The main legal point established in the judgment is that Section 41 of the Punjab Courts Act, 1981 is repugnant to Section 100 of the Code of Civil Procedure and cannot have its effect due to parliamentary supremacy.

Umesh C. 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, 1981. This Court in Banarsi Dass v. Brig. Maharaja Sukhjit Singh and another, 1998(2) SCC 81 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 Banarasi 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 Das (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 Dasss case as noticed above obviously renders the submissions of Mr. Mehta 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. Mehta 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.

Section 100 reads 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 the 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."

Section 100 of the Code as stands amended by the Amendment Act and as is presently prevalent ought also to be noticed presently