Section 100 CPC | Second Appeal Doesn't Lie On Equitable Grounds: Kerala High Court

Justice A. Badharudeen observed that the term 'substantial' means having substance, essential, real, of sound worth, important or considerable. It stated that 'substantial question of law' for preferring a second appeal shall not necessarily be a substantial question of law of general importance.

“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.”

The defendants in a suit had preferred the second appeal Order XLII Rule 1 read with Section 100 of CPC challenging the decree and judgment of the Trial Court. The defendants alleged that the Trial Court granted recovery of possession to the plaintiffs when they had not sought a declaration against a purchase certificate which they alleged as fraud. The respondents herein were the plaintiffs and the other defendants in the suit. The suit pertained to recovery of possession based on a title deed of the plaintiffs. The Trial Court had directed the defendants to hand over the property to the plaintiffs.

The Court found that the Trial Court had considered all the arguments and found that the purchase certificate would ensure for the benefits of all co-owners, including the plaintiffs. The Court observed that the Trial Court and the Appellate Court had rightly allowed the relief for recovery of possession.

The Court stated that for admitting and maintaining a second appeal under Order XLII Rule 2 read with Section 100 of CPC, a substantial question of law has to be formulated. In the present second appeal, the Court stated that the appellants failed to formulate substantial questions of law for admission of the second appeal.

Analyzing section 100 CPC on the maintainability of the second appeal, the Court stated that the second appeal shall lie to the High Court against a decree passed by a subordinate court only when there is a substantial question of law. Further, the provision states that on being satisfied that there was a substantial question of law, the High Court formulates it and the respondents shall argue that there was no substantial question.

“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”, the Court stated.

The Court found that it was mandatory for the formulation of a substantial question of law in a second appeal. It stated that the appellants have not raised any substantial question of law in the present second appeal and accordingly, dismissed it.

Counsel for the appellants: Advocates Sabu George, P.B.Krishnan, P.B.Subramanyan, Manu Vyasan Peter

Citation: 2024 LiveLaw (Ker) 63

Case title: Poyil Salim V Thazhe Kandoth Mariyam

Case number: RSA NO. 3 OF 2024

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