LexKIRODI (SINCE DECEASED) THROUGH HIS LR versus RAM PARKASH & ORS.
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A B C D E F G H 968 SUPREME COURT REPORTS [2019] 7 S.C.R. KIRODI (SINCE DECEASED) THROUGH HIS LR. v. RAM PARKASH & ORS. (Civil Appeal No. 4988 of 2019) MAY 10, 2019 [SANJAY KISHAN KAUL AND INDIRA BANERJEE, JJ.] Appeal: Regular second appeal – Maintainability of – Non- framing of question of law – Plea of appellant that the regular second appeal was decided without framing a question of law – In support of the said plea, the appellant relied upon decisions emanating from the Punjab and Haryana High Court – Held: By virtue of s.97 of the Code of Civil Procedure (Amendment) Act, 1976 (Amendment Act), s.100 CPC was amended requiring the second appeal to mandatorily contain a substantial question of law – However, in Punjab and Haryana, a different legal position prevails in view of Constitution Bench judgment in *Pankajakshi case – In *Pankajakshi case, it was opined that s.97 of the Amendment Act prohibited amendments made in the Principal Act which were repugnant to the same and, therefore, if any state amendment to CPC was enacted by the state legislature or a rule was made by the High Court of State in respect of the provisions of CPC which ran counter to it, that would be hit by the provisions of the savings clause of the Amendment Act – The caveat, however, was that the legislation in question being the Punjab Act is a pre-Constitution Act and hence is not a legislation hit by the provisions of Art.254 of the Constitution of India which holds state enactments to be repugnant to the enactments when they run counter to the laws enacted by the centre through the concurrent list – The legislation was saved by Art.372(1) of the Constitution of India being a pre- Constitutional enactment which was to continue to be in force until altered or repealed or amended by a competent legislature – No such repeal took place, hence, the legislation continues to operate – The effect of the judgment of the Constitution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 was applicable for the State – Thus, s.100 CPC would not hold [2019] 7 S.C.R. 968 968 A B C D E F G H 969 the field having supervening effect – Code of Civil Procedure, 1908 – s.100 – Code of Civil Procedure (Amendment) Act, 1976 – s.97 – Constitution of India – Art.254 and 372(1). Pankajakshi (Dead) through L.Rs & Ors. v. Chandrika & Ors. (2016) 6 SCC 157 : [2016] 3 SCR 1018 – followed. Chand Kaur (D) through Lrs. v. Mehar Kaur (D) through Lrs. 2019 (5) SCALE 397 ; Surat Singh (Dead) v. Siri Bhagwan & Ors. 2018 (4) SCC 562 : [2018] 1 SCR 1063 – not correct law. Kulwant Kaur & Ors. v. Gurdial Singh Mann (Dead) by Lrs. Ors. (2001) 4 SCC 262 : [2001] 2 SCR 525 – referred to Case Law Reference 2019 (5) SCALE 397 not correct law Para 3 [2018] 1 SCR 1063 not correct law Para 3 [2016] 3 SCR 1018 followed Para 4 [2001] 2 SCR 525 referred to Para 8 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4988 of 2019. From the Judgment and Order dated 30.10.2018 of the High Court of Punjab and Haryana at Chandigarh in Regular Second Appeal, RSA No. 1393 of 2012. Rajesh Gupta, Rahul V. Singh, Bankey Bihari, Advs. for the Appellants. The following Order of the Court was passed O R D E R 1. Leave granted. 2. The sole contention advanced is that the regular second appeal has been decided without framing a question of law. 3. In order to support the aforesaid plea, learned counsel for the appellant(s) has relied upon the judgments in Civil Appeals No.3276- KIRODI (SINCE DECEASED) THROUGH HIS LR. v. RAM PARKASH & ORS. A B C D E F G H 970 SUPREME COURT REPORTS [2019] 7 S.C.R. 3281 of 2019 titled as Chand Kaur(D) through Lrs. Vs. Mehar Kaur (D) through Lrs. and in Civil Appeal Nos.9118-9119 of 2010 titled as Surat Singh (Dead) Vs. Siri Bhagwan & Ors, both emanating from the Punjab and Haryana High Court. He also relies upon two other judgments i.e Civil Appeal No.4451 of 2009 titled as Shrikant Vs. Narayan Singh (d) through Lrs. & Ors. and Civil Appeal No.1117 of 2001 titled as Santosh Hazari Vs. Purushottam Tiwari (D) by Lrs, both emanating from the Madhya Pradesh High Court to canvass the aforesaid proposition. 4. On the last date of hearing, we had pointed out to learned counsel for the appellant(s) that insofar as Punjab and Haryana High Court is concerned, a different legal position will prevail in view of the Constitution Bench Judgment of this Court in Civil Appeal N
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