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Discussion on maintainability of second appeal beyond substantial question of

law: prepared by Rakesh Kumar Singh
*******************
There is nothing to suggest that the judges are infallible on law or facts. In
such circumstances, prescribing that a second appeal would not be maintainable on
the question of fact and even on the question of law would not be in the interest of
general public. But the Section-100 CPC seems to restrict the appellate avenue so
far as second appeal is concerned. It provides opportunity of second appeal only on
substantial question of law. This definitely is different from a question of law as the
word substantial restricts the nature of questions of law. There may be two
situations in which a litigant may prefer a second appeal. First, when both the
courts subordinate to Honble High Court gives concurrent findings. In this
situation, one may say that concurrent findings returned by two courts should be
given some weightage and therefore the same should not be open for challenge in a
second appeal. The justification given may be that two courts are simultaneously
less likely to make mistake. It would however be doubtful if this can be accepted
as justification. Infallibility remains attached. The second situation however is
more dangerous which is when the court of first instance gives finding in his
favour but first appellate court reverses the finding. In this situation, two different
opinions already have existence. It would therefore be not in the interest of justice

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to close the door for challenge. Law should provide a satisfactory opportunity to
every litigant. And therefore, the highest court in the state should be approachable
for second appeal as far as possible. One should bear in mind that everyone cannot
approach the ultimate level i.e. Honble Supreme Court.
1.1.

With the above in mind, the present is trying to ascertain if a litigant in Delhi

can approach the Honble High Court through a second appeal in a civil suit on
questions which are beyond the scope of substantial question of law. This paper is
humble attempt to project a relatively different theory through an apparently
innocuous point.
2.

We may for convenience formulate following questions to arrive at a clear

answer for the main question i.e. does a second appeal lie in Delhi even beyond
substantive question of law:
1.

Whether the Punjab Courts Act, 1918 as applicable to Delhi is a Central Act
so far as Delhi is concerned;

2.

Whether Punjab Courts Act, 1918 as applicable to Delhi is a local or special

law for Delhi;

3.

Whether Section 97 of Amendment Act 1976 also affects any amendment

made in CPC by any central law;

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4.

Whether Section 4 CPC saves local or special law related to procedure and
to what extent;

5.

Whether Section-41 Punjab Courts Act is impliedly repealed;

6.

Effect of Kulwant Kaur vs Gurdial Singh Mann.

Whether the Punjab Courts Act, 1918 as applicable to Delhi is a Central Act
so far as Delhi is concerned:
3.

Interestingly, the answer is very simple. Yes, it is. Why? We may find

reasoning in the following judgments of Honble Supreme Court and Honble High
Court of Delhi.
3.1.

In Mithan Lal vs The State Of Delhi 1958 AIR 682, a Constitution Bench

held as under:
The Bengal Finance (Sales Tax) Act, 1941, was a law
passed by the Legislature of the Province of Bengal and
applied only to sales effected within that Province, and,
after the partition of the Country, to sales effected within
the State of West Bengal. Under the Government of India
Act, 1935, Delhi was a Chief Commissioner's Province
administered by the Governor General, and under the

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Constitution, it became a Part C State, and Art.

239 vested its administration in the President acting
through a Chief Commissioner or a Lieutenant-Governor
as he might think fit.
***
Moreover, when a notification is issued by the
appropriate Government extending the law of a Part A
State to a Part C State, the law so extended derives its
force in the State to which it is extended from s. 2 of the
Part C States (Laws) Act enacted by Parliament. The
result of a notification issued under that section is than,
the provisions of the law which is extended become
incorporated by reference, in the Act itself, and therefore
a tax imposed thereunder is a tax imposed by
Parliament.
3.2.

In The State Of Andhra Pradesh vs New Delhi Municipal Committee

AIR 1975 Delhi 223 it was held:

The various Punjab enactments which were then in
force in the territory of Delhi continued to be in force by

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virtue of the Delhi Laws Act of 1912 and later by the Part
C States Laws Act of 1950 and the Union Territories
Laws Act of 1950. The application and the later
extension of this law to the Union Territory of Delhi was
therefore, not by the authority of the State Legislature but
that the Central Legislature, that is, the Central
Legislature under the Government of India Act followed
by the Central Legislature under the Constitution of
India, that is, the Parliament of India. This was by virtue
of the powers of Parliament under Article 246(4) of the
Constitution of India. It is true that at no stage was the
Act as such enacted by Parliament and the provision of
Clause (4) of Article 246 of the Constitution of India was
not invoked but that would not change the character of
the Statute in relation to the Union Territory of Delhi.
This is so because the Act was extended to the Union
Territory of Delhi under the various Statutes which were
central Statutes. The Delhi Laws Act. 1912, the Union
Territories (Laws) Act, 1950 as indeed the Part C States
(Laws) Act. 1950 were all central statutes and when a

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provincial Act or an Act which may be treated as a

provincial Act or State Act was extended to a territory by
a particular legislature, it would be deemed to be the
enactment of such a legislature and this principle is
clearly recognized by the Supreme Court in the case of
Mithan Lal v. State of Delhi, where the Supreme Court
was concerned with the constitutionality of the Bengal
Sales Tax.
******
It is, thus. Clear that on the extension of the Act to the
Union Territory of Delhi by the various Central
Legislative enactments referred to above, it became a
Central Act or an Act of Parliament as if made by virtue
of power of Parliament to legislate for the Union
Territory of Delhi by virtue of clause (4) of Article 246 of
the Constitution of India.
3.2.1. This reasoning remained unchallenged before a nine judges bench of
Honble Supreme Court in NDMC vs State of Punjab dated 19.12.1996 which
through majority observed as under:

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The correctness of the above factual statement has not

been disputed by anyone before us.
3.3.

