Abdul Azeez v. The Managing Director, M/s Deedi Automobiles, Kaimanam Junction, Thiruvananthapuram-40, and A. Muraleedharan Nair

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **MONDAY, THE 18[TH] DAY OF SEPTEMBER 2023/27TH BHADRA, 1945** **RSA NO. 518 OF 2018** **AGAINST THE JUDGMENT AND DECREE DATED 31.03.2017 IN AS 62/2010 OF I ADDITIONAL SUB COURT,THIRUVANANTHAPURAM AGAINST THE JUDGMENT AND DECREE DATED 04.06.2009 IN OS 1858/2007 OF I ADDITIONAL MUNSIFF COURT,** ## **THIRUVANANTHAPURAM** ## **APPELLANT/RESPONDENT/PLAINTIFF:** **ABDUL AZEEZ AGED 33, SHAHJAHAN, RESIDING AT OLD TC.46/406(NEW TC.63/684) AMEER MANZIL, MANIKKAVILAKOM, POONTHURA PO, THIRUVANANTHAPURAM-26. BY ADVS. SRI.PRAMOD KOCHUTHOMMEN.E. SRI.JASON VENGATTU JOHNY SRI.V.VARUN** ## **RESPONDENTS/APPELLANTS/DEFENDANTS:** **1 THE MANAGING DIRECTOR, M/S.DEEDI AUTOMOBILES KAIMANAM JUNCTION, THIRUVANANTHAPURAM-40.** **2 A. MURALEEDHARAN NAIR ASSISTANT MANAGER (SERVICE) DEEDI, AUTHORISED DEALER FOR BAJAJ AUTO LIMITED, PLANET BAJAJ, M.G ROAD, AYURVEDA COLLEGE JUNCTION, THIRUVANANTHAPURAM-1** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA NO. 518 OF 2018** **2** ## **JUDGMENT** Dated this the 18[th] day of September, 2023 This regular second appeal has been filed under section 100 read with Order XLII Rule 1 of the Civil Procedure Code (hereinafter referred to as 'CPC' for short) and the appellant is the plaintiff in O.S.No.1858/2007 on the files of the First Additional Munsiff 's Court, Thiruvananthapuram. The appellant is aggrieved by the decree and judgment dated 04.06.2009 in OS No.1858/2007 as well as decree and judgment in AS No.62/2010 dated 31.03.2017 on the files of the Sub Court, Thiruvananthapuram. The respondents herein are the defendants in the above Suit. 2. Though notice served on the respondents, no representation for the respondents. 3. Heard the learned counsel for appellant/plaintiff on admission. 4. I shall refer the parties in this regular second appeal as 'plaintiff' and 'defendant' for convenience. **RSA NO. 518 OF 2018** **3** 5. In this case, the plaintiff entrusted his motor cycle bearing registration No.KL-01/AQ 5692, purchased from the 1[st] defendant on 27.04.2007, to the 2[nd] defendant for the fourth free service. While the vehicle was in custody of the 2[nd] defendant, the same was thieved away. According to the learned counsel for the plaintiff, since the bailee/the 2[nd] defendant failed to take the amount of care for the protection of the bike, the plaintiff/bailor is entitled to get compensation from the defendants. 6. In this case, the defendants resisted the claim on the submission that Nemom police recovered the stolen vehicle and the plaintiff could very well get its custody by due process of law and the intention behind the story of theft is one arose out of collusion between the plaintiff and his friend, Sri.Ansari, since the plaintiff insisted for a new vehicle from the defendants. 7. The trial court tried the matter on raising necessary issues. PW1 examined and Exhibits A1 to A8 marked on the side of the plaintiff. DW 1 examined and Exts.B1 to B5 marked **RSA NO. 518 OF 2018** **4** on the side of the defendants. 8. On appreciation of evidence, the learned Munsiff decreed the Suit by granting Rs.70,289/- (Rupees seventy thousand two hundred and eighty nine only) along with 6% interest per annum. When the defendants took the matter in appeal before the Sub Judge, Thiruvananthapuram, as per judgment and decree in As No.62/2010 dated 31.03.2017, the learned sub judge allowed the appeal and modified the decree as under: “28) In the result, the impugned judgment and decree of learned trial court is set aside by this court in its place the following appellate decree is substituted- 1. Defendants shall apply to the court or the police officer concerned to get interim custody or final custody of the bike, upon furnishing bonds as required by the court or the officer concerned, get delivery of the bike and hand over the same to the plaintiff who shall be at liberty to deal with the bike subject to the conditions imposed by the court concerned. 2. If a consent letter is required for getting delivery from the court or from the police officer concerned, **RSA NO. 518 OF 2018** **5** plaintiff shall furnish the same to the defendants at his own costs. 3. Parties are directed to suffer their respective costs in the appeal proceedings.” 9. At the time of hearing, the learned counsel for the plaintiff reiterated the contentions and stated that the reasonable care mandated by law was not taken by the 2[nd] defendant while keeping the property in the custody of the 2[nd] defendant and therefore, the trial court decree shall be restored. 