KULWANT KAUR AND ORS. versus GURDIAL SINGH MANN (DEAD) BY LRS. AND ORS.

Citation: [2001] 2 S.C.R. 525 · Decided: 21-03-2001 · Supreme Court of India · Bench: AJAY PRAKASH MISRA · Disposal: Appeal(s) allowed
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Judgment (excerpt)

r 
KULWANT KAUR AND ORS. 
v. 
GURDIAL SINGH MANN (DEAD) BY LRS. AND ORS. 
MARCH 21, 2001 
[A.P. MISRA AND U.C. BANERJEE, JJ.] 
Punjab Couns Act, 1918 : Section 41. 
Second Appeal-Entenaining of-Substantial question of law-Framing 
of-Requirement-Held: S. 41 is repugnant to S. JOO CPC (as amended in 
1976)-Hence, High Coun erred in ente11aining second appeal under S. 41 
without framing a substantial question of law as required under S. I 00 CPC (as 
amended in 1976)-Code of Civil Procedure (Amendment) Act, 1976, S. JOO. 
Constitution of India, 1950: Anicle 141. 
Precedent-Judgment based on a concession-Binding nature of-Held, 
cannot be tenned to be a binding pre~dent and does not have the sanctity and 
solemnity of a binding precedent. 
The appellants-plaintiffs filed a suit for partition and rendition of 
accounts against the respondents-defendants, which stood decreed by the 
lower Appellant Court. However, the High Court entertained the second 
appeal under Section41 of the Punjab Courts Act, 1918, without framing a 
substantial question of law, and set aside the decree of the lower Appellate 
Court. Hence this appeal. 
On behalf of the appellants it was contended that the High Court 
erred in entertaining the second appeal without framing a substantial 
question of law thereby violating Section 100 of the Code of Civil Proce-
dure (Am<;J1dment) Act, 1976. 
On behalf of the respondents it was contended that under Section 41 
of the Pun Jab Courts Act there was neither any requirement nor any scope 
for framing of any substantial question of law. 
Allowing the appeal, the Court 
525 
A 
B 
c 
D 
E 
F 
G 
H 
526 
SUPREME COURT REPORTS 
[2001] 2 S.C.R. 
A 
HELD : 1. Section 41 of the Punjab Courts Act, 1918 cannot but be 
B 
c 
D 
termed to be r'pugnant to Section 100 of the Code of Civil Procedure 
(Amendment) Act, 1976 and as such cannot have its effect, since Parlia-
mentary supremacy renders Section 41 of the Punjab Act devoid of any 
effect. Neither the saving clause in Section 100(1) or Section 4 of the Code 
can come to the rescue of the respondents in view of Section 97(1) of the 
Code of Civil Procedure (Amendment) Act, 1976. [543-G-H] 
Ganpat v. Shri Ram Dev~ AIR (1978) P & H 137 (FB), overruled. 
2. This will be all the more so by reason of the clarification rendered 
by the legislature in Section 101 of the Code which provides that no second 
appeal shall lie except on the ground mentioned in Section 100 indicating 
thereby the further reinforcement to the legislative intent to be obtained 
from Section 101 as regards the issue of substantial question of law. This 
refers to substantial question of law having regard to the language of 
Section 103 and callllot, however, he said to even imply a contra note. This 
is so, however, by reason of the provisions of Section 97 of the Amending 
Act. [543-H; 544-A-B] 
• 
Ganpat Giri v. Second Additional District Judge, Ballia, [1986] l SCC 
615; Zaverbhai Amaidas v. The State of Bombay, [1955] l SCR 799; M. 
E 
Karunanidhi v. Union of India, [1979] 3 SCC 431; Sir Chunilal V. Mehta v. 
F 
G 
Century Spinning and Manufacturing Co. Ltd, AIR (1962) SC 1314; Pankaj 
Bhargava v. V. Mohinder Nath, [1991] l SCC 556; ITCv. State of the Kamataka, 
[1985] Supp. SCC 476; State ofOrissa v. M.A. Tulloch & Co., [1964] 4 SCR 
461 and Sudhir Chandra Nawn v. Wealth Tax Officer, Calcutta, [1969] 1 SCR 
108, referred to. 
Chanan Singh v. Smt. Majo, AIR (1976) Pun. 310 (FB), cited. 
3. 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 does not and 
cannot have the sanctity and solemnity of a binding precedent. [528-C] 
Banarsi Dass v. Brig. Maharaja Sukhjit Singh, [1998] 2 SCC 81, re-
ferred to. 
H 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1287 of 1990. 
, 
r 
KULWANT KAUR v. GURD!AL SINGH [BANERJEE, J.] 
527 
From the Judgment and Order dated 6.2.89 of the Punjab and Haryana 
A 
High Court in R.S.A. No. 1335 of 1986. 
WITH 
Civil Appeal No. 1288 of 1990. 
Dhruv Mehta, Dr. Meera Aggarwal, R.C. Mishra, Manoj Swarup, Hiren 
Dasan, Nitin Bhardwaj, Jayant Bhushan, Uma Dutta and V.D. Khanna for the 
appearing parties. 
The Judgment of the Court was delivered by 
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 
1918. This Court in Banarsi Dass v. Br
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