NIZAMUDEEN and NADEERA v. ABDUL RAHIM

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` THURSDAY, THE 21[ST] DAY OF SEPTEMBER 2023 / 30TH BHADRA, 1945 ``` ## **`RSA NO. 582 OF 2023`** ``` AGAINST THE DECREE AND JUDGMENT IN OS NO.127/2013 OF MUNSIFF- ``` ``` MAGISTRATE COURT, SASTHAMCOTTA ``` ``` AS NO.28/2020 OF SUB COURT, KARUNAGAPPALLY ``` ## **`APPELLANTS/APPELLANTS/DEFENDANTS:`** ``` 1NIZAMUDEEN AGED 63 YEARS S/O. PAREEDKUTTY RESIDING AT CHEPPALLI VILAYIL, PALLISSERICKAL MURI, SASTHAMCOTTA VILLAGE, KUNNATHUR TALUK, KOLLAM DISTRICT, PIN - 690540 2NADEERA AGED 51 YEARS W/O. NIZAMUDEEN RESIDING AT CHEPPALLI VILAYIL, PALLISSERICKAL MURI, SASTHAMCOTTA VILLAGE, KUNNATHUR TALUK, KOLLAM DISTRICT, PIN - 690540 BY ADVS. S.SREEKUMAR (KOLLAM) K.VIJAYAN NAMITHA RAJESH ``` ## **`RESPONDENT/RESPONDENT/PLAINTIFF:`** ``` ABDUL RAHIM AGED 66 YEARS S/O. MYTHEENKUNJU RESIDING AT MUNEER MANZIL, PALLISSERICKAL MURI, SASTHAMCOTTA VILLAGE, KUNNATHUR TALUK, KOLLAM DISTRICT, PIN - 690540 BY ADVS. THOMAS ABHRAHAM (CAVEATOR), MERCIAMMA MATHEW(K/709/2002) ASWIN.P.JOHN(K/324/2013) R.ANANTHAPADMANABAN(K/000058/2017) PAUL BABY(K/1390/2021) SWATHY A.P.(K/001801/2021) ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NO. 582 OF 2023 2 ``` ## **JUDGMENT** Dated this the 21[st] day of September, 2023 This appeal has been filed under Section 100 r/w Order XLII Rule 1 to 3 of the Code of Civil Procedure (for short, ‘the C.P.C.’ hereinafter) against the decree and judgment in A.S.No.28/2020, dated 24.7.2023 on the files of the Sub Judge, Karunagappally and also against the judgment and decree, dated 21.12.2009 in O.S.No.127/2013 on the files of the Munsiff Court, Sasthamcotta. 2. The appellants herein are the defendants in the above suit and the appellants in A.S.No.28/2020. 3. Heard the learned counsel for the appellants as well as the learned counsel for the respondent. 4. I shall refer the parties in this appeal as ‘plaintiff’ and ‘defendants’ for convenience. 5. The case put up by the plaintiff before the trial court was that, the plaintiff obtained exclusive title and possession over the plaint schedule property, having an ## **`RSA NO. 582 OF 2023 3`** extent of 2.2 Ares along with shop rooms situated therein, based on sale deed No.3301/2008 of Sasthamcotta SRO. There were litigation between the parties prior to the present suit. Two suits viz., O.S.Nos.140/2008 and 322/2008 were filed by the appellants herein/defendants. While rendering judgments in the above suits, the suit for setting aside sale deed No.3301/2008 (the sale deed in favour of the plaintiff in the present suit) was dismissed by the trial court and it was found that the appellants herein/defendants in the present suit, are in possession of the scheduled shop room. 6. After passing decrees in the above suits, the plaintiff approached the trial court and sought to evict the defendants from the shop rooms, in fact, covered by the decrees in O.S.Nos.140/2008 and 322/2008. 7. Though the defendants resisted the suit, on analysis of evidence, which is confined to PW1 and PW2 and Exts.A1 to A8 on the part of the plaintiff and DW1 and Exts.B1 to B8 were marked on the side of the defendants, the trial court decreed the suit as under: ``` RSA NO. 582 OF 2023 4 ``` _“In the result, the suit is decreed as follows:_ _(1) Defendants are hereby directed to surrender vacant possession of the plaint schedule shop room within 30 days from the date of decree failing which the plaintiff can have recourse to the process of law for getting them evicted._ _(2) Defendants or persons under them are hereby restrained by a permanent prohibitory injunction from causing any damage to the petition schedule shop room and from trespassing on it._ _(3) Considering the facts and circumstances of the case, there is no order as to costs.”_ 8. Eventhough the defendants herein filed appeal as A.S.No.28/2020 before the Sub Court, Karunagappally, the learned Sub Judge also concurred the finding concurrently. 9. At the time of hearing this appeal on admission, the learned counsel for the appellants herein/defendants would submit that the plaint schedule shop rooms could not be identified, but the said submission appears to be devoid of any merits, since identity of the plaint schedule rooms was well found in ## **`RSA NO. 582 OF 2023 5`** the earlier decrees in O.S.Nos.140/2008 and 322/2008. Despite this contention, nothing argued to admit the appeal to formulate and decide any substantial question of law. Therefore, it appears that the attempt of the appellants herein/defendants is to avoid eviction and no substantial question of law involved in this matter. 10. In the earlier suits, the prayer for setting aside the sale deed in favour of the plaintiff herein was disallowed and the same attained finality. Though possession of the appellants/defendants over the shop rooms, sought to be evicted, was found, the right of the respondent herein to get eviction of the defendants from the so called shop rooms, is legally sustainable and the present suit is one founded on the said cause of action, that too, after dismissal of the earlier suits, is liable to succeed as found by the trial court as well as the appellate court. 11. In this matter, on perusal of the judgments and decrees impugned, the title holder of the property as plaintiff, filed a suit for eviction and the trial court as well as the appellate court rightly decreed the same and ``` RSA NO. 582 OF 2023 6 ``` the plaint schedule items being shop rooms, could be well identifiable and also the same are covered by the decrees passed in the earlier suits. 12. 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 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.”_ 13. 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 ``` RSA NO. 582 OF 2023 7 ``` 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. 14. 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_ ``` RSA NO. 582 OF 2023 8 ``` _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 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."_ ``` RSA NO. 582 OF 2023 9 ``` _"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 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."_ ``` RSA NO. 582 OF 2023 10 ``` _"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 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_ ``` RSA NO. 582 OF 2023 11 ``` _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._ 15. 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 in the Code. The word substantial, as qualifying “question of law”, means – of having substance, essential, real, of sound worth, important or considerable. It_ ``` RSA NO. 582 OF 2023 12 ``` _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._ 16. 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 ``` RSA NO. 582 OF 2023 13 ``` 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. 17. In view of the above fact, no substantial question of law arises in this matter to be decided by admitting this appeal. 18. In the result, this appeal is found to be meritless and the same is dismissed without being admitted. At the time of dismissal, the learned counsel for the defendants/appellants herein sought a breathing time to surrender the vacant possession of shop rooms. Having considered the said prayer, in consensus with the other side, I am inclined to grant one month time from today to vacate the shop rooms voluntarily, provided the ``` RSA NO. 582 OF 2023 14 ``` appellants shall file an affidavit before the Execution Court to that effect, within a period of 10 days from today. If at all, the undertaking is not filed or else, the appellants did not vacate the building, as directed within 30 days from today, the Execution Court is at liberty to execute the decree, without fail. Sd/- **A. BADHARUDEEN JUDGE** Bb