BAIKUNTH NATH KAUSHIK Vs. ANAND SWAROOP KAUSHIK

JUDGEMENT

(1.) PRAFULLA C. Pant, J. This reference has been made by learned Single Judge of this Court, -while hearing writ petition No. 61 of 2000 (M/s) and writ petition No. 285 of 2001 (M/s), both between the same ' parties, for being answered on follow ing questions : 1. Whether sub-section (4) of sec tion 331 of U. P. Zamindari Abo lition and Land Reforms Act, 1950, is legislation by incorpora tion or by reference and its effect?

(2.) WHETHER the provisions of section 331 (4) of the U. PZamindari and Land Reforms Act, 1950, shall be deemed to have been substituted after the amendment made in section 100 of the Code of Civil Procedure and, there fore, section 100 of the Code of Civil Procedure as amended w. e. f. 01-02-1977 will also apply to sub section (4) of U. P. Zamindari Abolition and Land Reforms Act, 1950? 2. We heard learned counsel for the parties at length on both the above points,

(3.) AFTER the amendment in Section 100 of Code of Civil Procedure, 1908, vide Act No. 104 of 1976, w. e. f. 01-02-1977, it reads as under : "100. Second Appeal- (1) Save as othep. Wise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is sat isfied that the case involves a sub stantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall p/gcisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to ar gue that the case does not involve such question; Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court. to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question". As such now only one ground i. e. substantial question of law on which a Second Appeal can be maintained un der Section 100 of the Code of Civil Procedure, 1908, as against the three available earlier under said Section read with Section 331 (4) of U. P. Zamindari Abolition and Land Reforms Act, 1950 (U. P. Act No. 1 of 1951 ). The question therefore is whether amend ment made in Section 100 of the Code of Civil Procedure, after Section 331 (4) of the aforesaid U. P. Act No. 1 of 1951, would automatically be applicable for the purposes of maintaining a Second Appeal under the said U. P. Act No. 1 of 1951 or not ?