Dismissed

Somarajan v. Gopalakrishnan,(Died) Legal Representatives Impleaded

Kerala HC4 Jun 2024RSA/100/2017

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed two regular second appeals under Section 100 CPC without admitting them, holding that no substantial question of law was raised. The Court found the appeal contentions regarding a sale deed's nature and alleged oral agreements were barred or raised outside the scope of the original suit pleadings.

What did the court decide?

Regular second appeals dismissed without admission; interlocutory applications pending therein also dismissed.

Somarajan Vs Gopalakrishnan,(Died) Legal… — Civil Procedure and Limitation | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

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TUESDAY, THE 4TH DAY OF JUNE 2024 / 14TH JYAISHTA, 1946

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RSA NO. 100 OF 2017

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AGAINST THE DECREE AND JUDGMENT DATED 15.12.2016 IN A.S. NO.11 OF

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2011 OF ADDITIONAL DISTRICT COURT-I, MAVELIKKARA ARISING OUT OF THE
DECREE AND JUDGMENT DATED 15.11.2010 IN O.S. NO.313 OF 2006 OF

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MUNSIFF COURT, KAYAMKULAM

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APPELLANTS/APPELLANTS/DEFENDANTS:

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1 SOMARAJAN

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S/O.RAGHAVAN, RESIDING AT AKHIL NIVAS, FROM PUTHENCHIRAYIL VEEDU, PATHIYOOR KIZHAKKUMURI, PATHIYOOR VILLAGE.

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2 AMBILI W/O.SOMARAJAN, RESIDING AT AKHIL NIVAS, FROM PUTHENCHIRAYIL VEEDU, PATHIYOOR KIZHAKKUMURI, PATHIYOOR VILLAGE.

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BY ADVS.

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SRI.R.RAJASEKHARAN PILLAI
SMT.SABINA JAYAN
DR.SHERINE JOSEPH

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RESPONDENTS/RESPONDENTS/PLAINTIFFS:

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1 GOPALAKRISHNAN,(DIED) LEGAL REPRESENTATIVES IMPLEADED S/O.GOVINDAN, RESIDING AT KAILASOMVEEDU, PATHIYOOR KIZHAKKUMURI, PATHIYOOR VILLAGE. 690502

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2 SUSEELA

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W/O.GOPALAKRISHNAN, RESIDING AT KAILASOMVEEDU, PATHIYOOR
KIZHAKKUMURI, PATHIYOOR VILLAGE. 690502

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ADDL R3 GEETHU GOPALAKRISHNAN AGED 32 YEARS

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D/O LATE G.GOPALAKRISHNAN, RESIDING AT KAILASOM VEEDU,
PATHIYOUR KIZHAKKUMURI, KEERIKKAD P.O, ALAPPUZHA-690 106.
ADDL R4SAMBHU GOPALAKRISHNAN,
AGED 25 YEARS

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S/O LATE G.GOPALAKRISHNAN, RESIDING AT KAILASOM VEEDU,
PATHIYOUR KIZHAKKUMURI, KEERIKKAD P.O, ALAPPUZHA-690106.
(LEGAL HEIRS OF THE DECEASED R1 ARE IMPLEADED AS ADDL.R3
AND R4 AS PER ORDER DATED 29.05.2023 IN IA.1/2022)
BY ADVS.

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R1 & R2 BY K.JAJU BABU (SR.)

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R.S.A. Nos. 100 & 104 of 2017

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R1 TO R4 BY M.U.VIJAYALAKSHMI
R3 & R4 BY SACHIN RAMESH

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON
04.06.2024, ALONG WITH RSA.104/2017, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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R.S.A. Nos. 100 & 104 of 2017

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

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TUESDAY, THE 4TH DAY OF JUNE 2024 / 14TH JYAISHTA, 1946

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RSA NO. 104 OF 2017

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AGAINST THE DECREE AND JUDGMENT DATED 15.12.2016 IN A.S. NO.14 OF
2011 OF ADDITIONAL DISTRICT COURT-I, MAVELIKKARA ARISING OUT OF THE
DECREE AND JUDGMENT DATED 15.11.2010 IN O.S. NO.244 OF 2006 OF

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MUNSIFF COURT, KAYAMKULAM

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APPELLANTS/APPELLANTS/PLAINTIFFS:

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1 SOMARAJAN

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S/O. RAGHAVAN, RESIDING AT AKHIL NIVAS,
FROM PUTHENCHIRAYIL VEEDU, PATHIYOOR KIZHAKKUMURI,
PATHIYOOR VILLAGE.

