Kerala High Court
P.R. Dhanya vs Anandhan on 8 December, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 8TH DAY OF DECEMBER 2023 / 17TH AGRAHAYANA, 1945
RSA NO. 425 OF 2022
AGAINST THE DECREE AND JUDGMENT DATED 16.03.2022 IN
A.S.NO.100/2021 ON THE FILES OF THE ADDITIONAL DISTRICT COURT-IV,
PALAKKAD AROSE FROM THE DECREE AND JUDGMENT DATED 20.12.2017 IN
O.S.NO.195/2013 ON THE FILES OF THE MUNSIFF'S COURT, CHITTUR
APPELLANT/APPELLANT/DEFENDANT:
P.R. DHANYA
AGED 38 YEARS, D/O PADMANABHA PILLAI, KALAVARA VEEDU,
PUDUNAGARAM AMSOM AND DESOM, KARIPPODE P.O.,
PALAKKAD, PIN - 678503
BY ADVS.
M.R.ARUNKUMAR
P.SHAMMI NAVAS
A.FRANCIS
P.T.BINDURAJ
RESPONDENT/RESPONDENT/PLAINTIFF:
ANANDHAN
AGED 58 YEARS, S/O KUPPUNNI,
POONTHONI, VADAVANNUR AMSOM AND DESOM, VADAVANNUR,
CHITTUR TALUK, PALAKKAD DISTRICT, PIN - 678504
BY ADVS.
V.JAYADEVA NARAYANAN
K.P.BALAGOPAL
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ORDERS ON
08.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.S.A. No. 425 of 2022
2
JUDGMENT
Dated this the 8th day of December, 2023
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.100 of 2021 dated 16.03.2022 on the
files of the Court of the District Judge, Palakkad arose from
the decree and judgment in O.S. No.195 of 2013 dated
20.12.2017 on the files of the Munsiff Court, Chittur. The
appellant herein is the defendant and the respondent is
the plaintiff in O.S. No.195 of 2013.
2. Heard the learned counsel for the appellant as
well as the learned counsel appearing for the respondent
on admission.
3. Parties in this appeal shall be referred as
"plaintiff" and "defendant" with reference to their status
before the trial court.
4. In this matter, the plaintiff filed suit for specific
performance of contract alleged to be entered into
between the plaintiff and defendant on 17.09.2011 to sell
the plaint schedule property in favour of the plaintiff for a
total sale consideration of Rs.9,00,000/-, out of which
Rs.6,50,000/- was paid in advance and the sale deed was
agreed to be executed on or before 17.08.2012 on receipt
of the balance sale consideration agreed upon. Later, the
agreement was extended upto 30.04.2013 as per the
endorsement in the agreement dated 17.08.2012 and
Rs.1,93,000/- more also was paid towards sale
consideration. Accordingly, the plaintiff sought for
performance of the contract or in the alternative to return
Rs.8,43,000/- along with 12% interest to the plaintiff.
5. The defendant filed written statement denying
the agreement in between the plaintiff and defendant and
alleged that the contract for sale is a unilaterally executed
fabricated document. According to the defendant, the
defendant did not receive Rs.8,43,000/- as alleged by the
plaintiff and the plaint schedule property was in possession
and enjoyment of the defendant.
6. The plaintiff filed replication denying certain
contentions raised in the said written statement.
7. The trial court recorded evidence confining to
PW1 and PW2 and Exts.A1 to A4 on the side of the plaintiff.
No evidence let in by the defendant. Accordingly, the trial
court decreed the suit as under:
In the result, the suit is decreed as
follows :-
(1) The defendant is liable to pay an
amount of Rs.8,43,000/- (Rupees eight lakh
forty three thousand only) to the plaintiff along
with interest thereon at the rate of 6% per
annum from 29-4-2013, until the date of
realization of the above amount by the plaintiff
from the defendant.
(2) There shall be a charge over the plaint
schedule property for the above amount
decreed in favour of the plaintiff.
(3) The plaintiff is entitled to realize the
costs of the suit from the defendant.
8. The plaintiff being the decree holder filed E.P.
No.134/2018 before the Munsiff Court on 05.12.2018 and
thereafter notice was issued to the judgment debtor. The
notice issued returned with endorsement "unserved".
