IN THE  SUPREME COURT OF INDIA                 CIVIL  APPELLATE  JURISDICTION                                   CIVIL APPEAL NO. 2179  OF 2009   

(Arising out of SLP(C) No. 5390/2007)   

Jarnail Singh (D) Thr. Lrs. ..   Appellant(s)                   

  Versus

Dhanna Singh & Ors. ..   Respondent(s)                                                           O R D E R

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.

                                         ...................J.            [ D.K. JAIN ]  

                                       ...................J.                                     [ R.M. LODHA ]                 NEW DELHI, APRIL 06, 2009.