The provisions of a special or local law, such as the Punjab Courts Act, are saved from being affected by the general provisions of the Civil Procedure Code, including the amended Section 100, due to the saving clause in Section 4(1) of the CPC and the opening part of Section 100(1) of the CPC.

S.S.SANDHAWALIA, J.

1. The two significant questions succinctly formulated in the Reference Order, which call for determination by this Full Bench are in the following terms :-

Has the amended S. 100 of the Code in any way affected the provisions of S. 41 (1) of the Punjab Courts Act?What interpretation is to be placed on the phrase substantial question of law occurring in amended S. 109 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 new 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 fie to the High Court from every decree passed in appeal by any Court subordinate the High Court, if the High Court is satisfied that the case involves a substantial questions 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 tile 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