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Kulwant Kaur & Ors vs Gurdial Singh Mann (Dead) By Lrs & Ors on 21 March, 2001
We are afraid that this judgment in Kulwant Kaur
case [Kulwant Kaur v. Gurdial Singh Mann, (2001) 4 SCC 262]
does not state the law correctly on both propositions. First and
foremost, when Section 97(1) of the Code of Civil Procedure
(Amendment) Act, 1976 speaks of any amendment made or
any provision inserted in the principal Act by virtue of a State
Legislature or a High Court, the said section refers only to
amendments made and/or provisions inserted in the Code of
Civil Procedure itself and not elsewhere. This is clear from the
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expression “principal Act” occurring in Section 97(1). What
Section 97(1) really does is to state that where a State
Legislature makes an amendment in the Code of Civil
Procedure, which amendment will apply only within the four
corners of the State, being made under Schedule VII List
III Entry 13 to the Constitution of India, such amendment shall
stand repealed if it is inconsistent with the provisions of the
principal Act as amended by the Parliamentary enactment
contained in the 1976 Amendment to the Code of Civil
Procedure. This is further made clear by the reference in
Section 97(1) to a High Court. The expression “any provision
inserted in the principal Act” by a High Court has reference to
Section 122 of the Code of Civil Procedure by which High
Courts may make rules regulating their own procedure, and the
procedure of civil courts subject to their superintendence, and
may by such rules annul, alter, or add to any of the rules
contained in the First Schedule to the Code of Civil Procedure.”
The Code Of Civil Procedure (Amendment) Act, 1956
Section 96 in The Code of Civil Procedure, 1908 [Entire Act]
Section 41 in The Punjab Courts Act, 1918 [Entire Act]
Wali Mohammad vs Mohammad Baksh on 16 December, 1929
Again the Judicial Committee
in Midnapur Zamindary Co. Ltd. v. Uma Charan Mandal [1923
SCC OnLine PC 31 : (1924-25) 29 CWN 131] further elucidated
the principle by pointing out : (SCC OnLine PC)
‘[If] the question to be decided is one of fact, it does not
involve an issue of law merely because documents which were
not instruments of title or contracts or statutes or otherwise
the direct foundations of rights but were merely historical
documents, have to be construed.’
Nor does the fact that the finding of the first appellate court is
based upon some documentary evidence make it any the less a
finding of fact (see Wali Mohammad v. Mohd. Bakhsh [1929
SCC OnLine PC 115 : (1929-30) 57 IA 86 : ILR (1930) 11 Lah
199]). But, notwithstanding such clear and authoritative
pronouncements on the scope of the provisions of Section 100
CPC, some learned Judges of the High Courts are disposing of
second appeals as if they were first appeals. This introduces,
apart from the fact that the High Court assumes and exercises
a jurisdiction which it does not possess, a gambling element in
the litigation and confusion in the mind of the litigant public.
Kshitish Chandra Bose vs Commissioner Of Ranchi on 6 February, 1981
12. Later, in a judgment, in Kshitish Chandra Bose v.
Commr. [(1981) 2 SCC 103] — three Judges, of this Court held that
the High Court has no jurisdiction to entertain second appeal on
findings of fact even if it was erroneous. The Court held as follows :
Mst. Kharbuja Kuer vs Jangbahadur Rai on 9 April, 1962
In Kharbuja Kuer v. Jangbahadur Rai [AIR 1963 SC
1203 : (1963) 1 SCR 456] this Court held that the High Court
had no jurisdiction to entertain second appeal on findings of
fact even if it was erroneous. In this connection, this Court
observed as follows : (AIR pp. 1205-06, paras 5 & 7)
‘5. It is settled law that the High Court has no jurisdiction to
entertain a second appeal on the ground of erroneous finding
of fact. …
***
R. Ramachandran Ayyar vs Ramalingam Chettiar on 10 August, 1962
7. … As the two courts approached the evidence from a correct
perspective and gave a concurrent finding of fact, the High
Court had no jurisdiction to interfere with the said finding.’
To the same effect is another decision of this Court in V.
Ramachandra Ayyar v. Ramalingam Chettiar [AIR 1963 SC 302
: (1963) 3 SCR 604] where the Court observed as follows :