Again notice was issued by registered post and the same
returned stating that on intimation the judgment debtor did
not accept the notice. Accordingly, Rule-66 notice was
issued and the judgment debtor was set ex-parte. Later,
the Munsiff proceed with the EP as per law on getting
encumbrance certificate, valuation certificate etc. and
finally sale was conducted on 04.02.2022 and posted the
same for confirmation on 04.04.2022. On 02.04.2022, the
defendant filed E.A. No.107/2022 to set aside the sale on
the grounds of irregularities. On 21.06.2022, the learned
Munsiff dismissed E.A. No.107/2022 and the sale was
confirmed. On the same day, EP also was closed.
9. The first appeal, A.S. No.100/2021, challenging
the decree and judgment of the trial court was filed before
the District Court, Palakkad on 15.12.2022 along with a
petition I.A. No.1/2021 (1821/2021) seeking condonation of
delay of 1426 days in filing the appeal.
10. The learned District Judge adjudicated the delay
petition after appraising contention raised by the otherside
and also meticulously narrating the events led to filing of
the EP. It was found by the Appellate Court that it was
unbelievable that the defendant/appellant was unaware of
the case continuously for 1426 days, particularly, when the
address of the defendant/appellant shown in the appeal
memorandum was the same shown in the execution
proceedings. Finally the Appellate Court found that no
sufficient reasons were stated in the delay petition to
condone the delay in filing the appeal. Pursuant to the said
finding, I.A. No.1/2021 was dismissed and consequently,
A.S. No.100/2021 also was dismissed as per the judgment
and decree dated 16.03.2023.
11. This regular second appeal arising out of the
decree and judgment in A.S. No.100/2021 has been filed
along with delay petition to condone delay of 23 days and
the same stands condoned as per order dated 25.08.2022
of this Court.
12. While impeaching the correctness of dismissal of
I.A. No.1/2021 in A.S. No.100/2021 by the District Court,
Palakkad, the learned counsel for the defendant submitted
that the defendant has been residing at her father's house
at Kollam and she left to the company of her husband, who
has been residing in the address shown in the decree and
judgment as well as in the EP. Therefore, the defendant did
not receive notice in the EP proceedings and the EP was
proceeded without the knowledge of the defendant. It is
also submitted that since there are reasonable grounds to
challenge the decree and judgment of the trial court, the
Appellate Court ought to have allowed the petition to
condone delay of 1426 days and the appeal should have
been disposed of on merits.
13. Repelling this contention, the learned counsel for
the plaintiff/decree holder submitted that the defendant
was aware of pendency of E.P. No.134/2018, when she filed
the first appeal on 15.12.2021 and she rightly filed E.A.
No.170/2022 on 02.04.2022 to set aside the sale on the
ground of irregularities before the confirmation of the sale
as on 04.04.2022. The Execution Court dismissed the
petition and confirmed the sale. Thereby E.P also was
closed. According to the learned counsel for the plaintiff,
now the plaintiff received the decree debt out of the sale
proceedings. Therefore, now the property is at the hands of
the auction purchaser and he is not arrayed as a party in
this second appeal.
14. In so far as the matter in issue is concerned, the
same is as to whether sufficient reasons are shown by the
defendant to condone the delay of 1426 days in filing the
first appeal before the Appellate Court.
15. On perusal of the copy of the petition filed as I.A.
No.1/2021 before the District Court, Palakkad, the reasons
for condonation of delay are extracted hereunder:
I have serious contentions in the above
appeal. The appeal ought to have been filed
on or before 19.1.2018. I had some
matrimonial issues in my life and separated
from my husband. The communication
regarding trial was received by my husband
and same was not intimated to me. So I could
not appear before the lower court and adduce
my evidence. When the suit was posted for
hearing, my counsel reported no instruction
and the suit was decreed as exparte. As I was
out of station and my neighbours informed
that notice in E.P regarding the sale of the
immovable property was affixed in my house
then only I came to understand the fact that
the suit was decreed exparte. As my earlier
counsel shifted his practice to some other
place so I could contact him. Thereafter I
reached Palakkad and contacted my present
counsel then only it is came to understand
about the present status of the suit. Due to
covid-19 pandemic and lockdown and also
my mother was hospitalized several times,
hence I was in a serious financial crisis and
could not take steps to file appeal and make
arrangements for payment necessary court
fee. Thus there occurred a delay of 1426 days
in filing the appeal. There is no willful default
or laches on my part in not filing the appeal
within time. If the delay in filing the appeal is
not condoned we will be put to irreparable
injury and damages.
