2001 ALL SCR 558

SUPREME COURT OF INDIA

Patna High court

Appeal (Civil) 6060 of 2001

31st August, 2001

SYED SHAH MOHAMMED QUADRI, J.

S.N. PHUKAN, J.

2

BIRENDERA KUMAR DUBEY AND ANR.

GIRJA NANDAN DUBEY AND ORS.

Civil P.C. (1908)

Section 100 Civil P.C. (1908)

Section 101 Civil P.C. (1908)

Decree, Substantial Question of Law

Para 4: Panchugopal Barua and Ors., Vs. Umesh Chandra Goswami and Ors., [1997] 4 SCC 713

Para 4: Kshitesh Chandra Parkait Vs. Santosh Kumar Parkait and Ors., [1997] 5 SCC 438

Para 4: Tehsildar and Ors. Vs. G.V. Gopalakrishnappa and Ors.

Para 4: Dyamappa H. Gondar Vs. Ganeshappa S. Sudambi and Anr

JUDGMENT:- Delay is condoned.

2. Leave is granted.

3. 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.

4. 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., [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 S. Sudambi and Anr, 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 substantial 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.

5. 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.