BALAKRISHNA VARIAR Vs. SHERIFFA

JUDGEMENT

(1.) Second appeal arises from a salt for recovery of possession and for damages. The Trial Court dismissed the suit against which plaintiff preferred A. S.74/1983 before Addl. Sub Court, Parur. During the pendency of the appeal the sole defendant died. His legal representatives were not brought on record in time with the remit that the appeal abated. Petitions were filed for impleading the legal representations, to set aside the abatement and for condonation of delay in filing the petition for abatement. These petitions were heard together and the lower appellate court by order dt. 11-6-1986 dismissed those petitions. In consequence the appeal was also dismissed as abated. Plaintiff have come up in second appeal. The substantial questions of law formulated is the appeal memorandum are:

(2.) Heard counsel on both sides.

(3.) At the hearing of the appeal learned Counsel for the respondents argued that the case does not involve questions of law formulated in the appeal memorandum. The contention is that the, appeal happened to be dismissed consequent to the dismissal of the application to set aside the abatement and the petition to condone the delay in fitting that petition. On the judgment of the lower appellate court no substantial question of law arises, according to counsel. But S.100 CPC. enables this court to entertain a second appeal If this court is satisfied that the case involves a substantial question of law. What has to be looked into is whether a substantial question of law is involved in the case. The dismissal of the petition to implead the legal representatives of the defendant and the petition to set aside the abatement and the petition for condonation of delay resulted in the dismissal of the appeal. If the refusal to set aside abatement is the result of non application of the relevant provisions of law, a substantial question of law arisen thereby and the case involves a substantial question of law It is the specific contention of the appellants that the lower appellate court has not applied the law declared by this court and the Supreme Court of India while considering I. A. Nos. 1093, 1094, and 1095 of 1985. Question No. 1 formulated in the appeal memorandum precisely states the substantial question of law involved in this appeal.