16. In the objection filed by the plaintiff, condonation
of long delay of 1426 days was seriously opposed by
narrating the history of the case in detail. The crux of the
contentions raised by the plaintiff could be gathered from
paragraph Nos. 4, 5, 7 and 8 of the counter statement filed
by the plaintiff. Paragraph Nos. 4, 5, 7 and 8 are extracted
hereunder:
4) On receipt of the summons the
petitioner/appellant appeared through
counsel and filed counter in I.A.982/2013 and
written statement. When the case posted in
list the appellant's counsel reported "no
instruction" and the petitioner/appellant was
set ex-parte and the suit was decreed on
20/12/2014. Thereafter the appellant filed
I.A.810/2015 and I.A.811/2015 to set aside
the ex-parte decree and condoning the delay.
But she failed to appear before the court and
the said application was dismissed. The
petitioner/appellant filed application as I.A.
1048/2016 to condone the delay of 144 days
and I.A. 1049/2016 to restore the
I.A.810/2015 which is dismissed for default.
Those petitions were allowed and the case
was proceeded. When the case came in the
list the petitioner/appellant's counsel
vehemently cross examined this respondent
and after closing the evidence of the
respondent the case was adjourned for
defence evidence on 16/11/2017. On that day
the petitioner/appellant/defendant sought
time and the case was adjourned to
18/11/2017. The petitioner/appellant/
defendant submitted to the court that they
have no defence evidence and the case was
adjourned to 28/11/2017 finally. On that day
they sought time and the case again
adjourned to 05/12/2017 finally. As the
petitioner/appellant was not ready it was
adjourned to 12/12/2017. On 11/12/2017 the
petitioner/appellant filed an application as
I.A.2714/2017 to reopen the evidence
enabling her to tender evidence on her side.
This respondent seriously opposed that
application filing counter and the case is
adjourned to 13/12/2017 for hearing. On
13/12/2017 counsel for the petitioner/
appellant reported "No instructions",
defendant (appellant) called absent and she
was set ex-parte, I.A.2714/2017 filed by the
petitioner/appellant also dismissed and heard
the respondent/plaintiff and posted for
judgment on 20/12/2017. On that day the suit
is decreed directing the petitioner/appellant
to pay an amount of Rs. 8,43,000/- to the
respondent/plaintiff with interest thereon at
the rate of 6% per annum from 29/04/2013
until the date of realization of the amount
creating a charge over the plaint schedule
property for the amount decreed in favour of
the respondent/plaintiff with cost. The
Honourable court was pleased to allow and
certify a cost of Rs.1,19,145/- to the
respondent/plaintiff.
5) The respondent filed E.P. 134/2018
for realisation of the amount by putting the
plaint schedule property for sale. Notice was
issued to the petitioner/appellant and
intimation served on the appellant at her
residence and as she was not turned up and
failed to appear before the court she was
called absent and set ex-parte on 04/10/2019
and the EP was adjourned for production of
DSP and EC and was produced by the
respondent and the case was posted for sale
of the petition schedule property fixing the
upset price as Rs.25,00,000/-. As there was
no bidders the respondent/plaintiff field
application as E.A. 41/2020 to reduce the
upset price and the same was allowed and
upset price fixed as Rs.20,00,000/-. Again the
property was put to sale on 18/01/2021. In
the mean time the petitioner/appellant who
was silently watching all the proceedings with
intend to deceive and cheat the
respondent/plaintiff by prolonging the
litigation and obstruct the conduct of sale
filed application as E.A. 8/2021 to set aside
the ex-parte order and E.A. 9/2021 for
adjournment of the sale. Both the
applications were allowed on 18/01/2021 and
the sale was adjourned for filing counter in
the E.P. Several adjournments were given for
filing counter in the EP and the petitioner/
appellant filed counter on 15/11/2021. After
considering the counter and hearing, the
property was put to sale on 20/12/2021. The
petitioner/appellant filed E.A. 278/2021 for
adjournment of sale stating that she was
unable to participate in the settlement of
proclamation etc. raising flimsy grounds. The
Honourable Munsiff Court, Chittur considered
the same and has directed to file counter in
the proclamation and after considering the
objections the Honourable Munsiff Court,
Chittur has pleased to put the property to
sale on 28/01/2022 after fixing the upset
price. This respondent has filed an application
as E.A.279/2021 for bid and set off and the
same is pending.
