Muhammad Firoz v Grace Traders Partnership Firm and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 7[TH] DAY OF DECEMBER 2023/16TH AGRAHAYANA,** ## **1945** **RSA NO. 691 OF 2023** **AGAINST THE DECREE AND JUDGMENT DATED 19.01.2023 IN AS 69/2020 OF DISTRICT COURT, KOZHIKODE DECREE AND JUDGMENT DATED 02.02.2019 IN OS 138/2017 WITH COUNTER CLAIM OF II ADDITIONAL SUB COURT, KOZHIKODE** ## **APPELLANT/APPELLANT/DEFENDANT:** **MUHAMMAD FIROZ V AGED 54 YEARS S/O VAKKATIL SUBAIR, FLAT NO. 8D, RITZ MAREENA APARTMENT, BHATT ROAD, PUTHIYANGADI, WEST HILL P.O, KOZHIKODE, PIN - 673005** ## **BY ADV K.M.SATHYANATHA MENON** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS:** **1 M/S GRACE TRADERS PARTNERSHIP FIRM REGD. NO. 3045/2012 DOOR NO. 11/2279 B, CALICUT CERAMICS BUILDING, NEAR VOCATIONAL HIGHER SECONDARY SCHOOL, CHERUVANNUR, P.O. KOLATHARA, KOZHIKODE- 673655 ADDRESS NOW IS ROOM NO.17/1587 B, CPK COMPLEX, RAM MOHAN ROAD, CHINTHAVALAPPU, CALICUT P.O. PUTHIYARA, REPRESENTED BY ITS MANAGING PARTNER SOORAJ VENUGOPAL M.** **2 SOORAJ VENUGOPAL. M, AGED 47 YEARS S/O LATE. P.M. VENUGOPAL NAIR, CHELAVOOR, KOZHIKODE, PIN - 673008** **RSA NO. 691 OF 2023** **2** **3 ANOOP KUMAR. K AGED 58 YEARS S/O K. VELAYUDHAN, FLAT NO. 313 A, HI LITE METROMAX, NELLICODE, KOZHIKODE, PIN - 673016** **4 BINDHU P NAIR AGED 40 YEARS ANURAG HOUSE, W/O SOORA VENUGOPAL, CHELAVOOR, MAYANAD, KOZHIKODE, PIN - 673008** **5 SUSHINA. N. K AGED 45 YEARS FLAT NO. 313 A, W/O ANOOP KUMAR, HI LITE METROMAX, NELLICODE, KOZHIKODE, PIN - 673016** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA NO. 691 OF 2023** **3** ## **JUDGMENT** Dated this the 7[th] day of December, 2023 This regular second appeal has been filed under Section 100 read with Order XLII Rule 1 of the Code of Civil Procedure, challenging the decree and judgment dated 19.01.2023 in A.S.No.69/2020 on the files of the District Judge, Kozhikode and also the decree and judgment dated 02.02.2019 in O.S.No.138/2017 on the files of the Sub Court, Kozhikode. Appellant herein is the defendant in the above suit and the respondents are the plaintiffs. 2. Heard the learned counsel for the appellant on admission. 3. I shall refer the parties in this regular second appeal as 'plaintiffs' and 'defendant' for convenience. 4. The plaintiffs filed suit for realisation of Rs.10,00,000/- (Rupees ten lakh only) with interest. According to the plaintiffs, the plaintiffs placed order before **RSA NO. 691 OF 2023** **4** the defendant for the supply of cigarette lighters and accordingly, Rs.30,00,000/- (Rupees thirty lakh only) was paid as advance purchase price. Further case of the plaintiffs is that, the defendant miserably failed to deliver the same. Since the plaintiffs could not have documents to prove payment of more than Rs.10,00,000/-, the plaintiffs sought for decree to get back Rs.10,00,000/- paid for the purpose of supply of cigarette lights. 5. The defendant filed written statement along with counter claim on the specific contention that the defendant is entitled to get back Rs.7,67,000/- from the plaintiff since the defendant delivered goods worth Rs.32,67,000/- on receipt of Rs.25 lakh as advance. 6. The court below ventured the matter. PW1 examined and Exts.A1 to A12 were marked on the side of the plaintiffs. DW1 and DW2 examined and Exts.B1 to B3 were marked.Exts.X1 to X5 also were marked as court exhibits. Finally, the trial court found that the delivery of goods worth **RSA NO. 691 OF 2023** **5** Rs.32,67,000/- attempted to be established through the evidence of DW1 and DW2 and through Exts.X1 to X5 bills miserably failed, where the defendant admitted receipt of Rs.10,00,000/- claimed in the plaint. Accordingly, the trial court dismissed the counter claim and decreed the suit for Rs.10,00,000/- to be realised from the defendant at the rate of 18% interest. 7. It is discernible from the appeal memorandum that after passing the decree on 02.12.2009, the appellant did not file appeal in time. Later, the first appeal was filed along with a delay petition to condone the delay of 349 days. The appellate court, initially dismissed the delay petition and dismissed A.S.No.69/2020. Therefrom, RSA 37/2022 was filed and this court reversed the finding of the first appellate court and remanded the matter for fresh disposal. Thereafter, the first appellate court dismissed the appeal on merits and confirmed the finding of the trial court. 8. In the case at hand, the claim of the plaintiffs is **RSA NO. 691 OF 2023** **6** limited to Rs.10,00,000/-, on the submission that the defendant is liable to pay back Rs.10,00,000/- paid to the defendant as per Ext.A2 bank statement. Insofar as payment of Rs.10,00,000/- is admitted by the defendant and the case of the defendant is that he had supplied goods for Rs.32,67,000/- and Rs.7,67,000/- is due from the plaintiff, for which counter claim also was raised. In order to prove this contention, defendant examined DW1 and DW2 and tendered Exts.X1 to X5 documents in evidence. The trial court as well as the appellate court meticulously analysed the evidence of DW1 and DW2 and Exts.X1 to X5 and found that the said evidence in no way established the delivery of the goods, as contented by the defendants and therefore, the plaintiffs are entitled to get back the money. Accordingly, the suit was decreed and counter claim was dismissed. Though first appeal filed, no appeal filed against the dismissal of the counter claim. The counter claim raised would go to show that the defendant admitted receipt of Rs.25 lakh from the **RSA NO. 691 OF 2023** **7** plaintiff and delivered goods for Rs.32,67,000/-. But the defendant miserably failed to prove delivery of goods by convincing evidence. In fact, there is no illegality committed by the trial court as well as the appellate court in appreciating and re-appreciating the evidence. Therefore, this appeal does not deserve admission. 9. In this case, in fact, the learned counsel for the appellant/defendant failed to convince this Court on 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.”_ **RSA NO. 691 OF 2023** **8** 10. 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 be recorded, the appeal on any other substantial **RSA NO. 691 OF 2023** **9** question of law, not formulated by it, if it is satisfied that the case involves such question. 11. 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]** ._ 12. 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. 691 OF 2023** **10** _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._ 13. 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 **RSA NO. 691 OF 2023** **11** 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. 14. 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** nkr