Supreme Court clarifies the need for framing substantial questions of law in second appeals in Punjab: Kirodi vs. Ram Parkash (2019)

Date of the Judgment: 10 May 2019

Citation: 2019 INSC 452

Judges: Hon’ble Mr. Justice Sanjay Kishan Kaul and Hon’ble Ms. Justice Indira Banerjee

Can a High Court decide a second appeal without framing a substantial question of law? The Supreme Court addressed this question in a recent case concerning the applicability of the Code of Civil Procedure, 1908 in the state of Punjab. The core issue was whether the High Court of Punjab and Haryana was correct in deciding a second appeal without framing a substantial question of law. This judgment clarifies the legal position for second appeals in Punjab, which is governed by the Punjab Courts Act, 1918.

Case Background

The case involves a civil appeal where the appellant contended that the High Court decided the second appeal without framing a question of law. The appellant argued that this was a procedural error that invalidated the High Court’s decision. The appellant relied on previous judgments from the Punjab and Haryana High Court and the Madhya Pradesh High Court to support their claim. The respondents, on the other hand, contended that the High Court was correct in deciding the matter as per the Punjab Courts Act, 1918.

Timeline

Legal Framework

The case revolves around the interpretation and application of two key legal provisions:

• Section 100 of the Code of Civil Procedure, 1908 (CPC): This section, as amended by the Code of Civil Procedure (Amendment) Act, 1976, mandates that a second appeal to the High Court can only be entertained if it involves a “substantial question of law.”
• Section 41 of the Punjab Courts Act, 1918: This provision governs second appeals in the state of Punjab. It does not explicitly require the framing of a substantial question of law, unlike Section 100 of the CPC. 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]”

The central legal question is whether Section 100 of the CPC, which requires a substantial question of law, overrides Section 41 of the Punjab Courts Act, which does not have such a requirement.

Arguments

Appellant’s Arguments:

• The appellant contended that the High Court erred in deciding the second appeal without framing a substantial question of law.
• The appellant relied on the judgments in Chand Kaur(D) through Lrs. Vs. Mehar Kaur (D) through Lrs. and Surat Singh (Dead) Vs. Siri Bhagwan & Ors, both emanating from the Punjab and Haryana High Court, and Shrikant Vs. Narayan Singh (d) through Lrs. & Ors. and Santosh Hazari Vs. Purushottam Tiwari (D) by Lrs, both from the Madhya Pradesh High Court, to support their contention that framing a substantial question of law is mandatory in second appeals.
• The appellant argued that Section 100 of the Code of Civil Procedure, as amended in 1976, mandates the framing of a substantial question of law in second appeals.

Respondent’s Arguments:

• The respondent did not make any submissions.

Analysis of Arguments:

The appellant’s arguments were primarily based on the interpretation of Section 100 of the Code of Civil Procedure, which, according to the appellant, should be uniformly applied across all High Courts. However, the Supreme Court noted that the legal position in Punjab is different due to the existence of the Punjab Courts Act, 1918, which does not require the framing of a substantial question of law.

Issues Framed by the Supreme Court

The sole issue framed by the Supreme Court was:

1. Whether the regular second appeal has been decided without framing a question of law.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Judgment

How each authority was viewed by the Court?

