IMPORTANT POINT
Section 41 of Punjab Courts Act, 1918 dealing with Second Appeal to High Court cannot but be termed to be repugnant to Section 100 CPC (after 1976 amendment) on Second Appeal to High Court on substantial question of law and as such cannot have its effect since Parliamentary Supremacy under Article 254 r/w Entry 13 in III List of 7th Schedule, renders Section 41 of Punjab Act devoid of any effect.

Headnote:(i) Punjab Courts Act, 1918-Section 41-Second Appeal (Unamended Section 100 CPC before 1976)-CPC 1908-Section 100 (as amended in 1976)-Second Appeal on substantial question of law-Constitution of India-Article 254 and Entry 13 (Civil Procedure etc.) in List III of 7th Schedule-Union Law to prevail in case of inconsistency in State Law-Effect. (Paras 33 r/w Para 26)
       Held : 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Act, it is expressly in conflict with the amending law, viz., Section 100 amended which would be deemed to have been repealed.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 Giri v. Second Additional District Judge, Ballia & Ors., 1986(1) SCC 615 cannot be sustained and is overruled. (Para 26)
       (ii) Suit for Partition and rendition of accounts-Dependant on two Wills of Testator dated 30.3.68 and 2.2.72-1st Will in favour of defendants-2nd Will in favour of plaintiffs-Suit decreed by the first Appellate Court in favour of plaintiffs relying on 2nd Will-Second Appeal to High Court-High Court reversed 1st appellate Court relying on first Will-Whether High Court was justified in Second Appeal to disturb a finding of fact? (No)-Appeal allowed-1st Appellate Court restored.
       Held : The learned Single Judge of the High Court obviously had the Punjab Full Bench judgment in mind and having regard to Section 41 and without any reference to Section 100 dealt the issue. The mandatory requirement of Section 100 cannot be obliterated by reason of a State legislature where the requirement is not such. 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 Section 97(1) of the amending Act. More so by reason of the clarification rendered by the legislature in Section 101 of the Code which provides that no second appeal shall lie except on the ground mentioned in Section 100 indicating thereby the further reinforcement to the legislative intent to be obtained from Section 101 as regards the issue of substantial question of law. This refers to substantial question of law having regard to the language of Section 103 cannot however be said to even imply a contra note apart from what is stated herein before. This is so however by reason of the provisions of Section 97 of the Amending Act. By reason of the aforesaid these appeals succeed, the order of the High Court in Second Appeal No. 762 of 1986 stands set aside and that of the lower Appellate Court restored. Each party however to pay and bear its own costs. (Paras 32 to 35)

JUDGMENT

Banerjee, J.-The core issue in these appeals centres round the applicability of Section 100 vis-a-vis Section 41 of the Punjab Courts Act 1918. This Court in Banarsi Dass v. Brig. Maharaja Sukhjit Singh & Another1 was faced with an identical situation and answered the same that there is no impediment in the matter of exercise of jurisdiction of the High Court in entertaining the second appeal in view of clause (c) of sub-section (1) of Section 41 of the Punjab Act. The situation would have been rather easier for us in view of the pronouncement of this Court in Benarasi Das (supra), but Mr. Mehta appearing in support of the Appeal drew our attention to the observations of this Court in paragraph 13 of the Report to the effect that the decision of this Court in its entirety proceeded on the basis of a concession that the second appeal under Section 41 of the Punjab Courts Act was maintainable and the objection pertaining to the amended Section 100 of the Code was not pressed and it is on this count that the learned Advocate in support of the appeal very strongly contended that applicability of Section 41 of the Punjab Act on the wake of the amendment to the Code of Civil Procedure, and in particular, Section 100 thereof was not considered neither the decision of this Court in Banarsi Dass (supra) can be ascribed to be an authority therefor. Having regard tO the concession and for proper appreciation, paragraph 13 is set out herein below:

13. Mr. Bhagat conceded that the second appeal under Section 41 of the Punjab Courts Act was maintainable and he did not press his objection based on the amended Section 100 of the Code. We, therefore, need not examine the question of Section 4 of the Code would save the applicability of Section 41 of the Punjab Courts Act in view of Section 101 of the Code which says that no second appeal shall lie except on the grounds mentioned in Section 100 and Entry 13 of List III (Concurrent List) of Seventh Schedule of the Constitution which reads:

"13. Civil Procedure, including all matters included in the Code of Civil Procedure at the commencement of this Constitution, limitation and arbitration."

2. The concession thus recorded in Banarsi Dass s case as noticed above obviously renders the submissions of Mr. Metha of some substance. Concession, if made and in the event the Court proceeds on the basis of such a concession, the decision cannot by any stretch be termed to be a binding precedent and as such the previous decision (1998(2) SCC 81) does not and cannot have the sanctity and solemnity of a binding precedent.

3. On the wake of the aforesaid, Mr. Metha in support of the Appeal, contended that the High Court was clearly in error in entertaining the second appeal without any substantial question of law being involved therein and in any event, the second Appeal was entertained in violation of the procedure prescribed under Section 100 of the Code of Civil Procedure. It is at this juncture Section 100 as was existing prior to the Amendment Act, 1976, ought to be noticed.

4. Section 100 read as below:

"100. (1) Save where 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 on any of the following grounds, namely :

(a) the decision being contrary to law or to some usage having the force of law;

(b) the decision having failed to determine some material issue of law or usage having the force of law;

(c) a substantial error or defect in the procedure provided by this Code 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 merits.

(2) An appeal may lie under this section from an appellate decree passed ex- parte."

5. Section 100 of the Code as stands amended by the Amendment Act and as is presently prevale

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2001 Supreme(SC) 514

Cases Referred (8)