The High Court of Kerala disposed of a second appeal challenging a prohibitory injunction. The court held the appeal was meritless as the appellant failed to raise a substantial question of law under Section 100 CPC and dismissed it without admitting the appeal.
Appeal dismissed without being admitted; interlocutory applications pending in second appeal dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 5TH DAY OF DECEMBER 2023 / 14TH AGRAHAYANA, 1945
RSA NO. 409 OF 2020
AGAINST THE JUDGMENT AND DECREE IN AS. NO.19/2017 OF THE SUBORDINTE JUDGE'S COURT SULTTHAN BATHERY DATED 30.11.2019 IN THE JUDGMENT AND DECREE IN OS 472/2015 OF HTE MUNSIFF MAGISTRATE, SULTHAN BATHERY, WAYANAD DATED 27.6.2017
APPELLANT/APPELLANT/DEFENDANT:
M.M.THOMAS AGED 66 YEARS S/O. MATHAI, MANNUR HOUSE,MANICHIRA, SULTHAN BATHERY AMSOM DESOM, SULTHAN BATHERY TALUK, WAYANAD DISTRICT
BY ADVS. T.G.RAJENDRAN SRI.CIBI THOMAS
RESPONDENT/RESPONDENT/PLAINTIFF:
NASREENA AGED 49 YEARS D/O. KEVIDAN ABDULLA, W/O. DR. SHAMSUDHEEN, MINSHA MANZIL, HOUSE NO. II/657, KAMBLAKKAD P.O, KANIYAMBETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT 673 122
BY ADVS. SRI.LEO KURIAKOSE ARUN KRISHNA DHAN HARIKRISHNAN P.B.(K/002531/2022) T.K.SANDEEP(K/1076/2003) ALEX ABRAHAM(K/000508/2017) ARJUN SREEDHAR(K/393/2008)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA NO. 409 OF 2020
2
J U D G M E N T
The appellant herein is the appellant in R.S.A No.428/2020, which was dismissed today. The respondent herein is one of the respondents in RSA No.428/2020. In this matter, suit was filed by the respondent herein, while the defendant in this suit and appellant herein, occupying the plaint schedule building as a licencee, attempted to alter and renovate the plaint schedule building dealt in this case and in R.S.A No.428/2020.
RSA NO. 409 OF 2020
3
above submission made by the learned counsel for the appellant. Hence, this appeal also liable to fail, in tune with the judgment in R.S.A.428/2020.
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.”
RSA NO. 409 OF 2020
4
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 b e 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.
(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 referring Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722].
74 SC], it was held, after referring Santosh Hazari v.
RSA NO. 409 OF 2020
5
Purushottam Tiwari, [2001 (3) SCC 179] (three – Judge Bench) , 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.
RSA NO. 409 OF 2020
6
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.
10 In view of the above fact, no substantial question of law arises in this matter to be decided by admitting this appeal.
In the result, this appeal is found to be meritless and the same is dismissed without being admitted.
All interlocutory applications pending in this second appeal, stand dismissed.
Registry shall inform this matter to the trial court as well as the appellate court, forthwith.
Sd/-
A. BADHARUDEEN
JUDGE
rp
3 issues framed by the court
Whether the second appeal requires substantial question of law for admission.
Whether the appellant has raised any substantial question of law warranting admission.
Whether the appeal satisfies conditions of Section 100 CPC and Order XLII Rule 2.
Colour shows how this judgement treated each authority
Nazir Mohamed v. J. Kamala and OthersReferred¶32
[2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168] · Who else cites this
Kondiba Dagadu Kadam v. Savitribai Sopan GujarReferred¶33
[(1999) 3 SCC 722] · Who else cites this
Government of Kerala v. JosephReferred¶34
[2023 (5) KHC 264 : 2023 (5) KLT 74 SC]
Santosh Hazari v. Purushottam TiwariReferred¶35
[2001 (3) SCC 179] · Who else cites this
2 provisions across 1 enactments
M.M.THOMAS
NASREENA
A. BADHARUDEEN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
A. BADHARUDEEN
Parties & counsel
