1. Leave granted. - (1.) This appeal by special leave arises out of a declaratory suit filed by Respondent No. 1. The suit was decreed by the trial court on 29th March, 1985. The first appeal filed by the appellant was allowed on 12.8.1988. Aggrieved thereby the Plaintiff -Respondent No. 1 filed a second appeal in the High Court which was allowed on 23rd September, 1997. The judgment of the First Appellate Court was set aside and that of the Trial Court restored. We have perused the impugned judgment. It appears that the attention of the learned single Judge was not drawn to Section 100 of the Code of Civil Procedure. Neither any question of law, much less a substantial question of law, has been formulated, nor even indicated or decided by the learned single Judge through the impugned judgment. No substantial question of law appears to have been argued before the learned single Judge either. The regular second appeal could only be heard on grounds specified in various sub -sections of Section 100 (as amended). Those provisions have been ignored by the learned single Judge of the High Court. The impugned judgment under the circumstances cannot be sustained. In taking this view we are fortified by the judgment in the case of Kshitish Chandra Purkait v. Santosh Kumar Purkait and Ors. JT : 1997 (5) SC 202 : (1997) 5 SCC 438, approving the judgment in the case of Panchugopal Barua and Ors. v. Umesh Chandra Goswami and Ors. JT : 1997 (2) SC 554 : (1997) 4 SCC 713.
(2.) We, accordingly, allow this appeal, set aside the judgment of the High Court and remand the matter to the High Court for fresh disposal of the second appeal in accordance with law. Nothing stated herein above shall be construed as an expression of any opinion on the merits of the case and it shall be open to the parties to raise all such pleas as are available to them in law before the High Court.;