Padeeri Komalavalli and Ambili v. Sulochana Amma and others (RSA No. 343 of 2023)

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT ## THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 2[ND] DAY OF NOVEMBER 2023 / 11TH KARTHIKA, 1945 ## RSA NO. 343 OF 2023 AGAINST THE ORDER/JUDGMENT OS 120/2012 OF MUNSIFF COURT, TIRUR AS 80/2015 OF SUB COURT, TIRUR ## APPELLANT/APPELLANTS/DEFENDANTS 2 & 3: 1 PADEERI KOMALAVALLI AGED 58 YEARS W/O JAYACHANDRAN AMBADI VALIYAVEETTIL HOUSE THEKKANKUTTOOR AMSOM DESOM TIRUR TALUK MALAPPURAM DISTRICT, PIN - 676551 2 AMBILI AGED 29 YEARS D/O PADEERI KOMALAVALLI AMBADI VALIYAVEETTIL HOUSE THEKKANKUTTOOR AMSOM DESOM TIRUR TALUK MALAPPURAM DISTRICT, PIN - 676551 BY ADVS. JAMSHEED HAFIZ K.K.NESNA T.S.SREEKUTTY ## RESPONDENTS/RESPONDNETS/PLAINTIFFS & DEFENDANTS 1, 4 TO 6: 1 SULOCHANA AMMA, AGED 84 YEARS, D/O AMBADI VALIYAVEETTIL PARVATHIKUTTY AMMA THEKKANKUTTOOR AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676551 2 RADHA AMMA, AGED 82 YEARS, D/O AMBADI VALIYAVEETTIL PARVATHIKUTTY AMMA THEKKANKUTTOOR AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676551 3 RAMAKRISHNAN NAIR, AGED 78 YEARS, S/O AMBADI VALIYAVEETTIL PARVATHIKUTTY AMMA THEKKANKUTTOOR AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676551 4 BALAN NAIR, AGED 71 YEARS, S/O AMBADI VALIYAVEETTIL PARVATHIKUTTY AMMA THEKKANKUTTOOR AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676551 ``` RSA NO. 343 OF 2023 ``` ``` 2 ``` 5 KARUNAKARAN NAIR, AGED 69 YEARS, S/O AMBADI VALIYAVEETTIL PARVATHIKUTTY AMMA THEKKANKUTTOOR AMSOM DESOM, TIRUR TALUK, MALAPPURAM, DISTRICT, PIN - 676551 - 6 SATHEESH, AGED 53 YEARS, S/O SULOCHANA AMMA AMBADI VALIYAVEETTIL THEKKANKUTTOOR AMSOM DESOM, TIRUR TALUK ,MALAPPURAM DISTRICT, PIN - 676551 - 7 RAVEENDRANATHAN, AGED 57 YEARS, S/O RADHA AMMA AMBADI VALIYAVEETTIL THEKKANKUTTOOR AMSOM DESOM TIRUR TALUK MALAPPURAM DISTRICT, PIN - 676551 - 8 RAMACHANDRAN, AGED 55 YEARS, S/O RADHA AMMA AMBADI VALIYAVEETTIL THEKKANKUTTOOR AMSOM DESOM, TIRUR TALUK MALAPPURAM DISTRICT, PIN - 676551 - 9 GEETHA, AGED 53 YEARS, D/O RADHA AMMA AMBADI VALIYAVEETTIL THEKKANKUTTOOR AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676551 - 10 SUTHA AGED 50 YEARS - D/O RADHA AMMA AMBADI VALIYAVEETTIL THEKKANKUTTOOR AMSOM DESOM TIRUR TALUK MALAPPURAM DISTRICT, PIN - 676551 - 11 KAMALADEVI AMMA, AGED 90 YEARS, D/O AMBADI VALIYAVEETTIL LAKSHMIKUTTY AMMA, THEKKANKUTTOOR AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676551 - 12 KUNCHUNNI ALIAS UNNI, AGED 65 YEARS, S/O KAMALADEVI AMMA AMBADI VALIYAVEETTIL, THEKKANKUTTOOR AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676551 - 13 VIJAYAN (DIED), S/O KAMALADEVI AMMA AMBADI VALIYAVEETTIL, THEKKANKUTTOOR AMSOM DESOM TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676551 - 14 CHANDRASEKHARAN, ``` RSA NO. 343 OF 2023 ``` ``` 3 ``` AGED 61 YEARS, S/O KAMALADEVI AMMA AMBADI VALIYAVEETTIL, THEKKANKUTTOOR AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676551 - 15 SANTHAKUMARI, AGED 59 YEARS, D/O KAMALADEVI AMMA AMBADI VALIYAVEETTIL, THEKKANKUTTOOR AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676551 - 16 ADUSSERY SREEDEVI AMMA, AGED 