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2AMBILI
W/O. SOMARAJAN,RESIDING AT AKHIL NIVAS,
FROM PUTHENCHIRAYIL VEEDU, PATHIYOOR KIZHAKKUMURI,
PATHIYOOR VILLAGE.

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BY ADVS.

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SRI.R.RAJASEKHARAN PILLAI
SMT.SABINA JAYAN
DR.SHERINE JOSEPH

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1GOPALAKRISHNAN (DIED)
S/O. GOVINDAN, RESIDING AT KAILASOMVEEDU,
PATHIYOOR KOZHAKKUMURI, PATHIYOOR VILLAGE - 690502.

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2 SUSEELA

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W/O. GOPALAKRISHNAN, RESIDING AT KAILASOMVEEDU,
PATHIYOOR KIZHAKKUMURI, PATHIYOOR VILLAGE - 690502.

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ADDL R3 GEETHU GOPALAKRISHNAN

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AGED 32,D/O. LATE G.GOPALAKRISHNAN, RESIDING AT KAILASOM
VEEDU, PATHIYOUR KIZHAKKUMURI, KEERIKKAD P.O,
ALAPPUZHA-690106.

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ADDL R4 SAMBHU GOPALAKRISHNAN

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AGED 25, S/O. LATE G.GOPALAKRISHNAN, RESIDING AT
KAILASOM VEEDU, PATHIYOUR KIZHAKKUMURI, KEERIKKAD P.O,
ALAPPUZHA-690106.

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R.S.A. Nos. 100 & 104 of 2017

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(THE LEGAL HEIRS OF DECEASED FIRST RESPONDENT ARE
IMPLEADED AS ADDL. R3 AND ADDL. R4 AS PER ORDER DATED
29.05.2023 IN IA. 1/2022)
BY ADVS.
R1 & R2 BY K.JAJU BABU (SR.)
R1 TO R4 BY M.U.VIJAYALAKSHMI
R3 & R4 BY SACHIN RAMESH

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON
04.06.2024, ALONG WITH RSA.100/2017, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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R.S.A. Nos. 100 & 104 of 2017

“C.R”

JUDGMENT

Dated this the 4 th day o f June, 2024

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R.S.A. No.100 of 2017 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.11 of 2011 dated 15.12.2016 on the files of the Court of the Additional District Judge-I, Mavelikkara arose from the decree and judgment in O.S. No.313 of 2006 dated 15.11.2010 on the files of the Munsiff Court, Kayamkulam. The appellants herein are the defendants and respondents are the plaintiffs in the above suit.

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R.S.A. No.104 of 2017 has been filed under order XLII Rule 1 read with Section 100 of CPC, challenging the decree and judgment in A.S. No.14 of 2011 dated 15.12.2016 on the files of the Court of the Additional District Judge-I, Mavelikkara arose from the decree and judgment in O.S. No.244 of 2006 dated 15.11.2010 on the

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R.S.A. Nos. 100 & 104 of 2017

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files of the Munsiff Court, Kayamkulam. The appellants herein are the plaintiffs and respondents are the defendants in O.S. No.244 of 2006.

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In these matters, as per the order passed by my learned predecessor dated 07.02.2017, it was ordered as “Admit”. But, it appears that no substantial question of law formulated for admitting these second appeals. Therefore, the said order stands reviewed and set aside being illegal, as against the mandate of Section 100 read with order XLII of CPC. Accordingly, these appeals are reverted back to the admission stage.

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Heard the learned counsel for appellants as well as the learned counsel appearing for respondents in detail, on admission. Perused the relevant documents.

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I shall refer the parties in these appeals as “Sri. Somarajan and another” and “Sri. Gopalakrishnan and another” for convenience.

