SUPREME COURT OF INDIA

Before:- V.N. Khare and S.N. Variava, JJ.

Civil Appeal No. 2599 of 1987. D/d. 30.8.2000.

Nabakishore Mohanta - Petitioner

Versus

Janardan Patra (dead) by LRs. & Anr. - Respondents

Civil Procedure Code, 1908 Section 100 - Suit for declaration of title, possession and permanent injunction - Decree passed by trial court upheld in appeal - However, High Court set aside decree - Appeal filed - Held, High Court has decided appeal on merits without formulating substantial question of law - Therefore, impugned judgment was set aside - Matter remitted back to decide in accordance with provisions under section 100.

[Paras 2 and 3]

ORDER

1. The plaintiff filed a suit for declaration of title, confirmation of possession and permanent injunction. The said suit was decreed. The first Appellate Court upheld the decree passed by the trial court. However, the High Court, in second appeal, set aside the decree passed by the lower court and the suit was dismissed. It is against the said judgment of the High Court, the plaintiff is in appeal before us.

2. Learned Counsel, appearing for the appellant, argued that this case requires to be sent back to the High Court for the reason that the High Court, before deciding the appeal on merit, has not framed any substantial question of law . He further argued that the High Court does not acquire any jurisdiction to decide the appeal on merits, unless it frames the substantial question of law. On perusal of the judgment, we find that the High Court, without framing any substantial question of law, has decided the appeal on merits. We are, therefore, in agreement with the argument of the learned Counsel for the appellant that the judgment under appeal deserves to be set aside and accordingly, it is set aside.

3. The appeal is allowed. The case is sent back to the High Court for deciding the matter in accordance with the provisions of Section 100 of Code of Civil Procedure. Since none has appeared for the respondents, there shall be no order as to costs.

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