67 YEARS, D/O LATE AMBADI VALIYAVEETTIL KUTTIKRISHANAN NAIR, THEKKANKUTTOOR AMSOM DESOM TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676551 - 17 PRABHAKARAN NAIR, AGED 73 YEARS, S/O LATE AMBADI VALIYAVEETTIL NARAYANAN NAIR EDAYUR, VALANCHERY, MALAPPURAM DISTRICT, PIN - 676552 - 18 KONGATTIL KARTHIAYANI AMMA, AGED 88 YEARS, - W/O LATE AMBADI VALIYAVEETTIL PADAMANABHAN NAIR, THEKKANKUTTOOR AMSOM DESOM TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676551 - 19 KRISHNADAS, AGED 58 YEARS, S/O KONGATTIL KARTHIAYANI AMMA AMBADI VALIYAVEETTIL, THEKKANKUTTOOR AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676551 - 20 PADMAN, AGED 56 YEARS, S/O KONGATTIL KARTHIAYANI AMMA AMBADI VALIYAVEETTIL, THEKKANKUTTOOR AMSOM DESOM TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676551 - 21 PRASAD, AGED 54 YEARS, S/O KONGATTIL KARTHIAYANI AMMA AMBADI VALIYAVEETTIL, THEKKANKUTTOOR AMSOM DESOM TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676551 - 22 PADIKKAL KOLLANNUR JANAKI AMMA, AGED 78 YEARS, W/O LATE VALIYAVEETTIL KESAVAN NAIR, THAVANNOOR AMSOM, KADAKKASSERY DESOM, PONNANI TALUK, MALAPPURAM DISTRICT, PIN - 679573 - 23 MOHANDAS, AGED 53 YEARS, ``` RSA NO. 343 OF 2023 ``` ``` 4 ``` ||S/O PADIKKAL KOLLANNUR JANAKI AMMA AMBADI,| |---|---| ||VALIYAVEETTIL, THAVANOOR AMSOM, KADAKASSERY DESOM,| ||PONNANI TALUK, MALAPPURAM DISTRICT, PIN - 679573| |24|INDIRA,| ||AGED 50 YEARS,| ||D/O PADIKKAL KOLLANNUR JANAKI AMMA AMBADI,| ||VALIYAVEETTIL, THAVANOOR AMSOM, KADAKKASSERY DESOM,| ||PONNANI TALUK, MALAPPURAM DISTRICT, PIN - 679573| |25|SATHI,| ||AGED 48 YEARS,| ||D/O PADIKKAL KOLLANNUR JANAKI AMMA AMBADI,| ||VALLIYAVEETTIL, THAVANOOR AMSOM, KADAKKASSERY| ||DESOM PONNANI TALUK, MALAPPURAM DISTRICT, PIN - 679573| |26|SINDHU| ||AGED 46 YEARS| ||D/O PADIKKAL KOLLANNUR JANAKI AMMA AMBADI| ||VALLIYAVEETTIL, THAVANOOR AMSOM, KADAKASSERY DESOM,| ||PONNANI TALUK MALAPPURAM DISTRICT, PIN - 679573| |27|LATHA,| ||AGED 41 YEARS,| ||W/O DHARMAN AMBADI, VALIYAVEETTIL THEKKANKUTTOOR| ||AMSOM DESOM TIRUR TALUK MALAPPURAM DISTRICT, PIN -| ||676551| |28|SARANYA,| ||AGED 18 YEARS,| ||D/O LATHA AMBADI VALIYAVEETTIL THEKKANKUTTOOR| ||AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN -| ||676551| |29|SREYA,| ||AGED 14 YEARS,| ||D/O LATHA AMBADI, VALIYAVEETTIL THEKKANKUTTOOR,| ||AMSOM DESOM TIRUR TALUK MALAPPURAM DISTRICT MINOR| ||REPRESENTED BY MOTHER LATHA W/O DHARMAN AMBADI| ||VALIYAVEETTIL THEKKANKUTTOOR AMSOM DESOM TIRUR| ||TALUK MALAPPURAM DISTRICT, PIN - 676551| |30|RUGMINI,| ||AGED 74 YEARS,| ||W/O SREEDHARAN NAIR AMBADI VALIYAVEETTIL,| ||NADUVATTOM AMSOM, THIRUVEGAPPURA DESOM,| ||OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN - 679308| |31|PARVATHY DEVY,| ||AGED 52 YEARS,| ||D/O RUGMINI AMBADI VALIYAVEETTIL NADUVATTOM AMSOM| ||THIRUVEGAPPURA DESOM, OTTAPPALAM TALUK, PALAKKAD| ||DISTRICT, PIN - 679308| ``` RSA NO. 343 OF 2023 ``` ``` 5 ``` 32 JAYACHANDRAN, AGED 50 YEARS, S/O RUGMINI AMBADI, VALIYAVEETTIL NADUVATTOM AMSOM, THIRUVEGAPURAM DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN - 679308 33 MANIKANDAN AGED 47 YEARS S/O RUGMINI AMABADI VALLIYAVEETTIL NADUVATTOM AMSOM THIRUVEGAPPURA DESOM OTTAPPALAM