H.David Vs. Gopi and
Ors. [2009] INSC 231 (6 February 2009)
Judgment
CIVIL APPELLATE
JURISDICTION CIVIL APPEAL NO.769 OF 2009 (Arising out of S.L.P. (C) No.5992 of
2007) H. David ...Appellant(s) Versus Gopi & Ors. ...Respondent(s)
O R D E R
Leave granted.
Heard learned counsel
for the parties.
This appeal has been
filed against that portion of the impugned order dated 19th February, 2006,
passed by the High Court whereby Second Appeal No.990 of 2004 filed by respondent
No.1 against the judgment and decree passed by the appellate Court, has been
allowed and Civil Revision Petition (NPD) No.1108 of 2004 filed by the
appellant against order dated 18.3.2004 passed by Sub Judge in I.A. No.1078 of
2003 in O.S. No.46 of 1997 has been dismissed. It is not in dispute that the
appeal was decided at the stage of final hearing without framing any
substantial question of law. It is well settled that, in a second appeal, the
High Court is obliged to frame a substantial question of law, if any arising
therein and only thereafter it can dispose of the appeal. Since that course has
not been adopted in the ....2/- -2- present case, the impugned order allowing
the second appeal is liable to be set aside.
While dismissing the
civil revision petition, the High Court has not assigned any reason whatsoever.
Therefore, that part of the impugned order is also liable to be set aside.
Accordingly, the
appeal is allowed, impugned order in so far as the same relates to Second
Appeal No.990 of 2004 and Civil Revision Petition No.1108 of 2004 is set aside
and both the aforesaid cases are remitted to the High Court. Now the High Court
shall consider whether in the second appeal any substantial question of law
arises or not. If it comes to the conclusion that substantial question of law
does arise, in that event, it shall frame the same and, thereafter, proceed to
dispose of the appeal in accordance with law. The civil revision petition shall
also be disposed of on merits after giving opportunity of hearing to the
parties.
......................J.
[B.N. AGRAWAL]
......................J.
[G.S. SINGHVI]
New
Delhi,
February
06, 2009.
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