The main legal point established in the judgment is the interpretation of the adoption of provisions by incorporation and by reference, and the applicability of the amended provision of Section 100 of the Code of Civil Procedure, 1908, to sub-section (4) of Section 331 of U.P. Zamindari Abolition and Land Reforms Act, 1950.

Prafulla C. Pant, J.

1. This reference has been made by learned single Judge of this Court, while hearing Writ Petition No. 61 of 2000 (M/S) and Writ Petition No. 285 of 2001 (M/S}, both between the same parties, for being answered on following questions:

1. Whether sub-section (4) of Section 331 of U.P. Zamindari Abolition and Land Reforms Act, 1950, is legislation by incorporation or by reference and its effect?

2. Whether the provisions of Section 331 (4) of the U.P. Zamindari and Land Reforms Act, 1950, shall be deemed to have been substituted after the amendment made in Section 100 of the Code of Civil Procedure and, therefore, Section 100 of the Code of Civil Procedure as amended w.e.f. 1.2.1977 will also apply to sub section (4) of Section 331 of U.P. Zamindari Abolition and Land Reforms Act, 1950?

2. We heard learned Counsel for the parties at length on both the above points.

3. Before further discussion in the matter, we feel it necessary to reproduce the relevant provision of law. Sub-section (4) of Section 331 of U.P. Zamindari Abolition and Land Reforms Act, 1950, reads as under:

(4) A second appeal shall lie on any of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 from the final order or decree, passed in an appeal under sub-section (3) to the authority, if any, mentioned against it in column 6 of the Schedule aforesaid.

U.P. Zamindari and Land Reforms Act, 1950, received the assent of the President of India on January 24, 1951 under Article 201 of the Constitution of India and published in the U.P. Gazette Extraordinary dated January 26, 1951, and came into force at once except provision mentioned in sub-section (3) of Section 1 of said Act.

4. In the year 1951, Section 100 of Code of Civil Procedure, 1908, contained following grounds for second appeal:

(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 ; and

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

5. After the amendment in Section 100 of Code of Civil Procedure, 1908, vide Act No. 104 of 1976, w.e.f. 1.2.1977, it reads as under:

100. Second appeal.-(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 lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question 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 subsection 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.

As such now only one ground i.e. substantial question of law on which a second appeal can be maintained under Section 100 of the Code of Civil Procedure, 1908, as against the three available earlier under said Section read with Section 331 (4) of U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act No. 1 of 1951). The question therefore is whether amendment made in Section 100 of the Code of Civil Procedure, after Section 331 (4) of the aforesaid U.P. Act No. 1 of 1951, would automatically be