Dhanalakshmi and others v. The Midland Rubber Produce Co. Ltd

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` TUESDAY, THE 5[TH] DAY OF DECEMBER 2023 / 14TH AGRAHAYANA, 1945 RSA NO. 684 OF 2023 ``` ``` AGAINST THE JUDGMENT DATED 31.7.2023 IN A.S.NO.5/2021 OF SUB COURT, ``` ## **`KATTAPPANA`** ``` AGAINST THE JUDGMENT DATED 21.11.2019 IN O.S.NO.76/1997 OF MUNSIFF COURT, PEERUMEDU ``` ## **`APPELLANTS/APPELLANTS/DEFENDANTS:`** ``` 1DHANALAKSHMI AGED 80 YEARS W/O. LATE KALIYAN, ARANAKAL ESTATE PO, VANDIPERIYAR KARA, MANJUMALAY VILLAGE, PEERUMADE TALUK,IDUKKI DISTRICT, PIN - 685533 2PETHUSWAMY AGED 59 YEARS S/O. LATE KALIYAN, ARANAKLA ESTATE PO, VADIPERIYAR KARA, MANJUMALAY VILLAGE, PEERUMADE TALUK , IDUKKI DISTRICT, PIN - 685533 3MADURAIVEERAN AGED 57 YEARS S/O. LATE KALIYAN, ARNAKAL ESTATE PO, VANDIPERIYAR KARA, MANJUAMALAY VILLAGE, PEERUMADE TALUK , IDUKKI DISTRICT, PIN - 685533 4MANICKARAJ AGED 55 YEARS S/O. LATE KALIYAN, ARANAKAL ESTATE PO, VANDIPERIYAR KARA, MANJUMALAY VILLAGE, PEERUMADE TALUK , IDUKKI DISTRICT, PIN - 685533 5SIVA AGED 53 YEARS S/O. LATE KALIYAN, ARNAKAL ESTATE PO, VANDIPERIYAR KARA, MANJUMALAY VILLAGE, PEERUMADE TALUK , IDUKKI DISTRICT, PIN - 685533 6SELVI AGED 50 YEARS D/O. LATE KALIYAN, ARNAKAL ESTATE PO, VANDIPERIYAR KARA, MANJUMALAY VILLAGE, PEERUMADE TALUK , IDUKKI DISTRICT, PIN - 685533 ``` ``` RSA NO. 684 OF 2023 2 ``` ``` BY ADVS. BIJU .C. ABRAHAM THOMAS C.ABRAHAM BASIL MATHEW ``` ## **`RESPONDENT/RESPONDENT/PLAINTIFF:`** ``` THE MIDLAND RUBBER PRODUCE CO. LTD REGISTERED OFFICE W-21/674, BEACH ROAD, ALLEPPEY 12, REPRESENTED BY ITS PRINCIPAL OFFICER, MR. D.B. KING, S/O. G.S. KING, AGED 54 YEARS, MANAGER - OPERATIONS, ARNACKAL ESTATE, VANDIPERIYAR KARA, MANJUMALAI VILLAGE IDUKKI DISTRICT, PIN - 685533 ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NO. 684 OF 2023 3 ``` ## **JUDGMENT** Dated this the 5[th] day of December, 2023 This Regular Second Appeal has been filed under Section 100 r/w Order XLII Rule 1 of the Code of Civil Procedure (for short, ‘the C.P.C.’ hereinafter) against the judgment and decree in A.S.No.5/2021, dated 31.7.2023 on the files of the Sub Court, Kattappana, arose out of the judgment and decree in O.S.No.76/1997, dated 21.11.2019 on the files of the Munsiff Court, Peermade. This appeal is at the instance of the defendants in the above suit. 2. Heard the learned counsel for the appellants/defendants, on admission. 3. I shall refer the parties in this appeal as ‘plaintiff’ and ‘defendants’ for convenience. 4. Plaintiff filed suit for recovery of the plaint schedule property and mesne profits. The defendants resisted the suit and claimed value of improvements. 5. Initially, the suit was decreed without considering value ``` RSA NO. 684 OF 2023 4 ``` of improvements. A.S.No.27/1999 was filed and the same was dismissed, confirming the earlier decree passed in the suit. The matter came before this Court as S.A.674/2001. In S.A.No.674/2001, this Court confirmed the finding as regards to entitlement of the plaintiff to get recovery of the possession of the plaint schedule property from the possession of the defendants. Thus, decree granted for recovery of possession has become final. But this Court remanded the matter for the limited purpose of assessing the quantum of compensation payable towards the value of improvements effected by the defendant in the subject matter. 6. After remand, the Advocate Commissioner and two witnesses including the experts, were examined as DW3 to DW5. Exts.C2, C2(a) series, C3 and C3(a) series were marked in order to decide the quantum of improvements directed to be assessed by this Court, as per the order of remand. Relying on the evidence of DW4, who is the Assistant Engineer of PWD, Kumily Section, the trial court fixed the value of improvement. The value of the building was assessed by DW4, as Rs.75,878/- (Rupees Seventy Five Thousand Eight Hundred and Seventy Eight only), ``` RSA NO. 684 OF 2023 5 ``` taking note of the age of the building is 45 years, was accepted by the court below. DW5 also identified the signature of his predecessor in Ext.C2(a). Accordingly, the trial court allowed Rs.75,878/- (Rupees Seventy Five Thousand Eight Hundred and Seventy Eight only) to the defendants to be realised from the plaintiff, as quantum of compensation as the value of improvements. On appeal, the learned Sub Court, Kattappana dismissed the appeal after re-appreciation of the evidence. 7. At the time of admission, the learned counsel for the defendants submitted that the defendants are still in possession of the building, though as per the judgment in S.A.No.674/2001, the right of the plaintiff to get recovery of possession of plaint schedule building, was finalised. He would submit that the quantum of compensation towards the value of improvements made by the defendants, not properly assessed. This contention cannot be appreciated at all. It is relevant to note that this Court specifically remanded the matter for assessing the quantum of compensation towards the value of improvements and DW4, the Assistant Engineer of PWD, Kumily Section filed Ext.C3(a) valuation certificate, certifying the value of Rs.75,878/- (Rupees ## **`RSA NO. 684 OF 2023 6`** Seventy Five Thousand Eight Hundred and Seventy Eight only), taking note of the fact that the age of the building is 45 years. Therefore, best evidence has been given by the defendants and the trial court relied on the same to fix the quantum @ Rs.75,878/- (Rupees Seventy Five Thousand Eight Hundred and Seventy Eight only). The appellate court also concurred the said finding. In view of the matter, this second appeal, challenging quantum of compensation, after adducing evidence through DW4 alone, could not succeed on any grounds, as the courts below granted the entire amount assessed by DW4. Therefore, no substantial questions of law arise to admit and to proceed with this appeal. 8. In this case, the learned counsel for the appellants/defendants failed to raise 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_ ``` RSA NO. 684 OF 2023 7 ``` _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.”_ 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 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 ``` RSA NO. 684 OF 2023 8 ``` 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]** ._ 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_ ## **`RSA NO. 684 OF 2023 9`** _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, 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, ``` RSA NO. 684 OF 2023 10 ``` 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. 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 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