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Kunmun Singh Vs. Ram Sewak - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 642 of 1960
Judge
Reported inAIR1962All299
ActsConstitution of India - Article 254, 254(1) and 254(2); Code of Civil Procedure (CPC) , 1908 - Sections 102; Uttar Pradesh Code of Civil Procedure (CPC) (Amendment) Act, 1954; Central Act, 1956
AppellantKunmun Singh
RespondentRam Sewak
Appellant AdvocateR.S. Pathak, Adv.
Respondent AdvocateSita Ram Dwivedi, Adv.
Excerpt:
civil - appeal - section 102 of code of civil procedure, 1908 and article 254(1) of the constitution of india - central amendment prevails over state amendment - maximum limit of rs.1,000 for second appeal prevail over state amendment which fixed the maximum limit of rs.2000 - suit for recovery of rs.1700 instituted in 1956 in court of u.p. - decreed on appeal - second appeal lies and not revision.  - .....500/- a second appeal was maintainable according to the law in force prior to 1954- in 1954 the state legislature passed an act increasing the limit of rs. 500/- to rs. 2000/-; the act was reserved for the consideration of the president and received his assent the effect of this amendment was that no second appeal would lie in the suit, because the subject-matter was less than rs. 2000/-. this was the state of law when the suit was filed. during its pendency the central legislature passed act 66 of 1956, which came into force on 1-1-57, amending the limitation of rs 500/- in section 102, c. p. c. to rs. 1000/- according to this law a second appeal would lie. admittedly, no revision would lie if a second appeal lies, and a revision would lie only if a second appeal does not lie. the.....
Judgment:

Desai, C.J.

1. This is an application by a defendant in revision of a decree passed by a Civil Judge on appeal. The suit was filed by the opposite party against the applicant on 28-2-56 for recovery o Rs. 1700 and odd, and was dismissed by the trial court on 20-9-58. The opposite party filed an appeal and the appellate court allowed it on 13-4-60 and decreed the suit. This application was filed on 15-7-60 for revision of the decree of the appellate court.

2. Prior to 1954 the law was (vide Section 102, C. P. C.) that a second appeal would lie in a suit

'cognizable by Courts of Small Causes when the amount or value of the subject-matter of the original suit'

exceeded Rs. 500/-. Admittedly the present suit was of the nature cognizable by a court of small causes, and since the amount of the subject-matter exceeded Rs. 500/- a second appeal was maintainable according to the law in force prior to 1954- In 1954 the State Legislature passed an Act increasing the limit of Rs. 500/- to Rs. 2000/-; the Act was reserved for the consideration of the President and received his assent The effect of this amendment was that no second appeal would lie in the suit, because the subject-matter was less than Rs. 2000/-. This was the state of law when the suit was filed. During its pendency the Central Legislature passed Act 66 of 1956, which came into force on 1-1-57, amending the limitation of Rs 500/- in Section 102, C. P. C. to Rs. 1000/- According to this law a second appeal would lie. Admittedly, no revision would lie if a second appeal lies, and a revision would lie only if a second appeal does not lie. The applicant filed the revision contending that the State Act of 1954 would govern the matter and not the Central Act of 1956 and he is supported in his view by a judgment of our brother Mukerji in Shri Ram v. Gauri Shanker AIR 1961 All 320.

3. It is conceded that the question is to be decided in accordance with the provisions of Article 254 of the Constitution. The State Act and the Central Act both deal with

'Civil procedure, including all matters included in the C. P. C. at the commencement of this Constitution.'

vide Serial No. 13 of the Concurrent List III, Schedule VII. What Sub-article (2) of Article 254 lays down with respect to a law made by a State Legislature with respect to such a matter, which has been referred for the President's consideration and has received his assent, is that the State law will prevail over a repugnant Central Law which is earlier in point of time. When the State Legislature passed the Act of 1954 the earlier Central Law which was existing was that contained in Section 102, C. P. C. of 1908; therefore, by virtue of Sub-article (2) the State law prevailed over the old Section 102, C. P. C. and no second appeal would lie in this case, and only a revision would lie.

