BIRENDERA KUMAR DUBEY AND ANR.
A
v.
GIRJA NANDAN DUBEY AND ORS.
AUGUST 31, 200 I
[ SYED SHAH MOHAMMED QUADRI AND S.N. PHUKAN, JJ.]
B
Code of Civil Procedure, 1908 :
Ss. JOO and JOI-Second appeal-High Court deciding second appeal
on facts without framing substantial question of law, and setting aside judgment C
and decree of first appellate court-Held, High Court can entertain second
appeal only when a substantial question of law arises from the judgment of
the first appellate court-Second appeal restored to file of High Court-High
Court would consider whether any substantial question of law arises from
judgment and decree of first appellate court and, if so, to frame the question D
and dispose of that question.
Panchugopal Barua and Ors. v. Umesh Chandra Goswami and Ors.,
[1997] 4 SCC 713; Kshitesh Chandra Parkait v. Santosh Kumar Parkait and
Ors., (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 E
S. Sudambi and Anr., [2001] Vol. 6 SCC 768.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6060 of
2001.
From the Judgment and Order dated 16.5.2000 of the Patna High Court F
in S.A. No. 353 of I 993.
Atul K.Sinha and Devendra Singh for the Appellants.
S.K. Sinha for the Respondents.
G
The following Order of the Court was delivered :
Heard the learned counsel for the parties
Delay is condoned·.
473
H
474
SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.
A
Leave is granted.
B
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.
A perusal of the judgment shows that the High Coutt 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., [1997] 4 SCC 713; Kshitesh Chandra Parkait v. Santosh
C Kumar Parkait and Ors., [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., disposed of on 28.9.2000, held
that having regard to the provisions of Sections 100 and IOI C.P.C., the High
Court can entertain the Second Appeal only when a substantial question of
law arises from the judgment of the first Appellate Court. As the High Comt
D 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 appeai and remand the
case to the High Court for fresh disposal according to law.
The judgment and decree, under appeal, are set aside, the Second Appeal
E 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 aliowed. There shali be no order as
to costs.
F R.P.
Appeal allowed.
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Lex