends have continued to be governed and regulated thereby. However, with the radical recasting of S. 100 by the amending Act of 1976, whilst S. 41 aforesaid has remained intact, there has now arisen a conflict--namely whether one or the other of the two provisions would be attracted for the purposes of both the admission and the decision of Second Appeals within this jurisdiction. It is this problem which has rightly necessitated this reference.

7. The core of the argument on behalf of the appellants is that S. 41 of the Punjab Courts act always held and continues to hold the field to the total exclusion of the earlier and the amended S. 100 of the Civil P. C. It is the case that the former being a statute which falls within the purview of a special and local law is entirely saved by virtue of S. 4 of the Code and in any case by the opening part of the S. 100 itself. Consequently, it was submitted that in all those areas to which the Punjab Courts Act applies the provisions of S. 100 of the Code, both prior and subsequent to the amending Act of 1976, are excluded by necessary implication. In sum the argument is that both for the purposes of admission and subsequent decision Regular Second Appeals within this jurisdiction are governed entirely by S. 41 of the Punjab Courts Act alone and are unaffected by the provisions of the amended S. 100 of the Code.

8. The argument aforesaid has necessarily to be tested on the specific language of S. 4 of the Code in the first instance. For facility of reference the relevant part thereof may first be set down:-" 4 (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 being in force. "

9. It is manifest from the above that the saving clause aforesaid has been couched in terms of widest amplitude. The plain intention of the legislature appears to be that unless there is specific provision to the contrary, the Code shall not affect any special or local law or any special or local law or any special jurisdiction or power conferred by any other law. At the very outset we may point out that no specific provision to the contrary in this context has been or could have even remotely pointed out. It is equally plain, and indeed it was not disputed before us, that the Punjab Courts Act would squarely fall within the terminology of any special or local law. This being so it is unnecessary to dissert at any great length on the true nuance to be attached to the terms special law or local law in this context. ON this admitted position, therefore, it follows that by virtue of S. 4 (1) the provisions of the Punjab Courts Act are in no way limited or otherwise affected by the provisions contained in the Code. A fortiori the provisions of S. 100 of the Code, therefore, do not affect the corresponding provisions of S. 41 of the Punjab Courts Act either.

10. Apart from the above it is also plain that S. 41 of the Punjab Courts Act equally provides a special jurisdiction or power as regards Second Appeals to the High Court in areas over which the jurisdiction of the said statute extends. S. 4 (1) of the Code with equal emphasis exempts any such jurisdiction or power conferred by any such jurisdiction or power conferred by any other law for the time being in force. Undoubtedly, the Punjab Courts Act comes squarely within the ambit of these words as well and as a necessary consequence the provisions of the latter are again wholly saved from being affected by the Code unless of course there is a specific clause to the contrary.

11. It appears to us that viewed from either angle, S. 4 (1) of the Code saves the provisions of the Punjab Courts Act in general and the specific provisions of S. 41 thereof in particular, from being in any way overridden or affected by the general provisions of the said Code.

12. In the particular context of the Second Appeals Parliament seems to have made its intention doubly clear by virtue of the opening part of S. 100 (1) which may be quoted again for the sake of emphasis:-" 100 (1)--Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "

13. Herein again nothing contrary to S. 100 was pointed out to us in the rest of the Code. That being so, it is plain that the afore-quoted words clearly save any other law for the time being in force on the subject of Second Appeals. Undoubtedly, section 41 of the Punjab Courts Act is such a law. The larger intention of the opening part of S. 100 (1) of the Code is to exempt all existing laws in this particular field from being affected in any way by the provisions of S. 100. This indeed becomes clear when reference is made to the newly added provision of S. 100--A. The legislature in this provision wished to override all other existing laws providing for a further appeal against the judgment of a Single Judge of the High Courts under S. 100. Therefore, it used categoric language therein for providing that no further appeal shall lie from such a judgment despite the provision of the letters patent of any High Court or any instrument having a force of law or any other law for the time being in force. Whilst S. 100--A of the Code begins with a non obstante clause of wide amplitude S. 100 on the other hand is prefaced by a saving clause as regards any other law for the time being in force. The difference in language is indeed too plain and patent to require further elaboration.

