Shankari Amma vs The State of Kerala

Paripoornan, J.—The legal representatives of the Plaintiff in the suit, O.S. No. 79 of 1980, Sub Court, Kasaragod are the Appellants in this appeal. The suit was dismissed by the trial court on 29th October 1982. The Plaintiff filed an appeal in this Court in A.S. No. 113 of 1983. The original Plaintiff died pending the appeal. So his legal heirs were impleaded as additional Appellants 2 to 8 in A.S. No. 113 of 1983 as per order in C.M.P. No. 8137 of 1988 dated 26th May 1988. The appeal was finally heard by a learned Single Judge of this Court. It was dismissed by judgment dated 13th February 1990. This appeal filed from the decision in A.S. No. 113 of 1983 was posted for admission hearing under Order 41 Rule 11 read with Rule 11-A of the CPC Counsel for the Appellant was questioned as to what is the substantial question of law that is involved in the appeal. Appellant''s Counsel Mr. P.K. Balasubramanyan replied that this appeal is filed u/s 5(ii) of the Kerala High Court Act and the scope and ambit of such an appeal is not confined to any substantial question of law arising in this case, similar to Section 100 of the Code of Civil Procedure. Attention of the Counsel was invited to an earlier Bench decision of this Court in A.F.A. No. 24 of 1990, dated 21st December 1990, to which one of us was a party, wherein it was held that in the appeals filed u/s 5(ii) of the Kerala High Court Act, the Appellants should establish that a substantial question of law is involved in the case. Counsel took time and the matter was heard in detail on 1st July 1991.

Mr. Balasubramanyan (Appellants'' Counsel) brought to our notice Section 3(13)(b) of the Kerala High Court Act, 1958 and also Kerala High Court (Amendment) Act, 1989, amending Section 3(13)(b) of the Act. A reference was also made to Section 5(ii) of the said Act. On the basis of the above statutory provisions, read with Section 100 of the Code of Civil Procedure, it was contended that an appeal filed from the judgment of a Single Judge in the exercise of the appellate jurisdiction has got wide scope and the grounds for interference are not limited to those specified in Section 100 Code of Civil Procedure. It will be useful to extract Section 3(13)(b), Section 5(ii) of the Kerala High Court Act, 1958, and the Kerala High Court (Amendment) Act, 1989 amending Section 3(13)(b) and also Section 100 Code of Civil Procedure.

Section 3(13)(b) of the Kerala High Court Act, 1958:

Powers of Single Judge: The powers of the High Court in relation to the following matters may be exercised by a Single Judge, provided that the Judge before whom the matter is posted for hearing may adjourn it for being heard and determined by a Bench of two Judges:

* * * * (13) An appeal-

* * * * (b) from an original decree or order in any suit or other proceeding, where the amount or value of the subject-matter of the suit or other proceeding does not exceed ten thousand rupees.

The Kerala High Court (Amendment) Act, 1989:

* * * * 2. Amendment of Section 3.--In Section 3 of the Kerala High Court Act, 1958 (5 of 1959), in Sub-clause (b) of Clause (13), for the words ("ten thousand rupees", the words "one lakh rupees") shall be substituted.

Kerala High Court, 1958:

* * * * 5. Appeal from judgment or order of Single Judge: An appeal shall lie to a Bench of two Judges from--

* * * * (ii) a judgment of a Single Judge in the exercise of appellate jurisdiction in respect of a decree of order made in the exercise of original jurisdiction by a subordinate court; or....

Code of Civil Procedure:

Appeals from Appellate Decrees:

Second appeal.--(1) Save as otherwise expressly provided in the body of this Code or 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.

* * * *

Appellants'' Counsel laid stress on the language occurring in Section 100 Code of Civil Procedure. It was contended that Section 100 will apply only to an appeal filed from a decree passed in appeal by any court subordinate to the High Court as distinguished from "the decision of the court immediately below" as specified in Article 133(1)(a) of the Constitution of India before its amendment by the Constitution 30th Amendment Act, 1972. The point highlighted was that the provisions of Section 100 will apply only if the judgment of the first appellate court taken in appeal before the High Court is rendered by a Subordinate Court. In the appeal filed u/s 5(ii) of the Kerala High Court Act, the judgment rendered by a learned Single Judge of this Court in exercise of the appellate jurisdiction, is not rendered by a court "subordinate to the High Court", though for the purpose of Article 133(1)(a) of the Constitution of India before its amendment referred to above, the Single Judge may be a "court immediately below", the Division Bench. The expression "second appeal" in the CPC means an appeal to the High Court from the decision in a civil suit or case, rendered by a 1st appellate Court subordinate to the High Court. Though the present appeal, A.F.A. No. 13 of 1991, is in practice and effect, a second appeal in the case, such an appeal, filed u/s 5(ii) of the Kerala High Court Act is outside the purview of Section 100 CPC and the, entertaining of such appeals filed u/s 5(ii) of the Kerala High Court Act are not to be affected or tested by the requirements of Section 100 Code of Civil Procedure. Few decisions were brought to our notice to highlight the above aspect. We need mention only the important decisions brought to oar notice in this connection. They are: Ladli Prasad Jaiswal Vs. Karnal Distillery Co. Ltd. and Others, Chunilal Vithaldas v. Mohanlal Motilal Patel AIR 1967 S.C. 227; Ganpat Vs. Ram Devi and Others, and Shah Babulal Khimji Vs. Jayaben D. Kania and Another, .

