Birendera Kumar Dubey and Anr. Vs. Girja Nandan Dubey and Ors.
EmailAppeal: Civil Appeal No. 6066 of 2001
(Arising out of SLP(C) No. 17268/2000)
(From the Judgment and Order dated 16.5 2000 of the Patna High Court in S.A. No. 353 of 1993)
(Arising out of SLP(C) No. 17268/2000)
(From the Judgment and Order dated 16.5 2000 of the Patna High Court in S.A. No. 353 of 1993)
Petitioner: Birendera Kumar Dubey and Anr.
Respondent: Girja Nandan Dubey and Ors.
Apeal: Civil Appeal No. 6066 of 2001
(Arising out of SLP(C) No. 17268/2000)
(From the Judgment and Order dated 16.5 2000 of the Patna High Court in S.A. No. 353 of 1993)
(Arising out of SLP(C) No. 17268/2000)
(From the Judgment and Order dated 16.5 2000 of the Patna High Court in S.A. No. 353 of 1993)
Judges: SYED SHAH MOHAMMED QUADRI & S.N. PHUKAN, JJ.
Date of Judgment: Aug 31, 2001
Appearances:
Mr. Atul K. Sinha and Mr. Devendra Singh, Advocates for the Appellants.
Mr. S.K. Sinha, Advocate for the Respondents.
Head Note:
CIVIL LAW
Civil Procedure Code, 1908
Sections 100, 101 – Second appeal – High Court setting aside the judgment and decree of first Appellate Court and restoring that of Trial Court – No formulation of any substantial question of law. Held that judgment is set aside and appeal is restored to High Court to frame question of law, if arises, and to decide the same. (Paras 5, 6, 7)
Cases Reffered:
1. Dyamappa H. Gondar v. Ganeshappa S. Sudambi and Anr. (2000 (8) SLT 19) (Para 5)
2. Kshitesh Chandra Purkait v. Santosh Kumar Parkait and Ors. (JT 1997 (5) SC 202) (Para 5)
3. Panchugopal Barua and Ors. v. Umesh Chandra Goswami and Ors. (JT 1997 (2) SC 554) (Para 5)
4. The Tehsildar and Ors. v. G.V. Gopalakrishnappa and Ors. (dis-posed of on 25.9.2000) (Para 5)
2. Kshitesh Chandra Purkait v. Santosh Kumar Parkait and Ors. (JT 1997 (5) SC 202) (Para 5)
3. Panchugopal Barua and Ors. v. Umesh Chandra Goswami and Ors. (JT 1997 (2) SC 554) (Para 5)
4. The Tehsildar and Ors. v. G.V. Gopalakrishnappa and Ors. (dis-posed of on 25.9.2000) (Para 5)
JUDGEMENT:
O R D E R
1. Heard the learned counsel for the parties.
2. Delay is condoned.
3. Leave is granted.
4. This appeal is directed against the judgment and decree of the High Court of Patna in Second Appeal No. 353/1993 dated May 16, 2000. By the impugned judgment, the High Court set aside the judgment and decree of the first Appellate Court and restored that of the Trial Court.
5. A perusal of the judgment shows that the High Court has not framed any substantial question of law before proceeding to dispose of the Second Appeal. This Court has in Panchugopal Barua and Ors. v. Umesh Chandra Goswami and Ors. (JT 1997 (2) SC 554 = 1997 (4) SCC 713); Kshitesh Chandra Purkait v. Santosh Kumar Parkait and Ors. (JT 1997 (5) SC 202 = 1997 (5) SCC 438); The Tehsildar and Ors. v. G.V. Gopalakrishnappa and Ors. (disposed of on 25.9.2000) and Dyamappa H. Gondar v. Ganeshappa S. Sudambi and Anr. (2000 (8) SLT 19) (disposed of on 28.9.2000), held that having regard to the provisions of Sections 100 and 101 C.P.C., the High Court can entertain the second appeal only when a sub-stantial question of law arises from the judgment of the first Appellate Court. As the High Court has not framed such a question but decided the second appeal on fact and reversed the first Appellate Court’s judgment and decree, we have no option except to set aside the judgment and decree under appeal and remand the case to the High Court for fresh disposal according to law.
6. The judgment and decree, under appeal, are set aside, the second appeal is restored to the file of the High Court. The High Court will now consider whether any substantial question of law arises from the judgment of the first Appellate Court and if so, to frame the question and dispose of the appeal on that question. The appeal is accordingly allowed. There shall be no order as to costs.
1. Heard the learned counsel for the parties.
2. Delay is condoned.
3. Leave is granted.
4. This appeal is directed against the judgment and decree of the High Court of Patna in Second Appeal No. 353/1993 dated May 16, 2000. By the impugned judgment, the High Court set aside the judgment and decree of the first Appellate Court and restored that of the Trial Court.
5. A perusal of the judgment shows that the High Court has not framed any substantial question of law before proceeding to dispose of the Second Appeal. This Court has in Panchugopal Barua and Ors. v. Umesh Chandra Goswami and Ors. (JT 1997 (2) SC 554 = 1997 (4) SCC 713); Kshitesh Chandra Purkait v. Santosh Kumar Parkait and Ors. (JT 1997 (5) SC 202 = 1997 (5) SCC 438); The Tehsildar and Ors. v. G.V. Gopalakrishnappa and Ors. (disposed of on 25.9.2000) and Dyamappa H. Gondar v. Ganeshappa S. Sudambi and Anr. (2000 (8) SLT 19) (disposed of on 28.9.2000), held that having regard to the provisions of Sections 100 and 101 C.P.C., the High Court can entertain the second appeal only when a sub-stantial question of law arises from the judgment of the first Appellate Court. As the High Court has not framed such a question but decided the second appeal on fact and reversed the first Appellate Court’s judgment and decree, we have no option except to set aside the judgment and decree under appeal and remand the case to the High Court for fresh disposal according to law.
6. The judgment and decree, under appeal, are set aside, the second appeal is restored to the file of the High Court. The High Court will now consider whether any substantial question of law arises from the judgment of the first Appellate Court and if so, to frame the question and dispose of the appeal on that question. The appeal is accordingly allowed. There shall be no order as to costs.
