Substantial Question Of Law On Which Second Appeal Shall Be Heard Need Not Necessarily Be Of General Importance: Kerala High Court
|The Kerala High Court has observed that 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.
The Court was hearing a regular second appeal filed under Order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (CPC) against the judgments of Additional Munsiff, Thrissur and Additional Sub-Judge.
A Single Bench of Justice A. Badharudeen said, “… 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.”
The Bench added that 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.
Advocate Dilip J. Akkara represented the appellant in this case.
Brief Facts -
A suit was filed as early in the year 2000 for partition of the plaint schedule items by the plaintiff, wherein the appellant was the 1st defendant. On contest, Munsiff passed preliminary decree and later, final decree was passed in consideration of the commission report. Munsiff passed final judgment and decree, thereby one plot was allowed to the respondent. In the final judgment of the trial court no contention raised by the 1st defendant/1st respondent, disputing allotment of shares in any manner.
When appeal was considered by the Appellate Court, the respondent raised objection as to allotment of shares and the Appellate Court found that no serious challenge raised as regards to allocation of plot and also regarding the valuation of the property before the trial court, during examination of witnesses, the Commissioner and the Surveyor in this case. The Appellate Court then dismissed the appeal.
The High Court after considering the submissions made by the counsel noted, “In the instant case, it appears that the trial court passed final decree and judgment after effecting separation of shares by metes and bounds and the said final decree and judgment were confirmed by the Appellate Court.”
The Court observed that no substantial question of law arises for consideration so as to admit the second appeal and held further that a second appeal involving no substantial question of law cannot be admitted, only for the purpose of referring the parties for mediation.
Accordingly, the High Court dismissed the appeal and refused to interfere in the case.
Cause Title- Gokuldas v. Gopalakrishnan & Ors. (Neutral Citation: 2023/KER/54349)