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(2009) 16 Supreme Court Cases 280
S.P. Bharucha, CJI., R.P. SETHI AND D.M. DHARMADHIKARI, JJ.
KICHHA SUGAR COMPANY LIMITED – Appellant
Versus
ROOFRITE PRIVATE LIMITED – Respondent.
Civil Appeal No. 2504 of 2002
Decided on : April 5,2002
[Para 4]
ORDER
1. Leave granted.
2. This appeal, by special leave, arises on a second appeal. When the second appeal was admitted by a learned Single Judge, he ordered:
"Admit for decision on substantial questions of law (a), (b), (d), (e) framed in the memo of appeal.
Issue notice."
The same learned Single Judge then passed the order under challenge which said, in its entirety: "No substantial question of law arises. The second appeal is, therefore, dismissed."
3. It is difficult to see how the learned Single Judge could have said that f no substantial question of law arose when he himself had considered Questions (a), (b), (d) and (e) framed in the memo of appeal to be substantial questions of law.
4. Our attention is drawn by the learned counsel for the respondents to the provisions of Section 100(5) of the Civil Procedure Code where the respondent to a second appeal is permitted "to argue that the case does not involve such question" i.e. the questions formulated earlier. No doubt, but then the order on the second appeal should indicate, howsoever briefly, why the questions formulated at the earlier stage had, at the stage of final hearing, been found to be no questions of law. It is for this reason apposite that the order under challenge should be set aside and the second appeal restored to the file of the High Court of Uttaranchal to be heard and disposed of on merits, due regard being had to the provisions of Section 100 of the Civil Procedure Code.
5. Order accordingly.
6. No order as to costs.
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