14. We are clearly of the view that a reading of Ss. 4 (1) and 100 (1) of the Code together leads to an irresistible conclusion that the legislature wished to save and leave unaffected all special or local laws as also any other law for the time being in force on the subject of Second Appeals. S. 41 of the Punjab Courts Act which clearly falls in this category would thus not be in any way affected by the provision of S. 100 even on a plain construction of these statutory provisions.

15. Even excluding out of consideration the specific provisions of S. 4 (1) and 100 of the Code the same result would seem to follow upon larger principles as well. There can hardly be any doubt that the Civil P. C. is the general law of the land on the subject. On the contrary the Punjab Courts Act operates in a narrow and limited field both as regards the area to which it applies and the subject matter with which it deals. It is a settled law that a special provision or a special power would normally override a general one. On this general principle the particular provisions of section 41 of the Punjab Courts Act are entitled to exclude the general provisions of S. 100 of the Code in the same field. If authority was at all necessary for so established a proposition, reference may be made to the recent Full Bench decision reported in 78 Pun L R 726: (AIR 1976 Punj 310) (FB) Chanan Singh v. Smt. Majo.

16. An overwhelming weight of authority bearing closely on the point, as also by way of analogy again buttresses the proposition canvassed on behalf of the appellants. Pride of place in this context must be given to the Full Bench judgment in AIR 1945 Lah 127 (FB) Mohamed Jamil v. Saudagar Singh as the said decision of the predecessor Court even if not absolutely binding is entitled to the highest respect and weight. Therein Ram Lall, J. speaking for the Bench observed as follows:- "the provision that deals with the subject of second appeals is S. 100, Civil P. C. , which says that save as is otherwise expressly provided, there is a right of appeal from all decrees of appellate Courts subordinate, "to a High Court and goes on to specify the grounds on which such appeals will lie. A right so given can never be held to have been taken away by implication or by analogies drawn from other provisions or by any alleged illogical reasoning of the Legislature. The right of appeal is regulated in the Punjab by the Punjab Courts Act, 1918. Section 41 of that Act says that an appeal shall lie to the High Court in every decree passed in appeal by a Court subordinate to the High Court on grounds similar to those stated in S. 100, Civil P. C. It will be noted that the language of S. 41, Punjab Courts Act, in conceding the right of appeal is more emphatic even than that employed in S. 100, Civil P. C. " It deserves highlighting that the afore--quoted ratio is in no way weakened or affected by certain observations in the Union of India v. Mohindra Supply Co. , AIR 1962 SC 256 [LQ/SC/1961/304] , which might have cast a could on an altogether different point which was also before the Full Bench. Indeed, in the said Supreme Court case there is the following brief observation by their Lordships regarding the scope of S. 4 of the Civil P. C. , which also goes in aid of the proposition canvassed on behalf of the appellants (at p. 262):- "there is in the Arbitration Act no provision similar to S. 4 of the Civil P. C. which preserves powers reserved to Courts under special statutes. "

17. For reasons or geographical contiguity we would now first notice the view expressed in Kewal Ram v. Bhagwan Dass, AIR 1951 Him Pra 61, wherein it was held that S. 115 of the Civil P. C. had in no way overridden or repealed the revisional powers conferred under para 35 of the Himachal Pradesh (Courts) Order, 1948 on the well--recognised principle of generalia specialibus non derogant. The aforesaid view was relied upon in the later decision in Rewa Shankar v. Narasinghji Maharaj, AIR 1957 Him Pra 16, wherein it was specifically held that S. 100 of the Code does not in any way override the special powers conferred in para 32 of Himachal Pradesh Courts Order, 1948. The aforesaid judgments have apparently held the field so far and no contrary view in the said Court could be brought to our notice.

18. The Himachal view has then been accepted in another jurisdiction in Chunilal v. Manodara, AIR 1952 Kutch 25 where the reasoning of Kewal Rams case (supra) was accepted and it was held that second appeals to the Judicial Commissioners Court in Kutch were governed by S. 32 of the Kutch Courts order, 1948 and not by S. 100 of the Code. In a subsequent judgment reported as Lalji Ganpat v. Liladhar Devji, AIR 1953 Kutch 24, an identical conclusion was arrived at independently.

