Swarnam and others v. Dr. Rajan Nambiar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 16[TH] DAY OF JANUARY 2024 / 26TH POUSHA, 1945** **RSA NO. 716 OF 2023** **AGAINST THE JUDGMENT IN OS 78/2018 OF MUNSIFF MAGISTRATE COURT, PERAMBRA AND IN AS.21/2022 OF SUB COURT, KOYILANDY** ## **APPELLANT/APPELLANTS/DEFENDANTS 2 TO 9:** |**1**|**SWARNAM**| |---|---| ||**AGED 57 YEARS**| ||**W/O. PRAKASHAN, SOUPARNIKA, CHEMBRA ROAD, PERAMBRA POST,**| ||**MENHANNIAM AMSOM DESOM, KOYILANDY, KOZHIKODE DISTRICT, PIN -**| ||**673525**| |**2**|**SANTHA**| ||**AGED 63 YEARS**| ||**W/O. GANGADHARAN, PADINHARAYIL HOUSE, VAYAGHOTTUMMAL,**| ||**PERAMBRA POST, KOYILANDY TALUK, KOZHIKODE DISTRICT,, PIN -**| ||**673525**| |**3**|**VILASINI**| ||**AGED 61 YEARS**| ||**W/O. SHANMUGHAN, RTD. NURSING ASSISTANT, CHIRUTHAKUNNUMMAL**| ||**HOUSE, PERAMBRA POST, KOYILANDY TALUK, KOZHIKODE DISTRICT,,**| ||**PIN - 673525**| |**4**|**PRAKASAN**| ||**AGED 59 YEARS**| ||**S/O. KARTHIYANI, SOUPARNIKA, CHEMBRA ROAD, PERAMBRA,**| ||**KOYILANDY TALUK, KOZHIKODE DISTRICT,, PIN - 673525**| |**5**|**VINODINI**| ||**AGED 56 YEARS**| ||**W/O. ANIL KUMAR, NEW PRAKASH JEWELLERY, MAIN ROAD,**| ||**PERAMBRA, PERAMBRA POST, KOYILANDY TALUK, KOZHIKODE**| ||**DISTRICT,, PIN - 673525**| |**6**|**SHAJI**| ||**AGED 53 YEARS**| ||**S/O. KARTHIYANI, PRATHEEKSHA HOUSE, CHENAYI ROAD, PERAMBRA,**| ||**KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN - 673525**| |**7**|**RAJANI**| ||**AGED 48 YEARS**| ||**D/O. KARTHIYANI, KINGHINI JEWELLERY, KANNUR AMSOM DESOM,**| ||**KANNUR TALUK, KANNUR DISTRICT,, PIN - 670001**| |**8**|**SHAJINI**| ||**AGED 45 YEARS**| ||**D/O. KARTHIYANI, PRATHEEKSHA HOUSE, CHENAYI ROAD,**| ||**PERAMBRA, KOYILANDY TALUK, KOZHIKODE DISTRICT,, PIN - 673525**| ||**BY ADVS.**| **RSA NO. 716 OF 2023** **2** **K.P.SUDHEER SHERRY M.V.** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **DR. RAJAN NAMBIAR AGED 66 YEARS DR. RAJAN NAMBIAR, S/O. MADHAVIKUTTY, 'NALINALAYAM', PERAMBRA POST, MENHANNIAM AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN - 673525** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA NO. 716 OF 2023** **3** ## **J U D G M E N T** The defendants 2 to 9 in O.S.No.78 of 2018 on the files of the Munsiff Court, Perambara are the appellants herein. The respondent herein is the plaintiff in the above suit. 2. The appellants assail decree and judgment in O.S.No.78 of 2018 and decree and judgment in A.S.No.21 of 2022 on the files of the Sub Court, Quilandy. 3. Heard the learned counsel for the appellants/defendants on admission and perused the verdicts under challenge. 4. The plaintiff filed suit for redemption of mortgage in respect of the plaint schedule property originally entrusted in favour of the 1[st] defendant and later in favour of the 2[nd] defendant at the instance of the 1[st] defendant. The plaintiff agreed to deposit the mortgage money as a precondition for redemption. 5. The defendants resisted the suit _inter alia_ raising many contentions. The main contention raised in the written statement is that the 2[nd] defendant is not a mortgagee, she is only a tenant of the plaint schedule building. 6. The trial court ventured the matter. On the side of the plaintiff, PW1 was examined and Exts.A1 to A6 were marked. **RSA NO. 716 OF 2023** **4** Exts.B1 and B2 were marked and DW1 was examined on the side of the defendants. 7. On appreciation of evidence after hearing both sides, the trial Court found that the plaintiff is entitled to get decree of redemption of mortgage and accordingly suit was decreed. The amount allegedly to be received by the plaintiff from the defendants also was ordered to be returned. 8. Though the appeal filed challenging the verdict of the trial court, the appellate court also concurred the finding of the trial court and dismissed the appeal. 