Kamalamma v. Lakshmikutty Amma and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` SATURDAY, THE 28[TH] DAY OF OCTOBER 2023 / 6TH KARTHIKA, 1945 ``` ## **`RSA NO. 67 OF 2019`** ``` AGAINST THE JUDGMENT IN AS 272/2007 OF I ADDITIONAL DISTRICT COURT, ``` ## **`KOLLAM`** ``` OS 307/1990 OF ADDITIONAL MUNSIFF COURT, KOLLAM ``` ## **`APPELLANT/APPELLANT – 4TH DEFENDANT:`** ``` * KAMALAMMA (DIED)LR RECORDED AND TRANSPOSED AGED 76 YEARS W/O.KRISHNAN NAIR, KARINJAMPPALLIL HOUSE, PUNNATHALA CHERRY, KOLLAM VILLAGE. ``` ``` *ADDL APPELLANT 2 ``` ``` ADDL.A2:KAMALAMMA VIJAYALAKSHMI ALIAS KAMALA VIJAYALAKSHMI, ``` ``` AGED 50 YEARS, D/O.LATE KAMALAMMA, ``` ``` KARINJAMPPALLIL HOUSE, PUNNATHALA WARD, PUNNATHALA CHERRY, ``` ``` KOLLAM WEST VILLAGE - 691 013 ``` ``` RESPONDENT 2 IN RSA 67/2019 IS TRANSPOSED AS ADDITIONAL APPELLANT 2 AS PER ORDER DATED 8/9/2023 IN IA 1/2019. ``` ``` BY ADVS. SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI ``` ## **`RESPONDENTS/RESPONDENTS 1 TO 4/PLAINTIFF-DEFENDANTS 1 TO 3 &`** ## **`ADDITIONAL 5TH DEFENDANT:`** ``` 1SMT.LAKSHMIKUTTY AMMA, AGED 76 YEARS, D/O.BHARGAVI AMMA, KARINJAMPPALLIL HOUSE, PUNNATHALA WARD, PUNNATHALA CHERRY, KOLLAM WEST VILLAGE- 691 013, FROM THENGAMANAZHIKATHU VEEDU, IVORKARA PADINJATTINKARA VADAKKOM MURI, KUNNATHUR VILLAGE. 2* SMT.KAMALAMMA VIJAYALAKSHMI, TRANSPOSED AGED 50 YEARS, D/O.KAMALAMMA, KARINJAMPPALLIL HOUSE, PUNNATHALA WARD, PUNNATHALA CHERRY, KOLLAM WEST VILLAGE- 691 013, 3KOLLAM MUNICIPAL CORPORATION, (FORMERLY KOLLAM MUNICIPALITY), KOLLAM-691 001, REPRESENTED BY ITS SECRETARY. ``` ``` RSA NOS. 67 OF 2019 ``` ``` & 607 OF 2012 2 ``` ``` 4* SHRI.VIJAYAKUMAR, (DIED) LR RECORDED AGED 50 YEARS, S/O.KRISHNAN NAIR, KARINJAMPPALLIL HOUSE, PUNNATHALA WARD, PUNNATHALA CHERRY, KOLLAM WEST VILLAGE- 691 013. *RESPONDENT 2 IS RECORDED AS THE SOLE LEGAL HEIR OF THE DECEASED APPELLANT NO.1 AND RESPONDENT 4 AS PER ORDER DATED 8/9/2023 IN IA 1/2019. ``` ``` R1 BY SRI.C.R.JAYAKUMAR R3 BY SRI.M.K.CHANDRA MOHAN DAS, SC, KOLLAM MUNICIPALITY ``` ``` THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON ``` ``` 17.10.2023 ALONG WITH RSA NO. 607 OF 2012, THE COURT ON 28.10.2023 DELIVERED THE FOLLOWING: ``` ``` RSA NOS. 67 OF 2019 ``` ``` & 607 OF 2012 3 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` SATURDAY, THE 28[TH] DAY OF OCTOBER 2023 / 6TH KARTHIKA, 1945 RSA NO. 607 OF 2012 ``` ``` AGAINST THE JUDGMENT AND DECREE DATED 24.11.2011 IN AS 273/2007 OF I ADDITIONAL DISTRICT COURT, KOLLAM AND AGAINST THE JUDGMENT AND DECREE DATED 29.9.2007 IN OS 696/1990 OF ``` ## **`ADDITIONAL MUNSIFF COURT, KOLLAM`** ## **`APPELLANT/APPELLANT/2ND PLAINTIFF:`** ``` 1*KAMALAMMA AGED 76 YEARS W/O.KRISHNAN NAIR, KARINJAMPPALLIL HOUSE, PUNNATHALA CHERRY, KOLLAM VILLAGE.(DIED) (SUPPL.A2 IMPLEADED) ``` ``` 2*SUPPL.A2.KAMALAMMA VIJAYALAKSHMI ALIAS KAMALA VIJAYALAKSHMI, AGED 50 YEARS D/O.LATE KAMALAMMA, KARINJAMPPALLIL HOUSE, PUNNATHALA WARD, PUNNATHALA CHERRY, KOLLAM WEST VILLAGE-691 013. (LEGAL REPRESENTATIVE OF DECEASED SOLE APPELLANT IS IMPLEADED AS SUPPL.APPELLANT 2 AS PER ORDER DATED 04.01.2013 IN IA.3107/2012.) ``` ``` BY ADVS. SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI ``` ## **`RESPONDENTS/RESPONDENTS/DEFENDANTS:`** ``` 1SMT.LAKSHMIKUTTY AMMA AGED 76 YEARS D/O.BHARGAVI AMMA, KARINJAMPPALLIL HOUSE, PUNNATHALA WARD, PUNNATHALA CHERRY, KOLLAM WEST VILLAGE-691013 FROM THENGAMANAZHIKATHU VEEDU, IVORKARA PADINJATTINKARA VADAKKOM MURI, KUNNATHUR VILLAGE. ``` ``` RSA NOS. 67 OF 2019 ``` ``` & 607 OF 2012 4 ``` ``` 2APPUKKUTTAN PILLAI AGED 65 YEARS S/O.NEELAKANTA PILLAI, KARINJAMPPALLIL HOUSE, PUNNATHALA WARD, PUNNATHALA CHERRY, KOLLAM WEST VILLAGE-691 013. ``` ``` BY ADV SRI.C.R.JAYAKUMAR ``` ``` THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17.10.2023, ALONG WITH RSA NO.67 OF 2019, THE COURT ON 28.10.2023 DELIVERED THE FOLLOWING: ``` ``` RSA NOS. 67 OF 2019 ``` ``` & 607 OF 2012 5 ``` ## **COMMON JUDGMENT** Dated this the 28[th] day of October, 2023 R.S.A.No.607/2012 is at the instance of the 2[nd] plaintiff in O.S.No.696/1990 on the files of the Additional Munsiff Court, Kollam. Kamalamma is the 2[nd] plaintiff/appellant in this case. The respondents in this appeal are Lakshmikutty Amma and another. 