JUDGEMENT
V.K.SHALI,J. -
(1.)THIS is a regular second appeal filed by the appellant against the judgment dated 09.11.2012 in RCA No.162/2010 by virtue of which the
first appellate court has set aside the order of the learned trial court dated
23.10.2010, and recommended the matter to the trial court.
(2.)I have heard the learned counsel for the appellant.
As a matter of fact, the present regular second appeal is not maintainable as Section 100 CPC lays down that the second appeal is
maintainable against only a decree passed by the first appellate court when
there is a substantial question of law involved. In the instant case, there is
no decree passed against the appellant and accordingly on the basis of the
said reasoning itself, the present regular second appeal could be dismissed
at the threshold. However, as the learned counsel for the appellant has
taken more 45 minutes in advancing his submissions and submitted that
the substantial questions of law are involved in the matter, therefore, I feel
it appropriate to deal with the said submissions. Before dealing with the
same, it may be pertinent to give a brief background of the case.
(3.)THE appellants filed a suit being CS No.178/2010 for declaration and permanent injunction against the respondent. In the prayer clause, the
appellants had prayed that the relinquishment deed dated 19.02.2004
purported to have been executed by the appellants in favour of the
respondent, be declared as null and void and that the respondent be
permanently restrained from entering into any collaboration agreement. In
para 11 of the plaint, so far as the cause of action clause is concerned, it
was averred as under:
"11. That the cause of action to file the present suit arose when the defendant signed the undertaking dated 19.02.2004, cause of action also arose when the plaintiffs handed over the premises in question to the defendant with the limited right, cause of action further arose on 10.02.2010. When the defendant entered into collaboration with a builder and handed over the possession of the suit premises to the builder. It again arose on 18.02.2010 when the plaintiffs served a legal notice upon the defendant. It again and lastly arose when the defendant instead of complying with the terms of legal notice, sent the false and vague reply to the same. The cause of action still subsists in favour of the plaintiffs and against the defendant."
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