V.O. Jose v. Legal heirs of Respondents No.1 & 9 and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` TUESDAY, THE 21[ST] DAY OF NOVEMBER 2023 / 30TH KARTHIKA, 1945 ``` ## **`RSA NO. 579 OF 2023`** ``` AGAINST THE ORDER/JUDGMENT IN AS.NO.66/2013 OF I ADDITIONAL DISTRICT ``` ## **`COURT,THRISSUR`** ## **`OS.NO.589/2008 OF II ADDITIONAL SUB COURT,THRISSUR`** ## **`APPELLANT/APPELLANT/PLAINTIFF:`** ``` V.O. JOSE AGED 72 YEARS S/O.VELUKKARAN OUSEPH, AGED 72 YEARS, MUKKATTUKARA DESOM, NETTISSERY VILLAGE, THRISUR TALUK, PIN - 680651 ``` ``` BY ADVS. DENIZEN KOMATH ANANTHU ARAVIND MARIYA ANTONY ``` ## **`- RESPONDENTS/RESPONDENTS/DEFENDANTS/RESPONDENTS 10 13 SOUGHT TO BE`** ## **`IMPLEADED – LEGAL HEIRS OF RESPONDENTS NO.1 & 9:`** - `1 OUSEPH(DIED), S/O. VELUKKARAN LAZAR, MUKKATTUKARA DESOM, NETTISSERY VILLAGE, THRISUR TALUK., PIN - 680651` ``` 2GEORGE S/O.VELUKKARAN OUSEPH, MUKKATTUKARA DESOM, NETTISSERY VILLAGE, THRISUR TALUK, PIN - 680651 ``` - `3 LEON S/O.VELUKKARAN OUSEPH, MUKKATTUKARA DESOM, NETTISSERY VILLAGE, THRISUR TALUK, PIN - 680651` ``` 4SUNNY, S/O.VELUKKARAN OUSEPH, MUKKATTUKARA DESOM, NETTISSERY VILLAGE, THRISUR TALUK, PIN - 680651 ``` ``` 5LUVIS AGED 55 YEARS S/O.VELIYATH MATHEW, MUKKATTUKARA DESOM, NETTISSERY VILLAGE, THRISUR TALUK, PIN - 680651 ``` ``` 6LUCY AGED 53 YEARS W/O. VELIYATH LUVIS, MUKKATTUKARA DESOM, NETTISSERY VILLAGE, THRISUR TALUK, PIN - 680651 ``` ``` RSA NO. 579 OF 2023 2 ``` - `7 SHIJI AGED 30 YEARS` - `S/O.VELIYATH LUVIS, MUKKATTUKARA DESOM, NETTISSERY VILLAGE, THRISUR TALUK, PIN - 680651` - `8 SIMI ANTHONY, AGED 25 YEARS D/O.PANATHUPARAMBIL, ANTHONY, MUKKATTUKARA DESOM, NETTISSERY VILLAGE, THRISUR TALUK, PIN - 680651` - `9 THRESIA(DIED)` - `W/O.VELUKARAN OUSEPH, MUKKATTUKARA DESOM, NETTISSERY VILLAGE, THRISUR TALUK., PIN - 680651` - `10 JAMES` - `S/O OUSEPH, VELUKKARAN, KAKKANAD DESOM, KUNNATHUNADU VILLAGE, ERNAKULAM DISTRICT., PIN - 682030` - `11 SIMON,` - `S/O OUSEPH, VELUKKARAN, KAKKANAD DESOM, KUNNATHUNADU VILLAGE,ERNAKULAM DISTRICT., PIN - 682030` - `12 JESSY,` - `S/O OUSEPH, VELUKKARAN, KAKKANAD DESOM, KUNNATHUNADU VILLAGE,.ERNAKULAM DISTRICT., PIN - 682030` - `13 GLADY,` - `S/O OUSEPH, VELUKKARAN, KAKKANAD DESOM, KUNNATHUNADU VILLAGE,ERNAKULAM DISTRICT., PIN - 682030` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON ``` - `21.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:` ``` RSA NO. 579 OF 2023 3 ``` ## **JUDGMENT** Dated this the 21[st] day of November, 2023 This second appeal has been filed under Section 100 and Order XLII Rule 1 of the Code of Civil Procedure (for short, ‘the C.P.C.’ hereinafter), challenging the decree and judgment in A.S.No.66/2013 on the files of the I Additional District Court, Thrissur, dated 9.8.2018, arising out of the judgment and decree in O.S.No.589/2008 on the files of the II Additional Sub Court, Thrissur. 2. Heard the learned counsel for the appellant, on admission. 3. I shall refer the parties in this appeal as 'plaintiff' and 'defendants' for convenience. 4. In this matter, the appellant herein/plaintiff, filed a suit, seeking partition of the plaint schedule property, on the allegation that he also was entitled to get share in the plaint A to D schedule properties left by the father of the plaintiff and ``` RSA NO. 579 OF 2023 4 ``` the defendants. 