TARA CHAND & ORS. versus MUNICIPALITY GHARAUNDA

Citation: [2009] 6 S.C.R. 794 · Decided: 21-04-2009 · Supreme Court of India · Bench: TARUN CHATTERJEE · Disposal: Case Partly allowed

Judgment (excerpt)

(2009] 6 S.C.R. 794 
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A 
TARA CHAND & ORS. 
V. 
MUNICIPALITY GHARAUNDA 
(Civil Appeal Nos. 1009-1010 of 2001) 
B 
APRIL 21, 2009 
[TARUN CHATTERJEE AND V.S. SIRPURKA ~. JJ.] 
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Code of Civil Procedure, 1908 - - s. 100 and Order 22 -
- Second appeal allowed without framing substantia ' question 
c of law - Appeal to Supreme Court dismissed as abated in 
its entirety on the death of few appellants - Restorati >n thereof 
stating that the question whether entire appeal ab< ted to be 
decided at final hearing -
Held : Since m mdatory 
requirement of framing of substantial question cf law not 
D complied with, matter remitted to High Court to co11sider the 
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matter after formulating substantial question of L~ w - High 
Court also requested to decide the question 1 egarding 
abatement. 
Trial Court dismissed the suit for pe ·manent 
E injunction. First appellate court set aside the ord ~r of trial 
court. In second appeal, High Court reversed th I! finding 
of the appellate Court. 
The appeal before this court, initially was dismissed 
F for non-prosecution. Thereafter the same was ·estored. 
Again the appeal was dismissed holding that 1 he same 
abated in its entirety on account of death of • 1ppellant 
Nos. 6, 10, 13 and 14. But the order of abatement Nas later 
set aside stating that the question whether ti 1e entire 
G appeal stood abated on the ground of death of the 
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above-said appellants, to be decided at the time of 
hearing on merits. 
Partly allowing the appeals, the Court 
H 
794 
TARA CHAND & ORS. v. MUNICIPALITY 
795 
GHARAUNDA 
HELD: 1. High Court, without framing substantial 
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questions of law, as required mandatorily u/s 100 CPC, 
allowed the second appeal and reversed the judgment of 
the appellate court, which had set aside the judgment of 
the trial court dismissing the suit for permanent 
injunction. The High Court in second appeal, before 
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allowing the same, ought to have framet.i the substantial 
questions of law arising between the parties and only 
thereafter, to decide the appeal on ~onsideration of such 
questions of law. The appeals are remitted to the High 
Court for fresh decision after formulating the substantial c 
questions of law and thereafter to decide on merits. 
[Paras 3, 4 and 5) [796-C-G] 
2. While setting aside the order of abatement, it was 
made clear that at the time of hearing of the appeals, the 
question whether the entire appeals stood abated on the 
D 
ground of death of appellant Nos. 6, 10, 13 and 14, would 
be considered. In this view of the matter and as the order 
of the High Court is set aside, the High Court i~ requested 
to decide the said questions i.e. whether the appeals had 
also abated in its entirety, on the death of appellant Nos. 
E 
6, 10, 13 and 14. [Para 9) [797-E-G] 
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 
1009-1010 of 2001. 
From the Judgment & Order dated 17.02.2000 of the High 
F 
Court of Punjab and Haryana at Chandigarh in Review Petition 
No. 7-C of 2000. 
S.K. Bagga, Seeraj Bagga and Sureshta Bagga for the 
Appellant(s). 
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Kamal Sharma and AP. Mohanty for the Respondent(s). 
The Judgment of the Court was, delivered by 
TARUN CHATTERJEE, J. 1. These appeals, by way of 
Special Leave Petitions, are directed against the Judgment and 
H 
796 
SUPREME COURT REPORTS 
[2009) 6 S.C.R. 
7 
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A order dated 17th of February, 2000 of the High Court of Punjab 
and Haryana at Chandigarh in Regular Second Appeal No. 
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2094 of 1996, by which the High Court had allowed the Second 
Appeal and reversed the findings of fact arrived at by the 
Appellate Court in a suit for permanent injunction. 
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2. We have heard the learned counsel for the parties and 
examined the impugned Judgment of the High Court as well 
as of the Appellate Court and the trial Court and also other 
materials on record. In our view, these appeals have to be sent 
back to the High Court for fresh disposal in the light of the 
c observations made hereinbelow. 
3. On a plain reading of the Judgment of the High Court, 
we find that the High Court, without framing. the substantial 
questions of law, allowed the second appeal and reversed the 
Judgment of the Appellate Court, which had set aside the 
D Judgment of the trial Court dismissing the suit for permanent 
injunction. 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 framed the substantial questions of law 

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