ORDER

1. THESE APPEALS ARE DIRECTED AGAINST THE JUDGMENTS AND DECREES DATED 1-4-1999 AND 13-8-1999 PASSED BY A LEARNED SINGLE JUDGE OF THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA IN RFAS NOS. 269 OF 1993 AND 127 OF 1994 RESPECTIVELY WHEREBY AND WHERE UNDER THE APPEALS PREFERRED BY THE FIRST RESPONDENT HEREIN WERE ALLOWED.

2. BEREFT OF ALL UNNECESSARY DETAILS, THE FACT OF THE MATTER IS AS UNDER:

THE PROPERTY IN DISPUTE ADMITTEDLY BELONGED TO ONE GHERU. HE WAS SAID TO BE DEAF AND DUMB. ON OR ABOUT 28-8-1962, HE ALLEGEDLY EXECUTED A POWER OF ATTORNEY IN FAVOUR OF HIS WIFE SOBHI. ACTING ON OR ON THE BASIS OF THE SAID POWER OF ATTORNEY, SOBHI EXECUTED SEVERAL DEEDS OF SALE IN FAVOUR OF VARIOUS PERSONS. KIMTU, THE ORIGINAL PLAINTIFF (RESPONDENT 1 HEREIN) IS THE DAUGHTER OF GHERU. SEVERAL SUITS WERE FILED BY GHERU OR KIMTU QUESTIONING THE LEGALITY OR VALIDITY OF THE SAID POWER OF ATTORNEY AND CONSEQUENTLY THE DIVERSE DEEDS OF SALE EXECUTED BY SOBHI IN FAVOUR OF THE VENDEES. SOME OF THE SUITS WERE DECREED. SO FAR AS THE PRESENT SUIT FILED BY KIMTU IS CONCERNED, THE SAME CAME TO BE DISMISSED BY THE TRIAL COURT, INTER ALIA, HOLDING THAT GHERU WAS NOT LEGALLY DISABLED TO EXECUTE THE POWER OF ATTORNEYS. THE SAID JUDGMENT AND C DECREE OF THE TRIAL COURT WAS AFFIRMED BY THE FIRST APPELLATE COURT.

3. THE HIGH COURT IN THE SECOND APPEAL PREFERRED BY THE PLAINTIFF RESPONDENT, FORMULATED THE FOLLOWING SUBSTANTIAL QUESTIONS OF LAW:

"1. WHETHER ONCE A PERSON IS HELD TO BE AN IDIOT OR LUNATIC, HE CAN BE ALLOWED TO DEAL WITH HIS PROPERTY BY HIMSELF OR THROUGH APPOINTMENT OF ANY AGENT?

2. WHETHER IN VIEW OF SECTION 6 OF THE LIMITATION ACT, LIMITATION CAN START RUNNING AGAINST AN IDIOT OR LUNATIC BEFORE HE BECOMES SANE AND IN CASE HE DIES AS AN IDIOT OR LUNATIC, THE SUIT CAN BE SAID TO BE BARRED BY LIMITATION IF THE SAME IS FILED WITHIN THREE YEARS OF HIS DEATH BY HIS SUCCESSORS ?"

FOR THE REASONS STATED HEREINAFTER, IT IS NOT NECESSARY TO DEAL WITH THE SAID PURPORTED QUESTIONS OF LAW.

4. IT IS NOT IN DISPUTE THAT ANOTHER SUIT BEING SUIT NO. 63 OF 1983 FILED BY GHERU IN THE ORIGINAL SIDE OF THE HIGH COURT OF HIMACHAL PRADESH, QUESTIONING CERTAIN TRANSACTIONS ENTERED INTO BY AND BETWEEN THE AFORESAID SOBHI AND ONE SHRI CHARAN DAS DOGRA, WAS DISMISSED BY A LEARNED SINGLE JUDGE OF THE SAID COURT. HOWEVER, AN APPEAL PREFERRED THERE AGAINST BEFORE A DIVISION BENCH BY KIMTU, WHO WAS SUBSTITUTED IN PLACE OF GHERU AS HE DIED DURING THE PENDENCY OF THE SAID SUIT, MARKED AS RFA NO. 355 OF 1992 WAS ALLOWED. IT IS ALSO NOT IN DISPUTE THAT ALTHOUGH THE ORIGINAL POWER OF ATTORNEY EXECUTED BY GHERU IN FAVOUR OF HIS WIFE SOBHI WAS NOT BROUGHT ON RECORD, BUT THE SAME HAD BEEN PRODUCED BY THE DEFENDANTS IN THE SAID CIVIL SUIT NO. 63 9 OF 1983 WHICH WAS THE SUBJECT-MATTER OF APPEAL IN RFA NO. 355 OF 1992.

5. IT IS STATED AT THE BAR THAT THE PLAINTIFF-RESPONDENT FILED AN APPLICATION FOR ADDUCTION OF ADDITIONAL EVIDENCE UNDER ORDER 41 RULE 27 OF THE CODE OF CIVIL PROCEDURE (CPC) FOR BRINGING ON RECORD THE AFOREMENTIONED JUDGMENT IN RFA NO. 355 OF 1992. NOTHING HAS BEEN SHOWN TO US THAT THE SAID APPLICATION WAS ALLOWED. THE LEARNED SINGLE JUDGE OF THE HIGH COURT HOWEVER RELYING HEAVILY ON THE SAID JUDGMENT OF THE DIVISION BENCH, ALLOWED THE INSTANT APPEAL.

6. THE LEARNED COUNSEL FOR THE PARTIES ADDRESSED US AT GREAT LENGTH AS REGARDS THE RELEVANCY AND ADMISSIBILITY OF THE SAID JUDGMENT IN TERMS OF SECTIONS 41, 42 AND 43 OF THE EVIDENCE ACT. WE, HOWEVER, FOR THE REASONS TO BE STATED HEREINAFTER, DO NOT INTEND TO ENTER INTO THE SAID QUESTIONS AS AT PRESENT ADVISED. SUFFICE TO SAY THAT THE HIGH COURT, IF INTENDED TO RELY UPON THE AFORESAID JUDGMENT OF THE DIVISION BENCH PASSED IN RFA NO. 355 OF 1992, WAS BOUND TO FORMULATE AN APPROPRIATE SUBSTANTIAL QUESTION OF LAW IN TERMS OF SUB-SECTION (5) OF SECTION 100 CPC. IT FAILED TO DO SO. IT HAS NOT BEEN DISPUTED BEFORE US AND EVEN OTHERWISE IT IS APPARENT FROM THE RECORD THAT THE HIGH COURT IN SETTING ASIDE THE JUDGMENT OF THE TRIAL COURT