Sec 38 to 44-A (Chapter IV Appellate and Revisional Jurisdiction in Civil Cases)The Punjab Courts Act, 1918

38. Appeals from District Judges or Additional Judges—

(1) Save as otherwise provided by any enactment for the time being in force, an appeal from a decree or order of a District Judge or 11[11][Additional District Judge] exercising original jurisdiction shall lie to the High Court.

(2) An appeal shall not lie to the High Court from a decree or order of an 1[Additional District Judge] in any case in which, if the decree or order had been made by the District Judge, an appeal would not lie to that Court.

11[11] . Substituted for the words „Additional Judge‟ vide Amendment Act, 1963

39. Appeals from Subordinate Judges—

(1) Save as aforesaid, as appeal from a decree or order of a Subordinate Judge shall lie:

12[12][(a) to the District Judge—

(i) Where the decree or order was made before the extension of the Punjab Courts (Amendment) Act, 1963 to the Union Territory of Delhi and the value of the original suit in which the decree or order was made did not exceed five thousand rupees, or

(ii) Where the decree or order is made after the extension of the Punjab Courts (Amendment) Act, 1963 to the Union Territory of Delhi and the value of the original suit in which the decree or order is made does not exceed ten thousand rupees, 13[13][or] 14[14][

(iii) where the decree or order is made after the commencement of the Delhi High Court (Amendment) Act, 1991 and the value of the original suit in which the decree or order is made does not exceed rupees one lakh; 15[15][or]

16[16][(iv) where the decree or order is made after the commencement of the Delhi High Court (Amendment) Act, 2003 and the value of the original suit, in which the decree or order is made does not exceed rupees three lakh; and]

(b) to the High Court in any other case.

17[17][(2) subject to the provisions of sub-section 2A, an appeal to the Court or the District Judge shall be heard by the District Judge or by an Additional District Judge.

(2A) An Additional District Judge shall hear only such appeals as the High Court, by general or special order may direct or as the District Judge of the District may make over to him.]

(3) The High Court may by notification direct that appeals lying to the district Court from all or any of the decrees or orders passed in an original suit by any Subordinate Judge shall be preferred to such other Subordinate Judge as may be mentioned in the notification, and the appeals shall thereupon be preferred accordingly and the Court of such other Subordinate Judge shall be deemed to be a District Court for the purpose of all appeals so preferred.

12[12] . Substituted by Amendment Act, 1963.

13[13] . Substituted for “and by” Act No. 60 of 1991.

14[14] . Sub-clause (iii) inserted by Act No. 60 of 1991.

15[15] . Substituted for word “and” by Central Act No. 35 of 2003 (w.e.f. 16.7.2003)

16[16] . Inserted by Central Act No. 35 of 2003 (w.e.f. 16.7.2003).

17[17] . Substituted by Amendment Act 1963.

40. Power to transfer to a Subordinate Judge appeals from other Subordinate Judges—

(1) A District Judge may transfer any appeals pending before him from the decrees or order of Subordinate Judges to any other Subordinate Judge under his administrative control competent to dispose of them.

(2) The District Judge may withdraw any appeal so transferred, and either hear and dispose of it himself or transfer it to a Court under his administrative control competent to dispose of it.

(3) Appeals transferred under this section shall be disposed of subject to the rules applicable to like appeals when disposed of by the District Judge.

(4) The powers conferred by this section shall be exercised subject to such general or special orders as may from time to time be issued in this behalf by the High Court.

41. Second appeals—

(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 [V of 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;

18[18][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 his section:]

(2) An appeal may lie under this section from an appellate decree passed ex parte.

(3) [Repealed by Section 2B of Punjab Act 6 of 1941].

COMMENTS

Section 100(1), CPC even though after Amendment Act of 1976 saves local law it has to be read with Section 97(1) of the CPC Amendments Act 1976. Language of Section 97(1) clearly spells out that any local law inconsistent goes but what is not inconsistent, it could be said the local law would still continue to occupy its field. But so for the present case Section 41 of Punjab Courts Act, it is expressly in conflict with the amending law, viz Section 100 amended which would be deemed to have been repealed. Therefore, Section 41 of the Punjab Courts Act is not saved on the subject of second appeals. Requirement of framing substantial question of law as per Section 100 of CPC (as amended in 1976) cannot be excluded by provision of Section 41 of the Punjab Courts Act. Kulwant Kaur v. Gurdial Singh Mann, AIR 2001 SC 1273.

Where the whole approach of the first appellate Court was based mere on suspicion and his possible bias against the second respondent than an evidence of which there was none and when there was no issue as well to support his findings. It was certainly the case where there was a substantial error or defect in the procedure as prescribed by the Code and High Court was justified in entertaining the second appeal. No doubt procedure is meant to advance justice but when law prescribes as to how jurisdiction is to be exercised and power is conferred for the purpose, it has to be exercised that way. For a second appeal to be maintainable, it has to satisfy the parameters as laid down in Section 41 of Punjab Courts Act or Section 100 of CPC as the case may be. Banarsi Das v. Birg. Maharaja Sukhjit Singh & Anothers, AIR 1998 SC 179.

18[18] . Instituted by Punjab Act No. 6 of 1941 as extended to the Union Territory of Delhi, the Home Department Notification No. 72/43 Punjab dated the 16-9-1943 published in the Government of India, Part 1, dated 18-9-1943.

42. Second appeal on no other ground—

(1) No second appeal shall lie except on the grounds mentioned in Section 41].

(2) No second appeal shall 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 does not exceed five hundred rupees.

43. [Repealed by Section 2(4) of Punjab Act IV of 1919].

44. Revision—

The High Court may call for the record of any case which has been decided by any Court subordinate to it and in which on the appeal lies thereto, and if such subordinate Court appears :

(a) to have exercised a jurisdiction not vested in it by law; or

(b) to have failed to exercise a jurisdiction so vested; or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity; The High Court may make such order in the case as it thinks fit.

44-A. Period of Limitation—

(1) The period of limitation for an appeal under Section 41 of this Part shall be ninety days from the date of the decree appealed against.

(2) In computing this period and in all respect not herein specified the limitation of an appeal under the said section shall be deemed to be governed by the provisions of the Indian Limitation Act, 1908.