IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.5310-5311 OF 2008 (Arising out of S.L.P. (C) Nos.2368-2369 of 2006)

N. Balakrishnan and Another     ...Appellant(s)

Versus

Kailasa Naicker (D) by L.R.     ...Respondent(s)

O  R  D  E  R

Delay condoned.

Leave granted.

Heard learned counsel appearing on behalf of the appellants.

In  spite  of  service  of  notice,  nobody  has  appeared  on  behalf  of  the

respondent to contest the prayer made in these appeals.

By the impugned order, the High Court, after re-appreciating the evidence

set aside the judgment and decree passed by the Lower Appellate Court and restored

that of the trial court without framing any substantial question of law.    It is well-

settled that, in a second appeal filed under Section 100 of the Code of Civil Procedure,

1908, if the High Court is of the opinion that a substantial question of law arises, then

such question of law is required to be framed and decided.  In this case, the High

Court  upset  the  judgment  of  the  Lower  Appellate  Court  without  framing  any

substantial question of law. Therefore, on this ground alone the impugned order is

liable to be set aside.

2

Accordingly, the appeals are allowed, impugned judgment and order are

set aside and the second appeal is restored to its original number.  The High Court

shall  now  consider  whether  any  substantial  question  of  law  arises  in  the  second

appeal and in case it is of the opinion that such question arises, then it shall frame the

same and,  thereafter,  decide the appeal  after giving opportunity of  hearing to the

parties.  If the High Court is of the opinion that no substantial question of law arises

in the appeal, it shall have no option but to dismiss the same.

......................J.       [B.N. AGRAWAL]

......................J.       [G.S. SINGHVI]

New Delhi, August 29, 2008.