Parul Bala Ghosh
& Ors. Vs. Bishnu Pada Ghosh & Ors. [2009] INSC 386 (23 February 2009)
Judgment
CIVIL APPELLATE
JURISDICTION CIVIL APPEAL NO.1164 OF 2009 (Arising out of S.L.P. (C) No.24797
of 2007) Parul Bala Ghosh and Ors. ...Appellant(s) Versus Bishnu Pada Ghosh and
Ors. ...Respondent(s) O R D E R Leave granted.
Heard learned counsel
for the parties.
The suit for
declaration of title and permanent injunction filed by Narayan Chandra Ghosh
(predecessor-in-interest of the appellants herein) was decreed by the trial
court on 7th July, 1989. The appeal preferred against the judgment of the trial
court was dismissed by Assistant District Judge, Kalna, District Burdwan vide
his judgment and decree dated 30th April, 1991. However, when the matter was taken
to the High Court in second appeal, the decree of injunction was set aside.
A reading of the
impugned order shows that the High Court proceeded to decide the appeal on the
premise that in terms of the order passed at the time of admission of the appeal,
the grounds contained in the memorandum of appeal could be treated as
substantial questions of law. We have carefully gone through the memo of appeal
and find that the ....2/- -2- grounds taken therein do not specify the
substantial questions of law. On its part, the High Court did not frame any
substantial question of law as postulated under Section 100 of the Code of
Civil Procedure. This being the position, the impugned order is liable to be
set aside.
Accordingly, the
appeal is allowed, impugned order is set aside and the matter is remitted to
the High Court which shall first consider whether any substantial question of
law arises in the second appeal or not. In case, the High Court is of the
opinion that substantial question of law arises, it shall first frame the same
and thereafter proceed to dispose of the second appeal on merits.
......................J.
[B.N. AGRAWAL]
......................J.
[G.S. SINGHVI]
New
Delhi,
February
23, 2009.
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