REPORTABLE

                            IN THE SUPREME COURT OF INDIA    CIVIL APPELLATE JURISDICTION

                                   CIVIL APPEAL NOS.1009-1010 OF 2001   

Tara Chand & Ors. …Appellants

Versus

Municipality Gharaunda …Respondent

J U D G M E N T

TARUN CHATTERJEE,J.

1. These  appeals,  by  way  of  Special  Leave  Petitions,  are

directed  against  the Judgment  and 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.   

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

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Court  for  fresh  disposal  in  the  light  of  the  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 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 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.     

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 of this order to it.   

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.   

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 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

Court 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  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.”     

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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 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.     

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.   

         ……………………..J.  [Tarun Chatterjee]

New Delhi;         ………………………J. April 21, 2009. [V.S.Sirpurkar]

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