9. At the time of admission, the learned counsel for the appellants/defendants has given thrust upon the contention that the 2[nd] defendant is not a mortgagee in the plaint schedule property and she is a lessee and therefore, in order to evict a lessee from the plaint schedule property, the procedure laid under the Kerala Buildings (Lease and Rent Control) Act should have been adopted. 10. On perusal of the verdicts of the trial court as well as the appellate court, it is clear that originally the father of the plaintiff entrusted the property to the 1[st] defendant as a mortgagee and later the 2[nd] defendant got possession over the same from the 1[st] defendant. Therefore, the right obtained by the 2[nd] defendant is **RSA NO. 716 OF 2023** **5** nothing more than that of the 1[st] defendant. Therefore, the status of the 2[nd] defendant is also that of a mortgagee. When the mortgagor files a suit to redeem the mortgage and expresses willingness to pay the mortgage money, such a suit is liable to be decreed. 11. In the case at hand, the trial court and the appellate court held that the 2[nd] defendant is a mortgagee and she is bound to redeem the mortgage on payment of the mortgage money. 12. Since, evidence would suggest the status of the 2[nd] defendant also as that of a mortgagee, contention raised by the appellants to the effect that the remedy of the plaintiff is to file an eviction petition under the Kerala Buildings (Lease and Rent Control) Act would not succeed. 13. In view of the above discussion, the verdicts under challenge granting the redemption of mortgage and other reliefs do not require any interference. 14. In fact, in this case, the learned counsel for the appellants 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_ **RSA NO. 716 OF 2023** **6** _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.”_ 15. 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 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. **RSA NO. 716 OF 2023** **7** 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. 16. 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:_ _"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_ **RSA NO. 716 OF 2023** **8** _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_ **RSA NO. 716 OF 2023** **9** _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 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_ **RSA NO. 716 OF 2023** **10** _mentioned in Memorandum of Second Appeal can not satisfy the mandate of S. 100 of the CPC._ 17. 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 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_ **RSA NO. 716 OF 2023** **11** _appeal shall be heard need not necessarily be a substantial question of law of general importance._ 18. 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 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. 19. In view of the above fact, no substantial question of law arises in this matter to be decided by admitting this appeal. **RSA NO. 716 OF 2023** **12** In the result, this appeal is found to be meritless and the same is dismissed without being admitted. All interlocutory applications pending in this second appeal, stand dismissed. The learned counsel for the appellant sought one year time to vacate the plaint schedule building on the submission that the defendants have been running business there. Grant of such a long period without notice to the other side, cannot be considered. Therefore, in the interest of justice, three months' time from today is granted to the appellants to vacate the building, provided they shall file an affidavit before the trial court within two weeks from today, undertaking to vacate the building without any objection on completion of three months. If, the undertaking as directed failed to be filed before the trial court within two weeks from today, the period of three months granted herein shall not be available to the appellants and execution of the decree shall go on expeditiously. Registry shall inform this matter to the trial court as well as the appellate court, forthwith. SD/- ## **A. BADHARUDEEN JUDGE** rp