In National Association of Motion Pictures Exhibitors v. Union of India,

C.W. No. 368 of 1981, decided on December 20, 1982 it was held:
On a parity of reasoning, it must be held that when
Punjab Act is extended to Delhi. It is not the exercise of
rule making authority. In reality, this power of extending
an Act owes its legislative authority to Union Laws Act,
1950, which in its turn derives its efficacy from the
legislation passed by Parliament.... The position that
emerges in law is that whether Parliament itself had
passed an Act like Punjab Act and made applicable to
Union Territory of Delhi or whether the Central
Government by virtue of section 2 of the Union
Territories Laws Act has extended an enactment like
Punjab Act to the Union Territory of Delhi, both of them
would owe their source to the same authority, namely the
Parliament.

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3.4.

The ultimate answer however lies in a judicial pronouncement of three

judges bench of Honble Supreme Court in Delhi Bar Association vs Union Of

India & Ors on 15 May, 2008 wherein it was held:
The enforcement of the Government of National Capital
Territory of Delhi Act, 1991 from 01.02.1992 does not
hinder the continuing application of the Punjab Courts
Act, 1918 to Delhi.
****
The Punjab Courts Act, 1918 has been extended to the
National Capital Territory of Delhi and there is no
notification, order or legislation brought to our notice
whereby application of the Punjab Courts Act, 1918 to
the National Capital Territory of Delhi has been repealed
or curtailed. Therefore, in the absence of any provision in
the Government of National Capital Territory of Delhi
Act or in the absence of any other notification, order or
legislation, the Punjab Courts Act, 1918, has continuous
application to Delhi along with the laws made by the
Delhi Legislative Assembly.

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******
The Punjab Courts Act, 1918, though only extended to
Delhi, has the status of a central legislation directly
enacted for Delhi. When a provincial Act or an Act which
may be treated as a provincial Act was extended to the
territory by a legislature, it would be deemed to be the
enactment of such legislature. This principle has been
clearly recognised by this Court in the case of Mithan Lal
etc. v. State of Delhi, AIR 1958 SC.
****
It is, thus, clear that on the extension of the Punjab
Courts Act, 1918, to the U.T. of Delhi, it becomes a
Central Act or an Act of Parliament as it is made by
virtue of powers of Parliament to legislate for the U.T. of
Delhi by virtue of clause (4) of Article 246 of the
Constitution of India. Therefore, the Punjab Courts
Act, 1918 assumes the position of central legislation
enacted specifically for Delhi and is the law operative in
the NCT of Delhi.

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3.5.

Needless to say that the above discussion and the three judges bench

decision do not give scope for any further probe and we are bound to arrive at a
definite conclusion that the Punjab Courts Act is a central legislation so far as
Delhi is concerned.
Whether Punjab Courts Act, 1918 as applicable to Delhi is a local or special
law for Delhi:
4.

The three judges bench in Delhi Bar Association (supra) has clearly used

the Punjab Courts Act, 1918 assumes the position of central legislation
enacted specifically for Delhi. So we can safely say that the Punjab Courts Act is
a law specifically for Delhi. However, we can discuss the matter in some detail to
find the meaning of special or local law and may then arrive at any finding in
respect of the Punjab Courts Act uninfluenced by the aforestated decision.
4.1.

Special law simply denotes a specific subject and a local law denotes a

specific area. Since the Punjab Courts Act is a central enactment applicable only to
the area of Delhi, it has to be accepted that its applicability is confined to a specific
local area. One would then say, No, the Punjab Courts Act is also applicable to
Punjab and Haryana and therefore it cannot be treated as having local applicability
to Delhi only. The assumption would however be wrong. When the Act operates in
Punjab or Haryana, it operates as a state enactment and not as a central enactment.

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Both the enactments are therefore different and even their enforcement point of
time are also different. Central enactment of Punjab Courts Act only extends to
Delhi and therefore it has to be treated as local law for Delhi.
4.2.

In Life Insurance Corporation vs D J Bahadur, (1981) 1 SCC 315, a three

judges bench speaking through Krishna Iyer J. has pointed out as under:

In determining whether a statute is a special or a general

one, the focus must be on the principal subject matter
plus the particular perspective. For certain purposes, an
Act may be general and for certain other purposes it may
be special and we cannot blur distinctions when dealing
with finer points of law.

4.3.

