A.S.MOHANAKRISHNA MUDALIYAR v. Rohit John and S. Charulatha

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` FRIDAY, THE 17[TH] DAY OF NOVEMBER 2023 / 26TH KARTHIKA, 1945 ``` ``` RSA NO. 662 OF 2023 ``` ``` OS.NO.59/2015 OF II ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM AS.NO.55/2022 OF III ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM ``` ## **`APPELLANT/APPELLANT/DEFENDANT:`** ``` A.S.MOHANAKRISHNA MUDALIYAR AGED 59 YEARS S/O.LATE A.N.SUNDER RAJ, 188, VIVEK NAGAR, 2ND CROSS, 4TH MAIN, BANGALORE-, PIN - 560047 BY ADVS. V.R.GOPU J.NARAYANA PILLAI URMILA.M.G ``` ## **`RESPONDENTS/RESPONDENTS/PLAINTIFFS:`** ``` 1ROHIT JOHN AGED ABOUT 46 YEARS, S/O.LATE V.G.RAJENDRAN NAIR, APRA 49, NIRALA, AMITA SANKAR ROAD, KANNAMOOLA, THIRUVANANTHAPURAM., PIN - 695011 2S.CHARULATHA AGED ABOUT 76 YEARS, W/O.LATE V.G.RAJENDRAN NAIR, APRA 49, NIRALA, AMITA SANKAR ROAD, KANNAMOOLA, THIRUVANANTHAPURAM, PIN-695011 ``` ``` THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 7.11.2023, THE COURT ON 17.11.2023, DELIVERED THE FOLLOWING: ``` ``` RSA NO. 662 OF 2023 2 ``` ## **JUDGMENT** Dated this the 17[th] day of November, 2023 This appeal has been filed under Section 100 r/w Order XLII Rule 1of the Code of Civil Procedure (for short, ‘the C.P.C.’ hereinafter) against the decree and judgment in A.S.No.55/2022, dated 18.3.2023 on the files of the Additional District Court - III, Thiruvananthapuram, arose out of the decree and judgment in O.S.No.59/2015, dated 28.10.2021 on the files of the Additional Munsiff Court-II, Thiruvananthapuram. The appellant is the sole defendant in the original suit and the plaintiffs are the respondents herein. 2. Heard the learned counsel for the appellant on admission. 3. I shall refer the parties in this appeal as 'plaintiffs' and 'defendant' for convenience. 4. Plaint averments in brief as under: Plaintiffs filed the suit for recovery of Rs.10,00,000/(Rupees Ten Lakh only) alleged to be paid by the plaintiffs ``` RSA NO. 662 OF 2023 3 ``` through the account of the defendant, who is a close friend of the 1[st] plaintiff's brother Adv.Sri.Rajasekharan Nair. According to the plaintiffs, the defendant borrowed Rs.10,00,000/(Rupees Ten Lakh only), with assurance that the amount would be repaid on or before 1.11.2014, after selling his property. Even though the plaintiffs demanded the amount repeatedly and issued lawyer notice demanding the said sum, the defendant failed to repay the said sum. 5. The defendant filed written statement admitting that the 1[st] plaintiff's brother Adv.Sri.Rajasekharan Nair was the friend of the defendant. But borrowing of Rs.10,00,000/(Rupees Ten Lakh only) by two instalments, at the rate of Rs.5,00,000/- (Rupees Five Lakh only) each, was denied. The contention raised by the defendant before the trial court was that, the amount credited in the account of the defendant, was not the amount, borrowed by the defendant, as loan. But the contention was that the 1[st] plaintiff and his brother promised to arrange the post of a High Court Judge in Karnataka, on the assertion that they had acquaintance with Smt.Ambika Soni, the then Minister, who had influence in the Central Law ``` RSA NO. 662 OF 2023 4 ``` Ministry. According to the defendant, the defendant handed over Rs.23 Lakh in this transaction, out of which, the defendant paid Rs.5,00,000/- (Rupees Five Lakh only) to one Smt.Asha, who handed it over to the 2[nd] plaintiff, who is the mother of the 1[st] plaintiff and the 1[st] plaintiff acknowledged the receipt of that amount over phone. Thereafter, Rs.5,00,000/(Rupees Five Lakh only) was directly received by the 1[st] plaintiff and his brother Adv.Sri.Rajasekharan Nair in Hotel Geo, Bangalore, where they stayed. Further, on 28.11.2013, the defendant gave another Rs.5,00,000/- (Rupees Five Lakh only) to Smt.Asha, who in turn, sent an amount of Rs.4,80,000/- (Rupees Four Lakh Eighty Thousand only) to the account of the 1[st] plaintiff. Thereafter, the defendant paid Rs.4,00,000/- (Rupees Four Lakh only) to Smt.Asha in the 2[nd] week of December. Accordingly, the suit claim was emphatically denied by the defendant. 6. The trial court raised necessary issues and tried the matter. PW1 to PW3 were examined and Exts.A1 to A4 were marked on the side of the plaintiffs. DW1 was examined and Exts.B1 to B4 were marked on the side of the defendant. ``` RSA NO. 662 OF 2023 5 ``` 7. The trial court appraised the evidence with reference to the rival contentions raised. The trial court analysed the evidence of PW2, the 1[st] plaintiff, who is the son of the 2[nd] plaintiff. PW2 given evidence before the trial court that he had paid Rs.10,00,000/- (Rupees Ten Lakh only) to DW1 and the payment was made in two instalments at the rate of Rs.5,00,000/- (Rupees Five Lakh only) each. It was deposed that Rs.5,00,000/- (Rupees Five Lakh only) was transferred by NEFT on 20.6.2014 through ICICI Bank and second instalment was paid through his