7) The petition filed as E.A.8/2020 on
08/01/2021 by the petitioner/ appellant
before the Munsiff Court, Chittur in E.P.
134/2018 to set aside the ex-parte order
passed against her will clearly reveals that
she got information regarding the existence
of Execution Petition. She has also filed
E.A.9/2020 on 08/01/2021 seeking to stop the
auction proceedings to be conducted on
18/01/2021. The Honourable Munsiff
considered the petitions and allowed the
same on 18/01/2021. There after this petition
is filed after exhausting all the remedies
before the Munsiff Court, Chittur. The
petitioner/appellant's counsel has
vehemently cross-examined this respondent
at the trial state of the suit and reported no
instruction when the case was posted for
defence evidence will clearly reveal that it is
a tactics just to deceive and delay this
respondent from recovering the amount
raising untenable contentions. The statement
in the petition that appeal ought to have
been filed on 19/01/2018 will reveal that she
is fully aware of filing the appeal and the
consequences thereof. The reasons stated in
the delay petition is neither reasonable nor
valid. The statement that she got information
from the neighbors regarding the affixture of
notice in the E.P. is contradictory and
repugnant. No medical certificate or any
other documents are produced to prove her
contentions. As per the Limitation Act the
petitioner/appellant has to submit reasonable
explanation for each days delay for filing the
petition and appeal. The application cannot
be allowed if the applicant does not satisfy
the court that she had sufficient cause for not
preferring the appeal of making the
application within such period. She could
have filed the appeal and petitions at least as
early as on 08/01/2021 when she filed
application before the Munsiff Court, Chittur
to set aside the ex-parte order in
E.P.134/2018. There is no explanation or
sufficient reason in the above application for
delay caused from 08/01/2021 to 15/12/2021.
In fact, the petitioner/appellant was
monitoring all the proceedings in the lower
court as a silent spectator and was evading
and avoiding to receive the notice directly
and appear before the court even after
receipt of intimation.
8) On 25/01/2022 the petitioner/
appellant filed an application as E.A.45/2022
in E.P. 134/2018 along with emergent and
advance applications before the Munsiff
Court, Chittur. The said application was
advanced and posted for hearing on
27/01/2022. After detailed hearing it is
posted for orders on 28/01/2022. As the
Honourable Munsiff was laid up the order was
unable to be pronounced and the sale was
adjourned. On 31/01/2022 the Honourable
Munsiff Court, Chittur was pleased to dismiss
EA 45/22 and directed to Issue carbon copy.
As the proclamation for sale was ordered on
7-1-22 and thirty days not over, the
Honourable Court was pleased to direct
conduct of sale as per law on 3/2/22 and for
report on 04/02/2022. On 03/02/2022 the
petitioner/appellant again filed application
E.A.53/2022 to receive the applications
emergently, E.A. 54/2022 to advance the
hearing and E.A.55/2022 to adjourn the sale
posted on 03/02/2022. The Honourable
Munsiff Court, Chittur after detailed hearing
dismissed the applications and sale was
conducted. Three persons participated in the
auction and the property was bid in auction
for Rs. 20,10,000/- by third party.
17. Law regarding sufficient cause contemplated
under Section 5 of the Limitation Act is well settled. In this
context, it is apposite to extract Section 5 of the Limitation
Act, 1963 and the same is as follows:
"5. Extension of prescribed period in
certain cases:
Any appeal or any application, other
than an application under any of the
provisions or Order XXI of the Code of Civil
Procedure, 1908 (5 of 1908), may be
admitted after the prescribed period, if the
appellant or the applicant satisfies the court
that he had sufficient cause for not preferring
the appeal or making the application within
such period."
