Achankunju (Deceased) LRS v. S.A. Rasheed and others (RSA No. 774 of 2020)

## _`IN THE HIGH COURT OF KERALA AT ERNAKULAM`_ ## _`PRESENT`_ ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` WEDNESDAY, THE 27[TH] DAY OF SEPTEMBER 2023 / 5TH ASWINA, 1945 ``` ## _`RSA NO. 774 OF 2020`_ ``` AGAINST THE JUDGMENT AND DECREE DATED 30.11.2019 IN AS 14/2015 OF THE COURT OF ``` ## _`THE SUBORDINATE JUDGE, KOTTARAKKARA`_ ``` AGAINST THE JUDGMENT AND DECREE DATED 10.02.2015 IN OS 590/2013 OF MUNSIFF ``` ## _`COURT, KOTTARAKKARA`_ ## _`PETITIONER/ PETITIONER/PLAINTIFF:`_ ``` 1ACHANKUNJU,(DIED) LRS IMPLEADED AGED 57 YEARS S/O. MATHUNNI JOUSHA ESTATE, HOUSE NO. 512, MULAYARACHAL, CHERRY, WARD NO. XI, VELINALLOOR VILLAGE, VELINALLOR PANCHAYATH, KOTTARAKKARA TALUK, KOLLAM DISTRICT. 2JESSY ACHANKUNJU,AGED 54 YEARS W/O. ACHANKUNJU, JOSHUA ESTATE, MULAYARACHAL, CHERIYA VELINALLOOR PO, VELINALLOOR, KOLLAM. 691516 3JOB A MATHEW.AGED 26 YEARS, S/O. ACHANKUNJU, JOSHUA ESTATE, MULAYARACHAL, CHERIYAVELIYANALLOOR PO, VELIYANELLUR, KOLLAM.691516 (LEGAL REPRESENTATIVES OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDL.APPELLANTS 2 AND 3 AND ADDL.RESPONDENT 7 AS PER ORDER DATED 09.06.2023 IN IA.1/2022.) BY ADVS. P.CHANDRASEKHAR K.K.MOHAMED RAVUF K.VIDYA SATHEESH V.T. FOR A1 ANOOP KRISHNA P.CHANDRASEKHAR REGIMOL M.K. ANAND SANKAR RANI MADHU FOR A2 AND A3 ``` ## _`RESPONDENTS/RESPONDENTS/DEFENDANTS & ADDL. DEFENDANTS 4 TO 6:`_ ``` 1S.A.RASHEED AGED 55 YEARS PARAVILA VEEDU, WARD NO. XI, CHERIYA VELINALLOOR, ROAD VILA, KOLLAM DISTRICT 691 510. 2SYJU, AGED 52 YEARS AKAVILA HOUSE, ERAVIPURAM POST, ERAVIPURAM VILLAGE, KOLLAM 691 ``` ``` R.S.A No. 774 of 2020 ``` ``` ..2.. ``` ``` 011. 3RAGHU, AGED 54 YEARS DEEPALAYAM, MUTTARA POST, MUTTARA, KOLLAM 691 512. 4SHAJIMON AGED 48 YEARS S/O. MATHUNNI, JOUSHA ESTATE, MULAYARACHAL CHERRY, VELINALLOOR VILLAGE VELINALLOOR PANCHAYATH, KOTTARAKKARA TALUK, KOLLAM DISTRICT. 5ABDUL SALAM, AGED 60 YEARS S/O. SULAIMAN RAWTHER, PARAVILA PUTHEN VEEDU, KARAKKAL MURI, ARKKANOOR (P.O.), VELINALLOOR VILLAGE VELINALLOOR PANCHAYATH KOTTARAKKARA TALUK, KOLLAM DISTRICT. 6AVIRA, AGED 70 YEARS S/O. THOMAS, KOKKATTU MUNDAKKAL VEEDU, VELINALLOOR VILLAGE, CHERUVAKKAL P.O KOTTARAKKARA, TALUK KOLLAM DISTRICT. 7MONCY A MATHEW AGED 30 YEARS S/O. ACHANKUNJU, JOSHUA ESTATE, MULAYARACHAL, CHERIYA VELINALLOOR PO, VELINALLOOR, KOLLAM.691516 BY ADVS. B.G.HARINDRANATH AMITH KRISHNAN H. FOR R2 ANOOP KRISHNA FOR R7 ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` R.S.A No. 774 of 2020 ``` ``` ..3.. ``` ## _**J U D G M E N T**_ ## **Dated this the 27[th] day of September, 2023** This Regular Second Appeal has been filed under Section 100 r/w Order XLII, of the Civil Procedure Code, 1908 (hereinafter referred to as ‘CPC’ for short) and the appellant is the plaintiff in O.S. No. 590/2013 on the files of the Munsiff’s Court, Kottarakkara. The appellant is aggrieved by the judgment and decree dated 30[th] November 2019 in A.S. No. 14/2015 on the files of the Subordinate Court, Kottarakkara as well as judgment and decree in O.S. No. 590/2013 dated 10[th] February, 2015 on the files of the Munsifff’s Court, Kottarakkara. The _appellant_ herein is the _plaintiff_ and the respondents are the _defendants_ in the above suit. 2. Heard the learned counsel appearing for the appellants as well as the learned counsel appearing for the respondents on admission. 3. I shall refer the parties in this Regular Second Appeal as ``` R.S.A No. 774 of 2020 ``` ``` ..4.. ``` ## ‘ _plaintiff_ ’ and ‘ _defendants_ ’ for convenience. 4. In this matter, the plaintiff filed the suit seeking relief of prohibiting injunction restraining the defendants from doing the act of quarrying rocks by using jackhammers and magazines or to commit any act that would cause disturbance and harm to the peaceful occupancy of the plaintiff in the plaint scheduled property. According to the plaintiff, the plaintiff had apprehension that, if the quarrying operations were permitted to use highly powered explosives, the same would cause damage to the building and also would cause air pollution. Further, there was the allegation that there was a likelihood of tumbling down the residential building of the plaintiff if the quarrying operations were allowed to continue. 5. Defendants 1 to 3 filed separate written statements and resisted the suit contending that quarrying operations were started in their property pursuant to issuance of explosive license by the Pollution Control Board after clearing NOC by the ``` R.S.A No. 774 of 2020 ``` **==> picture [31 x 7] intentionally omitted <==** Panchayath and the Geology Department. According to the defendants, the apprehension of nuisance as alleged in the plaint has no substance and the suit must fail. Somewhat, similar contentions were raised by the second defendant by filing a separate written statement. 