TMI Blog2001 (3) TMI 1044X X X X Extracts X X X X X X X X Extracts X X X X ..... a concession that the second appeal under section 41 of the Punjab Courts Act was maintainable and the objection pertaining to the amended Section 100 of the Code was not pressed and it is on this count that the learned Advocate in support of the appeal very strongly contended that applicability of Section 41 of the Punjab Act on the wake of the amendment to the Code of Civil Procedure, and in particular, Section 100 thereof was not considered neither the decision of this Court in Banarsi Dass (supra) can be ascribed to be an authority therefor. Having regard to the concession and for proper appreciation, paragraph 13 is set out herein below: 13. Mr. Bhagat conceded that the second appeal under Section 41 of the Punjab Courts Act was maintainable and he did not press his objection based on the amended Section 100 of the Code. We, therefore, need not examine the question if Section 4 of the Code would save the applicability of Section 41 of the Punjab Courts Act in view of Section 101 of the Code which says that no second appeal shall lie except on the grounds mentioned in Section 100 and Entry 13 of List III (Concurrent List) of Seventh Schedule of the Constitution which reads: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecree 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 sub-section 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. Mr. Swaroop for the Respondent on the other hand contended rather emphatically that by reason of the provisions of Section 41 of the Punjab Courts Act, 1918, there is neither any requirement nor any scope for framing of any substantial question of law. The Respondents contended that compliance and adaptation of the procedure as prescribed under Section 100 of the Code of Civil Procedure as is in the Code presently, can not by any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llow upon larger principles as well. There can hardly be any doubt that the Civil P.C. is the general law of the land on the subject. On the contrary the Punjab Courts Act operates in a narrow and limited field both as regards the area to which it applies and the subject matter with which it deals. It is a settled law that a special provision or a special power would normally override a general one. On this general principle, the particular provisions of section 41 of the Punjab Courts Act are entitled to exclude the general provisions of S. 100 of the Code in the same field. If authority was at all necessary for so established a proposition, reference may be made to the recent Full Bench decision reported in 78 Punjab LR 726: (AIR 1976 Punjab 310) (FB) Chanan Singh v. Smt. Majo. The Full Bench decision of the High Court, in fact, however, placed a far too literal a meaning and interpretation of Section 4 of the Civil Procedure Code and it is on this statutory interpretation, the High Court in paragraph 9 of the report stated as below: 9. It is manifest from the above that the saving clause aforesaid has been couched in terms of widest amplitude. The plain intention of the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge, Ballia and Others (1986 (1) SCC 615). Paragraph 3 of the decision noticed above reads as below: 3. The above provision is however subject to sub- section (2) of Section 97 of the Amending Act which provides that notwithstanding that the provisions of the Amending Act have come into force or the repeal under sub-section (1) of Section 97 of the Amending Act has taken effect, and without prejudice to the generality of the provisions of Section 6 of the general Clauses Act, 1897, the provisions in clauses (a) to (zb) of that sub-section would prevail. Sub-section (3) of Section 97 of the Amending Act provides that save as otherwise provided in sub-section (2), the provisions of the principal Act, as amended by the Amending Act, shall apply to every suit, proceeding, appeal or application pending at the commencement of the Amending Act or instituted or filed after such commencement, notwithstanding the fact that the right, or cause of action, in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement. Section 97 (1) thus has an overriding effect as against any amendment or provision be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine of repugnancy will have its full 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 repugnancy, but all the same it might result when both the legislations cover the same field. This observation find support from the decision of this Court in Zaverbhai Amaidas v. The State of Bombay [1955 (1) SCR 799] wherein this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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, 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. What however is a substantial question we need not go into the same neither we are called upon to note in extenso the true purport of the expression. The issue stands concluded since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther 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 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 Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication provides that the enactment of one Legislature has superiority over the other then to the extent of the repugnancy the one supersedes the other.. the test of two legislations containing contradictory provisions is not, however, the only criterion of repugnancy, for if a competent Legislature with a superior efficacy expressly or impliedly evinces by its legislation an intention to cover the whole field, the enactments of the other Legislature whether passed before or after would be overborne on the ground of repugnance. (Emphasis supplied) Subsequent to the decision as noticed herein before there is another decision of this Court in Sudhir Chandra Nawn v. Wealth Tax Officer, Calcutta Ors [1969 (1) SCR 108] wherein Shah, J. observed: Exclusive power to legislate conferred upon Parliament is exercisable, notwithstanding anything contained in clauses (2) (3), that is made more emphatic by providing in clause (3) that the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule, but subject to clauses (1) and (2). Exclusive power of the State Legisla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C even after the said amendment. The reliance is on the following words: Save as otherwise expressly providedby any other law for the time being in force These words existed even prior to the amendment and is unaffected by the amendment. Thus so far it could legitimately be submitted that, reading this part of the Section in isolation it saves the local law. But this has to be read with Section 97(1) of the Amending Act, which reads: any amendment made, or any provision inserted in the principal Act by a State Legislature before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provision of the principal Act as amended by this Act, stands repealed.(Noticed again for convenience). This clearly reveals true intend of the legislature viz., any provision of the State legislature existing prior to the amending Act which becomes in consistence to this amending Act is in consonance with both sub-clause (1) and proviso to sub-clause (2) of Article 254 of the Constitution of India. Thus language of Section 97(1) of the Amending Act clearly spells out that any local law in consistent goes but what is not in consistence, it cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear about. It is on the considerations above and examination of totality of the circumstances the learned Single Judge came to the conclusion that the will dated 30th March, 1968 has duly been executed by a sound disposing mind and there were existing no reasonable grounds to decline to act on it. The learned Judge, thus set aside the lower Appellate Courts judgment and decreed as regards the will dated 30th March, 1968. The appellants herein by reason of the reversal of the judgment, are before this Court in appeal by the grant of special leave. On the validity of the will Mr. Mehta strongly contended that the will dated 30th March, 1968 recites that ₹ 5,000/- shall be paid to each of the daughters of Saheb Singh Mann. Such recital is itself suggestive of suspicious circumstances by reason of the largeness of the estate of Saheb Singh Mann, since deceased. Since the daughters are also very well-to-do and the testamentary disposition of ₹ 5,000/- by the will cannot but be ascribed to be totally illusory. Though this Court is not really concerned with the details of the circumstances under which the will can be said to be otherwise an invalid piece of document but str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice so warrant, we do not see any reason why such an exercise would be depricated. This is however, without expression of any opinion pertaining to Section 100 of the Civil Procedure Code. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure Amendment Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact even if erroneous will generally not be disturbed but where it is found that the findings stands vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to dealt with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis- -vis the Concept of justice. Needless to say however, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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