2. R.S.A.No.67/2019 also is one filed by Kamalamma, who is the 4[th] defendant in O.S.No.307/1990 on the files of the Additional Munsiff Court, Kollam. The respondents in this appeal are also Lakshmikutty Amma and others. The appellant impugns verdicts in A.S.Nos.272/2007 and 273/2007 on the files of the I Additional District Court, Kollam, arising out of common judgment in O.S.Nos.307/1990 and 696/1990, dated 29.9.2007. 3. Heard the learned counsel for the appellant as well as the learned counsel appearing for the respondents, ``` RSA NOS. 67 OF 2019 ``` ``` & 607 OF 2012 6 ``` including the learned Standing Counsel for Kollam Municipal Corporation. 4. I shall refer the parties in these appeals as 'Kamalamma' and ‘Lakshmikutty Amma’. Kollam Municipal Corporation will be referred as ‘Corporation’, for easy discussion. 5. To be on the short facts of this case, initially, O.S.No.307/1990 was filed by Lakshmikutty Amma, seeking the relief of fixation of boundary, declaration of title and recovery of possession, arraying Krishnan Nair, Kamalamma and Kollam Municipality (now ‘Kollam Municipal Corporation’), as defendants 1 to 3. According to Lakshmikutty Amma, Appukkuttan Pillai, her husband obtained 9 cents of property, as per partition deed No.3639/53 of Kollam SRO and later, the said property was gifted in favour of Lakshmikutty Amma, as per gift deed No.452/1974 of Kollam SRO. It was contended that now, 1.5 cents, scheduled as B item, out of the plaint A schedule property was ``` RSA NOS. 67 OF 2019 ``` ``` & 607 OF 2012 7 ``` encroached upon by Kamalamma and her husband Krishnan Nair. Accordingly, declaration of title over plaint A and B schedule properties as well as recovery of possession of B schedule property and fixation of boundary of the same with that of Kamalamma’s property, were sought for. 6. Thereafter, O.S.No.696/1990 was filed by Krishnan Nair against Lakshmikutty Amma and Appukkuttan Pillai, seeking the relief of prohibitory injunction apprehending trespass upon 11 cents of property (plaint schedule property) belonged to him. Consequent on the death of Krishnan Nair, Kamalamma got impleaded as additional/second plaintiff. 7. The 3[rd] defendant in O.S.No.307/1990, is Kollam Municipal Corporation. Corporation filed written statement and contended that, Corporation is not a necessary party in the suit and Corporation got impleaded as additional 3[rd] defendant, without any justification. 8. It is relevant to note that, earlier, the learned Munsiff, after having joint trial of both suits, dismissed ``` RSA NOS. 67 OF 2019 ``` ``` & 607 OF 2012 8 ``` O.S.No.307/1990 and decreed O.S.No.696/1990. The said common verdict was challenged by filing A.S.No.72/1999 and A.S.No.36/2000 before the District Court, Kollam and as per common judgment, dated 24.8.2005, the learned Additional District Judge set aside the respective decree and judgment and finally remanded the matter for fresh consideration, after measuring the property, as stated in Paragraph No.11 of the judgment. This fact is specifically pointed out by Smt.Sumathi Dandapani, the learned Senior counsel, who appears for the appellant, while pressing for admission of these appeals. Paragraph No.11 is extracted as under: _“11. The disputed properties in old survey No.6184 are part of 79 cents as a whole. Twenty five cents from 79 cents were excluded and the balance 54 cents were partitioned under Ext.A1. Therefore in order to locate 54 cents, 79 cents has to be first located and fixed based on the old plan. Then the plots given to sharers including plaint properties have to be located based on the links measurements or equivalent meters to be shown in the plan.”