Kerala High Court
Elsy vs Saritha Shaji on 25 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
WEDNESDAY, THE 25TH DAY OF AUGUST 2021 / 3RD BHADRA, 1943
RSA NO. 490 OF 2021
OS 346/2013 OF MUNSIFF COURT, NORTH PARAVUR, ERNAKULAM
AS NO. 79/2017 OF ADDL. DISTRICT COURT-II, N.PARAVUR
APPELLANT/S:
ELSY
AGED 61 YEARS
HOUSE WIFE, W/O.THOMAS, THEKKINIYATH HOUSE,
THURATHOOR KARA, PUTHEVELIKKARA VILLAGE, PARAVUR
TALUK, PUTHENVELIKKARA P.O., PIN - 683 594,
ERNAKULAM DISTRICT.
BY ADV P.R.SHAJI
RESPONDENT/S:
SARITHA SHAJI
AGED 49 YEARS
W/O.SHAJI, KOCHUPARAMBIL HOUSE, VELLIKULANGARA
VILLAGE, DESOM, MUKUNDAPURAM TALUK.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 25.08.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
RSA NO. 490 OF 2021
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JUDGMENT
This appeal has been filed challenging the
judgment and decree passed by the first
appellate court for return of an amount of
Rs.4,00,000/- as advance sale consideration
pursuant to an agreement for sale between the
parties.
2. When the appeal came up for admission on
26.07.2021, the learned counsel for the
appellant submitted that the
respondent/plaintiff, who instituted the suit,
has no cause of action to institute the suit
and the suit is premature in nature. It was
further submitted that the appellant/defendant
was not in a position to return the money
alleged to have been received by her in view
of the attachment order in force in respect of
the property covered under the agreement.
Practically, the receipt of the amount is
RSA NO. 490 OF 2021
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admitted by the appellant/defendant. This
Court was of the prima facie view that the
appellant/defendant received the advance sale
consideration from the respondent/plaintiff
and applying the principles of unlawful
enrichment as envisaged under the Indian
Contract Act, the appellant/defendant was
bound to return the money to the
respondent/plaintiff, which alone was done by
the first appellate court. Having found that
there was no substantial questions of law
involved to entertain the appeal, after having
heard at length, this Court was of the view
that it is just and proper to resolve the
matter through mediation rather than admitting
the appeal on substantial questions of law.
Hence, notice was issued at the instance of
the learned counsel for the appellant for the
limited purpose of resolving the matter
through mediation. Accordingly, notice was
RSA NO. 490 OF 2021
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issued directing the respondent/plaintiff to
be present before this Court on 25.08.2021 at
10.15 am.
3. When the matter was taken up today at
10.15 am, Adv.Sri.Bitto N.L. entered
appearance for the respondent and submitted
that the respondent/plaintiff is present
before this Court for mediation. However, the
appellant/defendant is absent and there is no
representation for the appellant.
4. On going through the facts and circumstances
of the case, it is clear that the first
appellate court has taken a probable view,
directing the appellant to refund the advance
sale consideration received, applying the
principles of unlawful enrichment.
5. Right to second appeal is not an absolute
right or an inherent right attaching to the
litigation and it does not exist unless
expressly conferred by the statute. It is
RSA NO. 490 OF 2021
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mandatory to formulate a substantial question
of law while entertaining the second appeal,
in the absence of which, this Court cannot
proceed to hear a second appeal. A contention
that the appellant is not in a position to
repay the money in view of the attachment
order issued by the trial court is not a
substantial question of law to be formulated
in this appeal. No substantial questions of
law arise for consideration in this case.
Hence, this RSA is liable to be dismissed in
limine.
In the result, this RSA is dismissed. There
will be no order as to costs. Pending
applications, if any, stand closed.
Sd/-
N.ANIL KUMAR
JUDGE
Bka/25.08.2021
