Tara Chand & Ors.
Vs. Municipality Gharaunda [2009] INSC 809 (21 April 2009)
Judgment
REPORTABLE IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.1009-1010
OF 2001 Tara Chand & Ors. ...Appellants Versus Municipality Gharaunda
...Respondent
TARUN CHATTERJEE,J.
1.
These
appeals, by way of Special Leave Petitions, are directed against the Judgment
and order dated 17th of February, 2000 of the High Court of Punjab and Haryana
at Chandigarh in Regular Second Appeal No. 2094 of 1996, by which the High
Court had allowed the Second Appeal and reversed the findings of fact arrived
at by the Appellate Court in a suit for permanent injunction.
2.
We
have heard the learned counsel for the parties and examined the impugned
Judgment of the High Court as well as of the Appellate Court and the trial
Court and also other materials on record. In our view, these appeals have to be
sent back to the High Court for fresh disposal in the light of the observations
made herein below.
3.
On
a plain reading of the Judgment of the High Court, we find that the High Court,
without framing the substantial questions of law, allowed the second appeal and
reversed the Judgment of the Appellate Court, which had set aside the Judgment
of the trial Court dismissing the suit for permanent injunction. 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 framed the substantial questions
of law arising between the parties and only thereafter, to decide the appeal on
consideration of such questions of law.
4.
In
these appeals, admittedly, the second appeal was allowed without formulating
any substantial questions of law as required mandatorily under Section 100 of
the Code of Civil Procedure.
5.
That
being the position, we set aside the Judgment and decree of the High Court
passed in the aforesaid second appeal and remit the appeals back to the High
Court for fresh decision after formulating the substantial questions of law and
thereafter to decide on merits.
6.
For
the reasons aforesaid, the Judgment and decree of the High Court in the second
appeal is set aside. The Second Appeal is restored to its original file. The
High Court is now requested to dispose of the same at an early date, preferably
within six months from the date of supply of a copy of this order to it.
7.
We
make it clear that we have not gone into the merits of the appeals, which shall
be decided by the High Court after formulating the substantial questions of law
and then decide the second appeal in accordance with law.
8.
There
is another aspect of this matter. It appears from the record that initially by
an order dated 14th of November, 2007, a Bench of this Court dismissed the
appeals for non-prosecution.
Subsequently, on an
application for restoration, the aforesaid order of dismissal was recalled and
the Civil Appeals were restored for hearing. By an order dated 17th of July,
2008, we dismissed the appeals on the ground of abatement. The order passed by
this Court on 17th of July, 2008 runs as under: - "In our view, the
appeals have been abated in its entirety. In view of the abatement caused on
the death of the appellant Nos. 6, 10, 13 & 14 which would be evident from
the order of this Court dated 29th April, 2008, we, therefore, hold that these
appeals have abated in its entirety and the appeals are, therefore, dismissed
as abated. No order as to costs."
9.
However,
by an order dated 5th of February, 2009, the aforesaid order of abatement was
set aside and the appeals were directed to be heard on merits and it was made
clear that at the time of hearing of the appeals, the question whether the
entire appeals stood abated on the ground of death of appellant Nos. 6, 10, 13
and 14, would be considered. In this view of the matter and as we set aside the
order of the High Court, as mentioned herein earlier, we request the High Court
to decide the said questions i.e whether the appeals had also abated in its entirety
on the death of the appellant nos. 6, 10, 13 and 14.
10.
Accordingly,
the impugned judgment of the High Court is set aside. The appeals are allowed
to the extent indicated above.
There will be no
order as to costs.
..........................J.
[Tarun Chatterjee]
...........................J.
New
Delhi;
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