19. A Division Bench in Mohammed Azim Khan v. Mumtaz Ali Khan, AIR 1932 Oudh 163, in a similar situation has taken the view that S. 12 of the Oudh Courts Act, 1925 overrides the general provisions of S. 109, Civil P. C. , and therefore an appeal from a judgment of a Single Bench lies to a Bench of the Chief Court.

20. In the Full Bench judgment reported as H. R. Patel v. Mrs. C. G. Venkatalakshamma, AIR 1955 Mys 65 (FB), it has again been held that the provisions of S. 98 (2) of the Civil P. C. do not in any way limit or affect the provisions of S. 15 (3) of the Mysore Chief Court Act, which is a special and local law of Mysore.

21. Again Govindan Nair, J. , speaking for the Division Bench in G. Sankaran Nair v. Krishna Pillai, AIR 1962 Ker 233 [LQ/KerHC/1962/47] has held that in the event of a conflict between the provisions of O. 21, R. 46--I of the Code and Ss. 21 to 23 of the Kerala Small Cause Courts Act, the latter would prevail and the order passed against a garnishee would, therefore, not be appealable but would, be only revisable.

22. Chief Justice Bhagwati (as his Lordship then was) speaking for a Full Bench of seven Judges in Shushila Kesarbhai v. Lilavati, AIR 1975 Guj 39 [LQ/GujHC/1973/57] (FB) has after an exhaustive discussion concluded that the special provisions of clause 36 of the Letters patent (providing for the procedure to be adopted by the High Court in case of equal division of opinion between Judges hearing a first appeal from a decision of the Subordinate Court) would override the general provisions of S. 98 of the Civil P. C.

23. From the aforesaid discussion, it is thus evident that on principle, on the specific language of the statutory provisions involved, and the overwhelming weight of authority, it must be held that the provisions of S. 41 of the Punjab Courts Act are in no way affected or curtailed by the amended S. 100 of the Civil P. C. Therefore in the jurisdiction, to which the Punjab Courts Act extends the admission and adjudication of second appeals would be governed by S. 41 of the Act to the exclusion of the general provisions of S. 100 of the Code. The answer to the first question is, therefore, returned in the negative.

24. Though we have arrived at the aforesaid inevitable conclusion in view of the existing statutory provisions, we are of the view that in the interests of the uniformity of law on the point, the corresponding provisions of S. 41 now might as well be in line with the amended provisions of S. 100. It would be obviously wasteful for us to elaborate our reasons therefor because this matter has been exhaustively considered and illuminatingly presented by the Law Commission in its 54th Report. A reference to pages 74 to 93 of the said report is indeed instructive on the point and we entirely agree with the same. Reference may also be made to the statements of objects and reasons for the Code of Civil Procedure (Amendment) Bill, 1974 and the notes to clause 39 thereof pertaining to the amendment of S. 100 of the Code. This matter was again considered by the Parliamentary Select Committee and it was thereafter that the amendment to S. 100 was passed by Parliament and the present S. 100 was enacted. It deserves recalling that earlier the provisions of the unamended S. 100 and S. 41 of the Punjab Courts Act were virtually in pari materia and there appears hardly any reason why it should not continue to be so. We are, therefore, of the view that the matter deserves the consideration of both the State Governments of Punjab and Haryana for such legislative action as they may deem necessary. In the alternative it is also for the Central Government to consider whether the amended S. 100 may not hold unrivalled sway all over the country irrespective of any existing local or special statutes to the contrary. Copies of this judgment be forwarded to the three governments for their consideration.

25. Adverting now to question No. 2, it is obvious that the phrase substantial question of law has been introduced by the amending Act, 1976 in S. 100 of the Code. As we have held above, the provisions of this section are now excluded by virtue of the special provision of S. 41 of the Punjab Courts Act. Within this jurisdiction, therefore, this question becomes entirely academic in nature. It is the settled practice of the superior Courts not to examine and decide issues which do not directly affect the rights of the litigants before them. We, therefore, decline to go into this question.

26. The case shall show now go back to the learned Single Judge for disposal on merits. S. C. Mital, J.

27. I agree. R. N. Mittal, J.

28. I also agree.

29. Answered accordingly. .