18. It is true that "sufficient cause" is the decisive
factor while condoning the delay. Though it has been
settled that liberal view should be taken while condoning
delay, it is equally settled that when the delay sought to be
condoned on account of any dilatory tactics without bona
fides, with deliberate inaction or negligence, such a
concession also is not possible. In this connection, the
learned counsel for the plaintiff placed the latest decision of
the Apex Court reported in [AIR 2022 SC 332], Majji
Sannemma alias Sanyasirao v. Reddy Sridevi and
Others, wherein the Apex Court considered condonation of
delay of 1011 days. In the said judgment, the Apex Court
relied on the decision reported in [(1997) 7 SCC 556],
P.Ramachandran v. State of Kerala and Anr. wherein
condonation of delay of 565 days was refused and held in
paragraph Nos.7 and 8 as under:
"7. At this stage, a few decisions of this
Court on delay in filing the appeal are
referred to and considered as under:
7.1 In the case of Ramlal, Motilal and
Chhotelal v.Rewa Coalfields Ltd. (AIR 1962 SC
361), it is observed and held as under:- In
construing s. 5 it is relevant to bear in mind
two important considerations. The first
consideration is that the expiration of the
period of limitation prescribed for making an
appeal gives rise to a right in favour of the
decree-holder to treat the decree as binding
between the parties. In other words, when
the period of limitation prescribed has
expired the decree-holder has obtained a
benefit under the law of limitation to treat
the decree as beyond challenge, and this
legal right which has accrued to the decree-
holder by lapse of time should not be light
heartedly disturbed. The other consideration
which cannot be ignored is that if sufficient
cause for excusing delay is shown discretion
is given to the Court to condone delay and
admit the appeal. This discretion has been
deliberately conferred on the Court in order
that judicial power and discretion in that
behalf should be exercised to advance
substantial justice. As has been observed by
the Madras High Court in Krishna v.
Chattappan, (1890) J.L.R. 13 Mad. 269, "s. 5
gives the Court a discretion which in respect
of jurisdiction is to be exercised in the way in
which judicial power and discretion ought to
be exercised upon principles which are well
understood; the words 'sufficient cause'
receiving a liberal construction so as to
advance substantial justice when no
negligence nor inaction nor want of bona fide
is imputable to the appellant."
7.2 In the case of P.K. Ramachandran
v. State of Kerala and Anr. (AIR 1998 SC
2276), while refusing to condone the delay of
565 days, it is observed that in the absence
of reasonable, satisfactory or even
appropriate explanation for seeking
condonation of delay, the same is not to be
condoned lightly. It is further observed that
the law of limitation may harshly affect a
particular party but it has to be applied with
all its rigour when the statute so prescribes
and the courts have no power to extend the
period of limitation on equitable grounds. It is
further observed that while exercising
discretion for condoning the delay, the court
has to exercise discretion judiciously.
7.3 In the case of Pundlik Jalam Patil V.
Executive Engineer [(2008) 17 SCC 448], it is
observed as under: "The laws of limitation
are founded on public policy. Statutes of
limitation are sometimes described as
"statutes of peace". An unlimited and
perpetual threat of limitation creates
insecurity and uncertainty; some kind of
limitation is essential for public order. The
principle is based on the maxim "interest
reipublicae ut sit finis litium", that is, the
interest of the State requires that there
should be end to litigation but at the same
time laws of limitation are a means to ensure
private justice suppressing fraud and perjury,
quickening diligence and preventing
oppression. The object for fixing timelimit for
litigation is based on public policy fixing a
lifespan for legal remedy for the purpose of
general welfare. They are meant to see that
the parties do not resort to dilatory tactics
but avail their legal remedies promptly.
Salmond in his Jurisprudence states that the
laws come to the assistance of the vigilant
and not of the sleepy".
7.4 In the case of Basawaraj and Anr V.
Special Land Acquisition Officer (AIR 2014 SC
746), it is observed and held by this Court
that the discretion to condone the delay has
to be exercised judiciously based on facts
and circumstances of each case. It is further
observed that the expression "sufficient
cause" cannot be liberally interpreted if
negligence, inaction or lack of bona fides is
attributed to the party. It is further observed
that even though limitation may harshly
affect rights of a party but it has to be
applied with all its rigour when prescribed by
statute. It is further observed that in case a
party has acted with negligence, lack of bona
fides or there is inaction then there cannot be
any justified ground for condoning the delay
even by imposing conditions. It is observed
that each application for condonation of
delay has to be decided within the framework
laid down by this Court. It is further observed
that if courts start condoning delay where no
sufficient cause is made out by imposing
conditions then that would amount to
violation of statutory principles and showing
utter disregard to legislature.
7.5 In the case of Pundlik Jalam Patil
(supra), it is observed by this Court that the
court cannot enquire into belated and stale
claims on the ground of equity. Delay defeats
equity. The Courts help those who are vigilant
and "do not slumber over their rights".
