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Shri Ram and ors. Vs. Gauri Shanker - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 881 of 1960
Judge
Reported inAIR1961All320
ActsConstitution of India - Articles 246 and 254; Code of Civil Procedure (CPC) , 1908 - Sections 102
AppellantShri Ram and ors.
RespondentGauri Shanker
Advocates:H.P. Dubey and ;S.N. Misra, Advs.
Excerpt:
.....of constitution of india and section 102 of code of civil procedure, 1908 - section 102 amended by state legislature in year 1954 fixing amount as rupees two thousand - section 102 amended by parliament in year 1956 fixing amount as rupees one thousand - parliament did not vary, amend or repeal law framed by state legislature - state legislature and parliament have replaced figure of five hundred by two thousand and one thousand respectively - held, in uttar pradesh no second appeal would lie in any suit of the nature cognizable by court of small causes where subject matter in original suit did not exceed rupees two thousand. - - where it is found that the action of a legislature in making a law specifically fell under any particular entry then in my view it was not necessary to..........subject-matter of the original suit does not exceed five hundred rupees.' by act 24 of 1954 the state legislature amended this section by substituting the words 'two thousand rupees' for the words 'five hundred rupees' occurring at the end of the section. the state amendment came into force on 22hd november, 1954. parliament stepped in later and amended this section by act 66 of 1956. t is act came into force on the 1st of january, 1957. by this amendment the words 'five hundred rupees' were substituted by the words 'one thousand rupees.' so that, there arose a kind of conflict, the conflict being that in the case of the state amendment the amount was two thousand rupees, while in the case of the amendment made by parliament the amount was one thousand rupees for determining whether a.....
Judgment:

B. Mukerji, J.

1. This matter was filed as a revision under Section 115 C. P. C. Office made a report to the effect that a revision did not lie but that a second appeal lay.

2. Learned counsel contested this Office report and he argued that the office was wrong in its view that a second appeal lay, for, according to learned counsel, the amendment made by Parliament on which the Office relied had no application. It is necessary in Order to decide the controversy to state the facts in some detail.

3. A suit was filed in the Court of the Munsif of Kanauj sometime in 1958 for the recovery of Rs. 1,600/-. The suit was decreed on the 29th August, 1959 by the learned Munsif. An Appeal was filed against the decision of the Munsif and the appeal was valued at Rs. 1,600/-. The appeal was dismissed on the 2nd of June, 1960.

4. Section 102, Civil P. C., as it stood originally, namely before the two amendments, one by the State in 1954 and the other by Parliament in 1956, was in these words:

'No second appeal shall He in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed five hundred rupees.'

By Act 24 of 1954 the State Legislature amended this section by substituting the words 'two thousand rupees' for the words 'five hundred rupees' occurring at the end of the section. The State amendment came into force on 22hd November, 1954. Parliament stepped in later and amended this section by Act 66 of 1956. T is Act came into force on the 1st of January, 1957. By this amendment the words 'five hundred rupees' were substituted by the words 'one thousand rupees.' So that, there arose a kind of conflict, the conflict being that in the case of the State amendment the amount was two thousand rupees, while in the case of the amendment made by Parliament the amount was one thousand rupees for determining whether a second appeal would He or not. The question that was raised was that the State amendment would continue to hold the field so far as this State was concerned, even though there was an amendment to Section 102 by Parliament. It was contended by Mr. S. N. Misra, who appeared to oppose the office report, that the State amendment in this case was made under Entry 3 or Entry 65 of List II, i.e. the State List

(5) Entry 3 of List II is in these words:

'Administration of justice; constitution and organisation of all courts, except the Supreme Court and the High Court; Officers and servants of the High Court; procedure in rent and revenue courts; fees taken in all courts except the Supreme Court.'

Entry 65 is in these words:

'Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List.'

The aforementioned Entry in List II would be applicable only if the impugned amendment affected the jurisdiction or powers of a Court in respect of any of the matters provided for in that List. The impugned amendment did not really affect either the jurisdiction or the powers of a Court, though the amendment may have affected a party's right of appeal.

Where it is found that the action of a Legislature in making a law specifically fell under any particular Entry then in my view it was not necessary to speculate and find whether or not the action of the Legislature could fall under some other Entry as well.

Entries are not like watertight compartments: so that there is often discernible, a little Overlapping. Mr. Misra's argument that in order to determine whether the legislative act was within one Entry or another one had to see the pith and substance of the legislation, was in my opinion, not sustainabie in the context of the present question. Where there was a specific Entry which covered a particular piece of legislation it was not, in my opinion, possible to bring into play the doctrine of pith and substance to bring a piece of legislation within the ambit of an Entry other than the one that specifically applied to the legislation.

(6) Entry 13 of the Concurrent List, namely List III, is in these words:

'Civil procedure, including all matters included in the Code of Civil Procedure at the commencement of this Constitution, limitation and arbitration.'

In my view, this Entry, namely Entry 13 of List III, specifically covers the amendment which was brought about successively in Section 102, Civil P. C., by the State and Parliament,

7. The question that has really to be determined is whether it could be said that there was any repugnancy between the amendment made to Section 102 C. P. C. by Parliament and the amendment made to that section by the State within the meaning of Article 254 of the Constitution.

8. Article 254 is in these words :

'(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to any of the matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall to the extent of the repugnancy, be void.

(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to amending, varying or repealing the law so made by the Legislature of the State.'

9. 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 was 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 Section 102 of the Code by the figure 'one thousand' and 'two thousand' respectively.

10. For the reasons given above I am of the view that the State amendment made to Section 102 C. P. C, by Act 24 of 1954 was not in any manner affected by the amendment made to that section by Parliament in 1956. So that, so far as the State of Uttar Pradesh was concerned no second appeal would lie in any suit of the nature cognizable by Courts of Small Causes when the amount or value of the subject-matter of the original suit did not exceed Rs. 2,000/-. The office report, therefore, was not correct and the revision which has been filed in this case was competent.


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