N. Balakrishnan &
ANR. Vs. Kailasa Naicker (D) by LRS.  INSC 1468 (29 August 2008)
JURISDICTION CIVIL APPEAL NOS.5310-5311 OF 2008 (Arising out of S.L.P. (C)
Nos.2368-2369 of 2006) N. Balakrishnan and Another ...Appellant(s) Versus
Kailasa Naicker (D) by L.R. ...Respondent(s) O R D E R Delay condoned.
Heard learned counsel
appearing on behalf of the appellants.
In spite of service
of notice, nobody has appeared on behalf of the respondent to contest the
prayer made in these appeals.
By the impugned
order, the High Court, after re-appreciating the evidence set aside the
judgment and decree passed by the Lower Appellate Court and restored that of
the trial court without framing any substantial question of law. It is well-
settled that, in a second appeal filed under Section 100 of the Code of Civil
Procedure, 1908, if the High Court is of the opinion that a substantial
question of law arises, then such question of law is required to be framed and
decided. In this case, the High Court upset the judgment of the Lower Appellate
Court without framing any substantial question of law. Therefore, on this
ground alone the impugned order is liable to be set aside.
2 Accordingly, the
appeals are allowed, impugned judgment and order are set aside and the second
appeal is restored to its original number. The High Court shall now consider
whether any substantial question of law arises in the second appeal and in case
it is of the opinion that such question arises, then it shall frame the same
and, thereafter, decide the appeal after giving opportunity of hearing to the
parties. If the High Court is of the opinion that no substantial question of
law arises in the appeal, it shall have no option but to dismiss the same.
Delhi, August 29, 2008.