2008 JTR(SC) 226
2008 AIR(SCW) 6808 ; 2008 71 AllLR 748 ; 2008 2 ALT(SC) 58 ; 2008 2 AWC 1950 ; 2009 1 BBCJ(SC) 392 ; 2008 2 ICC 720 ; 2008 2 JT 401 ; 2008 Supp2 KLT 1040 ; 2008 1 RCR(Civ) 933 ; 2008 1 RCR(Rent) 254 ; 2008 105 RD 266 ; 2008 2 Scale 396 ; 2008 3 SCC 99 ; 2008 1 SCC(Civ) 786 ; 2008 2 SCR 753 ; 2008 1 WLC 692 ; 2008 KHC 4222 ; 2008 2 Supreme 81
2008(2) Supreme 81
Supreme Court of india
Tarun Chatterjee & Dalveer Bhandari, JJ.
Bokka Subba Rao — Petitioner
versus
Kukkala Balakrishna & Ors. — Respondents
Appeal (civil) 1245 of 2008
Decided on : 12-02-2008
Important Point
High Court in second appeal before allowing same, has to formulate the substantial questions of law and thereafter to decide same on consideration of such substantial questions of law.
Act Referred :CIVIL PROCEDURE CODE : S.100
(A) The Code of Civil Procedure, Section 100, governs the adjudication of second appeals in higher courts, requiring the formulation and decision of substantial questions of law before allowing an appeal. The impugned judgment is scrutinized under this provision to ensure compliance with the procedural mandate that substantial legal questions be correctly framed and decided at the appellate stage. The analysis focuses on whether the High Court adhered to this mandatory requirement in disposing of the second appeal.
(B) It is a settled principle that a High Court must formulate and decide substantial questions of law before allowing a second appeal. Failure to do so renders the judgment vulnerable to being set aside. The court must strictly follow this procedural safeguard to ensure correctness and legality of the appellate decision.
Facts of the case:
A suit for declaration of absolute ownership and perpetual injunction was dismissed by the lower court and affirmed on appeal. The High Court, in the second appeal, decreed the suit, prompting a special leave petition challenging the order.
Ratio Decidendi:
The High Court's allowance of the second appeal without formulating and deciding a substantial question of law is illegal and unsustainable, necessitating setting aside of the judgment and remand for compliance.
Result:
The High Court's second appeal judgment is set aside, the appeal is restored to its original file, and the case is remitted for fresh disposal after formulating and deciding the substantial question of law.
(A) The Code of Civil Procedure, Section 100, governs the adjudication of second appeals in higher courts, requiring the formulation and decision of substantial questions of law before allowing an appeal. The impugned judgment is scrutinized under this provision to ensure compliance with the procedural mandate that substantial legal questions be correctly framed and decided at the appellate stage. The analysis focuses on whether the High Court adhered to this mandatory requirement in disposing of the second appeal.
(B) It is a settled principle that a High Court must formulate and decide substantial questions of law before allowing a second appeal. Failure to do so renders the judgment vulnerable to being set aside. The court must strictly follow this procedural safeguard to ensure correctness and legality of the appellate decision.
Facts of the case:
A suit for declaration of absolute ownership and perpetual injunction was dismissed by the lower court and affirmed on appeal. The High Court, in the second appeal, decreed the suit, prompting a special leave petition challenging the order.
Ratio Decidendi:
The High Court's allowance of the second appeal without formulating and deciding a substantial question of law is illegal and unsustainable, necessitating setting aside of the judgment and remand for compliance.
Result:
The High Court's second appeal judgment is set aside, the appeal is restored to its original file, and the case is remitted for fresh disposal after formulating and deciding the substantial question of law.
judgment
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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