Nabakishore Mohanta Vs. Janardan Patra (dead) by LRs. & Anr.
EmailAppeal: Civil Appeal No. 2599 of 1987
Petitioner: Nabakishore Mohanta
Respondent: Janardan Patra (dead) by LRs. & Anr.
Apeal: Civil Appeal No. 2599 of 1987
Judges: V.N. KHARE & S.N. VARIAVA, JJ.
Date of Judgment: Aug 30, 2000
Head Note:
CIVIL LAW
Civil Procedure Code, 1908
Section 100 – Second appeal – Suit for declaration, possession and injunction – Decree passed by trial court affirmed in appeal – High Court setting aside the same without formulating substan-tial question of law. Held that judgment is set aside and second appeal is remitted back for decision as per law.(Paras 2, 3)
Civil Procedure Code, 1908
Section 100 – Second appeal – Suit for declaration, possession and injunction – Decree passed by trial court affirmed in appeal – High Court setting aside the same without formulating substan-tial question of law. Held that judgment is set aside and second appeal is remitted back for decision as per law.(Paras 2, 3)
JUDGEMENT:
ORDER
1. The plaintiff filed a suit for declaration of title, confirma-tion of possession and permanent injunction. The said suit was decreed. The first Appellate Court upheld the decree passed by the trial court. However, the High Court, in second appeal, set aside the decree passed by the lower court and the suit was dismissed. It is against the said judgment of the High Court, the plaintiff is in appeal before us.
2. Learned Counsel, appearing for the appellant, argued that this case requires to be sent back to the High Court for the reason that the High Court, before deciding the appeal on merit, has not framed any substantial question of law . He further argued that the High Court does not acquire any jurisdiction to decide the appeal on merits, unless it frames the substantial question of law. On perusal of the judgment, we find that the High Court, without framing any substantial question of law, has decided the appeal on merits. We are, therefore, in agreement with the argument of the learned Counsel for the appellant that the judg-ment under appeal deserves to be set aside and accordingly, it is set aside.
3. The appeal is allowed. The case is sent back to the High Court for deciding the matter in accordance with the provisions of Section 100 of Code of Civil Procedure. Since none has appeared for the respondents, there shall be no order as to costs.
1. The plaintiff filed a suit for declaration of title, confirma-tion of possession and permanent injunction. The said suit was decreed. The first Appellate Court upheld the decree passed by the trial court. However, the High Court, in second appeal, set aside the decree passed by the lower court and the suit was dismissed. It is against the said judgment of the High Court, the plaintiff is in appeal before us.
2. Learned Counsel, appearing for the appellant, argued that this case requires to be sent back to the High Court for the reason that the High Court, before deciding the appeal on merit, has not framed any substantial question of law . He further argued that the High Court does not acquire any jurisdiction to decide the appeal on merits, unless it frames the substantial question of law. On perusal of the judgment, we find that the High Court, without framing any substantial question of law, has decided the appeal on merits. We are, therefore, in agreement with the argument of the learned Counsel for the appellant that the judg-ment under appeal deserves to be set aside and accordingly, it is set aside.
3. The appeal is allowed. The case is sent back to the High Court for deciding the matter in accordance with the provisions of Section 100 of Code of Civil Procedure. Since none has appeared for the respondents, there shall be no order as to costs.