• The judgments in Chand Kaur(D) through Lrs. Vs. Mehar Kaur (D) through Lrs. and Surat Singh (Dead) Vs. Siri Bhagwan & Ors. were overruled because they were contrary to the Constitution Bench decision in Pankajakshi (Dead) through L.Rs. & Ors. [ (2016) 6 SCC 157].
• The judgments in Shrikant Vs. Narayan Singh (d) through Lrs. & Ors. and Santosh Hazari Vs. Purushottam Tiwari (D) by Lrs. were not applicable to the present case as they pertained to the Madhya Pradesh High Court.
• The judgment in Kulwant Kaur & Ors. Vs. Gurdial Singh Mann (Dead) by Lrs. Ors. [(2001) 4 SCC 262] was overruled by Pankajakshi (Dead) through L.Rs. & Ors.
• The Constitution Bench judgment in Pankajakshi (Dead) through L.Rs. & Ors. [(2016) 6 SCC 157] was relied upon, which clarified that Section 41 of the Punjab Courts Act, 1918, continues to apply in the state of Punjab and does not require the framing of a substantial question of law.
• The Court clarified that Section 100 of the Code of Civil Procedure, 1908, does not hold the field in the state of Punjab due to the applicability of the Punjab Courts Act, 1918.
• The Court clarified that Section 97 of the Code of Civil Procedure (Amendment) Act, 1976, does not apply to Section 41 of the Punjab Courts Act, 1918.
• The Court clarified that Article 254 of the Constitution of India does not apply to the Punjab Courts Act, 1918, as it is a pre-constitutional law.
• The Court clarified that Article 372(1) of the Constitution of India applies to the Punjab Courts Act, 1918, which continues to be in force until altered or repealed by a competent legislature.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• The Constitution Bench judgment in Pankajakshi (Dead) through L.Rs. & Ors., which clarified the applicability of the Punjab Courts Act, 1918.
• The fact that the Punjab Courts Act, 1918, is a pre-constitutional law protected by Article 372(1) of the Constitution of India.
• The inapplicability of Section 100 of the Code of Civil Procedure in the state of Punjab due to the existence of the Punjab Courts Act, 1918.

Logical Reasoning:

The Court reasoned that the Punjab Courts Act, 1918, being a pre-constitutional law, is protected by Article 372(1) of the Constitution of India and continues to be in force until altered or repealed. It held that Section 100 of the Code of Civil Procedure, 1908, does not override the Punjab Courts Act, 1918, in the state of Punjab.

The Court rejected the argument that the High Court erred in not framing a substantial question of law because the law governing second appeals in Punjab is the Punjab Courts Act, 1918, which does not mandate such framing. The court also clarified that the previous judgments of the Supreme Court in Kulwant Kaur & Ors. Vs. Gurdial Singh Mann (Dead) by Lrs. Ors. and the High Court of Punjab and Haryana in Chand Kaur(D) through Lrs. Vs. Mehar Kaur (D) through Lrs. and Surat Singh (Dead) Vs. Siri Bhagwan & Ors. were not correctly decided.

The Supreme Court emphasized that, “The effect of the judgment of the Constitution Bench is that insofar as the State of Punjab is concerned, a second appeal does not require formulation of a substantial question of law since the Punjab Act would be applicable for the State. Hence, Section 100 of the Code would not hold the field having supervening effect.”

The Court further clarified that, “Section 41 of the Punjab Courts Act is of 1918 vintage. Obviously, therefore, it is not a law made by the Legislature of a State after the Constitution of India has come into force… This being the case, Article 254 of the Constitution of India would have no application to such a law for the simple reason that it is not a law made by the Legislature of a State but is an existing law continued by virtue of Article 372 of the Constitution of India.”

The Court also stated that, “We have already found that since Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976 has no application to Section 41 of the Punjab Courts Act, it would necessarily continue as a law in force.”

Key Takeaways

• In the state of Punjab, a second appeal to the High Court does not require the framing of a substantial question of law.
• The Punjab Courts Act, 1918, governs second appeals in Punjab, and Section 100 of the Code of Civil Procedure, 1908, does not apply.
• The Punjab Courts Act, 1918, is a pre-constitutional law protected by Article 372(1) of the Constitution of India.
• Judgments from the Punjab and Haryana High Court and the Supreme Court that held otherwise have been overruled.

Directions

The Supreme Court did not give any specific directions in this case. The appeal was dismissed.

Development of Law

The ratio decidendi of this case is that in the state of Punjab, a second appeal does not require the framing of a substantial question of law because the Punjab Courts Act, 1918, applies. This judgment clarifies the legal position and overrules previous judgments that held otherwise, thus settling the law on this point.

Conclusion

The Supreme Court dismissed the appeal, affirming that the High Court of Punjab and Haryana was correct in deciding the second appeal without framing a substantial question of law. The Court clarified that the Punjab Courts Act, 1918, continues to be in force and governs second appeals in the state of Punjab, and that Section 100 of the Code of Civil Procedure, 1908, does not apply in this context. This decision settles the legal position on this issue for the state of Punjab.