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In this matter, O.S. No.244/2006 is a suit filed by Sri. Somarajan and another seeking the relief of permanent prohibitory injunction as against Sri.Gopalakrishnan and

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R.S.A. Nos. 100 & 104 of 2017

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another. The contention raised in the suit was that the plaint schedule property along with the building therein was originally belonged to Sri.Somarajan and another on

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the strength of Sale Deed No.1652/1997 of Kareelakulangara S.R.O. Thereafter, Sri.Somarajan borrowed an amount of Rs.1,00,000/from Sri.Gopalakrishnan agreeing to repay the same with interest at the rate of 24% per annum, in the year 2004. But, Sri.Somarajan failed to repay the amount as agreed. Accordingly, Sri.Gopalakrishnan demanded execution of sale deed in favour of him in respect of the plaint schedule property. In consequence thereof, Sri.Somarajan and another executed Ext.A3 Sale Deed No.114/2005 of Kareelakulangara S.R.O. on 27.01.2005. But, at the time of execution of the sale deed, there was an oral agreement between the parties whereby Sri.Gopalakrishnan and another agreed to reconvey the property on clearing the liability. It is on this premise, Sri.Somarajan and another filed the O.S No.244/2006 seeking the relief of permanent prohibitory injunction, when Sri.Gopalakrishnan and

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R.S.A. Nos. 100 & 104 of 2017

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another attempted to evict them from the plaint schedule property, restraining forceful eviction.

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Sri.Goplakrishanan and another filed another suit vide O.S. No.313/2006 contending that Sri.Somarajan and another have been residing the plaint schedule property as tenants, after executing Sale Deed No.114/2005 of Kareelakulangara S.R.O. and they relied on two rent agreements executed on 01.02.2005 and 15.12.2005 to substantiate the said contention.

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Both parties resisted the respective suits raising contentions similar to that of the contentions raised in the respective suits filed by them.

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9 . After addressing rival contentions, the trial court recorded evidence and tried the cases together, treating O.S. No.313/2006 as the main case. PWs 1 and 2 examined and Exts.A1 to A19 marked on the side of the plaintif f s. DW1 examined and Exts.B1 and B2 marked on the side of the defendants.

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10. Finally, the trial court dismissed O.S. No.244/2006 and decreed O.S. No.313/2006 as under:

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“In the result, O.S.244/06 to dismissed with

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R.S.A. Nos. 100 & 104 of 2017

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costs and 0.S.313/06 is hereby decreed with cost as follows:-

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1) The defendants are directed to handover vacant possession of the plaint schedule building to the plaintiffs within a period of 30 days from the date of this order. In the event of failure by the defendants to abide by this direction, the plaintiffs can enforce the same through the process of the court.

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2) The plaintiffs are allowed to realise an of Rs.3,482/- (Rupees Three Thousand Four Hundred and Eighty Two Only) as arrears of rent along with further interest @ 6% per annum from the date of suit (26/09/2006) till the date of realisation from the defendants and their assets.

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3) The plaintiffs are allowed to realise damages for use and occupation of the plaint schedule building @ Rs.400/- per month from the date of suit (26/09/2006) till the date of recovery of possession of the plaint schedule building or for a period of 3 years whichever event happens earlier from the defendants and their assets.

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4) The plaintiffs are allowed to realise the cost of the suit from the defendants and their assets.”

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11. Though, appeals were f i led before the Appellate Court, vide A.S. Nos.11 and 14 of 2021 challenging the

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R.S.A. Nos. 100 & 104 of 2017

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common verdict of the trial court, the learned Additional District Judge conf i rmed the fnding of the trial court and i dismissed the appeals.

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12. While assailing the concurrent verdicts, the learned counsel for Sri.Somarajan and another contended that Ext.A3 Sale Deed No.114/2005 of Kareelakulangara S.R.O. is a document executed as security, when Sri.Somarajan borrowed Rs.1,00,000/from Sri.Gopalakrishnan. At the time of f i ling of O.S. No.244/2006 the said contention also was raised before the trial court. But, the said contention was not specif i cally pointed out in detail or no relief sought to declare Ext.A3 sale deed as a document executed for security at the time when money was borrowed. During the appellate stage, the said contention was raised by fling petitions, but the Appellate Court not considered the i same. Accordingly, it is argued that the concurrent verdicts of the trial court as well as the Appellate Court would require interference at the hands of this Court.