mother's account maintained at Canara Bank. Both the amounts were paid in the account of the defendant, vide No.SM 329959954. Ext.A1 copy of statement of account produced to prove the same. PW1 is the Branch Manager of Canara Bank, where from Ext.A1 copy of statement of account was issued. Ext.A1 covers statement of account from 1.9.2014 to 1.10.2014. PW1 deposed that, as per Ext.A1, Rs.5,00,000/- (Rupees Five Lakh only) was transferred in the account of the defendant. PW3, who is the Manager of ICICI Bank also supported Ext.A4 statement of account in between 1.6.2014 to 30.6.2014 and given evidence that, as per ``` RSA NO. 662 OF 2023 6 ``` Ext.A4, Rs.5,00,000/- (Rupees Five Lakh only) was transferred in the account of the defendant. In fact, receipt of money is not a matter in dispute, since the same was admitted by the defendant, who was examined as DW1. Even otherwise, the same stands proved through the evidence of PW2, supported by the evidence of two Bank Managers, examined as PW1 and PW3, supported by Exts.A1 and A4 statements of accounts. Thus, the plaintiffs’ case to the effect that, the defendant borrowed an amount of Rs.10,00,000/- (Rupees Ten Lakh only) by two instalments of Rs.5,00,000/- (Rupees Five Lakh only) each to the defendant, is proved, rather admitted. 8. However, the contention raised by the defendant is that, 1[st] plaintiff and his brother borrowed Rs.23 Lakh from the defendant and promised the defendant that he would be made a Judge of the High Court in Karnataka and the amount was given by instalments. According to the defendant, initially, Rs.5,00,000/- (Rupees Five Lakh only) was paid to one Smt.Asha, who then given it to the mother of the 1[st] plaintiff. Later, the defendant sold his property and paid Rs.5,00,000/(Rupees Five Lakh only) to the 1[st] plaintiff and his brother. On ``` RSA NO. 662 OF 2023 7 ``` 28.11.2013, DW1 gave another Rs.5,00,000/- (Rupees Five Lakh only) to Smt.Asha, who, in turn, sent Rs.4,80,000/(Rupees Four Lakh Eighty Thousand only) to the account of the 1[st] plaintiff. Again, the defendant paid Rs.4,00,000/- (Rupees Four Lakh only) to Smt.Asha in the 2[nd] week of December and thus, a total of Rs.23 Lakh was paid for getting the post of High Court Judge in Karnataka, is the sum and substance of the case put forward by the defendant, who is a practicing lawyer, well versed with substantive as well as procedural law. He had filed affidavit and the trial court extracted his evidence in paragraph Nos.12 and 13 of the judgment and in order to avoid repetition, the same are extracted hereunder: _12. Defendant is examined as DW1 and deposed in affidavit that the defendant is a lawyer practicing at Bangaluru having a stand of 33 years in the Bar. During 2013, while practicing at the High Court of Karnataka the defendant's name is included in the list from Bar for the direct selection of the Judges at the High Court of Karnataka. On knowing about the said fact Sri.Ragasekhara Nair, Advocate from Thiruvananthapuram, who is a friend of Smt.Asha, a friend of DW1 contacted the defendant in person and made believe the words that his brother Sri.Rohit John_ ``` RSA NO. 662 OF 2023 8 ``` _has got much contacts at Delhi and he is able to speedup the selection proceedings by using his influence at the Law Ministry. Sri.Rajasekharan Nair further promised that his brother is trust worthy and the defendant has to provide funds for his brother towards logistics and accordingly the defendant has agreed to provide logistics charges for the said charges, the first plaintiff and her mother altogether collected an amount of Rs.23 lakhs on various occasions. As the defendant's name was deleted by the scrutiny committee, the defendant had sent back said amount so collected by the plaintiffs after deducting the expenses if any met by the 1[st] plaintiff. The 1[st] plaintiff agreed to repay the entire amount by way installments and the 1[st] repayment was made on 20/06/2014 through bank transfer and the 2[nd] installment was made on 01/10/2014 by the plaintiffs. As the defendant and Smt.Asha constantly requesting the plaintiffs to return the balance amount, the 2[nd] plaintiff issued a lawyers through the same lawyer who is representing the plaintiff even now on 22/11/2014 and the same is marked through PW2 during his crossexamination. In order to prove the transactions made by the defendant and Smt.Asha for and on behalf, the defendant produced the original pass book issued by the Canara Bank, Krishna Rajapuram Branch, Bengaluru which contains the transfer of Rs.4,80,000/to the 1[st] plaintiff on 28/11/2013 and the ledger extract_ ``` RSA NO. 662 OF 2023 9 ``` _issued by the Canara Bank from 01/05/2013 to 10/12/2013 and those documents are marked as Ext.B2 and Ext.B3 respectively. For proving the defendant's financial ability and to have sufficient income of defendant's owes, the defendant hereby producing the encumbrance certificate issued by the Indira