Sheela v. Edavanna Kallangot Pradeep

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` WEDNESDAY, THE 4[TH] DAY OF OCTOBER 2023 / 12TH ASWINA, 1945 RSA NO. 608 OF 2023 ``` ``` AGAINST THE JUDGMENT IN A.S.NO.46/2021 OF II ADDITIONAL DISTRICT ``` ``` COURT, KOZHIKODE ``` ``` OS NO.520/2016 OF THE PRINCIPAL MUNSIFF COURT-II,KOZHIKODE ``` ## **`APPELLANT/APPELLANT/PLAINTIFF:`** ``` SHEELA AGED 66 YEARS D/O LATE E.P. MUKUNDAN , RESIDING AT 17/1236, HOPE COTTAGE,PUTHIYARA P.O, KASABA AMSOM,KOZHIKODE, PIN - 673004 ``` ``` BY ADV S.SUJINI ``` ## **`RESPONDENT/RESPONDENT/DEFENDANT:`** ``` EDAVANNA KALLANGOT PRADEEP AGED 66 YEARS S/O E.P.MUKUNDAN RESIDING AT MADAMMANGALATH PURAYIL, MEDICAL COLLEGE P.O., KOZHIKODE, PIN - 673008 ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NO. 608 OF 2023 2 ``` ## **JUDGMENT** Dated this the 4[th] day of October, 2023 This appeal has been filed under Section 100 of the Code of Civil Procedure (for short, ‘the C.P.C’. hereinafter) against the judgment and decree in O.S.No.520/2016, dated 20.2.2021 on the files of the II Additional Munsiff Court, Kozhikode and also against the judgment and decree in A.S.No.46/2021, dated 20.6.2023 on the files of the Additional District Court – II, Kozhikode. 2. Heard the learned counsel for the appellant on admission. 3. I shall refer the parties in this appeal as 'plaintiff’ and 'defendant' for convenience. 4. In this case, plaintiff filed suit for partition of the plaint B schedule property on the assertion that the property was originally purchased by her father. Since the father died, the plaint B schedule property is partible and the plaintiff is entitled to ½ share over the same, is the contention raised by ``` RSA NO. 608 OF 2023 3 ``` the plaintiff before the trial court. Since the plaintiff is aware of Exts.A3 title deed and A4 release deed in the name of the defendant, a declaration also was sought for, to hold that Exts.A3 and A4 are not binding upon her. 5. Defendant resisted the suit, mainly relying on Exts.A3 and A4 in his name to claim absolute title and possession over the plaint B schedule property. 6. The trial court ventured the matter. PW1 was examined and Exts.A1 to A4 were marked on the side of the plaintiff. No evidence let in by the defendant. 7. In this matter, eventhough the plaintiff asserted that Exts.A3 and A4 documents were executed by fraud and misrepresentation in order to defeat the interest of the defendant on the plaint B schedule property, no convincing evidence adduced to establish fraud or misrepresentation, as pleaded. It is at this juncture, the learned Munsiff dismissed the suit, holding that plaint B schedule property is not partible, since defendant is the absolute owner of the same as per Exts.A3 and A4. Although the decree and judgment of the trial court were challenged in appeal, the learned appellate court ``` RSA NO. 608 OF 2023 4 ``` also dismissed the appeal, holding the same view. 8. In this matter, it appears that the defendant perfected title by Exts.A3 and A4 and the fraud and misrepresentation, as alleged by the plaintiff in relation to Exts.A3 and A4, not at all proved and thereby, the courts below dismissed the suit. 9. 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 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.”_ 10. Section 100 of the C.P.C. provides that, (1) Save as ``` RSA NO. 608 OF 2023 5 ``` 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 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 :** ``` RSA NO. 608 OF 2023 6 ``` ## **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:_ _"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_ ``` RSA NO. 608 OF 2023 7 ``` _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_ ``` RSA NO. 608 OF 2023 8 ``` _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 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._ ``` RSA NO. 608 OF 2023 9 ``` _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._ 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 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 is to be understood as something in contradistinction with – technical, of no_ ``` RSA NO. 608 OF 2023 10 ``` _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._ 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” ``` RSA NO. 608 OF 2023 11 ``` 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. 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. Sd/- **A. BADHARUDEEN JUDGE** Bb