SUPREME COURT OF INDIA

Before:- S.P. Kurdukar and R.P. Sethi, JJ.

Civil Appeal No. 8990 of 1999. D/d. 11.10.1999

Baidyanath Bhattacharya and another - Appellants

Versus

S. Karmakar (Dead) By Lrs. - Respondents

Civil Procedure Code, 1908, Section 100 - Second Appeal - Jurisdiction of High Court - While admitting appeal High Court formed substantial question of law - Despite such question of law, High Court not adverted to them and partly allowed second appeal and remitted matter back - Held, not proper - Matter remitted back to High Court.

[Paras 2 to 4]

ORDER

S.P. Kurdukar, J. - Leave granted. Heard learned counsel for the parties and perused the impugned judgment dated 23-10-1998.

2. It is common premise that while admitting the appeal the High Court has framed the substantial questions of law which arise in the said second appeal and those questions of law are found at p. 65 of the compilation. Despite such questions of law having been framed, the High Court has not adverted to them in its impugned judgment. The High Court has proceeded to reappreciate the evidence and dispose of the second appeal: the High Court has partly allowed the second appeal and remanded the matter back to the trial court for disposal in accordance with law and as per the directions contained in its judgment. In our opinion the approach of the High Court is not correct and contrary to Section 100 Civil Procedure Code. The High Court must consider these two substantial questions of law which were framed at the time of admission of second appeal and must record its findings thereon in accordance with law. In this view of the matter, we are of the opinion that the impugned judgment passed by the High Court cannot be sustained and is set aside and the matter is remitted back to the High Court to consider these two alleged substantial questions of law which were raised at the time of admission of second appeal.

3. It is, however, open to the appellants herein to contend that these are not substantial questions of law under Section 100 Civil Procedure Code and the High Court will accordingly consider the said contention also. It is also made clear that we have not dealt with the merits of the matter and it would be open to the High Court to consider all contentions that would be raised in connection with these two substantial questions of law at the time of hearing.

4. The appeal is accordingly partly allowed. The impugned order of the High Court is set aside and the matter is remitted back to the High Court for disposal in accordance with law.

.