IMPORTANT POINT
Second appeal can be disposed of only after framing substantial question of law.

JUDGMENT

Abhay Manohar Sapre, J.

Leave granted.

2. This appeal is filed against the final judgment and order dated 30.09.2011 passed by the High Court of Judicature at Madras in Second Appeal No.365 of 2009 whereby the High Court allowed the said second appeal filed by the original respondent herein and set aside the judgment and decree dated 08.12.2008 of the Subordinate Judge, Nagapattinam in A.S. No.30/2008 and dismissed the suit filed by the appellant herein.

3. A few facts need mention hereinbelow for the disposal of this appeal, which involves a short question.

4. This appeal is filed by the plaintiff, who succeeded in the Trial Court and the first Appellate Court but lost in second appeal filed by the defendant (original respondent herein) in the High Court.

5. The appellant (plaintiff) filed a civil suit against the original respondent (defendant) for her eviction from the suit property. The respondent contested the suit.

6. By Judgment and decree dated 11.10.2007, the District Munsif, Nagapattinam decreed the suit. The defendant (original respondent) felt aggrieved and filed first appeal (AS No. 30/2008) before the Subordinate Judge. By judgment and decree dated 08.12.2008, the first Appellate Court dismissed the appeal and affirmed the judgment and decree passed by the District Munsif. The defendant felt aggrieved and filed second appeal in the High Court. By impugned judgment, the High Court allowed the appeal filed by the defendant and while setting aside the order impugned in the second appeal dismissed the suit filed by the appellant(plaintiff), which has given rise to filing of the present appeal by way of special leave in this Court.

7. So, the short question, which arises for consideration in this appeal, is whether the High Court was justified in allowing the second appeal filed by the defendant (original respondent herein).

8. During the pendency of this appeal, the sole respondent died and her legal representatives were brought on record by this Court's order dated 29.07.2016.

9. Heard Mr. V. Prabhakar, learned counsel for the appellant and Mrs. B. Sunita Rao, learned counsel for the respondents.

10. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow this appeal, set aside the impugned judgment and remand the case to the High Court for deciding the appeal afresh on merits in accordance with law.

11. The need to remand the case has occasioned because we find that the High Court failed to frame any substantial question of law arising in the case while admitting the appeal as required under Section 100 (4) of the Code of Civil Procedure, 1908(hereinafter referred to as "CPC") and further failed to decide the appeal as provided under Section 100 (5) of the CPC.

12. It is noticed that the High Court framed two substantial questions of law (see Para 7 of the impugned judgment) for the first time in the impugned judgment itself. In other words, what was required to be done by the High Court at the time of admission of the appeal to formulate a question of law after hearing the appellant as provided under Section 100 (4) of the CPC, but the High Court did it in the impugned judgment. Similarly, the High Court could have taken recourse to the powers conferred by proviso to Section 100 (5) of the CPC for framing any additional question of law at the time of final hearing of the appeal by assigning reasons for framing additional question, if it considered that any such question was involved. It was, however, not done. Instead, the High Court framed the questions for the first time while delivering the impugned judgment.

13. In our considered opinion, the procedure and the manner in which the High Court decided the second appeal regardless of the fact whether it was allowed or dismissed cannot be countenanced. It is not in conformity with the mandatory procedure laid down in Section 100 of the CPC.

14. Recently, this Court had an occasion to examine this very questio