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CASE NO.: Appeal (civil)  1245 of 2008

PETITIONER: Bokka Subba Rao

RESPONDENT: Kukkala Balakrishna & Ors

DATE OF JUDGMENT: 12/02/2008

BENCH: Tarun Chatterjee & Dalveer Bhandari

JUDGMENT: J U D G M E N T  

       CIVIL APPEAL NO 1245 OF 2008 (Arising out of S.L.P.) No.3228 of 2006)

TARUN CHATTERJEE, J. 1.      Leave granted. 2.      At the time of issuing notice to the special leave  petition, this Court confined notice as to why the second  appeal should not be remitted to the High Court for failure  to formulate and decide the substantial question of law as  required by Section 100 of the Code of Civil Procedure.  3.      A suit was filed by the plaintiffs-respondents for  declaration that Item No.2 of the plaint schedule property  was their absolute property, and for a perpetual injunction,  restraining the respondents from obtaining possession of  the said item. The suit was dismissed, which was affirmed  in appeal. However, by the impugned judgment of the High  Court passed in second appeal, the suit was decreed.  Feeling aggrieved by the aforesaid judgment of the High  Court of Andhra Pradesh at Hyderabad, a special leave  petition has been filed in respect of which leave has already  been granted.  4.      Having heard the learned counsel for the parties and  after examining the judgment of the High Court passed in  the second appeal, we are of the view that the judgment in  second appeal of the High Court is liable to be set aside on  a very short question. 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 formulated the  substantial questions of law and thereafter, to decide the  same on consideration of such substantial questions of law.  In this case, admittedly no such substantial question of law  had been formulated and thereafter, the second appeal was  allowed. That being the position, we set aside the judgment  of the High Court passed in second appeal and remit the  appeal back to the High Court for fresh decision after  formulating the substantial questions of law and thereafter,  to decide it on merits. 5.      For the reasons aforesaid, the judgment of the High  Court is set aside. The second appeal is restored to its  original file. The High Court is requested to dispose of the  second appeal at an early date preferably within six months  from the date of supply of a copy of this order to it. We  make it clear that we have not gone into the merits of the  appeal which shall be decided after formulating the  substantial questions of law and then to decide the second  appeal in accordance with law.

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6.      The appeal is, therefore, allowed to the extent  indicated above. There will be no order as to costs.