Sakunthala and Santha Ganesan v. Savithri

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 5[TH] DAY OF OCTOBER 2023 / 13TH ASWINA, 1945** **RSA NO. 209 OF 2023** **AGAINST THE JUDGMENT AND DECREE DATED 29.10.2022 IN A.S.NO.7/2021 OF THE SUB COURT, TIRUR, WHICH CONFIRMED FINAL DECREE PASSED BY THE MUNSIFF/MAGISTRATE COURT, PONNANI IN F.D.A.NO.341/2019 IN O.S.NO.163/2016 DATED 20.01.2021** ## **APPELLANTS/APPELLANTS/RESPONDENTS:** **1 SAKUNTHALA AGED 54 YEARS, D/O. THAYYILAVALAPPIL RAMAN, NEERTHATTIL HOUSE, EDAPPAL AMSOM, EDAPPAL P.O, THALAMUNDA DESOM, PONNANI TALUK, MALAPPURAM DISTRICT, PIN - 679577 2 SANTHA GANESAN AGED 49 YEARS, D/O. THAYYILAVALAPPIL RAMAN, THEUR, PLOT NO.1033, MSEB QUARTERS, PAWAR WASTI, TAL HAVELI, PUNE DISTRICT, MAHARASHTRA BY ADVS. K.ABOOBACKER SIDHEEQUE K.V.WINSTON** ## **RESPONDENT/RESPONDENT/PETITIONER:** **SAVITHRI AGED 51 YEARS, W/O. RAJENDRAN, NEERTHATTIL HOUSE, ESWARAMANGALAM AMSOM, CHERUVAIKKARA DESOM, BIYYAM P.O, PONNANI, MALAPPURAM DISTRICT, PIN - 679576** **BY ADVS. M.DEVESH T.KRISHNANUNNI (SR.) MEENA.A. VINOD RAVINDRANATH K.C.KIRAN M.R.MINI ASHWIN SATHYANATH ANISH ANTONY ANATHAZHATH THAREEQ ANVER K.** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ORDERS ON** **05.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.S.A. No. 209 of 2023 2 ## **JUDGMENT** ## **Dated this the 5[th] day of October, 2023** 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 final decree and judgment in A.S. No.7 of 2021 dated 29.10.2022 on the files of the Court of the Subordinate Judge, Tirur arising from final decree and judgment in FDIA No. 341 of 2019 in O.S. No.163 of 2016 dated 20.01.2021 on the files of the Court of the Munsiff- Magistrate, Ponnani. 2. The appellants herein are the defendants in O.S. No.163 of 2016 and the respondent herein is the plaintiff. 3. As per the order passed by my predecessor dated 22.06.2023, it was ordered as “Admit”. But, it appears that no substantial question of law formulated for admitting the appeal. Therefore, the said order stands reviewed and set aside being illegal, as against the mandate of Section 100 read with order XLII of CPC. Accordingly, the appeal is R.S.A. No. 209 of 2023 3 reverted back to the admission stage. 4. Heard the learned counsel for the appellants as well as the learned counsel appearing for the respondent on admission. 5. Parties in this appeal shall be referred as “plaintiff” and “defendants” with reference to their status before the trial court. 6. In this matter, after passing of the preliminary decree for partition, the plaintiff filed Interlocutory Application (Final Decree) No.341/2019. While adjudicating the final decree application, the learned Munsiff appointed a Commissioner with the assistance of a Surveyor. The Commissioner and Surveyor filed reports marked as Exts.C1 to C3. After filing of the reports, no objection raised by the petitioner/plaintiff or the respondents/defendants therein disputing allotment of shares as shown in Exts.C1 to C3. Accordingly, the trial court passed final decree as under: - _i) That the plot no.1 in Ext.C2 is allotted to the petitioner._ - _ii) That the plot no.2 in Ext.C2 and the house thereon are allotted to the respondents._ R.S.A. No. 209 of 2023 4 - _iii) That the plot no.1 in Ext.C3 is allotted to the petitioner._ - _iv) That the plot no.2 in Ext.C3 is allotted to the first respondent._ - _v) That the plot no.3 in Ext.C3 is allotted to the second respondent._ - _vi) That the respondents shall pay Rs.1,69,964 to the petitioner. The petitioner shall have a charge on the plots alloted to the respondents for the aforesaid amount._ - _vii) and that the Exts.C1 to C3 shall form part of the final decree._ 7. It is submitted by the learned counsel for the appellants/defendants that, though the appellants who are respondents/defendants in the above final decree application did not file any objection to the Commissioner report and plan, at the appellate stage, they filed a petition to appoint another Commissioner and the same was allowed by the Appellate Court. Accordingly, Exts.C4 and C5 reports were obtained. 8. The case of the appellants/defendants is that, as per the plan relied on by the trial court to allot shares, no R.S.A. No. 209 of 2023 5 ## way provided to the property of the appellants/defendants. 9. As I have already pointed out, no objection raised by the defendants before the trial court disputing the correctness of Exts.C1 to C3 plans. Thereafter, the final decree was engrossed in non-judicial stamp paper and the plaintiff initiated proceedings to get her share delivered. At this juncture, appeal was preferred with delay petition. It is true that during appellate stage, Exts.C4 and C5 report and rough sketch were obtained and the learned Appellate Judge considered the same also. As per Exts.C4 and C5, the Commissioner reported that there is height difference between the western side road and eastern side plot of the appellants/defendants and the same is only 3 feet. Therefore, the defendants could very well easily have access towards the eastern side plot from the western side road. Therefore, there is no merit in the contention raised by the defendants to the effect that their plots were not provided with pathway. 10. On perusal of the matter in detail, the Appellate Court though not found fault with Exts.C1 to C3, made an attempt to find out whether the contention raised by the defendants to the effect that their plots were segregated R.S.A. No. 209 of 2023 6 without a way and it was found that they could very well have access as herein above pointed out. 11. Thus, it appears that no substantial question of law involves in this matter. Even though the learned counsel for the appellants/defendants attempted to get this appeal admitted on the submission that there is substantial question of law involved, on perusal of the available materials, this Court is of the view that no substantial question of law is involved in this matter to admit and maintain this regular second appeal. 12. In this case, the learned counsel for the appellant failed to raise any substantial question of law warranting admission of the second appeal. Order XLII 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_ R.S.A. No. 209 of 2023 7 _Court, given in accordance with the provision of section 100.”_ 13. 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 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 R.S.A. No. 209 of 2023 8 case involves such question. 14. 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_ _**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_ R.S.A. No. 209 of 2023 9 _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_ R.S.A. No. 209 of 2023 10 _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 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_ R.S.A. No. 209 of 2023 11 _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._ 15. In a latest decision of the Apex Court reported in _**[2023 (5) KHC 264 : 2023 (5) KLT 74 SC] Government of Kerala v. Joseph**_ , 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_ R.S.A. No. 209 of 2023 12 _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 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 R.S.A. No. 209 of 2023 13 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' 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. 17. In the instant case, it appears that the decree and R.S.A. No. 209 of 2023 14 judgments entered into by the trial court as well as the Appellate Court based on the facts and evidence are found to be in order. Therefore, the same does not require any interference at the hands of this Court. 18. In this matter, on evaluation of the materials, I have already discussed, no substantial question of law arises for consideration so as to admit this second appeal. It is held further 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 formulated to adjudicate in this regular second appeal. Accordingly, the regular second appeal stands dismissed, without being admitted. ## **Sd/-** **A. BADHARUDEEN JUDGE** SK