CASE NO.: Appeal (civil) 1245 of 2008 PETITIONER: Bokka Subba Rao RESPONDENT: Kukkala Balakrishna & Ors DATE OF JUDGMENT: 12/02/2008 BENCH: Tarun Chatterjee & Dalveer Bhandari JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO 1245 OF 2008
(Arising out of S.L.P.) No.3228 of 2006)
TARUN CHATTERJEE, J.
1. Leave granted.
2. At the time of issuing notice to the special leave
petition, this Court confined notice as to why the second
appeal should not be remitted to the High Court for failure
to formulate and decide the substantial question of law as
required by Section 100 of the Code of Civil Procedure.
3. A suit was filed by the plaintiffs-respondents for
declaration that Item No.2 of the plaint schedule property
was their absolute property, and for a perpetual injunction,
restraining the respondents from obtaining possession of
the said item. The suit was dismissed, which was affirmed
in appeal. However, by the impugned judgment of the High
Court passed in second appeal, the suit was decreed.
Feeling aggrieved by the aforesaid judgment of the High
Court of Andhra Pradesh at Hyderabad, a special leave
petition has been filed in respect of which leave has already
been granted.
4. Having heard the learned counsel for the parties and
after examining the judgment of the High Court passed in
the second appeal, we are of the view that the judgment in
second appeal of the High Court is liable to be set aside on
a very short question. 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 formulated the
substantial questions of law and thereafter, to decide the
same on consideration of such substantial questions of law.
In this case, admittedly no such substantial question of law
had been formulated and thereafter, the second appeal was
allowed. That being the position, we set aside the judgment
of the High Court passed in second appeal and remit the
appeal back to the High Court for fresh decision after
formulating the substantial questions of law and thereafter,
to decide it on merits.
5. For the reasons aforesaid, the judgment of the High
Court is set aside. The second appeal is restored to its
original file. The High Court is requested to dispose of the
second appeal at an early date preferably within six months
from the date of supply of a copy of this order to it. We
make it clear that we have not gone into the merits of the
appeal which shall be decided after formulating the
substantial questions of law and then to decide the second
appeal in accordance with law.
6. The appeal is, therefore, allowed to the extent
indicated above. There will be no order as to costs.