_ ``` RSA NOS. 67 OF 2019 ``` ## **`& 607 OF 2012 9`** 9. Obviously, after remand, the learned Munsiff appointed another Commissioner and Surveyor and in turn, the Commissioner and Surveyor filed Ext.C5 report, Ext.C5(a) mahazar and Ext.C5(b) plan. Accordingly, the learned Munsiff considered the evidence as that of PW1 and PW2 and Exts.A1 to A11(a) on the side of Kamalamma and Exts.C1 to C4 series marked before remand. After remand, CW1, the Commissioner was examined and Ext.C5 series also were marked. No evidence let in by the other side before or after remand. 10. On hearing both sides, the learned Munsiff dismissed O.S.No.696/1990 and decreed O.S.No.307/1990 as under: ## _“24._ _**Issue No. 2 in 0.S. 696/90 and Issue**_ _**No. 9 in 0.S. 307/90:** - In the result 0.S. 696/90 is dismissed and 0.S.307/90 is decreed fixing the northern boundary of plaint A schedule property having an extent of 9 cent is at O-L line in Ext.C5(b) plan. The title of plaintiff over B schedule having an extent of .34 sq. metre which is shown in blue shade in Ext.C5(b) plan is declared in favour_ ``` RSA NOS. 67 OF 2019 ``` ## **`& 607 OF 2012 10`** _of plaintiffs in O.S. 307/90 and the plaintiff is allowed to recover the same from the defendants after getting demolished the structures in the said portion, through the process of court. The defendants in O.S. 307/90 are restrained from trespassing upon the plaint A schedule and making any alteration to the boundaries of the property and also from doing any wastes or mischief therein. Ext.C5(b) plan shall be appended with the decree. In the facts of the case no order as to costs.”_ 11. Aggrieved by the common judgment and decree, dated 29.9.2007, passed after remand, Kamalamma filed A.S.Nos.272/2007 and 273/2007. The learned Additional District Judge re-appreciated the evidence and finally concurred the finding of the trial court and dismissed the appeals. 12. While pointing out anomaly in Ext.C5(b) plan as well as Ext.C4 report and Ext.C4(a) mahazar, the learned Senior counsel appearing for Kamalamma submitted that, the direction given by the learned Additional District Judge, as per ``` RSA NOS. 67 OF 2019 ``` ``` & 607 OF 2012 11 ``` common judgment in A.S.Nos.72/1999 and 36/2000, dated 24.8.2005, was not fully complied, going by the location of the properties, as shown in Ext.C5(b) and in the evidence given by the Commissioner, there is omission on the part of the Commissioner, admittedly in locating 1.5 cents property provided for way. It is also submitted that the measurement is not in accordance with Ext.A1 partition deed description and much reliance was given by the Commissioner and Surveyor in the old survey plan to locate the property. It is also argued that, eventhough 1.5 cents of property is alleged to be encroached by Kamalamma, as per Ext.C5(b) plan, now, the dispute insofar as the encroachment is confined to 34 sq.mts. of property. It is also pointed out that, if the way is separately located, the said area should have been covered by the portion of way. Accordingly, the learned Senior counsel appearing for Kamalamma argued that, Ext.C5(b) plan relied upon by the trial court and the appellate court to grant decree in favour of Lakshmikutty Amma and to deny decree to Kamalamma, is not ``` RSA NOS. 67 OF 2019 ``` ``` & 607 OF 2012 12 ``` one sufficient to identify the properties and therefore, the concurrent verdicts would require interference. 13. The learned Standing Counsel appearing for Corporation in R.S.A.No.67/2019 submitted that, as of now, or otherwise, the dispute is, in fact, in between two siblings, covered by Ext.A1 and the Corporation has no role to meddle with the matter and also no relief sought against the Corporation. 