Punjab Courts Act was primarily enacted as a law relating to courts. Now

doubt a state legislature may or may not confer additional powers on a High Court
in respect of cases due to restriction on law making power in view of Schedule-7 of
the Constitution. The Parliament exercises all the powers over a Union Territory to
make all the laws irrespective of Schedule-7. Therefore, it can by one single law
make changes in powers of all the courts including High Court so far Union
Territory is concerned. As such, parliament can confer some additional power of
appeal on the High Court so far as Union Territory is concerned. If this is done,

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power of appeal so conferred shall fall under special category i.e. Special Law for
that Union Territory as it is enacted as specially to the subject of appeal. We have
seen that for some purpose, one statute may be general and for other, it may be
special. When the Punjab Courts Act became the central enactment for Delhi,
whether or not the entire Act could be treated as special but with certainty it can be
said that the provision of second appeal was special one i.e. Special Law.
4.4.

Therefore, there cannot be any dispute that central enactment of Punjab

Courts Act is special and local law for Delhi.

Whether Section 97 of Amendment Act 1976 also affects any amendment
made in CPC by any central law:
5.

In a division bench decision of Honble High Court of Delhi in S.C. Jain vs

Union Of India 23 (1983) DLT 467, Justice Rajinder Sachar opined (with which
Justice D.R. Khanna agreed) as under:
The question for decision in this petition is whether
clause (ccc) inserted in sub-s. (1)(in the proviso) of s. 60
of the Code of Civil Procedure (hereinafter called as "the
Code") by means of s. 35 of the Punjab Relief of
Indebtedness Act, 1934, as amended by Punjab
Amendment Act XII of 1940, and Punjab Amendment

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Act VI of 1942, as extended to the State of Delhi, stands

repealed after the passing of the Amendment Act, 104 of
1976, amending the Code, especially in the light of s.
97(1) of Amendment Act, 1976..
*******
Section 2 of the "Part C States" (substituted by "Union
Territories" w.e.f. November 1, 1956)(Laws) Act, 1950,
empowers the Central Govt. that it may by notification in
the Official Gazette extend to the Union Territory of
Delhi, Himachal Pradesh, Manipur or Tripura, or any part
of such territory with such restrictions and modifications
as it thinks fit, any enactment which is in force in a State
at the date of the notification. In exercise of the said
powers, the Central Govt. extended to the State of Delhi,
the Punjab Relief of Indebtedness Amendment Act VII of
1940 and Amendment Act VI of 1942, by means of a
notification dated June 8, 1956, published in the Gazette
of India, June 16, 1956, the result was that the protection
of clause (ccc) in the proviso to s. 60(1) of the Code also
became available in Delhi from this date onwards.

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****
As mentioned above, clause (ccc) in the proviso to s.
60(1) of the Code does exempt one main residential
house. But Mr. Wazir Singh, the learned counsel for the
Revenue, says that this exemption is no longer available
in view of s. 97(1) of the Amendment Act 104 of 1976.
The contention that clause (ccc) was inserted in the Code
by the State Legislature of Punjab and that it is not
consistent with the provisions of the Code as amended in
1976, because there is no exemption from attachment of
a min residential house to be found in the principal Act,
the result being that clause (ccc) in the proviso to s. 60(1)
of the Code, as applicable in Delhi, stands repealed. This
contention of counsel for the Revenue finds support from
a decided of Luthra J. in S. Rau's I.A.S. Study Circle v.
Smt. Sushila Nanda [1981] Delhi Law Times 174, and
Sultan Singh J. in Tikkan Lal v. Govind Lal [1983]
Rajdhani Lal Reporter (Note) 9. Where both the learned
judges have held that clause (ccc) in the proviso stands

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repealed and exemption for a main residential house is no

longer available in Delhi.
****
Now, s. 97(1) of the 1975 Act only purports to repeal
amendments in stated circumstances but only if inserted
by Act of Legislature or a High Court. The contention of
Mr. Tikku is that the insertion of clause (ccc) in the
proviso to s. 60(1) of the Code, though effected by
Punjab Amendment Act XII of 1940 and Punjab Act VI
of 1942, a State amendment, cannot be treated to be so,
when extended to Delhi by a notification of 1956 issued
by the Central Government as mentioned above. The
extension in Delhi, it is claimed, is by an Act of
Parliament and thus is outside the ambit of s. 97(1) of
1976 Act. So far as Punjab is concerned, there is no
dispute that the insertion of clause (ccc) in the proviso is
by virtue of a legislation by the State Legislature. If the
view of Luthra J. and Sultan Singh J. that the provisions
of the Code as amended by 1976 are inconsistent with
clause (ccc) may no longer be available so far as the State

