V.P. Drowpathy and others v. Woodland Apartments Residents Association and others

## **`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. 346 OF 2006 ``` ``` AGAINST THE DECREE AND JUDGMENT DATED 31.10.2005 IN AS NO.93/1997 OF PRINCIPAL SUB COURT, THIRUVANANTHAPURAM AROSE FROM THE DECREE AND JUDGMENT DATED 30.08.1997 IN OS NO.161/1996 OF PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM ``` ## **`APPELLANTS/APPELLANTS/PLAINTFFS:`** - **`1 V.P.DROWPATHY W/O. K.SANKARA NARAYANA IYER, FROM T.C.8/1725, WEST NADA KUSAKKODE MAHADEVAR TEMPLE, THIRUMALA, THIRUVANANTHAPURAM.NOW RESIDING AT APARTMENT, NO.402, WOODLANDS APARTMENT, JAGATHY, THIRUVANANTHAPURAM`** - **`2 K.SANKARANARAYANA IYER,(DIED) LEGAL HEIR IMPLEADED S/O. N.KRISHNA IYER, RESIDING AT -DO- -DO-.`** - **`3 ADDL.HARIKRISHNAN, S/O.K.SANKARANARAYANA IYER (MINOR),RESIDING AT APARTMENT NO.402,WOODLANDS APARTMENT,JAGATHY,THIRUVANANTHAPURAM,REPRESENTED BY HIS MOTHER AND GUARDIAN V.P.DROWPATHY, -DO- -DO- (2ND APPELLANT DIED. THE LEGAL HEIR OF THE DECEASED 2ND APPELLANT IS IMPLEADED AS ADDL.3RD APPELLANT AND 1ST APPELLANT IS PERMITTED TO ACT ON BEHALF OF THE 3RD APPELLANT AS NEXT FRIEND AS PER ORDER DATED 03.01.2012 IN IA.NO.3173/2011).`** - **`BY ADV SRI.R.GIREESH VARMA`** ## **`RESPONDENTS/RESPONDENTS/DEFENDANTS:`** - **`1 WOODLANDS APARTMENT RESIDENTS ASSOCIATION, REPRESENTED BY ITS PRESIDENT, UNNIKRISHNAN, APARTMENT NO.503, WOODLANDS, APARTMENT, JAGATHY, THIRUVANANTHAPURAM.`** - **`2 S.SUBRAMANI SECRETARY WOODLANDS ESTATE APARTMENT RESIDENTS ASSOCIATION,, APARTMENT NO.305 OF -DO- -DO-.`** - **`3 K.KARUNAKARAN,(DIED)LEGAL REPRESENTATIVES IMPLEADED RTD.PRINCIPAL, S.N.COLLEGE, RESIDING AT NORTHERN END OF NARMADA CONSTRUCTION COMPANY, NEAR NAMAL PRABHA,`** ``` R.S.A. No. 346 of 2006 ``` ``` 2 ``` ## **`KOWDIAR, THIRUVANANTHAPURAM.`** - **`4 RAMANI SASEENDRAN RESIDING AT APARTMENT NO.207, WOODLANDS APARTMENT,, JAGATHY, THIRUVANANTHAPURAM.`** - **`5 SOUDAMINI, W/O. RAMANI, RESIDING AT APARTMENT NO.207, WOODLANDS APARTMENT,, JAGATHY, THIRUVANANTHAPURAM. (5TH RESPONDENT DIED AND RESPONDENTS 4 AND 6 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED 5TH RESPONDENT AS PER ORDER DATED 13.02.2009 IN IA.355/2009)`** - **`6 ROSHAN S/O. RAMANI RESIDING AT APARTMENT NO.207, WOODLANDS APARTMENT,, JAGATHY, THIRUVANANTHAPURAM.`** - **`7 M.R.RAJASEKHARAN NAIR, RESIDING AT APARTMENT NO.205, WOODLANDS APARTMENT,, JAGATHY, THIRUVANANTHAPURAM.`** - **`8 ADDL.JAYA KARUNAKARAN, D/O.KARUNAKARAN,JAYATHI,MANI BHAVAN, LANE,SASTHAMANGALAM,THIRUVANANTHAPURAM.`** - **`9 ADDL.DR.JAYAKUMAR K., S/O.KARUNAKARAN,PROFESSOR AND HEAD,CARDIAC SURGERY,SREE CHITRA`** - **`HOSPITAL,THIRUVANANTHAPURAM,RESIDING AT NORTHERN END OF NARMADA CONSTRUCTION COMPANY, NEAR NAMAL PRABHA,KOWDIAR,THIRUVANANTHAPURAM.`** - **`10 ADDL.DR.SUJALA,D/O.KARUNAKARAN, RESIDING AT NORTHERN END OF NARMADA CONSTRUCTION COMPANY, NEAR NAMAL PRABHA,KOWDIAR,THIRUVANANTHAPURAM.`** - **`11 ADDL.DR.VIJAYA, D/O.KARUNAKARAN,J.S.M.HOSPITAL,CHATTANNOOR,KOLLAM DISTRICT. (ADDITIONAL RESPONDENTS 8 TO 11 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED 3RD RESPONDENT AS PER ORDER DATED 31.03.2009 IN IA,355/2009)`** - **`BY ADVS. SRI.BIJU BALAKRISHNAN – FOR R4 SRI.J.HARIKUMAR – FOR ADDL R8 TO R11 SRI.HARIKUMAR.S. - FOR ADDL R8 TO R11`** ## **`THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON`** ``` 16.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` R.S.A. No. 346 of 2006 ``` ``` 3 ``` ## **JUDGMENT** ## **Dated this the 16[th] day of January, 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.95 of 1997 dated 31.10.2005 on the files of the Court of the Principal Sub Judge, Thiruvananthapuram arose from the decree and judgment in O.S. No.161 of 1996 dated 30.08.1997 on the files of the Court of the Principal Munsiff, Thiruvananthapuram. This second appeal is at the instance of plaintiffs and legal heir of the 2[nd] plaintiff, who died during the pendency of this appeal. Respondents herein are defendants and legal heirs of 3[rd] and 5[th] respondents. 2. Heard the learned counsel for the appellants and the learned counsels appearing for the respondents on admission. Perused the relevant materials. 3. I shall refer the parties in this appeal with reference to their status before the trial court. ``` R.S.A. No. 346 of 2006 ``` ``` 4 ``` 4. In this matter, the grievance of the plaintiffs is as regards to non providing of car parking space to apartment No.402 as agreed in Ext.A2 title deed, scheduling the same as plaint B schedule property. 