Not Required To Formulate Substantial Question Of Law In Second Appeal In Haryana : Supreme Court

The Supreme Court observed that, in the State of Haryana, a substantial question of law is not required to be formulated in a second appeal.

What is applicable in Haryana is Section 41 of the Punjab Courts Act, 1918 and not Section 100 of the Code of Civil Procedure, the bench comprising Justices Uday Umesh Lalit, S. Ravindra Bhat and Sudhanshu Dhulia observed while considering an appeal filed against Punjab and Haryana High Court judgment.

The court clarified that still the second appeal is not a forum where court has to re-examine or re-appreciate questions of fact settled by the Trial Court and the Appellate Court. 

In this case, the plaintiffs filed a suit claiming to be owners of a property. The defendant claimed in his written statement and counter-claim that in addition to the Khasra and Killa numbers given in the plaint, he was also in possession of two other properties (not part of suit property). The Trial Court dismissed the suit filed by the plaintiff and decreed the counter claim. The First Appellate Court dismissed the appeal filed by the plaintiff. The Punjab and Haryana partly allowed the second appeal.

Before the Apex Court, the defendants contended that the High Court while deciding a second appeal did not formulate any substantial question of law, which was an essential requirement under Section 100 of the CPC. Regarding this contention, the court noticed that the present dispute is from Haryana where the governing provision would be Section 41 of the Punjab Courts Act, 1918 and not Section 100 of CPC.

In this regard, the bench referred to the constitution bench judgment in Pankajakshi & Ors. v. Chandrika & Ors (2016) 6 SCC 157 and observed:

Section 97 of Amendment Act of 1976 provides that only such provisions would stand repealed which were inserted in the principal Act (i.e., Code of Civil Procedure, 1908), by a State Legislature or High Court before the commencement of this Act (i.e., 1976 Amendment Act). As Section 41 of the Punjab Courts Act was neither an amendment in the principal Act nor a provision inserted in the principal Act therefore, it would not be covered by Section 97 of the Amendment Act of 1976, and there was hence no question of it being repealed under the provisions of Section 97 of the Amendment Act, 1976....t was further held [in Pankajakshi] that the question of repugnancy and its application was also not correctly decided in Kulwant Kaur as Article 254 of the Constitution of India, was not applicable in that case. Section 254 would be applicable only to the laws made after the implementation of the Constitution of India and Section 41 of the Punjab Courts Act is of 1918 vintage and it was not made by a Legislature of the State after the Constitution of India had come into force. The Punjab Courts Act, 1918 was enacted under the provisions of the Government of India Act, 1935 and although by Article 3954 of the Constitution of India, the Government of India Act, 1935 stood repealed yet by virtue of provisions of Article 372(1)5 of Constitution of India all the laws in force in the territory of India immediately before the commencement of the Constitution were to continue in force until altered or repealed or amended by a competent legislature or other competent authority. Since Section 41 of the Punjab Courts Act has not been altered, repealed or amended by State Legislature of Punjab or Haryana, it will continue to be in force.

The court noticed that on the creation of the new State of Haryana, under the provision given in Section 88 of the Punjab Re-organization Act, 1966, the laws applicable in the erstwhile State of Punjab continued to be applicable in the new State of Haryana. Furthermore, State of Haryana formally adopted the laws of the erstwhile State of Punjab, under Section 89 of the Punjab Re Organisation Act, 1966. 

"Therefore, in the State of Haryana a court in second appeal is not required to formulate a substantial question of law, as what is applicable in Haryana is Section 41 of the Punjab Courts Act, 1918 and not Section 100 of CPC. Consequently, it was not necessary for the High Court to formulate a substantial question of law.", the bench observed.

While concluding this issue, the court further observed:

Be that as it may, though the requirement of formulation of a substantial question of law was not necessary, yet Section 41 of the Punjab Courts Act, requires that only such decisions are to be considered in second appeal which are contrary to law or to some custom or usage having the force of law or the court below have failed to determine some material issue of law or custom or usage having the force of law. Therefore, what is important is still a "question of law". In other words, second appeal is not a forum where court has to re-examine or re-appreciate questions of fact settled by the Trial Court and the Appellate Court.

Case details

Satyender vs Saroj | 2022 LiveLaw (SC) 679 | CA 4833 OF 2022 | 17 August 2022 | Justices Uday Umesh Lalit, S. Ravindra Bhat and Sudhanshu Dhulia 

Headnotes

Code of Civil Procedure, 1908 ; Order VIII Rule 6A -  A counter claim can be set up only "against the claim of the plaintiffs" - Since there was no claim of the plaintiffs regarding the property, the defendants were barred to raise any counter claim on these properties as it has nothing to do with the plaintiffs - A counter claim can be made by the defendant, even on a separate or independent cause of action. (Para 16)

Punjab Courts Act, 1918 ; Section 41 -Code of Civil Procedure, 1908 ; Section 100 -  In the State of Haryana a court in second appeal is not required to formulate a substantial question of law, as what is applicable in Haryana is Section 41 of the Punjab Courts Act, 1918 and not Section 100 of CPC - But only such decisions are to be considered in second appeal which are contrary to law or to some custom or usage having the force of law or the court below have failed to determine some material issue of law or custom or usage having the force of law - Second appeal is not a forum where court has to re-examine or re-appreciate questions of fact settled by the Trial Court and the Appellate Court. (Para 10-15)

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