Sudhesan vs Sugunan

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR TUESDAY, THE 16TH DAY OF SEPTEMBER 2025 / 25TH BHADRA, 1947 RP NO. 802 OF 2024 AGAINST THE JUDGMENT DATED 02.07.2024 IN RSA NO.198 OF 2014 OF HIGH COURT OF KERALA

REVIEW PETITIONER/RESPONDENT:

SUDHESAN AGED 63 YEARS, S/O. VELAYUDHAN, SURYA, KARAMCODE, MEENADU VILLAGE, CHATHANNOOR, KOLLAM, PIN - 691572

BY ADVS. SMT.BHANU THILAK SHRI.S.R.PRASANTH SHRI.VISHNU.R RESPONDENT/APPELLANT:

SUGUNAN AGED 59 YEARS, S/O. VELAYUDHAN, CHEKKELAZHIKAM VEEDU, KARAMNCODE, MEENADU VILLAGE, CHATHANNOOR, PIN - 691572

BY ADVS. SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.R.GITHESH SMT.ANJALI KRISHNA SRI.MANJUNATH MENON SHRI.SACHIN JACOB AMBAT SMT.ANAVADYA SANIL KUMAR SHRI.AJAY BEN JOSE SMT.ANNA LINDA EDEN SHRI.HARIKRISHNAN S. SRI.S.SREEKUMAR (SR.)

THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 16.09.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RP No.802/2024 in RSA. 198/2014

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ORDER

Dated this the 16th day of September, 2025

This review petition has been preferred by the respondent in the

above second appeal, praying for reviewing the judgment dated 2.7.2024

disposing of the above appeal. The appellant was the plaintiff in O.S.

No.184 of 2004 on the file of the Munsiff's Court, Paravur. (For the

purpose of convenience, the parties are hereafter referred to as per their

rank before the trial court.).

2. The plaintiff is the younger brother of the defendant. Both of

them obtained properties from their father. The plaintiff obtained 14.5

cents of property, which is scheduled in the plaint, in the year 1979. No

well defined boundaries were put up separating the plaint schedule

property from the property of the defendant lying on its west. In the

year 1989, the defendant constructed a residential building on his

property. In 2004, the plaintiff filed this suit for fixation of the western

boundary of his property and for consequential injunction. When the

property was measured, it was found that a portion of the building RP No.802/2024 in RSA. 198/2014

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constructed by the defendant, having a width of 1.6 metres was

encroaching into the plaint schedule property. Alleging that at the time

of filing the suit, he was not aware of the encroachment, he filed an

application for amendment for incorporating a prayer for recovery of

possession and mandatory injunction. However, the said amendment

application was dismissed, but the trial court decreed the suit allowing

the plaintiff to put up the western boundary of his property and directed

the defendant to demolish the encroached portion of his building, by

moulding the relief. The trial court further ordered that in case the

defendants failed to demolish the encroached portion of the building, the

plaintiff could get it demolished through the process of the court and

realise the expense from the defendant and his assets. The defendant

was also restrained from trespassing into the plaint schedule property by

a permanent prohibitory injunction.

3. The first Appellate Court found that the defendant constructed

the building with the consent of the plaintiff and hence the relief

granted to demolish the encroached portion of the building was set aside RP No.802/2024 in RSA. 198/2014

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and the plaintiff was allowed to put up the western boundary of the

plaint schedule property at a distance of two feet away from the building

of the defendant.

4. When the second appeal was admitted the only substantial

question of law formulated was the following:

"(1) Is the 1st Appellate Court justified in finding fault with the appellant/plaintiff, holding that he failed to amend the suit for recovery of possession and mandatory injunction when the fact remains that amendment application seeking recovery of possession and mandatory injunction filed by the appellant/plaintiff had been dismissed by the Munsiff's Court?"

5. In the judgment dated 2.7.2024, this court found that the prayer

for demolishing the encroached portion of the residential building of the

defendant into the plaint schedule property cannot be allowed because

such a prayer was raised after about 20 years from the date of

encroachment. At the same time, this Court found that the first

Appellate court was not justified in directing the plaintiff to leave a RP No.802/2024 in RSA. 198/2014

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further 2 feet width space from the wall of the building constructed

encroaching into the plaint schedule property. Accordingly, this court

permitted the plaintiff to put up a boundary on the western side of his

property without leaving any space from the building constructed by the

defendant. Alleging that, in the above judgment, there is error apparent

on the face of the record, the respondent preferred this review petition.

6. Now the point that arises for consideration is the following:

(1) whether there is any error apparent on the face of the

record, so as to review the judgment dated 2.7.2024?

7. Heard Sri. S.R. Prasanth, learned counsel for the review

petitioner and Sri. S. Sreekumar, learned senior counsel for the

respondent.

8. The main argument raised by learned counsel for the review

petitioner is that in a second appeal, this court can decide only

substantial question of law formulated by the court and not beyond that

and as such modification of the judgment of the first appellate court

without formulating any substantial question of law in that respect is an RP No.802/2024 in RSA. 198/2014

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error apparent on the face of record, liable to be reviewed by invoking

the power under Order XLVII Rule (1) CPC. On the other hand, the

learned senior counsel for the respondent/plaintiff would argue that there

is no error apparent on the face of record and hence he prayed for

dismissing the review petition.

