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TMI Blog1977 (10) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... able Regular Second Appeals in this Court in view of the radical amendments introduced in section 100 by the Civil Procedure (Amendment Act), 1976. 3. At the very outset it may be pointed out that we would first devote ourselves to question No. 1 because it is plain that if an answer is returned to the said question in the negative, the second question perhaps would hardly arise or in any case would become academic in nature. 4. To appreciate the issues in a correct perspective some reference to the legislative background of the two provisions appears inevitable. The history of the Codes of Civil Procedure in India now goes back beyond a century. The real predecessor of present section 100 of the Code of Civil Procedure was section 372 of the Code of Civil Procedure, 1859 (Act No. 8 of 1859). It was followed by the Code of Civil Procedure, 1877, but its provisions were almost the same as those of the later Code of 1882, wherein section 584 sharply corresponds to the unamended provisions of section 100 of the Code of Civil Procedure, 1908. Substantial and material changes to the Code were envisaged in the Fifty Fourth Report of the Law Commission. In particular, the Law Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the first day of August, 1914. This provides for the creation of Subordinate Civil Courts within the State and Chapter IV further provides for the Appellate and Revisional Jurisdiction in civil cases. The material provision in the said Chapter is section 41 dealing with the Second Appeals, which is in the following terms:-- "41. (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, 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. (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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 being in force". 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 legislature appears to be that unless there is a specific provision to the contrary, the Code shall not affect any special or local law or any special jurisdiction or power conferred by any other law. At the very outset we may point out that no specific provision to the contrary in this context has been or could have been even remotely pointed out. It is equally plain and indeed it was not disputed before us, that the Punjab Courts Act would squarely fall within the terminology of any special or local law. This being so it is unnecessary to dissert at any great length on the true nuance to be attached to the terms special law or local law in this context. On this admitted position therefore, it follows that by virtue of section 4(1) the provisions of the Punjab Courts Act are in no way limited or otherwise aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of the letters patent of any High Court or any instrument having a force of law or any other law for the time being in force. Whilst section 100A of the Code begins with a non-obstante clause of wide amplitude Section 100 on the other hand is prefaced by a saving clause as regards any other law for the time being in force. The difference in language is indeed too plain and patent to require further elaboration. 14. We are clearly of the view that a reading of sections 4(1) and 100(1) of the Code together leads to an irresistible conclusion that the legislature wished to save and leave unaffected all special or local laws as also any other law for the time being in force on the subject of Second Appeals. Section 41 of the Punjab Courts Act which clearly falls in this category would thus not be in any way affected by the provisions of Section 100 even on a plain construction of these statutory provisions. 15. Even excluding out of consideration the specific provisions of section 4(1) and 100 of the Code the same result would seem to follow upon larger principles as well. There can hardly be any doubt that the Code of Civil Procedure is the general law of the land on the subje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase there is the following brief observation by Their Lordships regarding the scope of section 4 of the Civil Procedure Code, which also goes in aid of the proposition canvassed on behalf of the appellants:-- "There is in the Arbitration Act no provision similar to section 4 of the Code of Civil Procedure which preserves powers reserved to courts under special statutes." 17. For reasons of geographical contiguity we would now first notice the view expressed in Kewal Ram v. Bhagwan Dass, A.I.R. 1951 H.P. 61, wherein it was held that section 115 of the Civil Procedure Code had in no way overridden or repealed the revisional powers conferred under para 35 of the Himachal Pradesh (Courts) Order, 1948 on the well-recognised principle of generalia specialibus non derogant. The aforesaid view was relied upon in the later decision in Rewa Shankar and another v. Narasinghji Maharaj and others, A.I.R. 1957 H.P. 16, wherein it was specifically held that section 100 of the Code does not in any way override the special powers conferred in para 32 of Himachal Pradesh Courts Order, 1948. The aforesaid judgments have apparently held the field so far and no contrary view in the said Court could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cific language of the statutory provisions involved, and the overwhelming weight of authority, it must be held that the provisions of section 41 of the Punjab Courts Act are in no way affected or curtailed by the amended section 100 of the Code of Civil Procedure. Therefore, in the jurisdiction, to which the Punjab Courts Act-extends the admission and adjudication of second appeals would be governed by section 41 of the Act to the exclusion of the general provisions of section 100 of the Code. The answer to the first question is, therefore, returned in the negative. 24. Though we have arrived at the aforesaid inevitable conclusion in view of the existing statutory provisions, we are of the view that in the interests of the uniformity of law on the point, the corresponding provisions of section 41 now might as well be in line with the amended provisions of section 100. It would be obviously wasteful for us to elaborate our reasons, therefor, because this matter has been exhaustively considered and illuminatingly presented by the Law Commission in its fifty-fourth Report. A reference to pages 74 to 93 of the said report is indeed instructive on the point and we entirely agree with t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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