IMPORTANT POINTS
(1) Second appeal has to mandatorily contain a substantial question of law.
(2) Insofar as State of Punjab is concerned, second appeal does not require formulation of a substantial question of law.

ORDER

1. Leave granted.

2. The sole contention advanced is that the regular second appeal has been decided without framing a question of law.

3. In order to support the aforesaid plea, learned counsel for the appellant(s) has relied upon the judgments in Civil Appeals No. 3276-3281 of 2019 titled as Chand Kaur(D) through Lrs. v. Mehar Kaur (D) through Lrs. and in Civil Appeal Nos. 9118-9119 of 2010 titled as Surat Singh (Dead) v. Siri Bhagwan, both emanating from the Punjab and Haryana High Court. He also relies upon two other judgments i.e Civil Appeal No. 4451 of 2009 titled as Shrikant v. Narayan Singh (d) through Lrs. and Civil Appeal No. 1117 of 2001 titled as Santosh Hazari v. Purushottam Tiwari (D) by Lrs, both emanating from the Madhya Pradesh High Court to canvass the aforesaid proposition.

4. On the last date of hearing, we had pointed out to learned counsel for the appellant(s) that insofar as Punjab and Haryana High Court is concerned, a different legal position will prevail in view of the Constitution Bench Judgment of this Court in Civil Appeal No. 201 of 2005 titled as Pankajakshi (Dead) through L.Rs. v. Chandrika, (2016) 6 SCC 157.

5. 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.

6. We are elucidating the position which emerges from the Constitution Bench Judgment to put the controversy at rest.

7. It is no doubt true that by virtue of Section 97 of the Code of Civil Procedure (Amendment) Act, 1976 (hereinafter referred to as the ‘Amendment Act’) and Section 100 of the Code of Civil Procedure, 1976 (hereinafter referred to as the ‘Code’) was amended requiring the second appeal to mandatorily contain a substantial question of law considering the same.

8. It was initially held in Kulwant Kaur v. Gurdial Singh Mann (Dead) by Lrs., (2001) 4 SCC 262 case that Section 100 of the Code would take precedence over Section 41 of the Punjab Courts Act, 1918 (hereinafter referred to as the ‘Punjab Act’) which conspicuously does not require the framing of such a substantial question of law. It was held that Section 41 of the Punjab Courts Act being repugnant to the amended provisions of Section 100 of the Code and Section 97 of the Amendment Act containing a saving clause, Section 41 of the Punjab Act would no longer hold the field and substantial question of law will be required to be framed. Section 41 of the Punjab Courts Act reads as under:

“Section 41 - Second Appeals

(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 [V of 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:

1 [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.

(3) [Repealed by Section 2B of Punjab Act 6 of 1941]

9. A Constitution Bench of this Court however in Pankajakshi (Dead) through L.Rs. (supra) opined that Section 97 of the Amendment Act prohibited amendments made in the principal Act which were repugnant to the same and, therefore, if any state amendment to the Code was enacted by the state legislature or a rule was made by the High Court of State in respect of the provisions of the Code which ran counter to the Code, it would be hit by the provisions of the savings clause of the Amendment Act. The