MADUSOODHANAN NAIR Vs. SOWDHAMINI AMMA

JUDGEMENT

(1.) THIS Second Appeal has been filed against the concurrent judgments of both the courts below which went against the sole appellant herein, who instituted the original suit as a sole plaintiff against the respondents herein.

(2.) AFTER getting a number of adjournments from April 2010, i.e., for more than eight months, learned counsel who has filed this appeal on behalf of the appellant has chosen to report 'no instruction'. The reason assigned by the learned counsel for the appellant for such reporting no instruction is that the appellant has not responded to his direction by the issue of a letter calling upon him to produce the additional documents which the learned counsel felt were necessary for successfully projecting the appeal of the appellant. With great respect to the learned counsel, this Court records its view that the very approach to the problem by the learned counsel is errroneous and in ignorance of the procedure established by law for reception of additional evidence in the appellate stage. Second appeals are to be entertained on the substantial questions of law. Unless the Court is satisfied that the second appeal before it involves the determination of a substantial question of law, the court will not admit the second appeal as a fit one for being heard on merits and direct issuance of notice to the opposite party and to the lower court, whose judgment is challenged in the second appeal.

(3.) THE suit was filed by the appellant herein based on an alleged agreement for sale, dated 06.03.1992. According to the appellant's case, Sivarama Pillai, the first defendant in the suit(since deceased) executed the same. THE suit was filed not only against the said Sivarama Pillai, but also against Sowdhamani Amma(D2) and Ambili, daughter of the said Sowdhamini(D3) based on the contention that the said defendants 2 and 3, on some fraudulent claims, attempted to tresspass into the suit property with a view to dispossess the appellant/plaintiff on 23.04.1996. Though a recital is found in paragraph 7 of the plaint that the said persons were to be restrained by an order of injunction from disturbing the possession of the plaintiff(appellant herein) and that since they disputed the right of the appellant/plaintiff, they were also made parties to the suit as proper parties, no relief in the nature of prohibitory injunction has been incorporated in the prayer column of the plaint.