Bokka Subba
Rao Vs. Kukkala Balakrishna & Ors [2008] Insc 173 (12 February 2008)
Tarun
Chatterjee & Dalveer Bhandari
CIVIL
APPEAL NO 1245 OF 2008 (Arising out of S.L.P.) No.3228 of 2006) TARUN
CHATTERJEE, J.
1.
Leave granted.
2. At
the time of issuing notice to the special leave petition, this Court confined
notice as to why the second appeal should not be remitted to the High Court for
failure to formulate and decide the substantial question of law as required by
Section 100 of the Code of Civil Procedure.
3. A
suit was filed by the plaintiffs-respondents for declaration that Item No.2 of
the plaint schedule property was their absolute property, and for a perpetual
injunction, restraining the respondents from obtaining possession of the said
item. The suit was dismissed, which was affirmed in appeal. However, by the
impugned judgment of the High Court passed in second appeal, the suit was
decreed.
Feeling
aggrieved by the aforesaid judgment of the High Court of Andhra Pradesh at Hyderabad, a special leave petition has been
filed in respect of which leave has already been granted.
4.
Having heard the learned counsel for the parties and after examining the
judgment of the High Court passed in the second appeal, we are of the view that
the judgment in second appeal of the High Court is liable to be set aside on a
very short question. It is now well settled by catena of decisions of this
Court that the High Court in second appeal, before allowing the same, ought to
have formulated the substantial questions of law and thereafter, to decide the
same on consideration of such substantial questions of law.
In
this case, admittedly no such substantial question of law had been formulated
and thereafter, the second appeal was allowed. That being the position, we set
aside the judgment of the High Court passed in second appeal and remit the
appeal back to the High Court for fresh decision after formulating the
substantial questions of law and thereafter, to decide it on merits.
5. For
the reasons aforesaid, the judgment of the High Court is set aside. The second
appeal is restored to its original file. The High Court is requested to dispose
of the second appeal at an early date preferably within six months from the
date of supply of a copy of this order to it. We make it clear that we have not
gone into the merits of the appeal which shall be decided after formulating the
substantial questions of law and then to decide the second appeal in accordance
with law.
6. The
appeal is, therefore, allowed to the extent indicated above. There will be no
order as to costs.
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