TALUK PALAKKAD DISTRICT, PIN - 679308 - 34 P RATHNAKUMARI AGED 71 YEARS W/O VASUDEVAN NAIR AMBADI VALLIYAVEETTIL PAIKANNUR AMSOM VALANCHERY DESOM TIRUR TALUK MALAPPURAM DISTRICT, PIN - 679577 35 VINEETHA, AGED 45 YEARS, D/O P. RATHNAKUMARI AMBADI, VALLIYAVEETTIL PAIKANNUR AMSOM VALANCHERY DESOM TIRUR TALUK MALAPPURAM DISTRICT, PIN - 679557 36 NAVEEN, AGED 42 YEARS, D/O.P RATHNAKUMARI AMBADI, VALLIYAVEETTIL PAIKANNUR AMSOM, VALANCHERY DESOM, TIRUR TALUK, MALAPPURM DISTRICT, PIN - 679557 37 JAYACHANDRAN AGED 78 YEARS S/O AMBADI VALIYAVEETTIL SULOCHANA AMMA THAVANOOR AMSOM KADAKKESSERY DESOM MALAPPURAM DISTRICT, PIN - 679573 38 SURESHKUMAR AGED 56 YEARS S/O AMBADI VALLIYAVEETTIL SULOCHANA AMMA THAVANOOR AMSOM KADAKASSERY DESOM MALAPPURAM DISTRICT, PIN - 679573 39 KALIYANIKUTTY AMMA AGED 62 YEARS S/O AMBADI VALLIYAVEETTIL SULOCHANA AMMA THAVANOOR AMSOM KADAKKASSERY DESOM MALAPPURAM DISTRICT, PIN - 679573 40 SUMATHI AMMA AGED 55 YEARS D/O LATE AMBADI VALLIYAVEETTIL KESAVAN THAVANOOR AMSOM KADAKASSERY DESOM MALAPPURAM DISTRICT, PIN - 679573 ``` RSA NO. 343 OF 2023 ``` ``` 6 ``` 41 KAMALA KRISHNAN AGED 59 YEARS W/O LATE AMBADI VALIYAVEETTIL VIJAYAN AMBADI VALIYAVEETTIL HOUSE THEKKANKUTTOOR AMSOM DESOM TIRUR TALUK MALAPPURAM DISTRICT, PIN - 676551 42 AJAY KRISHNAN AGED 39 YEARS S/O LATE AMBADI VALIYAVEETTIL VIJAYAN AMBADI VALIYAVEETTIL HOUSE THEKKANKUTTOOR AMSOM DESOM TIRUR TALUK MALAPPURAM DISTRICT, PIN - 676551 43 JAYAKRISHNAN AGED 37 YEARS S/O LATE AMBADI VALIYAVEETTIL VIJAYAN AMBADI VALIYAVEETTIL HOUSE THEKKANKUTTOOR AMSOM DESOM TIRUR TALUK MALAPPURAM DISTRICT, PIN - 676551 BY ADVS. M.DEVESH Nirmal S ROSE MARIYAT JOSE(K/001639/2023) VEENA HARI(K/775/2006) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` RSA NO. 343 OF 2023 ``` ``` 7 ``` ## JUDGMENT Dated this the 2[nd] day of November, 2023 This second appeal has been filed under Sec.100 r/w order XLII Rule 1 of the Code of Civil Procedure challenging the decree and judgment in AS No.80/2015, on the files of the Sub Court, Tirur and Decree and Judgment dated 30.06.2015 in OS No.120/2012 on the files of Munsiff Court, Tirur. 2. The appellants herein are defendant Nos.2 & 3 and respondents are ‘plaintiffs’ and defendants 1, 4 to 6. 3. Heard the matter on admission. 4. I shall refer the parties as per their status before the trial courts as ‘plaintiffs’ and ‘defendants’, hereafter for easy reference. 5. To be on the crux of the matter, a suit for partition was filed seeking partition of the plaint ‘B’ schedule property in between plaintiffs 1 to 5 and defendants 1 and 4 to 43, who are sharers. 6. First defendant filed written statement and resisted the suit. Similarly, 2[nd] and 3[rd] defendants who are the appellants herein filed written statement mainly raising contentions as follows: The main contention at their option is that the 2[nd] defendant is the wife of 1[st] defendant, and 3[rd] defendant is the daughter of 1[st] defendant and the ``` RSA NO. 343 OF 2023 ``` ``` 8 ``` house situated in the plaint schedule property is the shared household where defendant Nos. 2 & 3 are having right of residence, as provided under the Protection of Women from Domestic