14. The learned counsel appearing for Lakshmikutty Amma pointed out that, the argument tendered by the learned Senior counsel appearing for Kamalamma, is based on wrong assumption of facts and evidence. It is specifically pointed out that the anomaly in Ext.C5 series report and plan, is one raised for the first time, even without filing a detailed or a formal objection to the same, before the trial court. It is also submitted that, the argument mainly confined in the matter of appreciation of facts and no substantial question of law, as provided under Section 100 r/w Order XLII Rule 2 of the Code ``` RSA NOS. 67 OF 2019 ``` ``` & 607 OF 2012 13 ``` of Civil Procedure (for short, ‘the C.P.C.’ hereinafter) arises for admitting these appeals and as such, both these appeals deserve dismissal without being admitted. 15. On appraisal of the rival contention, I have gone through the observation of the learned Additional District Judge while considering the earlier appeals, viz., A.S.Nos.72/1999 and 36/2000, by which, the earlier common judgment and decrees rendered in these cases, were set aside and the matter remanded back to the trial court. As per paragraph No.11 of the common judgment, which is extracted hereinabove, the trial court was directed to obtain a fresh plan and report, assisted by the Surveyor to decide the case afresh. On perusal of Ext.C5(b) plan, it could be noticed that, in Ext.C5(b), the total extent of 79 cents of property included in old Sy.No.6184, specifically located first. Then A,F,G,H,J,A is located as property, having an extent of 54 cents in old Sy.No.6184. Similarly, 25 cents also located as A,B,C,D,E,F,A plot. Thereafter, the Commissioner and Surveyor located the ``` RSA NOS. 67 OF 2019 ``` ## **`& 607 OF 2012 14`** properties as per the extent shown in Ext.A1, in tune with the old survey plan pertaining to old Sy.No.6184. It was found that, 11 cents of property allotted to Krishnan Nair is G,K,J,F,L,O plot. Similarly, the property allotted to Appukkuttan Pillai is located as O,L,Q,P plot and it was found that the extent of the same is in excess by 34 sq.mts. which do form part of the property allotted to Krishnan Nair, as per Ext.A1. The remaining shares as per Ext.A1 also were specifically located inside 54 cents, which form part of 79 cents. The main plank of attack against Ext.C5(b), is based on the evidence given by the Commissioner. It is relevant to note that, no objection filed to the Commissioner report before the trial court. However, the learned Senior counsel for Kamalamma is banking on the evidence given by CW1 to find anomaly of Ext.C5(b) plan contending that there is failure on the part of the Commissioner and Surveyor to locate 1.5 cents property provided as way. 16. In these matters, while dealing with the sufficiency ``` RSA NOS. 67 OF 2019 ``` ``` & 607 OF 2012 15 ``` of Ext.C5 report with particular mention to Ext.C5(b)plan, the trial court found that there is no lesser extent in the entire property coming to 79 cents and all the shareholders possessing their property within well defined boundaries. The extent of the property allotted to Lakshmikutty Amma alone was found to be shortage in extent, at the same time, it was found that the property of Krishnan Nair/Kamalamma, is in excess of 11 cents. This is the fundamental base, on which, the trial court found that 34 sq.mts. of property, now in possession of Krishnan Nair, is portion of plaint A schedule in O.S.No.307/1990 specifically scheduled as plaint B item. Accordingly, the trial court dismissed O.S.No.696/1990 and allowed O.S.No.307/1990, fixing O-L line in Ext.C5(b) plan, as the boundary line, separating the properties of Lakshmikutty Amma and Krishnan Nair/Kamalamma. Though appeals filed before the appellate court, the learned Additional District Judge concurred the finding, accepting the finding of the trial court. ``` RSA NOS. 67 OF 2019 ``` ``` & 607 OF 2012 16 ``` 17. Now, the question