Nizamudeen vs Abdul Rahim
2023 Latest Caselaw 10158 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
            THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
   THURSDAY, THE 21ST DAY OF SEPTEMBER 2023 / 30TH BHADRA, 1945
                        RSA NO. 582 OF 2023
  AGAINST THE DECREE AND JUDGMENT IN OS NO.127/2013 OF MUNSIFF-
                  MAGISTRATE COURT, SASTHAMCOTTA
            AS NO.28/2020 OF SUB COURT, KARUNAGAPPALLY
APPELLANTS/APPELLANTS/DEFENDANTS:
     1     NIZAMUDEEN
           AGED 63 YEARS
           S/O. PAREEDKUTTY RESIDING AT CHEPPALLI VILAYIL,
           PALLISSERICKAL MURI, SASTHAMCOTTA VILLAGE, KUNNATHUR
           TALUK, KOLLAM DISTRICT, PIN - 690540
    2     NADEERA
          AGED 51 YEARS
          W/O. NIZAMUDEEN RESIDING AT CHEPPALLI VILAYIL,
          PALLISSERICKAL MURI, SASTHAMCOTTA VILLAGE, KUNNATHUR
          TALUK, KOLLAM DISTRICT, PIN - 690540
          BY ADVS.
          S.SREEKUMAR (KOLLAM)
          K.VIJAYAN
          NAMITHA RAJESH

RESPONDENT/RESPONDENT/PLAINTIFF:
           ABDUL RAHIM
           AGED 66 YEARS
           S/O. MYTHEENKUNJU RESIDING AT MUNEER MANZIL,
           PALLISSERICKAL MURI, SASTHAMCOTTA VILLAGE, KUNNATHUR
           TALUK, KOLLAM DISTRICT, PIN - 690540
          BY ADVS.
          THOMAS ABHRAHAM (CAVEATOR),
          MERCIAMMA MATHEW(K/709/2002)
          ASWIN.P.JOHN(K/324/2013)
          R.ANANTHAPADMANABAN(K/000058/2017)
          PAUL BABY(K/1390/2021)
          SWATHY A.P.(K/001801/2021)

     THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
21.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 RSA NO. 582 OF 2023             2



                        JUDGMENT

Dated this the 21st day of September, 2023

This appeal has been filed under Section 100 r/w

Order XLII Rule 1 to 3 of the Code of Civil Procedure (for

short, 'the C.P.C.' hereinafter) against the decree and

judgment in A.S.No.28/2020, dated 24.7.2023 on the files

of the Sub Judge, Karunagappally and also against the

judgment and decree, dated 21.12.2009 in

O.S.No.127/2013 on the files of the Munsiff Court,

Sasthamcotta.

2. The appellants herein are the defendants in the

above suit and the appellants in A.S.No.28/2020.

3. Heard the learned counsel for the appellants as

well as the learned counsel for the respondent.

4. I shall refer the parties in this appeal as

'plaintiff' and 'defendants' for convenience.

5. The case put up by the plaintiff before the trial

court was that, the plaintiff obtained exclusive title and

possession over the plaint schedule property, having an

extent of 2.2 Ares along with shop rooms situated

therein, based on sale deed No.3301/2008 of

Sasthamcotta SRO. There were litigation between the

parties prior to the present suit. Two suits viz.,

O.S.Nos.140/2008 and 322/2008 were filed by the

appellants herein/defendants. While rendering

judgments in the above suits, the suit for setting aside

sale deed No.3301/2008 (the sale deed in favour of the

plaintiff in the present suit) was dismissed by the trial

court and it was found that the appellants

herein/defendants in the present suit, are in possession

of the scheduled shop room.

6. After passing decrees in the above suits, the

plaintiff approached the trial court and sought to evict

the defendants from the shop rooms, in fact, covered by

the decrees in O.S.Nos.140/2008 and 322/2008.

7. Though the defendants resisted the suit, on

analysis of evidence, which is confined to PW1 and PW2

and Exts.A1 to A8 on the part of the plaintiff and DW1

and Exts.B1 to B8 were marked on the side of the

defendants, the trial court decreed the suit as under:

"In the result, the suit is decreed as follows:

(1) Defendants are hereby directed to surrender vacant possession of the plaint schedule shop room within 30 days from the date of decree failing which the plaintiff can have recourse to the process of law for getting them evicted.

(2) Defendants or persons under them are hereby restrained by a permanent prohibitory injunction from causing any damage to the petition schedule shop room and from trespassing on it.

(3) Considering the facts and circumstances of the case, there is no order as to costs."

8. Eventhough the defendants herein filed appeal

as A.S.No.28/2020 before the Sub Court, Karunagappally,

the learned Sub Judge also concurred the finding

concurrently.

9. At the time of hearing this appeal on

admission, the learned counsel for the appellants

herein/defendants would submit that the plaint schedule

shop rooms could not be identified, but the said

submission appears to be devoid of any merits, since

identity of the plaint schedule rooms was well found in

the earlier decrees in O.S.Nos.140/2008 and 322/2008.

Despite this contention, nothing argued to admit the

appeal to formulate and decide any substantial question

of law. Therefore, it appears that the attempt of the

appellants herein/defendants is to avoid eviction and no

substantial question of law involved in this matter.

10. In the earlier suits, the prayer for setting aside

the sale deed in favour of the plaintiff herein was

disallowed and the same attained finality. Though

possession of the appellants/defendants over the shop

rooms, sought to be evicted, was found, the right of the

respondent herein to get eviction of the defendants from

the so called shop rooms, is legally sustainable and the

present suit is one founded on the said cause of action,

that too, after dismissal of the earlier suits, is liable to

succeed as found by the trial court as well as the

appellate court.

11. In this matter, on perusal of the judgments and

decrees impugned, the title holder of the property as

plaintiff, filed a suit for eviction and the trial court as

well as the appellate court rightly decreed the same and

the plaint schedule items being shop rooms, could be

well identifiable and also the same are covered by the

decrees passed in the earlier suits.

12. In this case, the learned counsel for the

appellants/defendants failed to raise any substantial

question of law warranting admission of the second

appeal. Order XLII Rule 2 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."

13. Section 100 of the C.P.C. 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 says 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.

14. In the decision in Nazir Mohamed v. J.

Kamala and Others reported in [2020 KHC 6507 : AIR

2020 SC 4321 : 2020 (10) SCALE 168], 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.

15. In a latest decision of the Apex Court in

Government of Kerala v. Joseph, reported in [2023

(5) KHC 264 : 2023 (5) KLT 74 SC], 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.

16. 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 the C.P.C., 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 the C.P.C.

must be complied to admit and maintain a second appeal.

17. In view of the above fact, no substantial

question of law arises in this matter to be decided by

admitting this appeal.

18. In the result, this appeal is found to be

meritless and the same is dismissed without being

admitted.

At the time of dismissal, the learned counsel for the

defendants/appellants herein sought a breathing time to

surrender the vacant possession of shop rooms. Having

considered the said prayer, in consensus with the other

side, I am inclined to grant one month time from today to

vacate the shop rooms voluntarily, provided the

appellants shall file an affidavit before the Execution

Court to that effect, within a period of 10 days from

today. If at all, the undertaking is not filed or else, the

appellants did not vacate the building, as directed within

30 days from today, the Execution Court is at liberty to

execute the decree, without fail.

Sd/-

A. BADHARUDEEN JUDGE Bb