6. The trial court ventured the matter and recorded evidence. PWs 1 and 2 were examined and Exts. A1 and A2 were marked on the side of the plaintiff. DW1, DW2, DW5, and DW13 were examined and Exts. B1 to B14 series were marked on the side of the defendants. CW1 was examined and Exts. C1 to C6 were marked. The trial court appraised the contentions raised by the parties and finally dismissed the suit. 7. While addressing the challenge against the trial court decree and judgment, the learned Sub Judge also concurred the finding of the trial court and dismissed the appeal. 8. At the time of hearing, the learned counsel for the plaintiff would submit that the trial court dismissed the suit mainly on the ``` R.S.A No. 774 of 2020 ``` **==> picture [31 x 7] intentionally omitted <==** ground that the property of the defendants, where relief of injunction was sought for was not scheduled and holding that the same as a material defect. According to the learned counsel for the plaintiff, the distance between the house of the plaintiff and the place, where the quarrying operations are being carried out, is only 200 meters, and therefore, the apprehension expressed by the plaintiff in the matter of private nuisance is having force and the courts below miserably failed to take note of those vital aspects while dismissing the suit as well as the appeal. It is pointed out further that the quarrying operations were attempted without permit and license and this fact was disposed by DW1. 9. Even though the learned counsel was asked to justify the substantive question of law involved in this matter to admit and maintain this appeal in view of the mandate of Section 100 r/w Order 42 Rule-1, the learned counsel submitted that the dismissal of the suit by the trial court and the confirmation of the said decree by the appellate court is illegal and the illegality is the ``` R.S.A No. 774 of 2020 ``` **==> picture [31 x 7] intentionally omitted <==** question of law involved in this matter. 10. Whereas the learned counsel for the defendants submitted that even though DW1, the first defendant gave evidence during the examination that he did not have the license, on the date of examination, as pointed out by the learned counsel for the plaintiff, there were license and permit to do quarrying operations issued by the authorities including Geologist, Panchayath as well as Pollution Control Board. But because of filing this suit and grant of interim order prohibiting injunction, thereafter the authorities did not renew the license and that factual aspect also was deposed by DW1. It is pointed out by the learned counsel for the defendants that the trial court dismissed the suit on the finding that there is no private nuisance established with sufficient materials and also on the ground that the property, where the relief of injunction was sought, was not scheduled. The learned counsel appearing for the defendants submitted that as per the mandate of Order-7, Rule-3, it has been ``` R.S.A No. 774 of 2020 ``` **==> picture [31 x 7] intentionally omitted <==** provided that _where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers._ The learned counsel appearing for the plaintiff pointed out Rule 18 of the Kerala Civil Rules of Practice in this regard. Rule 18 provides that _every plaint or other proceedings (other than a memorandum of appeal) in which relief is sought with respect to immovable property, shall state in a tabular form the registration district and sub-district, taluk and village in which the property is situate, its survey number, extent and its name, if any, as also its boundaries. In the case of paddy lands, the name, if any, of the tract, ela, or padom in which the property is situate shall be stated. In cases where the value of the property is required to be estimated for purposes of court-fees the particulars required by section 10 of the Kerala Court Fees and Suits Valuation Act,_ ``` R.S.A No. 774 of 2020 ``` **==> picture [31 x 7] intentionally omitted <==** _1959 shall be furnished in respect of each item_ . Reading the mandate of Order 7 Rule 3 and Rule 18 of the Kerala Civil Rules of Practice in cases, where the subject matter of the suit is immovable property, the schedule of the property shall be described in the plaint. In the case at hand the relief in the suit seen moulded on the canvass of private nuisance because of quarrying operations carried out in the property of the defendants though it has been contended that the said private nuisance would be a hindrance for the peaceful enjoyment of the property of the plaintiff and the peaceful residence at the house situated therein, which is scheduled as the plaint scheduled property. Indubitably, in the case at hand, the allegation of private nuisance is one squeeses out from the property of the defendants. If so the subject matter of the present suit must be both items of immovable property, viz, the property of the plaintiff as well as the defendants. In view of the matter, the trial court is justified in pointing out the said omission as material. Thus, it appears that ``` R.S.A No. 774 of 2020 ``` **==> picture [37 x 7] intentionally omitted <==** the suit itself is defective for non-compliance of the mandate of Order 7 Rule 3 of the CPC r/w Rule 18 of the Kerala Civil Rules of Practice. 