Tara Chand & Ors vs Municipality Gharaunda

Tara Chand & Ors. ...Appellants

Versus

Municipality Gharaunda ...Respondent

JUDGMENT

TARUN CHATTERJEE,J.

1. These appeals, by way of Special Leave Petitions, are

directed against the Judgment and order dated 17th of February,

2000 of the High Court of Punjab and Haryana at Chandigarh in

Regular Second Appeal No. 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.

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 2

Court for fresh disposal in the light of the 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 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 arising between the parties and only

thereafter, to decide the appeal on consideration of such questions

of law.

4. In these appeals, admittedly, the second appeal was allowed

without formulating any substantial questions of law as required

mandatorily under Section 100 of the Code of Civil Procedure.

5. That being the position, we set aside the Judgment and

decree of the High Court passed in the aforesaid second appeal

and remit the appeals back to the High Court for fresh decision after

formulating the substantial questions of law and thereafter to decide

on merits.

3

6. For the reasons aforesaid, the Judgment and decree of the

High Court in the second appeal is set aside. The Second Appeal

is restored to its original file. The High Court is now requested to

dispose of the same at an early date, preferably within six months

from the date of supply of a copy of this order to it.

7. We make it clear that we have not gone into the merits of the

appeals, which shall be decided by the High Court after formulating

the substantial questions of law and then decide the second appeal

in accordance with law.

8. There is another aspect of this matter. It appears from the

record that initially by an order dated 14th of November, 2007, a

Bench of this Court dismissed the appeals for non-prosecution.

Subsequently, on an application for restoration, the aforesaid order

of dismissal was recalled and the Civil Appeals were restored for

hearing. By an order dated 17th of July, 2008, we dismissed the

appeals on the ground of abatement. The order passed by this

Court on 17th of July, 2008 runs as under :-

"In our view, the appeals have been abated in its entirety. In view of the abatement caused on the death of the appellant Nos. 6, 10, 13 & 14 which would be evident from the order of this Court dated 29th April, 2008, we, therefore, hold that these appeals have abated in its entirety and the appeals are, therefore, dismissed as abated. No order as to costs."

4 9. However, by an order dated 5th of February, 2009, the

aforesaid order of abatement was set aside and the appeals were

directed to be heard on merits and it was made clear that at the

time of hearing of the appeals, the question whether the entire

appeals stood abated on the ground of death of appellant Nos. 6,

10, 13 and 14, would be considered. In this view of the matter and

as we set aside the order of the High Court, as mentioned herein

earlier, we request the High Court to decide the said questions i.e

whether the appeals had also abated in its entirety on the death of

the appellant nos. 6, 10, 13 and 14.

10. Accordingly, the impugned judgment of the High Court is set

aside. The appeals are allowed to the extent indicated above.

There will be no order as to costs.

..........................J. [Tarun Chatterjee] New Delhi; ...........................J. April 21, 2009. [V.S.Sirpurkar]