Case: RANJIT KUMAR KARMAKAR @ DULAL KARMAKAR Vs. HARI SANKAR DAS

3. A few facts need mention hereinbelow for the disposal of this appeal, which involves a short point.4. The appellant is the plaintiff and the respondent is the defendant of the civil suit out of which this appeal arises.5. The appellant filed a civil suit (T.S.No.103 of 2004) against the respondent in the Court of Civil Judge (Junior Division). The suit was for declaration of his right, title and interest in the suit land, for confirmation of his possession over the suit land and lastly for permanent injunction. The respondent contested the suit.6. The Trial Court, by judgment/decree dated 05.04.2006 dismissed the suit. The plaintiff (appellant herein) felt aggrieved and filed first appeal (T.A. No.34/2006) before the Additional District Judge, West Tripura, Agartala. By judgment dated 24.04.2007, the First Appellate Court allowed the appeal and decreed the suit.7. The defendant (respondent herein) felt aggrieved and filed second appeal in the High Court of Tripura. By impugned order, the High Court allowed the appeal and set aside the judgment of the first Appellate Court and restored the judgment/decree of the Trial Court which has given rise to filing of this appeal by way of special leave to appeal by the plaintiff in this Court.

Reasoning:
10. The need to remand the case to the High Court has arisen because on perusal of the impugned order, we notice that the High Court though admitted the defendants second appeal by framing as many as six substantial questions of law for its hearing but practically none of the substantial questions of law were answered either way by the High Court while allowing the second appeal by the impugned order.11. In other words, though the High Court admitted the second appeal on six questions but did not answer any of them on merits and instead went into discussion on all other issues, which were not the subject matter of the six questions framed and allowed the second appeal as if it was deciding the first appeal.12. Section 100 (5) of the Code of Civil Procedure, 1908 (hereinafter referred to as, in express terms, provides that the second appeal shall be heard only on the substantial question(s) of law framed by the High Court under Section 100 (4) of the Code. Therefore, the High Court has to confine its inquiry to the question(s) framed and not beyond it.13. The proviso to sub¬section (5) of Section 100 of the Code also enables the respondent to raise a plea at the time of hearing that the questions framed either do not arise in the case or the questions framed are not the substantial questions of law. At the same time, the High Court has the jurisdiction to frame any additional question(s) of law but this the High Court can do by assigning the reasons.14. Since the High Court failed to answer the six questions (set out in Para 2 of impugned order) either way on their respective merits and yet proceeded to allow the second appeal, such order, in our view, is not legally sustainable and has to be set aside.