SHANKARI AMMA Vs. STATE OF KERALA

JUDGEMENT

(1.) The legal representatives of the plaintiff in the suit, O.S.No.79 of 1980, Sub Court, Kasaragod are the appellants in this appeal. The suit was dismissed by the Trial Court on 29-10-1982. The plaintiff filed an appeal in this Court in AS. No.113 of 1983. The original plaintiff died pending the appeal. So his legal heirs were impleaded as additional appellants 2 to 8 in A.S.No. 113 of 1983 as per Order in C.M.P. No. 8137 of 1988 dated 26-5-1988. The appeal was finally heard by a learned Single Judge of this Court. It was dismissed by judgment dated 13-2-1990. This appeal filed from, the decision in A.S.No.113 of 1983 was posted for admission hearing under O.41, R.11 read with R.11-A of the C.P.C. Counsel for the appellant was questioned as to what is the substantial question of law that is involved in the appeal. Appellant's counsel Mr. P.K. Balasubramanyan replied that this appeal is filed under S.5(ii) of the Kerala High Court Act and the scope and ambit of such an appeal is not confined to any substantial question of law arising in this case, similar to S.100 of the C.P.C. Attention of the counsel was invited to an earlier Bench decision of this Court in A.F.A.No. 24 of 1990, dated 21-12-1990, to which one of us was a party, wherein it was held in the appeals filed under S.5(ii) of the Kerala High Court Act, the appellants should establish that a substantial question of law is involved in the case. Counsel took time and the matter was heard in detail on 1-7-1991.

(2.) Mr. Balasubramanyan (appellants' counsel) brought to our notice S.3(13)(b) of the Kerala High Court Act, 1958 and also Kerala High Court (Amendment) Act, 1989, amending S.3(13)(b) of the Act. A reference was also made to S.5(ii) of the said Act. On the basis of the above statutory provisions, read with S.100 of the C.P.C., it was contended that an appeal filed from the judgment of a Single Judge in the exercise of the appellate jurisdiction has got wide scope and the grounds for interference are not limited to those specified in S.100 C.P.C. It will be useful to extract S.3(13)(b), S.5(ii) of the Kerala High Court Act, 1958, and the Kerala High Court (Amendment) Act, 1989 amending S.3(13)(b) and also S.100 C.P.C.

(3.) Appellants' counsel laid stress on the language occurring in S.100 C.P.C. It was contended that S.100 will apply only to an appeal filed from a decree passed in appeal by any court subordinate to the High Court as distinguished from "the decision of the court immediately below" as specified in Art. 133(1)(a) of the Constitution of India before its amendment by the Constitution 30th Amendment Act 1972. The point highlighted was that the provisions of S.100 will apply only if the judgment of the first appellate court taken in appeal before the High Court is rendered by a Subordinate Court.. In the appeal filed under S.5(ii) of the Kerala High Court Act, the judgment rendered by a learned Single Judge of this Court in exercise of the appellate jurisdiction, is not rendered by a court "subordinate to the High Court", though for the purpose of Art.133(1)(a) of the Constitution of India before its amendment referred to above, the Single Judge may be a "court immediately below", the Division Bench. The expression "second appeal" in the C.P.C. means an appeal to the High Court from the decision in a civil suit or case, rendered by a 1st appellate Court subordinate to the High Court. Though the present appeal, A.F.A.No. 13 of 1991, is in practice and effect, a second appeal in the case, such an appeal, filed under S.5(ii) of the Kerala High Court is outside the purview of S.100 C.P.C. and the entertaining of such appeals filed under S.5(ii) of the Kerala High Court Act are not to be affected or tested by the requirements of S.100 C.P.C. A few decisions were brought to our notice to highlight the above aspect. We need mention only the important decisions brought to our notice in this connection. They are: Ladli Parshad Jaiswal v. The Karnal Distillery Co. Ltd. Kamal ( AIR 1963 SC 1279 ), Chunilal Vithaldas v. Mohanlal Motilal Patel ( AIR 1967 SC 226 ), Ganpat v. Smt. Ram Devi (AIR 1978 Punjab and Haryana 137)(F.B.), and Shah Babulal Khimji v. Jayaben K. Kania ( AIR 1981 SC 1786 ).