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of Punjab is concerned. But the same consequences does

not follow in the Union Territory of Delhi.
*****
In this view of the matter it is indisputable that Punjab
Act XII of 1940 and Punjab Act VI of 1942, which inserted
clause (ccc) in proviso to sub-s. (1) of s. 60 of the
Principal Act (namely, the Code, when extended to the
Union Territory of Delhi, by means of Central Govt's.
notification of June, 1955, must be deemed to be, in so
far as Delhi is concerned, insertions made not by the
State Legislature but by Parliament itself. If so,
amendment is made by the State Legislature or a High
Court.
In that view it has to be held that s. 97(1) of 1976 Act is
of no assistance to the Revenue. Thus the benefit of
clause (ccc) in proviso to s. 60(1) of the Code, as
applicable to Delhi, continues to be available to a
judgment-debtor provided he satisfies the conditions
mentioned therein. We must, therefore, overrule the

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decisions of Luthra and Sultan Singh JJ. mentioned

above, though on different grounds, as not laying the
correct law.
******
Mr. Wazir Singh then urges that even if s. 97(1) of 1976
Act is out of way, it must still be held that clause (ccc) as
extended to Delhi has been impliedly repealed. His
argument is that Parliament when passing Act, 104 of
1976, made some amendment in clause (c) in the proviso
to s. 60(1) of the Code, and this necessarily meant that all
amendments in s. 60 whether inserted by Parliament or
the State Legislature stood repealed, the former by
implication and the latter specifically. We cannot agree.
By s. 97(1) of 1976 Act, only amendments made by a
State Legislature are covered. Mr. Wazir Singh's
argument in fact asks us to hold that there is an implied
repeal of clause (ccc) as extended to Delhi, even if it be
taken as Parliament Act. We cannot agree.
****

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Moreover, the 1976 Act gives a clear signal that when the
Legislature desired repeal of certain amendments it said
so specifically in s. 97(1). This is another indication that
Parliament did not by the Amendment Act of 1976 intend
to repeal any amendment to the Code other than made by
the State Legislature and the High Court. We are,
therefore, unable to sustain the argument of repeal by
implication.
5.1.

Though in different context but the scope of Section-97 of Amending Act

was also commented upon by the Honble Supreme Court subsequently in Iridium
India Telecom Ltd vs Motorola Inc (2005) 2 SCC 145 as under:
It is obvious that what was done by Section 97(1) of the
Amending Act was to sweep away amendments made or
provisions inserted in the principal Act by the State
Legislature, or the High Court in exercise of its delegated
powers of legislation, and to declare that all such
amendments inconsistent with the provisions of the
Code would stand repealed. We are afraid that Section
129 is neither an amendment made by the State

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legislature, nor by the High Court, and as such, it does

not get overridden by Section 97(1) of the Amending Act
of 1976. Though, both the sections Section 122 and
129 were noticed in this judgment, it does not hold that
the impact of Section 129 was, in any way, watered
down by Section 122.
Kulwant Kaur (supra) was concerned with a situation
where Punjab Courts Act, 1918 had a special right of
appeal and the question was whether the amended
provisions in Section 100 of the CPC, as amended by Act
104 of 1976, would exclude appeals under Section 41 of
the Punjab Courts Act, 1918. The view taken was that
there was inconsistency between the provisions of the
Punjab Courts Act and the provisions of Section 97(1) of
the CPC. By reason of Article 254, the Section 97(1) of
the CPC, being the Central Act, was held to prevail. It was
pointed out in the judgment that though Section 4 of the
Civil Procedure Code, 1908 saved special or local laws in
the absence of any specific provision to the contrary,

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Section 97(1) was such a provision to the contrary, and,

therefore, the saving under Section 4 would no longer be
available to the local Act. Consequently, it was held
"language of Section 97(1) of the Amendment Act clearly
spells out that any local law which can be termed to be
inconsistent perishes, but if it is not so, the local law
would continue to occupy its field." We do not think that
this decision carries forward the argument.
5.2.

Above is a clear illustration that Section-97 of 1976 Amending Act does not

affect any amendment in the CPC made by a central legislation.

5.3.

For the present purpose, though not necessary, we may note that a three

judges bench of Honble Supreme had already held that Section-97 of Amending
Act was limited in application to the provisions in which amendments were made
and was not of sweeping nature (see Pt. Rishikesh And Anr. Etc vs Smt. Salma
Begum (1995) 4 SCC 718).
Whether Section 4 CPC saves local or special law related to procedure and to
what extent:
6.

Section-4(1) of CPC reads as under:

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4. Savings- (1) In the absence of any specific provision

to the contrary, nothing in this Code shall be deemed to
limit or otherwise affect any special or local law now in
force or any special jurisdiction or power conferred, or
any special form of procedure prescribed, by or under
any other law for the time in force.
6.1.