5. Whereas, the defendants resisted the suit, claiming right over respective car parking spaces allotted to them. 6. The trial court recorded evidence and tried the matter. PW1 examined and Exts.A1 to A3 marked on the side of the plaintiffs. Ext.C1 marked as court exhibit. A commission was deputed and as per Ext.C1 report, the Commissioner pointed out car parking space available to apartment No.402 belonged to the plaintiffs and car parking spaces allotted to other apartment owners including apartment No.207 also. 7. Finally, the trial court upheld the contention of the defendants and dismissed the suit. 8. When appeal filed before the Appellate Court as A.S. No.95/1997, the Appellate Court also re-appreciated the evidence and concurred the finding of the trial court. ``` R.S.A. No. 346 of 2006 ``` ``` 5 ``` 9. At the time of admission, the learned counsel for the appellants/plaintiffs argued at length to convince this Court that the Commissioner wrongly located plot No.25 as the car parking space of apartment No.402 as against the sketch appended to Ext.A2 and the opportunity of the plaintiffs to cross-examine the Commissioner also was denied, disputing such location. 10. The respective counsel appearing for respondent Nos. 4 to 6 and additional respondent Nos.8 and 11 would submit that, at the time when they purchased apartments, they were given car parking spaces as noted by the Commissioner and the claim of the plaintiffs over the car parking space allotted to apartment No.207 and others cannot sustain. 11. On perusal of Ext.C1 report, it could be noticed that there are 40 apartments and car parking spaces provided to all apartments. Thus, there is no reason to hold that the plaintiffs are not provided with any car parking space. 12. Even though, the suit if one filed for simple ``` R.S.A. No. 346 of 2006 ``` ``` 6 ``` injunction, where non providing of car parking space to an apartment is the question, the apartment builder not arrayed as a party to see the nature of allocation. As evident from Ext.C1, plaintiffs have been provided with car parking space as plotted as 25 in the sketch produced by the Commissioner. Therefore, the grievance of the plaintiffs found to be meritless. This is the reason why the Courts below dismissed the suit. Therefore, the concurrent verdicts of the trial court and Appellate Court do not require any interference at the hands of this Court. 13. 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 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 ``` R.S.A. No. 346 of 2006 ``` ``` 7 ``` other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.” 14. 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 ``` R.S.A. No. 346 of 2006 ``` ``` 8 ``` recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. 15. 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 ``` R.S.A. No. 346 of 2006 ``` ``` 9 ``` 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 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 ``` R.S.A. No. 346 of 2006 ``` ``` 10 ``` 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 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 ``` R.S.A. No. 346 of 2006 ``` ``` 11 ``` 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 mentioned in Memorandum of ``` R.S.A. No. 346 of 2006 ``` ``` 12 ``` Second Appeal can not satisfy the mandate of S. 100 of the CPC. 16. 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 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 ``` R.S.A. No. 346 of 2006 ``` ``` 13 ``` 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. 17. 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' 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 ``` R.S.A. No. 346 of 2006 ``` ``` 14 ``` 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. 18. In the instant case, it appears that the judgment entered into by 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. 19. 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. 346 of 2006 ``` ``` 15 ``` formulated to adjudicate in this regular second appeal. 20. Accordingly, this regular second appeal stands dismissed, without being admitted, as indicated above. All interlocutory applications also stand dismissed. **Sd/-** **A. BADHARUDEEN JUDGE** SK