Having considered the matter in detail, we are unable to accept the above plea. Balanarayana Marar, J. in delivering the judgment of the Bench in A.F.A. No. 24 of 1990, dated 21st December 1990, stated thus in paragraphs 5 and 6:

But it cannot be disputed that the appeal is one against the judgment passed in exercise of the appellate jurisdiction in respect of a decree of a Subordinate Court and is in that sense a second appeal.

Section 100 CPC has been substituted by the CPC amendment of 1976 and the Section as it stands at present restricts the scope of second appeal. The purpose of such restriction is to see that litigation is not dragged on for a long period. The intention is to confine the right of second appeal only to cases where a question of law arises and the question of law involved is also substantial in nature. In other words the project behind the amendment appears to be that questions of fact involved in a case should not be allowed to be raised in second appeal. In a second appeal filed u/s 100 CPC the Appellant has to precisely state the substantial question of law involved in the appeal in the memorandum of appeal.... It is true that the Kerala High Court Act does not contain any provision similar to Section 100 CPC while admitting or hearing an appeal preferred against a judgment of a Single Judge in the exercise of appellate jurisdiction in respect of a decree in the exercise of original jurisdiction by a Subordinate Court. But the appeal filed u/s 5(ii) of the Kerala High Court Act is in effect a second appeal, though it is styled as an appeal from a first appeal. The principles of Section 100 CPC are in substance applicable to an appeal filed u/s 5(ii) of the Kerala High Court Act. We are of the view that such an appeal can be entertained only if a substantial question of law is involved in the appeal. The court, at the time of admission of an appeal field u/s 5(ii) of the Kerala High Court Act, should be satisfied that a substantial question of law is involved in the appeal since the appeal is in the nature of a second appeal, though not one filed u/s 100 of the Code of Civil Procedure. We therefore hold that in order to admit these appeals Appellants have to establish that a "substantial question of law" is involved in the case.

Appellants'' Counsel argued that the above statement of the law requires re-consideration. We are unable to accept the plea. It cannot be denied that an appeal filed from the judgment of the learned Single Judge in exercise of the appellate jurisdiction u/s 5(ii) of the Kerala High Court Act is really a second, appeal. It is true that the label or nomenclature of "second appeal" is not used in Section 5 of the Act. But in reality, it is a second appeal. That is not denied by Counsel. The words "appeal", "second appeal", "reference", "review" and "revision" are used in the Code of Civil Procedure. The said expressions have got distinct and different meanings. The scope of interference in exercise of the above different jurisdictions will depend upon the words in the particular statute. If one or more of the said remedies are provided to the ordinary courts of the country, the procedure, orders and practice of the ordinary rules of the CPC will apply to the exercise of such jurisdiction. An appeal is taking of a cause from an inferior to a superior court for the purpose of testing the soundness of the decision of the inferior court. It is a judicial examination of the decision by a higher court of the decision of an inferior court. It has also been stated to be the right of entering a superior court and invoking its aid and interposition to redress the error of the court below. However, wide and comprehensive the word may be, the limits within which, or the conditions subject to which, the jurisdiction can be exercised depends upon the forum to which the appeal is provided. If the forum to which the appeal is provided is the "ordinary court" of the land, with regard to whose procedure, orders and decrees the ordinary rules of the CPC applies, it only stands to sense that the analogous or the kindred provisions of the CPC are also applicable.

"Section 100 of the CPC is based on grounds of public policy expressed in the maxim interest reipublicae, ut sit finis litium. It concerns the state that there be an end to litigation. 45 IA 183 : 46 C. 189 P.C."--per B.V. Viswanatha Aiyer''s "The Code of Civil Procedure", fourth edition, page 298. It cannot be visualised or imagined that courts are entrusted with the power of administering justice without restraints. Such restraints have been imposed from the earliest times, one of them is what is stated above, based on public policy. The principle underlining Section 100 CPC that it is the proclaimed policy of the law that on questions of fact there should be only one appeal and it is in public interest, there should be an end to the litigation.