In the context of Section-5 of CrPC which is similarly worded, a constitution

bench of Honble Supreme Court in Maru Ram Etc. Etc vs Union Of Lndia &
Anr AIR 1980 SC 2147 had made following observation:
The next submission, pressed by Shri Kakkar with great
plausibility, is that s. 5 of the Procedure Code saves all
remissions, short-sentencing schemes as special and
local laws and, therefore, they must prevail over the
Code including. 433A. Section 5 runs thus :
5. Nothing contained in this Code shall, in the absence of
a specific provision to the contrary, affect any special or
local law for the time being in force, or any special
jurisdiction or power conferred, or any special form of

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procedure prescribed, by any other law for the time being

in force.
The anatomy of this savings section is simple, yet subtle.
Broadly speaking, there are three components to be
separated. Firstly, the Procedure Code generally governs
matters covered by it. Secondly, if a special or local law
exists covering the same area, this latter law will be
saved and will prevail. The short-sentencing measures
and remission schemes promulgated by the various
States are special and local laws and must over-ride.
Now comes the third component which may be
clinching. If there is a specific provision to the contrary,
then that will over-ride the special or local law. Is s.
433A a specific law contra? If so, that will be the last
word and will hold even against the special or local law.
Three rulings were cited by the learned Solicitor General
to make out that s. 433A is a specific law. A Bombay case
in AIR 1941 Bom. 146, he frankly stated, takes a contrary

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but scrappy view. The Judicial Committee in Pakala

Narayana Swamy v. The King Emperor inconclusively
considered what is a specific law, in a similar setting. Two
later cases of Lahore [a full bench of five judges] and of
Allahabad [a bench of three judges] discussed almost an
identical issue and held that some provisions of the
Procedure Code were specific sections to the contrary
and would repeal any special law on the subject.
Section 1(2) of the Criminal Procedure Code, 1898, is the
previous incarnation of s. 5 of the Present Code and
contains virtually the same phraseology. The expression
'specific provision to the contrary' in the Code of 1898
was considered in the two Full Bench Decisions (supra).
The setting in which the issue was raised was precisely
similar and the meaning of 'specific provision to the
contrary' was considered by Young, C.J. in the Lahore
case where the learned Judge observed :

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The word 'specific' is defined in Murray's Oxford

Dictionary as 'precise or exact in respect of fulfillment,
conditions or terms; definite, explicit'.
In a similar situation, the same words fell for decision in
the Allahabad case where Braund, J., discussed the
meaning of 'specific provision' in greater detail and
observed :
I have, I confess, entertained some doubt as to what
exactly the words 'specific provisions' mean. I think first,
that they must denote something different from the words
'express provision'. For a provision of a statute to be an
'express' provision affecting another statute or part of it, it
would have, I think, to refer in so many words to the
other statute or to the relevant portion of it and also to the
effect intended to be produced on it. Failing this, it could
hardly be said to be 'express'.... But the word 'specific'
denotes, to my mind, something less exacting than the
word 'express'. It means, I think, a provision which
'specifies' that some 'special law' is to be 'affected' by that

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particular provision. A dictionary meaning of the very 'to

specify' as given in Murray's New English Dictionary, is
'to mention, speak of or name (something) definitely or
explicitly; to set down or state categorically or
particularly....' and a meaning of the adjective 'specific' in
the same dictionary is 'precise definite, explicit.. exactly
named or indicated or capable of being so, precise,
particular.' What I think the words 'specific provision'
really mean therefore is that the particular provision of
the Criminal Procedure Code must, in order to 'affect' the
'special.. law,' clearly indicate, in itself and not merely by
implication to be drawn from the statute generally, that
the 'special law' in question is to be affected without
necessarily referring to that 'special law' or the effect on
it intended to be produced in express terms. Lord
Hatherley in (1893) 3 AC 933 at 938 has defined the
word 'specific' in common parlance of language as
meaning 'distinct from general' .. 'It would, no doubt, be
possible to multiply illustrations of analogous uses of the
words 'specify' and 'specific'. But this is I think sufficient

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to show that, while requiring something less than what is

'express', they nevertheless require something which is
plain certain and intelligible and not merely a matter of
inference or implication to be drawn from the statute
generally. That, to my mind, is what is meant by the word
'specific' in s. 1(2), Criminal P.C.
In an English case Buckley J., has interpreted the Word
'specific' to mean explicit and definable. While Indian
usage of English words often loses the Atlantic flavour
and Indian Judges owe their fidelity to Indian meaning of
foreign words and phrases, here East and West meet and
'specific' is specific enough to avoid being vague and
general. Fowler regards this word related to the central
notion of species as distinguished from genus and says
that it is 'often resorted to by those who have no clear
idea of their meaning but hold it to diffuse an air of
educated precision'. Stroud says 'specifically...' means 'as
such'. Black gives among other things, the following
meaning for 'specific': definite, explicit; of an exact or

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particular nature... particular; precise. While legalese

and English are some times enemies we have to go by
judicialese which is the draftsman's lexical guide.
The contrary view in the Bombay case is more assertive
than explanatory, and ipse dixit, even if judicial, do not
validate themselves. We are inclined to agree with the
opinion expressed in the Lahore and Allahabad cases
(supra). A thing is specific if it is explicit. It' need not be
express. The anti-thesis is between 'specific' and
'indefinite' or 'omnibus' and between 'implied' and
'express'. What is precise, exact definite and explicit is
specific.
Sometimes, what is specific may also be special but yet
they are distinct in semantics. From this angle, the
Criminal Procedure Code is a general Code. The
remission rules are special laws but s. 433A is a specific,
explicit, definite provisions dealing with a particular
situation. Or narrow class of cases, as distinguished from

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the general run of cases covered by s. 432 Cr. P. C.