AS regards the Central Act of 1956, since it was an Act later than the State Act, it was not governed by Sub-article (2) at all and the State Act would not. prevail over the Central Act of 1956. The provision of Sub-article (2) referred to above is subject to the proviso that nothing in it shall prevent the Parliament from enacting at any time subsequently any law with respect to the same matter including a law adding to, amending, varying or repealing the law made by the State Legislature. It is this proviso that governed the Central Act of 1956. It permitted the Parliament to enact the Act of 1956 with respect to ''civil procedure, 'including all matters included in the C. P. C.' even though it might add to amend or vary an Act made by the State Legislature. The Central Act of 1956 is the law which has reference to the same matter in respect of which the State Legislature passed the Act of 1954. The Parliament was fully competent to enact the Act of 1956 even though its effect was to amend, vary or repeal the State Act of 1954. Since the Constitution itself permitted the Parliament to enact this Act, it follows that it will supersede the State Act and the State Act shall not have any effect after 1-1-57.

Sub-article (1.) of Article 254 o the Constitution provides that when a law made by a State Legislature is repugnant to any law made by the Parliament which the Parliament is competent to enact, then the law made by the Parliament, whether made before or after the law made by the State Legislature, shall prevail except in a case governed by Sub-article (2). We have found that Sub-article (2) does not govern the matter and the Central 'Act of 1956 was within the competence of the Parliament; therefore, by virtue of Sub-article (1) it will prevail and not the State Act of 1954. The result is that a second appeal lay in the present case and the revision is not maintainable.

4. With great respect to our brother Mukerji, we disagree with the contrary view expressed by him in the case mentioned above. After reproducing Article 254(1) and (2) he observed at page 321:

'An analysis of the aforementioned Article of the Constitution reveals that the State law has to yield to law made by the Union Legislature in the event of there being a conflict between the two laws, but this general principle appearing in Clause (1) of that Article was subject to a limitation, namely, that a State law could prevail even in the case of a conflict between the two, if the State law was reserved for the consideration of the President and had received his assent

There is yet another aspect of the matter, and it is this that in respect of the matter falling for consideration in this case the proviso way inapplicable for Parliament did not, when it purported: to make the amendment to Section 102 of the Code, amend, vary or repeal any law made by the Legislature of a State, As was pointed out earlier by me, all that the two Legislatures did, namely Parliament and the Legislature of the State of Uttar Pradesh, was to replace the figure 'five hundred' in 102 of the Code by the figure 'one thousand' and 'two thousand' respectively.'

5. Our learned brother rightly pointed out that. Sub-article (1) is subject to Sub-article (2). Though he mentioned the fact that the State law was reserved for the President's consideration and received his assent, the other fact that was essential for the applicability of the provision of Sub-article (2) viz., that the Central Law was an earlier, and not subsequent, law seems to have escaped his attention. The Central Apt of 1956 was not an earlier law in relation to the State Law of 1954 and was, therefore, not governed by the provision of Sub-article (2); it was the law of 1908 that was governed by it, but it does not help the applicant. The observation of our learned brother that the Central Act of 1956 did not amend, vary or repeal the State Law of 1954 is not correct. Though the Central Act did not specifically mention the State law or the limit of Rs. 2000/- inserted by it in See 102, it cannot be disputed that its effect was to amend, vary or repeal the State law. The maximum limit in the State law was Rs. 2000/- and the effect of the Central Act was to alter it to Rs. 1000/-.

It is immaterial that the Central Act expressly altered the limit of Rs. 500/- to Rs. 1000/-; it did not refer to the limit of Rs. 2000/- fixed by the State law, because it was not necessary to do so. As soon as it fixed the maximum limit at Rs. 1000/-it meant that all other limits, whether fixed by a Parliament Act or by a State Act, stood amended, varied or repealed. When the Parliament amends its prior enactment, it is redundant to state that it also amends any State law amending the prior enactment. Further, as we pointed out earlier, regardless of any question of amendment, variation or repeal, the Parliament is. competent by virtue of the proviso to Sub-article (2) to make any law in respect of the same subject-matter and by virue of Sub-article (1) that law prevails over any repugnant State law. Consequently, the Central Act fixing the maximum limit at Rs. 1000/- prevails over the State law fixing it at Rs. 2000/-. In our opinion the case AIR 1961 All 320 was Wrongly decided.

6. Our attention was also invited to Amjad Ali v. Union of India S. A. No. 2489 of 1960 decided by Mathur, J. on 15-7-1960 (All). The question that we are considering wag not raised before him. He proceeded on the assumption that the Central Act of 1956, prevails over the State Act of 1954. The question raised before him was whether the law in force at the time when the decree or order under challenge in a superior court was sought to be executed will govern the matter or that in force on the date on which it was passed. That is not the question before us, it being conceded that the law in force on the date of the passing of the decree or order under challenge governs the matter.

7. We allow the applicant's counsel a month within which to convert this civil revision into a second appeal. Office will then put it up beforethe Court with its report. We make no ordersabout costs of these proceedings.


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