is, how far the anomaly pointed out by the learned Senior counsel for Kamalamma, would make the plan, Ext.C5(b), not acceptable for granting decree? First of all, it has to be observed that Kamalamma did not file any objection to Ext.C5 series. As such, the challenge now raised is even without filing a formal objection to the Commission Report. On perusal of Ext.C5(b) plan, it is crystal clear that, as per the direction issued by the learned Additional District Judge in the earlier appeals, the Commissioner located 79 cents of property in old Sy.No.6184 and thereafter, 54 cents also was separately located. It was thereafter, the shares allotted to each parties including 11 cents allotted to Krishnan Nair/Kamalamma and 9 cents allotted to Lakshmikutty Amma, were separately located. It is true that, at the time of examination of CW1, the Commissioner given evidence that 1.5 cents property provided for a way, was not specifically located. In fact, the same is not at all fatal to act upon Ext.C5(b) plan, in any manner. The ``` RSA NOS. 67 OF 2019 ``` ``` & 607 OF 2012 17 ``` rationale is, as per Ext.C5(b) plan, the total extent of property of 79 cents was located and thereafter, the shares of each parties were located within 54 cents. If so, as per the partition deed, Krishnan Nair/Kamalamma, could not get more property than 11 cents and therefore, 34 sq.mts. of property found in possession of Krishnan Nair/Kamalamma, is part and parcel of 11 cents of property allotted to Lakshmikutty Amma and in such view of the matter, it has to be held that, Appukkuttan Pillai and in turn, Lakshmikutty Amma perfected title over 11 cents of property, inclusive of 34 sq.mts of property. If so, the title of Lakshmikutty Amma is to be declared in respect of the entire extent of property including 34 sq.mts. As a sequel thereof, recovery of possession of the same also was rightly allowed by the trial court and concurred by the appellate court. 18. Thus, it is obvious that, in these cases, no substantial question of law to be formulated to admit and maintain these second appeals. Order XLII Rule 2 provides thus: ``` RSA NOS. 67 OF 2019 ``` ## **`& 607 OF 2012 18`** _**“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.”_ 19. 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 ``` RSA NOS. 67 OF 2019 ``` ``` & 607 OF 2012 19 ``` 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. 20. 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_ ``` RSA NOS. 67 OF 2019 ``` ``` & 607 OF 2012 20 ``` _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 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_ ``` RSA NOS. 67 OF 2019 ``` ## **`& 607 OF 2012 21`** _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 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_ ``` RSA NOS. 67 OF 2019 ``` ``` & 607 OF 2012 22 ``` _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 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_ ``` RSA NOS. 67 OF 2019 ``` ## **`& 607 OF 2012 23`** _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._ 21. 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_ ``` RSA NOS. 67 OF 2019 ``` ``` & 607 OF 2012 24 ``` _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._ 22. 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 ``` RSA NOS. 67 OF 2019 ``` ## **`& 607 OF 2012 25`** 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. 23. In view of the above fact, no substantial question of law arises in these matters to be decided by admitting these appeals. 24. In the result, these appeals are found to be meritless and the same are dismissed without being admitted. ``` RSA NOS. 67 OF 2019 ``` ``` & 607 OF 2012 26 ``` All interlocutory applications pending in these regular second appeals, stand dismissed. Registry shall inform this matter to the trial court as well as the appellate court, forthwith. Sd/- **A. BADHARUDEEN JUDGE** Bb