Section 433A picks out of a mass of imprisonment cases
a specific class of life imprisonment cases and subjects it
explicitly to a particularised treatment. It follows that s.
433A applies in preference to any special or local law
because s.5 expressly declares that specific provisions, if
any, to the contrary will prevail over any special or local
law. We have said enough to make the point that
'specific' is specific enough and even though 'special' to
'specific' is near allied and 'thin partition do their bounds
divide' the two are different. Section 433A escapes the
exclusion of s. 5.
6.2.

The above clearly shows a way to interpret Section-4 of CPC. It would also

have three components. Firstly, the Procedure Code generally governs matters
covered by it. Secondly, if a special or local law exists covering the same area, this
latter law will be saved and will prevail. Now, comes the third component which
may be clinching. If there is a specific provision to the contrary, then that will
over-ride the special or local law.

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6.3.

We know that Section-41 of the Punjab Courts Act provides for second

appeal on several grounds. Is there any specific provision to the contrary in CPC?
Section-97 of Amending Act 1976 may be considered. It says that any amendment
made by any state enactment in the CPC shall be deemed to be repealed if found
inconsistent with central amendment. Section-100 is governed by a central
amendment and therefore if any state law shows any provision inconsistent with
Section-100, it would be deemed to be repealed. As such, Section-97 of Amending
Act would be a specific provision to the contrary and therefore the third
component of Section-4 CPC will play its role whereby the local law would not be
saved. This is apparently one of the reasons given by the Honble Supreme Court
in Kulwant Kaur case. However, in Delhi, Section-97 of Amending Act has no
applicability at all. It is the central enactments which have made amendments in
CPC for Delhi. Reason is obvious. We now know that any enactment extended by
the union in Delhi has to be treated as a central enactment for Delhi. Delhi State
has not made any amendment in CPC and therefore there cannot be a question
for deemed repeal through Section-97. As such, for Delhi, Section-97 cannot be
treated as specific provision for the purpose of Section-4 CPC.
6.4.

Is there any other provision in CPC which can be treated as specific

provision to the contrary? Section-100(1) CPC reads as:

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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.
6.5.

It is clear that Section-100 cannot be treated as specific provision to the

contrary. This section itself says that if any other thing is provided in any other law,
the same will be saved. So, it will not affect another central enactment i.e.
Section-41 of Punjab Courts Act, 1918 so far as Delhi is concerned. Additionally,
Section-100 also saves anything which is expressly provided in the body of the
CPC. Section-4 CPC is expressly provided in the body of the CPC and therefore,
where Section-4 applies, Section-100 will have no applicability at all. For Delhi,
Section-41 of Punjab Courts Act is special & local law and therefore will fall under
Section-4 CPC thereby excluding the applicability of Section-100.

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6.6.

As such, it has to be held that in the absence of specific provision to the

contrary, Section-4 CPC saves the operation of Section-41 of the Punjab Courts Act
so far as Delhi is concerned.
Whether Section-41 Punjab Courts Act is impliedly repealed:
7.

In State of M P vs. Kedia Leather and Liquor Ltd & ors, (2003) 7 SCC

389, a two Judge Bench of the Supreme Court observed:

There is presumption against a repeal by Implication;

and the reason of this rule is based on the theory that the
legislature while enacting a law has complete knowledge
of the existing laws on the same subject-matter, and
therefore, when it does not provide a repealing provision,
the intention is clear not to repeal the existing legislation.
(See Municipal Council, Palai v T J Joseph, AIR 1963 SC
1561, Northern India Caterers (P) Ltd v State of Punjab,
AIR 1967 SC 1581, Municipal Corpn of Delhi vs Shiv
Shankar, (1971) 1 SCC 442, and Ratan Lal Adukia v
Union of India, (1989) 3 SCC 537). When the new Act
contains a repealing section mentioning the Acts which it
expressly repeals, the presumption against implied repeal

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of other laws is further strengthened on the principle

expressio unius (persone vel rei) est exclusio alterius.
(The express intention of one person or thing is the
exclusion of another), as illuminatingly stated in Garnett
v Bradley, (1878) 3 AC 944. The continuance of the
existing legislation, in the absence of an express
provision of repeal by implication lies on the party
asserting the same. The presumption is, however,
rebutted and a repeal is inferred by necessary implication
when the provisions of the later Act are so inconsistent
with or repugnant to the provisions of the earlier Act that
the two cannot stand together. But, if the two can be read
together and some application can be made of the words
in the earlier Act, a repeal will not be inferred.
7.1.

A division bench of Honble High Court of Delhi in M/s. Lord Chloro

Alkalies Ltd. vs. DGIT (Admn.) and Anr. (19.07.2013, Delhi HC) held:
One well recognized principle of statutory construction
is that when courts have to deal with conflicting or
inconsistent laws, or inconsistent provisions of two
separate enactments, the first approach should be to

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attempt at harmonization of the two provisions, to avoid,

or minimize the conflict. The second line of approach is
to see which of the two laws is a general law. A prior
special law will prevail over a later and general law.

