Leave granted.
Heard learned counsel for the parties.
The suit for declaration of title and permanent injunction filed by Narayan
Chandra Ghosh (predecessor-in-interest of the appellants herein) was decreed by the
trial court on 7th July, 1989. The appeal preferred against the judgment of the trial
court was dismissed by Assistant District Judge, Kalna, District Burdwan vide his
judgment and decree dated 30th April, 1991. However, when the matter was taken to
the High Court in second appeal, the decree of injunction was set aside.
A reading of the impugned order shows that the High Court proceeded to
decide the appeal on the premise that in terms of the order passed at the time of
admission of the appeal, the grounds contained in the memorandum of appeal could
be treated as substantial questions of law. We have carefully gone through the memo
of appeal and find that the
grounds taken therein do not specify the substantial questions of law. On its part, the
High Court did not frame any substantial question of law as postulated under Section
100 of the Code of Civil Procedure. This being the position, the impugned order is
liable to be set aside.
Accordingly, the appeal is allowed, impugned order is set aside and the
matter is remitted to the High Court which shall first consider whether any
substantial question of law arises in the second appeal or not. In case, the High Court
is of the opinion that substantial question of law arises, it shall first frame the same
and thereafter proceed to dispose of the second appeal on merits.
[G.S. SINGHVI] New Delhi, February 23, 2009.