Violence Act, 2005 (DV Act for short). Therefore the said right also will have to be adjudicated by resorting to Sec.26 of the DV Act. 9. Trial court raised necessary issues. PW1 examined and Exts.A1 and A2 were marked on the side of the plaintiffs. DW1 and DW2 examined and Exts.B1 to B5 were marked on the side of the defendants. Ultimately, preliminary decree of partition was passed as under: i. The plaint B schedule property shall be divided into 27 (Twenty seven) equal shares by metes and bounds. ii. The plaintiffs and defendant Nos. 4 to 6 are jointly entitled to get 26 (Twenty six) shares out of such 27 in the plaint B schedule property, iii. The first defendant is entitled to get 1 (one) share out of such 27 shares in the plaint B schedule property iv. Whether the house in the plaint B schedule property can be allotted to the share of the first defendant as equity is relegated for decision in the final decree proceedings. v. Parties who paid court fee for separate allotment of the share are entitled to apply for passing a final decree. vi. The cost of the suit will come out of the estate. vii. The suit is adjourned sine die. Though appeal preferred and the same was dismissed. 10. At the time of hearing, it is submitted by the learned counsel for the appellants that even though defendants no.2 & 3 are not sharers, ``` RSA NO. 343 OF 2023 ``` ``` 9 ``` entitled for partition, the right of defendants 2 & 3 to reside in the shared house situated in the plaint ‘B’ schedule property, in terms of the Domestic Violence Act, to be protected. But this contention was not addressed by the trial court as well as the appellate court. Therefore, the appellants are aggrieved and this court has to address the said claim. 11. Repelling this contention, the learned counsel for the contesting respondents submitted that the same contention was raised before the Judicial First Class Magistrate Court-I, Tirur in MC No.107/2011. As per order dated 16.01.2013, the learned Magistrate dismissed the application and the said order has become final. He also placed decision of the Apex Court reported in [ AIR 2017 SC 2926] in Vaishali Abhimanyu Joshi Vs. Nanasaheb Gopal Joshi and read out paragraph No.36 therein, to contend that in terms of Sec.26 of the DV Act, Civil Court cannot address residential order even otherwise. In paragraph No.36 of the above judgment, the Apex Court held as under: “36. Section 26 of the Act, 2005 has to be interpreted in a manner to effectuate the very purpose and object of the Act. Unless the determination of claim by an aggrieved person seeking any order as contemplated by Act, 2005 is expressly barred from consideration by a civil court, this Court shall be loath to read in bar in consideration of any such claim in any legal proceeding before the civil court. When the proceeding initiated by plaintiff in the Judge, Small Causes Court alleged termination of gratuitous licence of the appellant and prays for restraining the appellant from using the suit flat and permit the plaintiff to enter and use the flat. ``` RSA NO. 343 OF 2023 ``` ``` 10 ``` the right of residence as claimed by the appellant is interconnected with such determination and refusal of - consideration of claim of the appellant as raised in her counter claim shall be nothing but denying consideration of claim as contemplated by Section 26 of the Act, 2005 which shall lead to multiplicity of -proceeding, which cannot be the object and purpose of Act, 2005.” 