7.2.

Once, the Amending Act of 1976 itself provides the subjects which it

intended to repeal, we should assume that other enactments were not

contemplated. Expression of one is clearly exclusion of other. Repealing clause of
Amending Act 1976 does not cover any central enactment and therefore Section41 of Punjab Courts Act (so far as Delhi is concerned, it is a central enactment)
cannot be treated as impliedly repealed.
Result:
8.

Now, if we follow the above discussion, we can find that the Punjab Courts

Act (so far as Delhi is concerned) being a central legislation is not affected by
Section-97 of Amending Act 1976 and therefore there is no contrary provision in
existence which is a pre-requisite for non-operation of saving clause in Section-4
CPC, and as such the special and local law providing different procedure through

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the Punjab Courts Act are clearly saved in & for Delhi. Section-41 of the Punjab
Courts Act provides for second appeal on several counts and this is clearly special
and local law for Delhi. This section is saved by Section-4 CPC so far as Delhi is
concerned. As such, second appeal can be maintained even beyond substantial
question of law envisaged in Section-100 CPC.

Effect of Kulwant Kaur vs Gurdial Singh Mann:

9.

We can now discuss the famous judgment of Honble Supreme Court in

Kulwant Kaur & Ors vs Gurdial Singh Mann (2001) 4 SCC 262. However, we
must bear in mind that it was dealing with a case from the High Court of Punjab &
Haryana. In this judgment Honble Supreme Court held that Section-41 of the
Punjab Courts Act stood impliedly repealed being repugnant to Central Act and in
view of existence of contrary provision in Section-97 of Amending Act 1976,
Section-41 was not saved by Section-4 of CPC. Reasons were provided in
following manner:
Section 97 (1) thus has an overriding effect as against
any amendment or provision being inconsistent with the
provisions of the principal Act and the principal Act
referred to in Section 97 is the Code of Civil Procedure. It

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is on this score that Article 254 of the Constitution of

India also have a bearing and as such the same is noted
hereinbelow for its field of operation and scope.
********
Section 254 thus maintains Parliamentary supremacy in
matters under List I and List III (List I Union List and List
III Concurrent List). And It is on this score that Mr. Mehta
was very eloquent that doctrine of implied repeal will
have its true impact on the situation and thus resultantly
negatived the effect of Section 41 of the Punjab courts
Act. Mr. Mehta contended that Section 100 of the Code
and Section 41 of the Punjab Act without any pale of
controversy have a common objective viz. authority and
jurisdiction to hear Second Appeals and thus both
operate on the same field and by reason of the factum
of the Punjab Act being non-complimentary to Section
100 of the Code, it cannot but be said to be repugnant
and hence the doctrine of repugnancy will have its full

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play in the matter of declaration of the Punjab Act being

void.
On the doctrine of implied repeal, Mr. Mehta contended
that procedural law must be having a meaningful
existence without being in conflict with a parliamentary
legislation. Undoubtedly, the doctrine of implied repeal
is not to be favoured but where a particular provision
cannot co-exist or intended to subsist in the event of
there being the repugnancy between central and State
Legislature the courts cannot but declare it to be so on
the ground of repeal by implication. Uniformity of law,
being the basic characteristics of Indian jurisprudence
cannot be termed to be at sufferance by reason of a
State Legislation which runs counter to the Central
Legislation. It is not necessary that one legislation should
be on the positive side whereas the other one in the
negative: Such a stringent requirement is not the
requirement in order to bring home the issue of

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repugnancy, but all the same it might result when both

the legislations cover the same field.
********
The requirement is thus a clear and direct irreconcilable
inconsistency between the Central Act and the State
Act and the inconsistency would be of such an extent
that it would be otherwise impossible to obey the one
without disobeying the other. Needless to record here
that prior to the Amendment Act of 1976, through which
the amendment to Section 100 was brought in the
statute book, the question of Section 100 being
inconsistent with Section 41 of the Punjab Act did not
arise, since the Punjab Act is in consonance with
unamended Section 100 without there being any
differentiation and are compatable to each other being
pari materia. Since the relevant statutory provisions have
already been noticed herein before in this judgment, we
need not recapitulate the same, and suffice however, to
notice what stands noticed already. The situation,

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however, stands differently on the incorporation of the

amendment to Section 100. With the amendment, the
power to entertain a Second Appeal by the High Court
stands restricted only on such occasions when the High
Court is otherwise satisfied about the involvement of a
substantial question of law. The addition of this new
concept of substantial question was not available in the
Code of Civil Procedure prior to the amendment or in
the Punjab Act.
********
The submission for the Respondent further proceeded to
the effect that on a plain reading of this Section it
depicts that in the event of there being any
inconsistency, the special or local laws will have the
precedence over the Code but in the event, there is no
inconsistency between the two, the Code will prevail
rather an attractive submission but on a closer scrutiny
the same pales into insignificance. As aforesaid the
special or local law as contained in Section 41 of the

