Jarnail Singh (D) Tr.
LRS. Vs. Dhanna Singh & Ors,  INSC 691 (6 April 2009)
JURISDICTION CIVIL APPEAL NO. 2179 OF 2009 (Arising out of SLP(C) No.
5390/2007) Jarnail Singh (D) Thr. Lrs. .. Appellant(s) Versus Dhanna Singh
& Ors. .. Respondent(s) ORDER Leave granted.
This appeal is
directed against the judgment, dated 13th September, 2006, passed by a Single
Bench of the High Court of Punjab & Haryana at Chandigarh in RSA No.
798/1983 By the impugned judgment, the High Court has allowed the appeal;
reversed the decision of the First Appellate Court and has restored the finding
recorded by the Trial Court in respect of Will dated 31st May, 1979.
At the time of
issuing notice to the respondent on 2nd April, 2007, it was indicated in the
order that the matter may have to be remitted back to the High Court on account
of failure on its part to formulate the substantial question of law.
Accordingly, we have
finally heard learned counsel for the parties at this stage itself.
It is manifest from
the impugned order, that although the learned Judge has referred to the issues
framed by the trial court, but he proceeded to decide the appeal on merits
without formulating any substantial question of law. It is now well settled by
a series of decisions of this Court that in a second appeal under Section 100
of the Civil Procedure Code, 1908, if the High court is satisfied that the case
involves a substantial question of law, then the High Court must frame the
substantial question of law, and only thereafter dispose of the appeal on the
basis of material before it. It is trite to state that allowing a second appeal
without framing a substantial question of law is clearly contrary to the
mandate of Section 100 C.P.C. Admittedly, in the present case, the learned
Judge failed to formulate substantial question of law and thereby committed an
error in allowing the second appeal. Therefore, the impugned judgment is liable
to be set aside on this short ground alone.
appeal is allowed; impugned judgment is set aside and the matter is remitted
back to the High Court for fresh decision in accordance with law after
formulating the substantial question of law. There will be no order as to
[ D.K. JAIN ]
[ R.M. LODHA ]