TARA CHAND & ORS.versusMUNICIPALITY GHARAUNDA

                         (2009] 6 S.C.R. 794
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A                      TARA CHAND & ORS.
                                   V.
                    MUNICIPALITY GHARAUNDA
              (Civil Appeal Nos. 1009-1010 of 2001)
                           APRIL 21, 2009
B
      [TARUN CHATTERJEE AND V.S. SIRPURKA ~. JJ.]
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        Code of Civil Procedure, 1908 - - s. 100 and Order 22 -
  - Second appeal allowed without framing substantia ' question
c of law - Appeal to Supreme Court dismissed as abated in
  its entirety on the death of few appellants - Restorati >n thereof
  stating that the question whether entire appeal ab< ted to be
  decided at final hearing - Held : Since m mdatory
  requirement of framing of substantial question cf law not
D complied with, matter remitted to High Court to co11sider the             ..
  matter after formulating substantial question of L~ w - High
  Court also requested to decide the question 1egarding
  abatement.
       Trial Court dismissed the suit for pe ·manent
E injunction. First appellate court set aside the ord ~r of trial
  court. In second appeal, High Court reversed th I! finding
  of the appellate Court.
      The appeal before this court, initially was dismissed
F for non-prosecution. Thereafter the same was ·estored.
  Again the appeal was dismissed holding that 1he same
  abated in its entirety on account of death of •1ppellant
  Nos. 6, 10, 13 and 14. But the order of abatement Nas later


                                                                                 -
  set aside stating that the question whether ti 1e entire
  appeal stood abated on the ground of death of the
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  above-said appellants, to be decided at the time of
  hearing on merits.
        Partly allowing the appeals, the Court

H                                794
              TARA CHAND & ORS. v. MUNICIPALITY                  795
                        GHARAUNDA

            HELD: 1. High Court, without framing substantial            A
'··    questions of law, as required mandatorily u/s 100 CPC,
       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. The High Court in second appeal, before              B
       allowing the same, ought to have framet.i the substantial
       questions of law arising between the parties and only
       thereafter, to decide the appeal on ~onsideration of such
       questions of law. The appeals are remitted to the High
       Court for fresh decision after formulating the substantial
       questions of law and thereafter to decide on merits.
                                                                        c
       [Paras 3, 4 and 5) [796-C-G]
            2. While setting aside the order of abatement, it was
       made clear that at the time of hearing of the appeals, the
       question whether the entire appeals stood abated on the          D
       ground of death of appellant Nos. 6, 10, 13 and 14, would
       be considered. In this view of the matter and as the order
       of the High Court is set aside, the High Court i~ requested
       to decide the said questions i.e. whether the appeals had
       also abated in its entirety, on the death of appellant Nos.      E
       6, 10, 13 and 14. [Para 9) [797-E-G]
           CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
       1009-1010 of 2001.
           From the Judgment & Order dated 17.02.2000 of the High       F
       Court of Punjab and Haryana at Chandigarh in Review Petition
       No. 7-C of 2000.
           S.K. Bagga, Seeraj Bagga and Sureshta Bagga for the

. "'   Appellant(s).
           Kamal Sharma and AP. Mohanty for the Respondent(s).
                                                                        G

           The Judgment of the Court was, delivered by
           TARUN CHATTERJEE, J. 1. These appeals, by way of
       Special Leave Petitions, are directed against the Judgment and   H
    796       SUPREME COURT REPORTS               [2009) 6 S.C.R.          7


                                                                      •
A 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.
8       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 Court for fresh disposal in the light of the
c   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
D 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
E 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.
F
       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.
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         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
H
                  TARA CHAND & ORS. v. MUNICIPALITY                    797
                  GHARAUNDA [TARUN CHATIERJEE, J.]

         of this order to it.                                                  A
              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.
                                                                               B
              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            C
         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 Cou.rt 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              o
              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."                                   E
               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       F
         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.     G
    ,.
              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.
         K.K.T.                                   Appeal partly allowed.       H