SABU v. RAMAYYA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` MONDAY, THE 11[TH] DAY OF MARCH 2024 / 21ST PHALGUNA, 1945 ``` ``` RSA NO. 558 OF 2023 ``` ``` AGAINST THE DECREE AND JUDGMENT DATED 26.11.2022 IN A.S.NO.173/2019 ON THE FILES OF THE COURT OF THE ADDITIONAL DISTRICT JUDGE, IRINJALAKUDA AROSE FROM THE DECREE AND JUDGMENT DATED 15.12.2018 IN O.S.NO.239/2017 ON THE FILES OF THE MUNSIFF COURT, CHALAKUDY ``` ## **`APPELLANT/APPELLANT/DEFENDANT:`** ``` SABU AGED 52 YEARS, S/O.MARUTHOLIVEETIL KESAVAN, VALLATHUVAL DESOM, IDUKKI DISTRICT, NOW RESIDING AT PARIYARAM VILLAGE, MALAKKAPPARA DESOM, CHALAKUDY TALUK,THRISSUR DISTRICT, PIN - 680724 BY ADV N.L.BITTO ``` ## **`RESPONDENT/RESPONDENT/PLAINTIFF:`** ``` RAMAYYA AGED 67 YEARS RETIRED SPECIAL GRADE OFFICER, S/O. SUBAYYA, RESIDING AT TATA COMPANY LOWER DIVISION, MALAKKAPPARA VILLAGE, CHALAKUDY TALUK, THRISSUR DISTRICT, PIN - 680724 BY ADVS. M.R.REENA P.S.SUJETH(KAR/662/1999) P.A.ROY(R-714) ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR JUDGMENT ON 11.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` R.S.A. No. 558 of 2023 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 11[th] day of March, 2024** This regular second appeal has been filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter) challenging the decree and judgment in A.S. No.173 of 2019 dated 26.11.2022 on the files of the Court of the Additional District Judge, Irinjalakuda arose from the decree and judgment in O.S. No.239 of 2017 dated 15.12.2018 on the files of the Munsiff Court, Chalakudy. The appellant herein is the defendant and the respondent is the plaintiff in the above suit. 2. Heard the learned counsel for the appellant as well as the learned counsel appearing for the respondent, on admission. Perused the verdicts under challenge as well as the case records. 3. I shall refer the parties in this appeal with reference to their status before the trial court. 4. In this matter, the plaintiff filed the suit, seeking compensation from the defendant to the tune of Rs.1,00,000/- on the allegation that he sustained injuries, ``` R.S.A. No. 558 of 2023 ``` ``` 3 ``` including fracture, when he was obstructed by the defendant, while he was riding on his motor cycle, at about 12.45 pm on 07.04.2014. The further allegation is that, the defendant uttered obscene words and the plaintiff sustained fracture on his left hand, when the defendant beat him with heavy stones. The plaintiff was initially treated at Malakkappara Estate Hospital and thereafter at PSG Hospital, Coimbatore. The plaintiff also preferred a criminal case against the defendant alleging commission of offenses punishable under Sections 341, 294(b), 323 and 325 of IPC. 5. The defendant filed written statement and resisted the suit, mainly raising the plea of limitation and also denying the allegations in the plaint. Quantum of compensation also was disputed by the defendant. 6. The trial court recorded evidence and tried the matter after addressing rival contentions. PWs 1 to 3 examined and Exts.A1 to A6 marked on the side of the plaintiff. DW1 examined and Exts.B1 and B2 marked on the side of the defendant. Exts.X1 to X3 were also marked. 7. The trial court negatived the plea of limitation and addressed the claim of the plaintiff. Finally, it was found by ``` R.S.A. No. 558 of 2023 ``` ``` 4 ``` the trial court that the defendant is liable to pay compensation for damages on account of his fault. Accordingly, the trial court decreed the suit and granted Rs.11,500/- along with interest at the rate of 12% per annum from 05.04.2017 till 15.12.2018 and thereafter with interest at the rate of 6% per annum till realization from the defendant. 8. Though, appeal filed challenging the finding of the trial court, vide A.S. No.173/2019, the Appellate Court dismissed the appeal and confirmed the decree rendered by the trial court. 9. While attempting to upset the concurrent verdicts of the trial court as well as the Appellate Court, the learned counsel for the defendant submitted that, in the wound certificate produced as Ext.A3 prepared at PSG Hospital, Coimbatore, no injuries noted and the doctor who issued Ext.A3 was not examined. But the trial court as well as the Appellate Court relied on the evidence of PW2, who issued Ext.A6 disability certificate to the plaintiff, though during cross-examination, PW2 given evidence that he did not treat the plaintiff, to grant decree to the plaintiff. According to the ``` R.S.A. No. 558 of 2023 ``` ``` 5 ``` learned counsel for the defendant, the plaintiff and defendant were in rival terms prior to this occurrence and when the plaintiff fell down from the motor cycle and sustained injuries, he created a story by indulging the defendant as the offender and filed the suit without any basis. He also submitted that even though, as per Ext.A5 judgment in C.C. No.3689/2014 of JFCM, Chalakudy, the defendant was initially convicted and sentenced, in the appeal thereof, he was acquitted. The learned counsel for the defendant also submitted that no documents placed by the plaintiff to substantiate consultation or the treatment soon after the occurrence at Central Hospital, Malakkapara, as stated in Ext.A3. 