Point of Law: Order XLII Rule 2 provides power of Court to direct that appeal be heard on question formulated by it.

JUDGMENT :

This regular second appeal has been filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure.

2. The 1st respondent in I.A. No.8524/2003 in O.S. No.2100/2000 is the appellant herein and he impugns final decree and judgment dated 28.11.2008 in I.A. No.8524/2003 (final decree application) on the files of Court of I Additional Munsiff, Thrissur and final decree and judgment in A.S. No.30/2016 dated 14.02.2023 on the files of Court of the Additional Sub Judge-I, Thrissur.

3. Heard the learned counsel for the appellant on admission. In fact, the learned counsel for the appellant miserably failed to point out any question of law in this matter. But the learned counsel for the appellant submitted that the appellant is aggrieved in the matter of reservation made as per the final decree and therefore, the matter may be admitted with liberty to settle the matter by mediation.

4. Therefore, the question arises is: whether second appeal can be admitted without formulating question of law, and merely to refer the parties for mediation?

5. In this matter, a suit was filed as early in the year 2000 for partition of the plaint schedule items by the plaintiff, wherein the appellant was the 1st defendant. On contest, the learned Munsiff passed preliminary decree. Later, final decree was passed in consideration of the commission report filed as Ext.C1 series.

6. In the order of the trial court, it has been stated that after filing of Ext.C1 report and Ext.C1 (a) plan, the appellant herein filed I.A. No. 10698/2007 to set aside Ext.C1 report and Ext.C1 (a) plan and the same was dismissed on merits, after examining the Commissioner and Surveyor, for which no challenge was raised. Accordingly, acting on Ext.C1 report and Ext.C1 (a) plan, the learned Munsiff passed final judgment and decree, thereby plot C was allowed to the 1st respondent. In the final judgment of the trial court no contention raised by the 1st defendant/1st respondent, disputing allotment of shares in any manner. When appeal was considered by the Appellate Court, the 1st respondent raised objection as to allotment of shares and the learned Appellate Court found that no serious challenge raised as regards to allocation of plot and also regarding the valuation of the property before the trial Court, during examination of PW2 and PW3, the Commissioner and the Surveyor in this case. Accordingly, the Appellate Court dismissed the appeal.

7. In this case, the learned counsel for the appellant failed to raise any substantial question of law warranting admission of the second appeal. Order XLII Rule 2 provides thus:

“2. Power of Court to direct that the appeal be heard on the question formulated by it.-At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.”

8. Section 100 of CPC provides that, (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An Appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allow