Benny v. Chandrakantan

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 5[TH] DAY OF JANUARY 2024 / 15TH POUSHA, 1945 RSA NO. 482 OF 2020** **AGAINST THE DECREE AND JUDGMENT DATED 23.3.2018 IN OS 440/2015 OF MUNSIFF COURT,KATTAPPANA AS 18/2018 OF SUB COURT,KATTAPPANA** ## **APPELLANT/ APPELLANT / PLAINTIFF:** BENNY AGED 53 YEARS S/O.OOMMEN MATHAI, KAKKATTUKADA BHAGAM, KANCHIYAR KARA, KANCHIYAR VILLAGE, IDUKKI DISTRICT. BY ADVS. V.N.SANKARJEE SRI.V.N.MADHUSUDANAN SRI.M.M.VINOD SMT.M.SUSEELA SMT. KEERTHI B. CHANDRAN SHRI.VIJAYAN PILLAI P.K. SHRI.R.UDAYA JYOTHI ## **RESPONDENT/RESPONDENT/ DEFENDANT:** CHANDRAKANTHAN AGED 64 YEARS S/O.NARAYANA SWAMI, WARD NO.XVI, PERUMAL STREET, GOODALLOOR KARA, GOODALLOOR P.O., UTHAMAPALAYAM TALUK, THENI DISTRICT, TAMIL NADU, PIN-625518. BY ADVS. NELSON JOSEPH, MADHU RADHAKRISHNAN M.D.JOSEPH DEEPAK ASHOK KUMAR **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION** **ON 05.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RSA.No.482 of 2020 -2- ## **A. BADHARUDEEN, J. ----------------------------------------------------R.S.A.No.482 of 2020** **----------------------------------------------------Dated this the 5[th] day of January, 2024** ## **JUDGMENT** This appeal has been filed at the instance of the plaintiff in O.S.No.440/2015 on the files of the Munsiff's Court, Kattappana challenging dismissal of the suit on finding _res judicata_ in view of settlement of an earlier suit as O.S.No.172/2014 in between the same parties, in relation to the same subject matter. The respondent herein is the plaintiff in O.S.No.172/2014 and the defendant in the present case. 2. Heard the learned counsel for the appellant and respondent on admission. Perused the relevant records including the copy of compromise filed in the earlier suit-O.S.No.172/2014. 3. In this matter, after entering into compromise as per terms 1 to 6 as espoused in the RSA.No.482 of 2020 -3- compromise decree in O.S.No.172/2014, with an undertaking to vacate the plaint schedule building on 19/06/2014, that too after receiving Rs.3 lakh in terms of the compromise, the appellant herein filed a suit to set aside the compromise decree and judgment as well as sale deed No.1438/2014 which is the subject matter of O.S.No.172/2014. 4. The learned Munsiff considered the matter and decided the question of _res judicata_ and finally held that the suit was barred by _res judicata_ in view of finality of the matter as per the compromise in O.S.No.172/2014. Even though appeal was preferred before the Sub Judge, Kattappana, the appeal also was dismissed holding that no suit to set aside a decree on the ground that the compromise on which the decree is based on as lawful, is not permitted under Order XXIII Rule 3 A of CPC. 5. On perusal of available materials, it is discernible that an earlier suit for injunction filed by the respondent herein against the present RSA.No.482 of 2020 -4- appellant where the subject matter of dispute is title and ownership over the plaint schedule property and the building alleged to be sold by the appellant herein in favour of the respondent herein, ended in compromise. It was agreed between the parties that the defendant herein admitted the title and ownership of the plaintiff, who is the respondent herein over the plaint schedule property and building therein and the respondent herein agreed to give Rs.3 lakhs more. As per Clause No.2, it has been specifically provided that the above amount also was received on two occasions by the appellant herein. 6. As far as the present suit is concerned, the same is not maintainable since a suit to challenge a compromise decree and judgment is not permitted by law. It appears that the present suit is not maintainable and the same deserves dismissal. Apart from that no challenge against the compromise decree in O.S.No.172/2014 would succeed in the case at hand since the appellant herein is estopped from RSA.No.482 of 2020 -5- challenging its legality. In this matter, acting on the terms of the compromise, the appellant herein received Rs.3 lakh and after benefiting out of it, unwanted challenge is raised to avoid vacant possession of the plaint schedule property agreed on 19/06/2014 as per the compromise decree. 7. In view of the above discussion, this Second Appeal is found to be meritless and the same does not require admission since no substantial question of law arises. 8. 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_ RSA.No.482 of 2020 -6- _leave of the Court, given in accordance with the provision of section 100.”_ 9. 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 RSA.No.482 of 2020 -7- 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. 10. 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 referring_ _**Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722]** ._ RSA.No.482 of 2020 -8- 11. 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, after referring **Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC 179]** (three – Judge Bench) _,_ 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._ 12. 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, RSA.No.482 of 2020 -9- 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 complied to admit and maintain a second appeal. RSA.No.482 of 2020 -10- 13. 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 orders stand vacated and 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, for expediting delivery of the property at the earliest at any rate within ten days from the date of receipt of a copy of this judgment. Sd/- **A. BADHARUDEEN JUDGE** rsr