10. On perusal of the judgments of the trial court as well as the appellate court, it is discernible that even at the time of passing the decree by the trial court, the vehicle, which was alleged to be stolen away from the custody of the 2[nd] defendant, was recovered by Nemom police and therefore, the proper remedy of the plaintiff was to get the same released in accordance with the provisions of the Code of Criminal Procedure and undo the damages, if any, to the vehicle by availing the contract of insurance available to the vehicle. Holding so, the learned appellate judge modified the decree of **RSA NO. 518 OF 2018** **6** the trial court. The said finding of the appellate court cannot be found as illegal. 11. In this case, the learned counsel for the appellant failed to justify any substantial question of law warranting admission of the second appeal. Order XLII Rule 2 provides thus: _**“2. Power of Court to direct that the appeal be heard on the question formulated by it.** -At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.”_ 12. Section 100 of the C.P.C. provides that, (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that **RSA NO. 518 OF 2018** **7** the case involves a substantial question of law. (2) An Appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Proviso says that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. 13. In the decision in **Nazir Mohamed v. J. Kamala and Others** reported in **[2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168]** , the Apex Court held that: _The condition precedent for entertaining and deciding a second appeal being the existence of a_ **RSA NO. 518 OF 2018** **8** _substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law. In_ _**Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722]** , the Apex Court held that:_ _"After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of the hearing of the appeal has a right to argue that the case in the court did not involve any substantial question of law. The proviso to the section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such a question was not formulated at the time of admission either by mistake or by inadvertence."_ _"It has been noticed time and again that without insisting for the statement of such a substantial_ **RSA NO. 518 OF 2018** **9** _question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under S.100 of the Code of Civil Procedure. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this section. The substantial question of law has to be distinguished from a substantial question of fact."_ _"If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the_ **RSA NO. 518 OF 2018** **10** _Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal."_ _When no substantial question of law is formulated, but a Second Appeal is decided by the High Court, the judgment of the High Court is vitiated in law, as held by this Court in Biswanath Ghosh v. Gobinda Ghose, AIR 2014 SC 152. Formulation of substantial question of law is mandatory and the mere reference to the ground mentioned in Memorandum of Second Appeal can not satisfy the mandate of S.100 of_ **RSA NO. 518 OF 2018** **11** _the CPC._ ## 14. In a latest decision of the Apex Court in **Government of Kerala v. Joseph** , reported in **[2023 (5) KHC 264 : 2023 (5) KLT 74 SC]** , it was held as under: _For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well – established requirements. The primary and most important of them all is that the appeal should pose a substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court. We may only refer to_ _**Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC 179]** (three – Judge Bench) wherein this Court observed as follows:_ _12. The phrase “substantial question of law”, as occurring in the amended S.100 is not defined in the Code. The word substantial, as qualifying “question of law”, means – of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing_ **RSA NO. 518 OF 2018** **12** _the words “of general importance” as has been done in many other provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance._ 15. The legal position is no more _res-integra_ on the point that in order to admit and maintain a second appeal under Section 100 of the C.P.C., the Court shall formulate substantial question/s of law, and the said procedure is mandatory. Although the phrase 'substantial question of law' is not defined in the Code, 'substantial question of law' means; of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution. The substantial **RSA NO. 518 OF 2018** **13** question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. As such, second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of the C.P.C. must be complied to admit and maintain a second appeal. 16. At the time of admission, nothing suggested in this matter in the form of substantial question of law to admit the second appeal. Therefore, this second appeal cannot be admitted without formulating substantial question of law and the same is liable to be dismissed. In the result, this appeal is dismissed without being admitted. **Sd/A. BADHARUDEEN JUDGE** nkr