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Scope of Second Appeal in Civil Cases
Scope of Second Appeal in Civil Cases
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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. Honble Supreme Court.
1.1.
With the above in mind, the present is trying to ascertain if a litigant in Delhi
can approach the Honble 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.
2.
answer for the main question i.e. does a second appeal lie in Delhi even beyond
substantive question of law:
1.
Whether the Punjab Courts Act, 1918 as applicable to Delhi is a Central Act
so far as Delhi is concerned;
2.
3.
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4.
Whether Section 4 CPC saves local or special law related to procedure and
to what extent;
5.
6.
Whether the Punjab Courts Act, 1918 as applicable to Delhi is a Central Act
so far as Delhi is concerned:
3.
Interestingly, the answer is very simple. Yes, it is. Why? We may find
reasoning in the following judgments of Honble Supreme Court and Honble High
Court of Delhi.
3.1.
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
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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
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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.
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3.4.
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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.
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3.5.
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:
4.
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.
4.1.
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.
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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.
4.2.
judges bench speaking through Krishna Iyer J. has pointed out as under:
4.3.
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,
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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.
4.4.
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
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****
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 [1981] Delhi Law Times 174, and
Sultan Singh J. in Tikkan Lal v. Govind Lal [1983]
Rajdhani Lal Reporter (Note) 9. Where both the learned
judges have held that clause (ccc) in the proviso stands
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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.
5.1.
was also commented upon by the Honble 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
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Above is a clear illustration that Section-97 of 1976 Amending Act does not
For the present purpose, though not necessary, we may note that a three
judges bench of Honble 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:
6.
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bench of Honble 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 :
5. 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
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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.
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6.3.
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 Honble 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.
6.4.
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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.
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6.6.
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:
7.
In State of M P vs. Kedia Leather and Liquor Ltd & ors, (2003) 7 SCC
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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
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7.2.
Once, the Amending Act of 1976 itself provides the subjects which it
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
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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.
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 Honble 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
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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
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i.
ii.
It also brought into picture the concept of repugnancy enshrined in Article254 which applies between Central Act on the one hand and State Act on the
other.
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iii.
iv.
9.2.
3.
4.
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9.3.
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 Honble Supreme Court in
Kulwant(supra).
Conclusion:
10.
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.
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