Birendra Kumar Dubey v. Girja Nandan Dubey, (SC) BS155680
SUPREME COURT OF INDIA

Before:-S.S.M. Quadri and S.N. Phukan, JJ.

Civil Appeal No. 6066 of 2001 (arising out of S.L.P. (C) No. 17268 of 2000). D/d. 31.8.2001.

Birendra Kumar Dubey and another - Appellants

Versus

Girja Nandan Dubey and others - Respondents

For the Appellants :- Atul K. Sinha and Devendra Singh Advocates.

For the Respondents :- S.K. Sinha, Advocate.

Civil Procedure Code, 1908, Sections 100 and 101 - Appeal - Remand - Substantial question of law - A Second Appeal - Can be entertained unless a substantial question of law arises - Without framing substantial question of law - High Court decided second appeal on fact and reversed judgment and decree of lower appellate Court - Held, not proper - Matter remanded to the High Court to be decided according to law.

[Paras 5 and 6]

Cases Referred :-

Panchugopal Barua v. Umesh Chandra Goswami, (1997) 4 SCC 713 ).

Kshitish Chandra Purkait v. Santosh Kumar Purkait, (1997) 5 SCC 438 ).

Tehsildar v. G. V. Gopalakrishnappa, (disposed of on 25-9-2000).

Dyamappa H. Gondar v. Ganeshappa S. Sudambi, (disposed of on 28-9-2000).

JUDGMENT

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 v. Umesh Chandra Goswami, (1997) 4 SCC 713 ); Kshitish Chandra Purkait v. Santosh Kumar Purkait, (1997) 5 SCC 438 ). The Tehsildar and others v. G. V. Gopalakrishnappa and others (disposed of on 25-9-2000) and Dyamappa H. Gondar v. Ganeshappa S. Sudambi and another (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.

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.

Appeal allowed.