IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.5310-5311 OF 2008
(Arising out of S.L.P. (C) Nos.2368-2369 of 2006)
N. Balakrishnan and Another ...Appellant(s)
Versus
Kailasa Naicker (D) by L.R. ...Respondent(s)
O R D E R
Delay condoned.
Leave granted.
Heard learned counsel appearing on behalf of the appellants.
In spite of service of notice, nobody has appeared on behalf of the
respondent to contest the prayer made in these appeals.
By the impugned order, the High Court, after re-appreciating the evidence
set aside the judgment and decree passed by the Lower Appellate Court and restored
that of the trial court without framing any substantial question of law. It is well-
settled that, in a second appeal filed under Section 100 of the Code of Civil Procedure,
1908, if the High Court is of the opinion that a substantial question of law arises, then
such question of law is required to be framed and decided. In this case, the High
Court upset the judgment of the Lower Appellate Court without framing any
substantial question of law. Therefore, on this ground alone the impugned order is
liable to be set aside.
2
Accordingly, the appeals are allowed, impugned judgment and order are
set aside and the second appeal is restored to its original number. The High Court
shall now consider whether any substantial question of law arises in the second
appeal and in case it is of the opinion that such question arises, then it shall frame the
same and, thereafter, decide the appeal after giving opportunity of hearing to the
parties. If the High Court is of the opinion that no substantial question of law arises
in the appeal, it shall have no option but to dismiss the same.
………………….J.
[B.N. AGRAWAL]
………………….J.
[G.S. SINGHVI]
New Delhi,
August 29, 2008.