Haridasan vs Murukesan

A. Badharudeen, J

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.65 of 2019 dated 22.09.2022 on the files of the Court of the Additional Sub Judge-I, Thrissur arose from final decree and judgment in I.A. No.2233 of 2008 in O.S. No.88 of 1997 dated 24.05.2017 on the files of the Munsiff Court, Wadakkanchery. The appellant herein is the respondent/plaintiff and the respondents are the petitioners 1 to 5/Defendants 1 to 5 in I.A. No.2233 of 2008 in O.S. No.88 of 1997.

Heard the learned counsel for the appellant as well as the learned counsel appearing for the respondents on admission.

Parties in this appeal shall be referred as “plaintiff” and “defendants” with reference to their status before the trial court.

In this matter, suit for partition was filed by the plaintiff before the trial court and accordingly preliminary decree of partition was passed allotting 84/384 shares in favour of the plaintiff and the other shares equally in respect of the respondents. After filing of the suit in the year 1997, the suit was decreed and the plaintiff did not file any petition to pass final decree.

Subsequently, defendants 1 to 6 filed I.A. No.2233/2008 to pass final decree. Accordingly, the final decree was passed by the trial court relying on Ext.C1 commission report and Ext.C1(a), after remittance of the commission report and plan twice as per orders passed in I.A. No.2233/2008 and I.A. No.2206/2014, for rectifying the defects. Ext.C1(b) the earlier plan also was marked.

After getting the report after remittance twice, the Munsiff Court recorded that no objection filed against Ext.C1 commission report and Ext.C1(a) plan. Thus it was found that Ext.C1(a) and C1(b) plans clearly show allotment of shares by metes and bounds, particularly allotting the plot wherein the house is situated in favour of the plaintiff, providing direct road access.

At the time of hearing, the learned counsel for the plaintiff submitted that, even though, the house is allotted in favour of the plaintiff, no proper way allotted to the house.

On perusal of Exts.C1(a) and C1(b) plans, it is emphatically clear that the plot allotted to the plaintiff/appellant is having direct road access on the northern side and accordingly a way having a width of 3.5 metres on the northern side abutting the public road and ends on the plots allotted to Murukeshan, Kumaran and Eswari was provided. That apart, the Commissioner also fixed owelty to be paid by the plaintiff/appellant who obtained the plot where house and well are situated. As per Ext.C1(b) plan, plot D was allotted to the plaintiff/appellant and plots A, B and C were allotted to Murukeshan, Kumaran and Eswari, after providing a common way to all.

Even though it is argued by the learned counsel for the plaintiff/appellant that no sperate way provided to his share in Ext.C1(a) plan, the same cannot be considered since the plot allotted to Haridasan (appellant) is one having direct road access on the northern side. Regarding Ext.C1(b) plan also, no anomaly could be noted, in this case where the plaintiff/appellant got the plot with house and well as per Ext.C1(a) plan, being a resident of the said house.

Thus, the trial court as well as the Appellate Court concurrently found that the properties are separated strictly in accordance with ‘metes and bounds’ and accordingly the final decree has been passed. Therefore, it appears that the final decree passed by the trial court and confirmed by the Appellate Court does not require any interference at the hands of this Court.

Thus, it appears that no substantial question of law is available 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 other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.”

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 case involves such question.

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 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 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 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.

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 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.

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 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.

In the instant case, it appears that the decree and judgment entered into by the trial court and confirmed 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.

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 formulated to adjudicate in this regular second appeal.

The learned counsel for the defendant, who faced with dismissal of the second appeal, sought three months time for vacating the room. Therefore, in the interest of justice, three months time is granted to vacate the room, subject to the condition that the defendant shall clear all the arrears of license fee, within a period of three weeks from today. The defendant is also directed to file an affidavit before the trial court, within a period of three weeks from today undertaking to vacate the building within three months from today, after clearing the arrears of license fee.

It is specifically ordered that if the license fee in arrears is not cleared and the affidavit as directed not filed, the execution of the decree can go on, forthwith and the time granted by this Court shall not be available to the defendant, in such contingency.

Accordingly, this regular second appeal stands dismissed, without being admitted, as indicated above.

All interlocutory application also stands dismissed.