Second Appeals Can't Be Admitted On Equitable Grounds Merely To Refer Parties To Mediation: Kerala High Court

Justice A. Badharudeen observed that a second appeal shall not be heard on equitable grounds and reiterated that it is mandatory to formulate substantial questions of law. 

“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.”

The case originated in the year 2000 when a partition suit was filed, resulting in a preliminary decree. Subsequently, a final decree was issued based on a commission report. The appellant had previously filed an application to set aside this report, which was dismissed after examination. The final judgment and decree allocated a specific plot to the 1st respondent, and no disputes regarding the allocation were raised during the trial or appellate proceedings.

The appellant, who was the 1st respondent in the lower court, failed to identify any legal questions of significance during the admission hearing. However, the appellant expressed dissatisfaction with the reservation made in the final decree and suggested resolving the matter through mediation.

Accordingly, he filed a regular second appeal under Order XLII Rule 1 r/w Section 100 of the CPC challenging the final decree and judgment.

The central issue was whether a second appeal could be accepted without framing a question of law and solely for the purpose of referring the parties to mediation.

The Court found that the appellant failed to point out any substantial question of law and sought that the matter be sent for mediation for a settlement.

On an analysis of Order XLII Rule 2 and Section 100 of CPC, the Court examined the power of the Court to formulate substantial questions of law in a second appeal. It noted that an appeal shall lie to the High Court from every decree passed in appeal by any subordinate Court, if the High Court was satisfied that the case involves a substantial question of law.

The Court held that the memorandum of appeal filed by the appellant shall contain the substantial question of law. It further held that the Court shall formulate the question if it was satisfied by the substantial question of law raised by the appellant. The Court noted that once the substantial question of law was formulated, then the defendant would be arguing that there was no substantial question of law involved in the matter.

Moreover, the recent Supreme Court judgment in Government of Kerala v. Joseph reaffirmed that a second appeal must involve a substantial question of law, which must be formulated, and the appeal cannot be decided based on equitable considerations. The Court further noted that the term ‘substantial question of law’ has not been defined by the CPC.

“….'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…”

The Court held 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, but the Court shall formulate substantial questions of law to follow the mandate under CPC as a second appeal cannot be heard on equitable grounds.

The Court found that there were no substantial questions of law in the present second appeal filed by the appellant and that cannot be admitted only for referring the parties to mediation.

In light of these principles, the Court found no substantial question of law. Therefore, the second appeal was dismissed without admission.

The appellant was represented by Advocate Dilip J Akkara.

Citation: 2023 LiveLaw (Ker) 486

Case title: Gokuldas V Gopalakrishnan

Case number: RSA NO. 574 Of 2023