Subrahmanyam Reddy Vs. Namakari Muni Reddy & Ors  Insc 934 (17 September 2007)
Chatterjee & Dalveer Bhandari
O R D
E R [Arising out of SLP [C] No.12079 of 2006] TARUN CHATTERJEE, J.
This appeal is directed against the judgment dated 3/2/2006 of the Andhra Pradesh High Court at Hyderabad in second appeal No. 536 of 1994
and second appeal No. 561 of 1994. By the impugned judgment, the High Court has
allowed the two appeals filed by the respondent and set aside the judgment of
the appellate court thereby restoring the judgment and decree passed by the
trial court decreeing the suit of the respondent.
our view, on a short question and without going into the merits, the judgment
under appeal is liable to be set aside, as we find that the High Court, while
entertaining the second appeal, has failed to frame the substantial question of
law which is a mandatory requirement under section 100 of the Civil Procedure
Code (for short CPC). It is true that the substantial question of law
which arose for consideration, as observed by the High Court, was whether the
lower appellate court was just and proper in throwing the burden against the
plaintiff in O.S. No. 318/1981 to prove Exhibit B.1 agreement of sale executed
in his favour. In our view, it was the duty of the High Court to specifically
frame the question of law at the time of admission of appeal and thereafter, at
the time of hearing of the second appeal, the question so framed should have
been decided by the High Court.
opinion, the question that was formulated at the time of hearing of the second
appeal cannot be termed as a substantial question of law. (See Thiagarajan
& Ors. V/s. Sri Venugopalaswami B. Koil & Ors (2004) 5 SCC 762)
any view of the matter, the substantial question of law referred to by the High
Court in its impugned judgment was not a substantial question of law that could
justify interference of the High Court under Section 100 of the CPC.
the reasons aforesaid, we have no alternative but to set aside the judgment of
the High Court on the short question posed before us. Accordingly, the impugned
judgment is set aside. The High Court is directed to frame the substantial
questions of law before the second appeal is taken up for hearing and after
framing such substantial questions of law, the High Court shall dispose of the
same within a period of 3 months from the date of supply of a copy of this
order after giving hearing to the parties and without granting any unnecessary adjournments
to either of them. For the reasons aforesaid, the appeal is allowed to the
extent indicated above. There will be no order as to costs.
Pages: 1 2