It is evident that this appeal filed u/s 5(ii) of the Kerala High Court Act is a second appeal. It is true that Section 5 does not limit the scope of the appeal. But the appeal is preferred from the judgment of a Single Judge of this Court (the Civil Court). The appeal lies to a Bench of two Judges of this Court (Civil Court). The appeal is preferred to a Bench of this Court as an ordinary court of this country. Ordinarily the CPC will apply with regard to such appeals regarding the procedure in filing the appeals, hearing and final disposal. In National Telephone Co. Limited v. His Majesty''s Postmaster-General 1913 A.C. 546 (H.L.) at 552 Viscount Haldane L.C. spoke thus:

When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decisions likewise attaches.

The decision reported in Secretary of State for India v. Chellikani Rama Rao AIR 1916 P.C. 21 is instructive on this aspect. u/s 10(ii) of the Madras Forest Act a claimant, aggrieved by the order of the Forest Settlement Officer can prefer an appeal to the District Court. In that case, the unsuccessful claimant filed an appeal to the District Court. The court rendered the decision. An appeal was taken to the High Court. It was contended before the Privy Council that the further appeal from the decision of the District Court and further proceedings were incompetent since they were excluded by the terms of the particular statute. Repelling the plea, the Judicial Committee stated the law thus:

In their Lordships opinion this objection is not well-founded. Their view is that when proceedings of this character reach the District Court, that Court is appealed to as one of the ordinary Courts of the country; with regard to whose procedure, orders, and decrees the ordinary rules of the CPC apply. This is in full accord with the decision of the full Bench Kamaraju v. Secretary of State (1988) 11 Mad. 309 (F.B.) a decision which was given in 1888 and has been acted on in Madras ever since...if the ordinary Courts of the Country are seized of a dispute of that character, it would require, in the opinion of the Board, a specific limitation to exclude the ordinary incidents of litigation. The objection taken is accordingly repelled.

The principles laid clown in the above decision of the Judicial Committee of the Privy Council were followed in the subsequent cases in AIR 1934 81 (Privy Council); AIR 1948 12 (Privy Council) and by the Supreme Court in Chidambaram v. James Chadwick AIR 1953 S.C. 357 and Vithal Yeshwant Jathar Vs. Shikandarkhan Makhtumkhan Sardesai, .

In the light of the above legal position the following vital aspects emerge. This appeal filed u/s 5(ii) of the Kerala High Court Act, 1958, is in substance and reality a second appeal. The appeal is filed from the appellate decree of this Court to a Bench of this Court. Normally it is only the procedure and the provisions of the CPC which are applied in the hearing of appeals by the learned Single Judge and also by the Bench of this Court. This Court is invested with the power to hear the second appeals from the decree passed in appeal by courts subordinate to the High Court u/s 100 of the Code of Civil Procedure. That is the normal provision in hearing second appeals by this Court. The second appeal provided to this Court from the judgments of the subordinate courts is confined to cases where a substantial question of law is involved. That is in accord with the public policy that there should be an end to the litigation. It is a restraint placed on the courts in the power of administering justice, with the above avowed public policy in mind. The normal Rule applicable when proceedings reach a civil court, which is appealed as one of the ordinary courts of the country is that the "procedure" orders and other provisions of the ordinary rules of the CPC will apply. Section 5(ii) of the Kerala High Court Act is not hedged in by any limitations like Section 100 CPC Section 5(ii) of the Kerala High Court Act, which, in substance and reality only provides a second appeal, is a kindred provision. It cannot be stated that the Division Bench hearing the appeal u/s 5(ii) of the Act is "a second court of first appeal". Bearing the above perspective, in the earlier Bench decision of this Court in A.F.A. 24 of 1990 it was held that the appeal provided by Section 5(ii) is in effect a second appeal and the principles of Section 100 CPC are in substance applicable to an appeal filed u/s 5(ii) of the Kerala High Court Act. We concur with the said view. We do not think that the earlier view expressed by this Court in A.F.A. No. 24 of 1990 requires re-consideration.

In our view, the principles embodied in Section 100 CPC proclaims the policy of the Legislature in the matter of entertaining second appeals. The said provision is based on public policy. We have held that the provisions of Section 100 CPC are in substance applicable to Section 5(ii) of the Kerala High Court Act, which is a. kindred provision.

It may be that Section 100 CPC is not bodily incorporated or the words in Section 100 CPC are not literally restated in Section 5(ii) of the Kerala High Court Act. But our reasoning to hold that the principles of Section 100 will apply is based only by way of analogy and as a matter of public policy, based on the practice of this Court in the matter of entertainment and disposal of second appeals. In this perspective, it is unnecessary to consider in detail the various aspects highlighted in the decisions cited by the Appellants'' Counsel, which proceed on different basis and were highlighting the provisions of the particular enactments and their legal impact. We refrain from a detailed analysis of those decisions in the above background.

We hold that the appeals filed u/s 5(ii) of the Kerala High Court Act, should in substance comply with the principles and guidelines engrafted in Section 100 Code of Civil Procedure.

A.F.A. 13 of 1991 will be posted for regular, admission hearing on 12th July 1991. The Appellant is directed to formulate the substantial question of law involved in the case.