Dhanya Oppath v. Baby Girija and Others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 8[TH] DAY OF NOVEMBER 2023 / 17TH KARTHIKA, 1945 ``` ## _`RSA NO. 663 OF 2023`_ ``` AGAINST THE JUDGMENT AND DECREE DATED 26.02.2022 IN OS 1226/2017 OF II ``` ``` ADDITIONAL MUNSIFF COURT, ERNAKULAM, ``` ``` AGAINST THE JUDGMENT AND DECREE DATED 07.06.2023 IN AS 64/2022 OF VI ADDITIONAL DISTRICT COURT, ERNAKULAM ``` ## _`APPELLANT/APPELLANT/DEFENDANT:`_ ``` DHANYA OPPATH AGED 39 YEARS W/O LATE RAJESH, FLAT NO.7A ROYAL ENCLAVE EAST, ELAMANA JETTY, AMBILI NAGAR, THRIPUNITHURA, ERNAKULAM DISTRICT, PIN - 682301 BY ADVS. MEENA.A. VINOD RAVINDRANATH K.C.KIRAN M.R.MINI M.DEVESH ANISH ANTONY ANATHAZHATH THAREEQ ANVER K. NIVEDHITHA PREM.V ``` ## _`RESPONDENTS /RESPONDENTS/PLAINTIFFS:`_ ``` 1BABY GIRIJA AGED 71 YEARS W/O LATE BALAKRISHNAN NAIR, VELLAYATH VEEDU, KOCHUKADAVU, ERAVATHOOR PO, KUZHUR VIA, THRISSUR, PIN - 680734 2HARI VARAD AGED 16 YEARS S/O LATE RAJESH, AGED 16 YEARS (MINOR), RESIDING AT POORNASREE, CHAITHANYA NAGAR, LANE-5, EROOR (W), THRIPUNITHURA, REPRESENTED BY HIS MATERNAL GRANDMOTHER SMT. USHA P.R, W/O GOPALAKRISHNAN NAIR, AGED 61, POORNASREE, CHAITHANYA NAGAR LANE-5, EROOR WEST, TRIPUNITHURA, ERNAKULAM DISTRICT, PIN - 682306 3VEDASREE AGED 11 YEARS S/O LATE RAJESH, AGED 11 YEARS (MINOR), RESIDING AT POORNASREE, CHAITHANYA NAGAR, LANE-5, EROOR (W), THRIPUNITHURA, REPRESENTED BY MATERNAL GRANDMOTHER SMT. USHA P.R, W/O GOPALAKRISHNAN NAIR, AGED 61, POORNASREE, CHAITHANYA NAGAR LANE-5, EROOR WEST, TRIPUNITHURA, ERNAKULAM DISTRICT, PIN - 682306 ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08.11.2023, THE COURT ``` ``` ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA No. 663 of 2023 ``` ``` ..2.. ``` ## A. BADHARUDEEN J. ## **=====================** RSA No. 663 of 2023 ## **========================** ## _**J U D G M E N T**_ ## **Dated this the 08[th] day of November, 2023** This Regular Second Appeal has been filed under Section 100 r/w Order XLII, Rule 1 of the Civil Procedure Code, 1908 (hereinafter referred to as ‘CPC’ for short). The appellant is aggrieved by the decree and judgment dated 07.06.2023 in O.S. No. 1226/2017 on the files of the Additional Munsiff’s Court-II, Ernakulam as well as decree and judgment in A.S. No. 64/2022 dated 07.06.2023 on the files of the Additional District Court-VI, Ernakulam. The appellant herein is the defendant and the respondents are the _plaintiffs_ in the above suit. 2. Heard the learned counsel appearing for the appellant on admission and perused the verdicts under challenge. 3. I shall refer the parties in this Regular Second Appeal as ``` RSA No. 663 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** ## ‘ _plaintiffs_ ’ and ‘ _defendant_ ’ for convenience. 4. To be on the crux of this matter, one V B Rajesh died and he left the plaint schedule items to be inherited by the plaintiffs and defendant. The plaintiffs are the mother and two minor children of Rajesh from his first marriage. The defendant is the second wife of Rajesh. Both sides admitted the status of the parties and there is no dispute in this matter on the point that the plaintiffs and defendant are the legal heirs of Rajesh. However, the contention was raised by the defendant is that plaint B schedule is a flat, which was intended by Rajesh to be given in favour of the defendant. But there is no evidence to support the claim that Rajesh given right over the B schedule flat in favor of the defendant alone. 5. Therefore, ‘B’ schedule flat also liable to be partitioned in between the plaintiffs and defendant, being legal heirs. Holding so, the trial court granted decree partition allotting ¼ share to the plaintiffs 1 to 3 and the defendant. The appellate court also concurred the said finding. Thus, it appears that the preliminary ``` RSA No. 663 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** decree of partition granted by the trial court and confirmed by the appellate court is perfectly in order and in such view of the matter, no substantial question of law arises warranting admission and maintenance of this appeal. Therefore, the same deserves to be dismissed. 6. 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.”_ 7. Section 100 of the C.P.C. provides that, (1) Save as otherwise expressly provided in the body of this Code or by any ``` RSA No. 663 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** 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 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. 8. In the decision in **Nazir Mohamed v. J. Kamala** and ``` RSA No. 663 of 2023 ``` ``` ..6.. ``` ## **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 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_ ``` RSA No. 663 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** _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 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_ ``` RSA No. 663 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** _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 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_ ``` RSA No. 663 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** _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._ 9. 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_ ``` RSA No. 663 of 2023 ``` ``` ..10.. ``` _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._ 10. 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 ``` RSA No. 663 of 2023 ``` **==> picture [37 x 7] intentionally omitted <==** 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 complied to admit and maintain a second appeal. 11. In view of the matter, no substantial question of law arises to be formulated in view of the mandate of Section 100 ``` RSA No. 663 of 2023 ``` **==> picture [37 x 7] intentionally omitted <==** 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. 12. However, it has been submitted by the learned counsel for the appellant/defendant that the matter can be settled through mediation. Therefore, chance of mediation is left open to be exercised at the final decree stage and dismissal of the second appeal shall not be a rider in effecting mediation, as submitted. All Interlocutory orders stand vacated and all interlocutory applications pending in this matter stand dismissed. Registry shall inform this matter to the trial court as well as the appellate court forthwith. ## **Sd/-** **A. BADHARUDEEN JUDGE** RMV ``` TRUE COPY ``` ``` P.A.TO JUDGE ```