DAKSHYANI AMMA Vs. VASUDEVAN NAMBOODHIRI

JUDGEMENT

(1.) A short while after the submissions commenced, it came to light that the High Court has not delved into the issues of substantial question of law at all in any part of the judgment. This Court for the last few years has been expressing its concern about the non- conformation of the requirements of the Code of Civil Procedure in particular Section 100. Admittedly, Section 100 Civil Procedure Code has introduced a definite restriction on to the exercise of jurisdiction in the second appeal so far as the High court is concerned. Needless to record that the Code of Civil Procedure Amendment Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out the same but a Second Appeal would be in conformity with Section 100 Civil Procedure Code provided however the substantial question of law is framed and the Court deals with the same; section 103 also lends credence to the essential requirement of framing and dealing with substantial question of law in Second Appeal.

(2.) This Court in a very recent judgment in Civil Appeal No. 1287 of 1990 Kulwant kaur and Ors. v. Gurdial Singh Mann (dead) by LRs. and Ors. pronounced on 21/03/2001, has been pleased to record that while it is true that in a second appeal a finding of fact even if erroneous will generally not be disturbed but where it is found that the findings stand vitiated on a wrong test or on the basis of assumptions and conjectures and resultantly introduction of an element of perversity, the High court would be within the jurisdiction to deal with the issue as the issue of perversity vis-a- vis the concept of justice in itself ought to be termed as a substantial question of law. This court, however, was cautious enough to record that :

(3.) Incidentally be it noted that the amendment was effected in the year 1976 but still a large number of second appeals are being disposed of without conforming to the requirements of Section 100, Civil Procedure Code. We wish to emphasis that the requirement of Section 100 civil Procedure Code is to be complied with more in its observance rather than in its breach which unfortunately has recently been the trend of the judgments.