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Punjab Code was in pari materia with unamended

Section 100 so then there was no inconsistency. It is only
after the amendment could be said to an inconsistency
have developed between the two provisions, which is
submitted to be saved by the aforesaid Section 4. While
it is true, on its plain reading at the first glance local law
seems to have been saved but we have to examine this
in the light of Article 254 of the Constitution of India and
the doctrine of repugnancy read with Section 97 of the
Amending Act as noticed in the earlier part of this
judgment. Incorporation of the Civil Procedure Code
Amendment Act in the statute book is by virtue of
conferment of power under Entry 13 of List III of the
Seventh Schedule of the Constitution. The Constitution is
the parent document and is supreme which has a
binding effect on all and by virtue of the provisions of
the Constitution, parliamentary supremacy in regard to
the adaptation of laws if within the area of operation as
provided under List I or List III is recognised.

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********
Thus even in cases falling under Clause (2), where State
law prevail, such law could be amended, varied or
repealed

by

the

Parliament

by

enacting

law

subsequently both by virtue of Clause (1) or proviso to

Clause (2).
********
By this, special or local laws are protected and thus not
to be effective in the absence of any specific provision to
the contrary. In other words, special or local laws would
be functional till any specific provision to the contrary
stands engrafted. Since Section 100 CPC unamended was
in pari materia with Section 41 of the Punjab Act, there
was no conflict and Section 41 continued in its field
unaffected.
********
Now we proceed to examine Section 97 (1) of the
Amending Act and the amendment of Section 100 CPC
by the said 1976 Act. Through this amendment right to

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Second Appeal further restricted only to lie where, the

case involves a substantial question of law. This
introduction definitely is in conflict with Section 41 of
the Punjab Act which was pari materia with unamended
Section 100 CPC. Thus so long there was no specific
provision to the contrary in this Code Section 4 CPC
saved special or local law. But after it comes in conflict
Section 4 CPC would not save, on the contrary its
language implied would make such special or local law
applicable.
********
Thus language of Section 97(1) of the Amending Act
clearly spells out that any local law inconsistent goes but
what is not inconsistence, it could be said the local
would still continue to occupy its field. 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

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declared by the Full Bench of the High Court in the case

of Ganpat (supra) cannot be sustained and is overruled.
********
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
Section97(1) of the amending Act.
9.1.

Certain specifics become immediately clear:

i.

It considered the Punjab Courts Act as a state legislation.

ii.

It also brought into picture the concept of repugnancy enshrined in Article254 which applies between Central Act on the one hand and State Act on the
other.

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iii.

It further equated the Section-41 of the Punjab Courts Act as an amendment

made in CPC by state legislature and therefore brought into play the Section97 of Amending Act 1976 to hold that such state amendment stood repealed.

iv.

It also taken Section-97 of Amending Act 1976 as a contrary provision

envisaged under Section-4 CPC to hold that saving clause will not operate.

9.2.

Our discussion in initial paragraphs contradicts each of the specific given

above. For better appreciation, following table may be considered:

Sl. No. Reasoning in Kulwant Kaur

Reasoning in present paper
1.
It considered the Punjab Courts So far as Delhi is concerned, the Punjab
Act as a state legislation.
Courts Act is a central legislation.
2.

3.

4.

It also brought into picture the

concept
of
repugnancy
enshrined in Article-254 which
applies between Central Act on
the one hand and State Act on
the other.
It further equated Section-41 of
the Punjab Courts Act as an
amendment made in CPC by
state legislature and therefore
brought into play the Section-97
of Amending Act 1976 to hold
that such state amendment stood
repealed.

Article 254 is not applicable between

two central legislations.

So far Delhi is concerned; Section-41

of the Punjab Courts Act cannot be
treated as amendment made in CPC by
any state legislation. This is a central
legislation. And even if it is treated as
amendment made in CPC, we have to
hold that it is made by a central
legislation. So there cannot be any
question of repeal as Section 97 of
Amending Act is not applicable to
central enactment.
It also taken Section-97 of Section-97
only
talks
about
Amending Act 1976 as a amendments made by state or High

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contrary provision envisaged

under Section-4 CPC to hold
that saving clause will not
operate.

9.3.

Court but does not apply to amendment

made by any central legislation.
Therefore, so far as central legislation
is concerned, Section-97 cannot be
treated as a contrary provision. As such,
saving clause of Section-4 CPC will
operate in Delhi.

The above comparison shows that judgment of Honble Supreme Court is

confined only to the Punjab and Haryana where the Punjab Courts Act is treated as
state legislation but has no applicability to Delhi where the Punjab Courts Act is to
be treated as central legislation. As such, the initial conclusion arrived at in the
present paper is not hampered by the judgment of Honble Supreme Court in
Kulwant(supra).
Conclusion:
10.

In the light of above discussion, we can safely say that despite the

amendment made in Section-100 CPC, second appeal can lie beyond substantial
question of law with the help of Section-41 of the Punjab Courts Act, 1918 so far
as Delhi is concerned.
*********

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