8. Applying the law laid down by this
Court in the aforesaid decisions to the facts
of the case on hand and considering the
averments in the application for condonation
of delay, we are of the opinion that as such
no explanation much less a sufficient or a
satisfactory explanation had been offered by
respondent Nos.1 and 2 herein - appellants
before the High Court for condonation of
huge delay of 1011 days in preferring the
Second Appeal. The High Court is not at all
justified in exercising its discretion to
condone such a huge delay. The High Court
has not exercised the discretion judiciously.
The reasoning given by the High Court while
condoning huge delay of 1011 days is
germane. Therefore, the High Court has erred
in condoning the huge delay of 1011 days in
and 2 herein-original defendants. Impugned
order passed by the High Court is
unsustainable both, on law as well as on
facts."
19. Coming to the facts of this case, as I have already
extracted, the reasons for condonation of delay, mainly as
argued by the learned counsel for the defendant is lack of
knowledge regarding the proceedings in the E.P., since the
defendant was staying away at her parental home in Kollam
due to matrimonial discord with her husband. But, on
perusal of the affidavit in support of the petition, it has been
stated that "as I was out of station and my neighbours
informed that notice in E.P regarding the sale of the
immovable property was affixed in my house then only I
came to understand the fact that the suit was decreed
exparte". The above averment would go to show that the
defendant was aware about sale notice in the execution
proceedings as it was informed by her neighbors.
Therefore, the argument of the learned counsel for the
defendant that, the defendant had no knowledge about
the sale proceedings in the E.P. would tumble down.
20. Going by the further averments in the petition, it
is emphatically clear that even after knowing about
execution proceedings which culminated in sale of the
decree schedule property, the defendant was reluctant to
appear before the execution court or to file an appeal
challenging the said decree in time. Going by the
narrations in the objection filed by the respondent, it is
discernible that the suit originally filed in the year 2013.
When the case was listed on 20.12.2014, the counsel for
the defendant reported "no instruction" and accordingly an
ex-parte decree was passed. Thereafter, I.A. No.810/2015
and I.A. No.811/2015 were filed to set aside ex-parte
decree after condoning the delay. Those petitions were
dismissed for non prosecution.
21. Thereafter, the defendant filed I.A.
No.1048/2016 to condone the delay of 144 days and I.A.
No.1049/2016 to restore I.A. No.810/2015 which was
dismissed for default. Those petitions were allowed and
the ex-parte decree was set aside. The case was listed for
trial and the learned counsel for the defendant vehemently
cross-examined the plaintiff. Thereafter, the case was
posted for defence evidence on 16.11.2017. On that day,
the defendant sought adjournment to 18.11.2017. On
18.11.2017, the defendant submitted that the defendant
had no defence evidence. Thereafter, at the request of the
defendant the case stood adjourned to 28.11.2017,
05.12.2017 and 13.12.2017. On 11.12.2017 the defendant
filed I.A. No.2714/2017 to reopen the evidence. When the
case was called on 13.12.2017, the counsel for the
defendant reported "no instruction" and the case was
heard and posted for judgment on 20.12.2017. On
20.12.2017, the suit was decreed.
22. Thus, callous and lethargic attitude could be
seen from the part of the defendant throughout the
proceedings. More importantly, even though she got
information regarding the notice in the E.P. as admitted in
the averments in the affidavit in support of the delay
petition, she was careless in conducting the case properly.
Thus, it appears that the learned Appellate Judge rightly
dismissed the delay petition I.A. No.1/2021 (1821/2021)
and the said order is perfectly justified, since the
defendant miserably failed to show sufficient cause to
condone the delay in filing the first appeal. Therefore,
dismissal of the appeal A.S. No.100/2021 by the Appellate
Court being time barred also is fully justified.
23. 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."
24. 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.
25. 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.
26. 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.
27. 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.
28. 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.
29. 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.
30. Accordingly, this regular second appeal stands
dismissed, without being admitted, as indicated above.
All interlocutory application also stands dismissed.
Sd/-
A. BADHARUDEEN
SK JUDGE
RESPONDENT ANNEXURES
Annexure R(a) Certified copy of the E.A No 170/2022
in E.P.No 134/2018 dated 2/4/2022
Annexure R(b) Certified copy of the order dated
21/6/2022 in E.A No.170/2022 in E.P.No.
134/2018 in O.S No 195/2013 Munsiff
Court Chittur
Annexure R(c) Certified copy of the order dated
21/6/2022 in E.P.No. 134/2018 in O.S No
195/2013 Munsiff Court Chittur
