Leave granted.
This appeal is directed against the judgment, dated 13th September, 2006,
passed by a Single Bench of the High Court of Punjab & Haryana at Chandigarh in
RSA No. 798/1983 By the impugned judgment, the High Court has allowed the
appeal; reversed the decision of the First Appellate Court and has restored the
finding recorded by the Trial Court in respect of Will dated 31st May, 1979.
At the time of issuing notice to the respondent on 2nd April, 2007, it was
indicated in the order that the matter may have to be remitted back to the High
Court on account of failure on its part to formulate the substantial question of law.
Accordingly, we have finally heard learned counsel for the parties at this
stage itself.
..2/C.A. 2179/2009..contd...
: 2 :
It is manifest from the impugned order, that although the learned Judge has
referred to the issues framed by the trial court, but he proceeded to decide the appeal
on merits without formulating any substantial question of law. It is now well settled
by a series of decisions of this Court that in a second appeal under Section 100 of the
Civil Procedure Code, 1908, if the High court is satisfied that the case involves a
substantial question of law, then the High Court must frame the substantial question
of law, and only thereafter dispose of the appeal on the basis of material before it. It
is trite to state that allowing a second appeal without framing a substantial question
of law is clearly contrary to the mandate of Section 100 C.P.C. Admittedly, in the
present case, the learned Judge failed to formulate substantial question of law and
thereby committed an error in allowing the second appeal. Therefore, the impugned
judgment is liable to be set aside on this short ground alone.
Consequently, the appeal is allowed; impugned judgment is set aside and the
matter is remitted back to the High Court for fresh decision in accordance with law
after formulating the substantial question of law. There will be no order as to costs.
[ D.K. JAIN ]