5. Defendants resisted the suit and admitted that the properties were originally belonged to the father of the plaintiff and the defendants 2 to 4. But the father executed a gift deed, in favour of the 2[nd] defendant and thereby, plaint A and B schedule properties were gifted in favour of him. Similarly, the father executed another gift deed in favour of the 3[rd] defendant and C schedule property was gifted in favour of him. Further, plaint D schedule properties also gifted by the father to the 4[th] defendant. Thereafter, the 2[nd] defendant assigned the property covered by the gift deed in his favour to defendants 5 to 8. Therefore, nothing available for partition and the suit must fail. 6. The trial court, on evidence, found that the plaint schedule properties were not partible, since defendants 2, 3 and 4 perfected title in relation to the entire plaint schedule items, based on the gift deeds executed by the father in their favour. 7. Challenging the said decree and judgment, the plaintiff filed appeal as A.S.No.66/2013, along with a delay ``` RSA NO. 579 OF 2023 5 ``` petition to condone delay in filing the first appeal. I.A.No.1031/2013 is the delay petition. The said petition was dismissed by the District Judge, since the plaintiff did not file proper petition to implead additional defendants 10 to 13, being the legal representatives of the 1[st] and 9[th] defendants. 8. The learned District Judge appraised the contentions, acting on I.A.Nos.2964/2017 and 2965/2017 impleading petitions and found that even though, as per the available records, the 1[st] defendant/1[st] respondent died on 16.1.2015 and the 9[th] defendant/9[th] respondent died on 13.5.2013, petitions were filed without supporting petitions to set aside the abatement and to condone long delay in impleading the legal representatives of the deceased defendants in the party array. Because of the vital omission, I.A.Nos.2964/2017 and 2965/2017 were dismissed. Consequently, delay petition I.A.No.1031/2013 also was dismissed. Thereafter, appeal also was dismissed, being time barred. 9. In this matter, it appears that 1[st] defendant is none other than the father of the plaintiff. Despite knowing the fact that father died on 16.1.2015, the plaintiff did not file ``` RSA NO. 579 OF 2023 6 ``` proper petitions before the first appellate court for impleading the legal representatives of deceased defendants 1 and 9, who have interest over the plaint schedule properties, within time. Therefore, the District Judge is right in dismissing the petitions, holding that proper petitions to set aside the abatement and to condone delay in filing the impleading petitions, were not filed. Thus, it appears that the order under challenge in the delay petition and in the first appeal passed on the finding that the first appeal as time barred, also do not require any interference. 10. In this case, in fact, the learned counsel for the appellant/plaintiff 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_ ``` RSA NO. 579 OF 2023 7 ``` _appeal without the leave of the Court, given in accordance with the provision of section 100.”_ 11. 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. 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 ``` RSA NO. 579 OF 2023 8 ``` that the case involves such question. 12. 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 referring_ _**Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722]** ._ 13. 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_ ``` RSA NO. 579 OF 2023 9 ``` _by this Court._ 14. 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 ``` RSA NO. 579 OF 2023 10 ``` read with Order XLII Rule 2 of the C.P.C. must be complied to admit and maintain a second appeal. 15. 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. All interlocutory applications pending in this second appeal, stand dismissed. Registry shall inform this matter to the trial court as well as the appellate court, forthwith. Sd/- **A. BADHARUDEEN JUDGE** Bb