10. The learned counsel for the plaintiff would submit that, soon after the occurrence, the plaintiff was taken to Tata Coffee Limited Central Hospital, Malakkappara and soon referred to PSG Hospital. Accordingly, the plaintiff got admitted in PSG Hospital at 8.35 pm on 07.04.2014, as stated in Ext.A3 wound certificate and the injuries also specifically noted in the wound certificate. The learned counsel for the plaintiff further submitted that, even though the author of Ext.A3 was not examined, while examining ``` R.S.A. No. 558 of 2023 ``` ``` 6 ``` PW2, who had issued Ext.A6 disability certificate, he stated that he had verified the wound certificate and discharge certificate before issuing Ext.A6 disability certificate. Therefore, the contention of the plaintiff was well established and thereby the trial court granted Rs.11,500 under the head ‘pain and sufferings’ alone and the said verdict was upheld by the Appellate Court. Therefore, the second appeal does not deserve admission, since no substantial question of law arises in this matter. 11. In so far as, the question of limitation is concerned, no challenge raised in this appeal and it appears that the finding of the trial court and the Appellate Court in holding the view that the suit is not barred by limitation is perfectly in order. 12. While addressing the arguments advanced by the learned counsel for the defendant, his submission mainly is that no records available to see immediate admission of the plaintiff in Tata Coffee Limited Central Hospital, Malakkappara. On perusing Ext.A3, the copy of wound certificate, it was stated therein that the plaintiff reached PSG Hospital, Coimbatore, after the consultation in Tata ``` R.S.A. No. 558 of 2023 ``` ``` 7 ``` Coffee Limited Central Hospital, Malakkappara. The trial court as well as the Appellate Court relied on the evidence of PW1 as regards to the occurrence and Exts.A3 to see his treatment at PSG Hospital. PW2, the doctor who issued Ext.A6 disability certificate, deposed that he had verified all treatment records prior to issuance of Ext.A6. However, the trial court found that no evidence is available to infer that the plaintiff sustained any permanent disability in this occurrence. 13. PW3, the Manager of the Malakkapara Tea Estate given evidence before the trial court that soon after the occurrence, the plaintiff lodged a petition before him and the same is Ext.X1 and Ext.X2 is the complaint lodged by the defendant against the plaintiff. On the basis of Ext.X2 complaint, Ext.X3 show cause notice was issued against the plaintiff. In this case, Ext.A1 is the copy of FIR registered against the defendant alleging commission of offences punishable under Sections 341, 294(b), 323 and 325 of IPC, which culminated in C.C. No.3689/2014 and as per Ext.A5 judgment, the defendant was found guilty. Accordingly, he was convicted and sentenced. Though, it is submitted by the ``` R.S.A. No. 558 of 2023 ``` ``` 8 ``` learned counsel for the defendant that in appeal the defendant was acquitted, no records available before this Court to hold so. 14. It is true that in Ext.A3, it is stated that the plaintiff undergone surgery on 08.04.2014 and he got admitted as inpatient for a period of seven days. The available evidence was appreciated by the trial court, while granting compensation for damages, limiting the same to the tune of Rs.11,500/- under the head ‘pain and sufferings’. The trial court refused to grant any other amount, since it was admitted by PW3 that the Company met treatment expenses of the plaintiff. Since it was found from the copies of Exts.A1 to A6, the depositions of PWs 1 to 3 and Exts.X1 to X3 that the plaintiff sustained injuries including fracture, due to the overt acts at the instance of the defendant, the concurrent finding of the trial court as well as the Appellate Court do not require any interference at the hands of this Court. 15. In view of the above discussion, no substantial question of law emerges in this matter to be formulated to maintain and admit this regular second appeal. Order XLII ``` R.S.A. No. 558 of 2023 ``` ``` 9 ``` ## Rule 2 of CPC 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.” 16. Section 100 of CPC 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 ``` R.S.A. No. 558 of 2023 ``` ``` 10 ``` 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 stipulates 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. 17. In the decision reported in **[2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168] Nazir Mohamed v. J. Kamala and Others** , 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 ``` R.S.A. No. 558 of 2023 ``` ``` 11 ``` ## **Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722].** 18. 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 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. 19. 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 CPC, 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' ``` R.S.A. No. 558 of 2023 ``` ``` 12 ``` 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 CPC must be complied to admit and maintain a second appeal. 20. In this matter, no substantial question of law arises for consideration so as to admit this second appeal. It is the well settled law that a second appeal involving no substantial question of law cannot be admitted. Therefore, the decree and judgment under challenge do not require any interference and no substantial question of law to be ``` R.S.A. No. 558 of 2023 ``` ``` 13 ``` formulated to adjudicate in this regular second appeal. 21. Accordingly, this regular second appeal stands dismissed, without being admitted, as indicated above. All interlocutory applications pending in this regular second appeal stand dismissed. **Sd/-** **A. BADHARUDEEN JUDGE** SK