11. Even otherwise, in the plaint, the apprehension of the plaintiff is damages to the house, air pollution, and also obstruction to his peaceful residence at the residential house. The trial court as well as the appellate court concurrently negatived the contention acting on the commission report which would suggest that the distance between the house of the plaintiff and the place where quarrying operations were proposed as 233 meters. In fact, private nuisance, if any, shall be specifically pleaded and proved, and mere apprehension of private nuisance, by itself is not a ground to injunct the quarrying operations or any process of production or manufacturing, once the same being carried out under a permit and license issued by the competent authorities after satisfying the mandate and guidelines for the issuance of the same. No doubt, the aggrieved persons have right ``` R.S.A No. 774 of 2020 ``` **==> picture [37 x 7] intentionally omitted <==** to challenge the permit, license etc, if the same is in derogation to the statutory sanctions. In fact, in this matter the pleadings and evidence available are quite insufficient to hold that the private nuisance alleged by the plaintiff and found in the negative by the trial court as well as the appellate court was established to grant decree of prohibition injunction. 12. Therefore, it appears that no substantive question of law arises in this appeal to be admitted and to be decided by this court and the defect as pointed out by the trial court as well as the appellate court is so material. 13. 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_ ``` R.S.A No. 774 of 2020 ``` **==> picture [37 x 7] intentionally omitted <==** _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.”_ 14. 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 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 ``` R.S.A No. 774 of 2020 ``` **==> picture [37 x 7] intentionally omitted <==** 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. 15. In the decision in **Nazir Mohamed v. J. Kamala** and **2020 KHC 6507** : **AIR 2020 SC 4321** : **2020** Others reported in [ **(10) SCALE 168** ], the Apex Court held that: _The condition precedent for entertaining and deciding a second appeal being the existence of a 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_ ``` R.S.A No. 774 of 2020 ``` ``` ..14.. ``` _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 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_ ``` R.S.A No. 774 of 2020 ``` ``` ..15.. ``` _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 Federal Court or by the_ ``` R.S.A No. 774 of 2020 ``` **==> picture [37 x 7] intentionally omitted <==** _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_ ``` R.S.A No. 774 of 2020 ``` **==> picture [37 x 7] intentionally omitted <==** _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 the CPC._ 16. 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_ ``` R.S.A No. 774 of 2020 ``` **==> picture [37 x 7] intentionally omitted <==** _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 question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance._ 17. 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 ``` R.S.A No. 774 of 2020 ``` **==> picture [37 x 7] intentionally omitted <==** 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 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. In view of the matter, no substantial question of law arises to be formulated as mandated under Section 100 r/w Order 42 Rule 1 of the Civil Procedure Code to admit and adjudicate this appeal. Accordingly, this regular second appeal stands dismissed, without being admitted. It is specifically ordered that dismissal of this second appeal shall not be a shield for the defendants to carry out quarrying ``` R.S.A No. 774 of 2020 ``` **==> picture [37 x 7] intentionally omitted <==** operations in the property of the defendants, without proper license and permit issued by the competent authorities, as per law. **Sd/-** **A. BADHARUDEEN JUDGE** RMV ``` TRUE COPY ``` ``` P.A.TO JUDGE ```