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2005 DIGILAW 328 (SC)

MALLAPPA v. NEELAVVA

2005-02-17

A.K.MATHUR, ASHOK BHAN

body2005
ORDER 1. This appeal is directed against the judgment and order dated 3-8-1998 of a Single Judge of the High Court of Karnataka at Bangalore in RSA No. 105 of 1995 wherein and whereby the High Court has reversed the findings recorded by the courts below without referring to the questions of law which had been framed at the time of admission of the appeal. 2. While admitting the appeal on 3-2-1995, the High Court had framed the following questions of law: "The question of law that arises for consideration in this appeal is whether the lower appellate court was justified while setting aside the decree of the trial court in granting relief as to partition in a case where the plaintiff sought only for declaratory relief in respect of suit schedule property? Whether the courts below were justified in not properly interpreting the contents of Ext. P-6 while granting the relief sought for by the plaintiff? Whether the lower appellate court was justified in holding that by virtue of Ext. P-6 the plaintiff having derived half a share in the suit schedule property and whether it was right on the part of the a first appellate court in not adverting its mind to the Hindu Adoptions and Maintenance Act and its effect while considering the documents in question." 3. As indicated above, although the aforementioned questions of law had been framed by the High Court at the time of admission of the appeal, but the learned Single Judge of the High Court before whom the second appeal came up for final hearing, without referring to or noticing the same, has modified the decree passed by the courts below. 4. This Court in a catena of decisions has held that the High Court can exercise its jurisdiction under Section 100 CPC to entertain the second appeal only on a substantial question of law framed at the time of admission or at a subsequent stage, and while deciding the same confine itself to the question(s) of law framed. (See R. Lakshmi Narayan v. Santhi1, M.S.V. Raja v. Seeni Thevar2, R. V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami v. P. Temple3, Mohd. Mohd. Ali v. Jagadish Kalita4 and Thiagarajan v. Sri Venugopalaswamy B. Koil5.) 5. (See R. Lakshmi Narayan v. Santhi1, M.S.V. Raja v. Seeni Thevar2, R. V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami v. P. Temple3, Mohd. Mohd. Ali v. Jagadish Kalita4 and Thiagarajan v. Sri Venugopalaswamy B. Koil5.) 5. Since the High Court has failed to take notice of the questions of law framed at the time of admission of the second appeal and decided the same as if it was hearing a first appeal, the judgment under appeal cannot be sustained. Accordingly, the same is set aside and the case is remitted back to the High Court for a fresh decision in accordance with law. The High Court would be at liberty to either decide the appeal on the questions of law already framed or reframe the question(s) of law if the same arise from the findings recorded by the courts below. 6. Since the present proceedings pertain to a suit instituted in the year 1990, we would request the High Court to take up the appeal on priority basis and dispose of it as expeditiously as possible. 7. The Registry is directed to transmit the record of this case to the High f Court forthwith. 8. The appeal is allowed accordingly.