12. In this matter, admittedly defendants 2 & 3 are not sharers to the property and they are wife and daughter of the 1[st] defendant, who is one among the sharers. On perusal of the order in MC No.107/2011 filed by the 2[nd] defendant before the JFCM-I Court, Tirur, the petitioner sought the relief of residence order alleging domestic violence and also raising contention that the building in the plaint ‘B’ schedule item is a shared household, wherein, right of residence of defendants 2 & 3 required to be protected. 13. On meticulous analysis of evidence rendered, confined that of PW1, RW1 & 2 and Ext.D1 to D4, the learned Magistrate found that the 2[nd] defendant, who is the petitioner in the above MC, miserably failed to prove either domestic violence or the house in the plaint ‘B’ schedule herein also as a shared household and accordingly, the said petition was dismissed. Now, the said order has become final. 14. Therefore it has to be held that the contention raised by defendants 2 & 3, claiming right of residence, in the house situated in ``` RSA NO. 343 OF 2023 ``` ``` 11 ``` plaint B schedule property, was found against by the Magistrate in a properly instituted proceedings before the proper forum and that has become final. Therefore, the said claim cannot be re-agitated in this matter, and in view of this matter, no substantive question of law arises to admit and maintain this second appeal. 15. Thus no substantial question of law arises to be formulated to admit and maintain this second appeal. 16. 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.” 17. 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 ``` RSA NO. 343 OF 2023 ``` ``` 12 ``` 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. 18. 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. In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar , [ (1999) 3 SCC 722 ], the Apex Court held that: ``` RSA NO. 343 OF 2023 ``` ``` 13 ``` "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 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." "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 ``` RSA NO. 343 OF 2023 ``` ``` 14 ``` 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 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. ## 16. 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 ``` RSA NO. 343 OF 2023 ``` ``` 15 ``` 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. 17. 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, second appeal ``` RSA NO. 343 OF 2023 ``` ``` 16 ``` 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. 18. In view of the matter, no substantial question of law arises to be formulated in view of the mandate of Section 100 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. All interlocutory applications in this appeal are dismissed. sd/- A. BADHARUDEEN JUDGE Nsd