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13. Resisting the said contention, the learned counsel for Sri. Gopalakrishnan and another would submit that in this matter an outright sale deed as Ext.A3 has been executed

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R.S.A. Nos. 100 & 104 of 2017

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and Sri.Gopalakrishnan thereafter mutated the plaint schedule property and paid tax in respect of the property as well as the building therein as could be gathered from Exts.A6 to A8 and Exts.A13 to A19. The learned counsel also pointed out that no challenge raised in the plaint disputing the genuineness of Ext.A3 or no relief sought for to declare the same as null and void. Accordingly, the sale was complete and Sri.Gopalakrishnan and another being the owners of the plaint schedule property are entitled to get vacant possession of the plaint schedule property as well as the building. Therefore, the trial court rightly granted decree in favour of Sri.Gopalakrishanan and another, while dismissing the suit at the instance of Sri.Somarajan and another.

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14. In this matter, the case of Sri.Somarajan and another is that Sri.Somarajan borrowed Rs.1,00,000/- from Sri.Gopalakrishnan with of f er to repay the same with interest at the rate of 24% per annum. But, the amount failed to be repaid and accordingly as demanded by Sri.Gopalakrishnan, Ext.A3 sale deed was executed and the same was not intended to be acted upon as a sale deed. Going through the

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R.S.A. Nos. 100 & 104 of 2017

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pleadings in O.S. No.244/2006, execution of Ext.A3 sale deed was admitted by Sri.Somarajan and another and the specif i c contention raised was that there was an oral agreement for re-conveyance of the property also. Thus, it appears that Sri.Somarajan and another admitted execution of Ext.A3 sale deed and Exts.A1 and A2 would go to show that they continued possession of the property as tenants.

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15. On scrutiny of the legal aspects involved, Sri.Somarajan and another after having admitted execution of Ext.A3 sale deed, raised a contention that there was an oral agreement to reconvey the property. Thus, the title of Sri.Gopalakrishnan and another as per Ext.A3 is admitted by Sri.Somarajan and another. Since there was an oral agreement as admitted by Sri.Somarajan and another to the efect that f Sri.Gopalakrishnan and another agreed to reconvey the property, the remedy of Sri.Somarajan and another was to fle i a suit for specif i c performance on the basis of the said oral agreement. No such suit fled and the said relief is now i scopelessly barred by limitation. Viewing so, the challenge against Ext.A3 on the allegation that the same was executed as a security document for the repayment of the loan availed

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R.S.A. Nos. 100 & 104 of 2017

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could not succeed. More importantly, no such contention raised in the suit also and the relief to declare Ext.A3 in that line also is now scopelessly barred by limitation. Thus, f i ling of petitions before the First Appellate Court seeking amendment of the said reliefs after the period of limitation is of no legal consequence and therefore, the First Appellate court rightly dismissed those petitions. That apart, the trial court and the First Appellate Court rightly rendered concurrent verdicts in favour of Sri.Gopalakrishnan and another.

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16. Holding so, the concurrent verdicts of the trial court and the Appellate Court granting vacant possession of the plaint schedule property to Sri.Gopalakrishnan and another do not require any interference at the hands of this Court.

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In view of the above discussion, no substantial question of law emerges in this matter to be formulated to maintain and admit these regular second appeals. Order XLII Rule 2 of CPC provides thus:

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“2. Power of Court to direct that the appeal be heard on the question formulated

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R.S.A. Nos. 100 & 104 of 2017

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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.”

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18. 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 satisf i ed 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 satisf i ed that a substantial question of law is involved in any case, it shall

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R.S.A. Nos. 100 & 104 of 2017

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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 satisf i ed that the case involves such question.

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19. 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:

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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].

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R.S.A. Nos. 100 & 104 of 2017

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20. 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, after referring Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC 179] (three – Judge Bench), as under:

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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.

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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

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R.S.A. Nos. 100 & 104 of 2017

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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 sufxing the fi 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.

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In these cases, it appears that the concurrent verdicts entered into by the trail court as well as 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.

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In this matter, no substantial question of law arises for consideration so as to admit these second

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R.S.A. Nos. 100 & 104 of 2017

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appeals. 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 these regular second appeals.

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Accordingly, these regular second appeals stand dismissed, without being admitted, as indicated above.

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All interlocutory applications pending in these regular second appeals stand dismissed.

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 Sd/-

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A. BADHARUDEEN JUDGE

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Somarajan v. Gopalakrishnan,(Died) Legal Representatives Impleaded

Case brief

What is this about?

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Somarajan v. Gopalakrishnan,(Died) Legal Representatives Impleaded

Case brief

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What the court decided

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