Nagar, SR Office dated 04/09/2021 and this same is marked as Ext.B4. The suit is filed as an experimental one with an intention to evade from the actual liability owed by the plaintiffs towards the defendant._ _13. DW1 deposed in cross-examination that he was not recommended by colligium of Hon'ble High Court when he was put a specific question that there was no recommendation of his name, DW1 deposed that he was not aware of the same. He admitted that he had not taken any steps against the brother of the 1[st] plaintiff and Asha. DW1 deposed that he paid Rs.23 lakhs to 1[st] and 2[nd] plaintiff. DW1 deposed that he paid Rs.5 lakhs to PW2 through Asha by cash. The 2[nd] payment done in August 2013 and this payment directly to PW2. The third payment to Asha and sent RTGS to Rohit. Another Rs.4 lakhs was paid directly to brother of PW2. Rs.1 lakhs was paid by cheque in the name of PW2. Another payment during December and November respectively._ 9. It is strange to see that, apart from the oral testimony of DW1, raising a very serious allegation, nobody ``` RSA NO. 662 OF 2023 10 ``` examined to prove the case of the defendant or no substantive evidence let in to prove that he had given Rs.23 Lakh on accepting offer to get appointment of High Court Judge in Karnataka. The allegation raised by the defendant is a matter of serious concern, but the same is not at all established. Thus, the defendant miserably failed to prove that Rs.10,00,000/- (Rupees Ten Lakh only) credited in his account from the account of the plaintiffs, is the amount given back for the amount paid by the defendant, in adjustment of Rs.23 Lakh. 10. At the time of admission, the learned counsel for the appellant/defendant would submit that the defendant failed to examine Smt.Asha, who meddle the matter and also failed to conduct the case properly and therefore, an opportunity may be given to the defendant to adduce fresh evidence by remanding the matter. 11. In this matter, as per the judgments rendered by the trial court and the appellate court, it is emphatically clear that the defendant was provided with opportunity to adduce evidence and making use of the said opportunity and the ``` RSA NO. 662 OF 2023 11 ``` defendant himself got examined as DW1. He did not take any steps to examine either Smt.Asha or to let evidence in support of the serious contention, he raised. Thus, the trial court found that plaintiffs established a case as to borrowal of Rs.10,00,000/- (Rupees Ten Lakh only) by the defendant and accordingly, suit was decreed, directing its repayment. In the first appeal also, on re-appreciation of the entire evidence, the trial court verdict was confirmed. It is strange in note that, some additional documents as Annexures have been placed along with this second appeal and the learned counsel for the appellant/defendant attempted to give emphasis to those documents. It is shocking to note that those documents were not made part of evidence during trial and therefore, by producing documents in the form of Annexures, without following the procedure under Order XLI Rules 27 and 27(aa) of the C.P.C. in the second appeal, is not justifiable and therefore, the same cannot be looked into. 12. In this case, the learned counsel for the appellant/defendant failed to raise any substantial question of law warranting admission of the second appeal. Order XLII ``` RSA NO. 662 OF 2023 12 ``` ## 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.”_ 13. 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 ``` RSA NO. 662 OF 2023 13 ``` 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. 14. 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 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_ ``` RSA NO. 662 OF 2023 14 ``` _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 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_ ``` RSA NO. 662 OF 2023 15 ``` _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 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_ ``` RSA NO. 662 OF 2023 16 ``` _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 the CPC._ 15. 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_ ``` RSA NO. 662 OF 2023 17 ``` _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 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._ ``` RSA NO. 662 OF 2023 18 ``` 16. 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 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 ``` RSA NO. 662 OF 2023 19 ``` complied to admit and maintain a second appeal. 17. In view of the above fact, no substantial question of law arises in this matter to be decided by admitting this appeal. In the result, this appeal is found to be meritless and the same is dismissed without being admitted. All interlocutory applications pending in this second appeal, stand dismissed. Registry shall inform this matter to the trial court as well as the appellate court, forthwith. Sd/- **A. BADHARUDEEN JUDGE** Bb