- (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, Before further discussion in the matter, we feel it necessary to repro duce the relevant provision of law. Sub section (4) of Section 331 of U. P. Zamindari Abolition and Land Reforms Act, 1950, reads as under : " (4) A second appeal shall lie on any of the grounds specified in sec tion 100 of the Code of Civil Pro cedure, 1908 from the final order or decree, passed in an appeal under sub-section (3), to the authority, if any, mentioned against it in column 6 of the Schedule aforesaid. " U. P Zamindari and Land Reforms Act, 1950, received the assent of the President of India on January 24, 1951 under Article 201 of the Con stitution of India and published in the U. P. Gazette Extra Ordinary dated January 26, 1951, and came into force at once except provision mentioned in sub-section (3) of Sec tion 1 of said Act. In the year 1951, Section 100 of Code of Civil Procedure, 1908, con tained following grounds for Second Appeal : " (a) the decision being contrary to law or to some usage having the force of law; (b) the decision having failed to de termine some material issue of law or usage having the force of law; and (c) a substantial error or defect in procedure provided by the Code or any other law for the time be ing in force, which may possibly have produced error or defect in the decision of the case upon the merits. "
(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 ? On behalf of the petitioner, Shri Rajendra Dobhal, learned counsel, ar gued that the amendments made in the Code of Civil Procedure are applicable as the provisions of the Code of Civil Procedure are applicable to the pro ceeding under U. P. Act No. 1 of 1951, by reference. In this connection, he drew our attention to the provisions contained in Section 341 of U. P. Zamindari Abolition and Land Reforms Act, 1950, which reads as under : "341. Application of certain Acts to the proceedings of this Act.- Unless othep. Wise expressly provided by or under this Act, the provisions of the Indian Court Fees Act, 1870, the Code of Civil Procedure, 1908 and Limitation Act, 1963 including sec tion 5 thereof shall apply to the pro ceedings under this Act. " On the other hand, Shri Alok Singh, Senior Advocate on behalf of the respondents argued that though the provisions contained in Code of Civil Procedure are applicable to the pro ceedings under U. P Act No. 1 of 1951 but at the same time the amendments made in Section 100 of the Code has no effect after the commencement of U. P. Act No. 1 of 1951. In other words, learned counsel for the respondents contended that the provision of Section 100 stood adopted by incorporation.;