9. As per Section 100 CPC, a second appeal shall lie to the High

Court only if the court is satisfied that the case involves a substantial

question of law.

10. In the decision in Narayanan Rajendran and Another v.

Lekshmy Sarojini and Others (2009) 5 SCC 264 relied upon by the

learned counsel for the review petitioner, the Apex Court held in

paragraph 64 as follows:

"64. Now, after 1976 Amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under Section 100 C.P.C. only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is RP No.802/2024 in RSA. 198/2014

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permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as "substantial question of law" which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become "third trial on facts" or "one more dice in the gamble".

The effect of the amendment mainly, according to the amended section, was:

(i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved;

(ii) The substantial question of law to precisely state such question;

(iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal;

(iv) Another part of the Section is that the appeal shall be heard only on that question."

11. In the decision in Rameshwar Dayal Mangala @ Ramesh

Chnad v. Harish Chand and Another (2009) 4 SCC 800 also a similar

view was taken by the apex Court.

12. In the decision in Francis C.P v. C.P. Joseph [2025 KHC

OnLine 6767], relied upon by the learned counsel for the review

petitioner, the Apex Court held in paragraph 18 as follows:

RP No.802/2024 in RSA. 198/2014

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"18. In the above background, before we examine the procedure followed by the High Court, a few precedents on the point are noted.

The principles emanating from precedents on Section 100(5) of the CPC can be summed up as follows:

18.1. A substantial question of law must be grounded in the parties' pleadings and the findings of lower courts. Thus, it must be exercised if it is so fundamental that it goes to the very root of the matter.Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179.

18.2. The jurisdiction to frame a new question of law is exceptional and should not be exercised routinely unless there is a strong and convincing reason to do so. (Mehboob-Ur-Rehman v. Ahsanul Ghani, (2019) 19 SCC 415).

18.3. The proviso allows the court to hear an appeal on "any other substantial question of law," which implies that at least one substantial question of law must have been formulated at the admission stage. The power to reformulate or add a question arises only if a substantial question of law has already been framed. Gian Dass v. Gram Panchayat, (2006) 6 SCC 271; Kirpa Ram v. Surendra Deo Gaur, (2021) 13 SCC 57).

18.4. The High Court must be "satisfied" that the new question is a substantial question of law and not a mere legal plea. Kshitish Chandra Purkait v. Santosh Kumar Purkait, (1997) 5 SCC 438).

18.5. The court is mandatorily required to record its reasons for framing an additional substantial question of law. (R. Nagraj (Dead) through Lrs. And Anr. v. Rajmani and Ors, (2025) INSC 478).

RP No.802/2024 in RSA. 198/2014

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18.6. The opposite party (the respondent) must be given a fair and proper opportunity to contest the new question. Parties must be put on notice and be allowed to present their arguments on the newly framed question. Framing a question while dictating the judgment without hearing the parties would be improper.(Suresh Lataruji Ramteke v. Sumanbai Pandurang Petkar, (2023) 17 SCC 624)."

13. Relying upon the decision of a learned Single Judge of this

Court in Aby Abraham mathew v. Hindustan Newsprint Ltd. [2002

KHC 109], the learned counsel for the review petitioner would argue

that a decision rendered contrary to the law laid down by the Supreme

Court is an error apparent on the face of record justifying review under

Order XLVII Rule (1) CPC. In paragraph 12, the learned Single Judge

held that:

"12. Therefore, if in fact the judgment under review is passed by this Court contrary to the law laid down by the Supreme Court it is amenable to the provisions of review under Order 47 Rule 1 of the CPC being error apparent on the face of the record."

14. In the decision in Santha v. State of Kerala [2002 KHC 483].

relied upon by the learned counsel for the review petitioner, another

Single Bench of this Court also held that a decision of this Court RP No.802/2024 in RSA. 198/2014

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overlooking the decision of the Supreme Court constitutes an error

apparent on the face of the record justifying review of the decision. In

paragraph 4, the learned Single Judge held that:

"4. If the judgment is passed by the same court or by a larger Bench of the High Court, it is not a ground for review of the earlier decision. But decision of a court by overlooking the decision of the Supreme Court which is binding on all courts in India constitutes an error apparent on the face of the record justifying review of the decision contrary to the decision of the Supreme Court. Since it is the law of the land, it is to be followed by all subordinate courts..."

15. On the other hand, the learned senior counsel for the

respondent relying upon the decision of the Hon'ble Supreme Court in

Arun Dev Upadhyaya v. Integrated Sales Services Ltd. and Others

[(2023) 8 SCC 11] would argue that in order to invoke the review power,

the error must be apparent on the face of the record. An error on the face

of record must be such an error which, mere looking at the record should

strike and it should not require any long-drawn process of reasoning on

the points where there may conceivably be two opinions. The learned

counsel would further argue that an error which is not self evident and RP No.802/2024 in RSA. 198/2014

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has to be detected by a process of reasoning can hardly be said to be an

error apparent on the face of the record.

16. Relying upon the decision in Om Prakash v. Suresh Kumar

(2020) 13 SCC 188, he would also argue that change of counsel is not a

ground for entertaining a review petition.

17. On a perusal of Section 100 CPC and the decisions referred

above, it can be seen that this Court can entertain a second appeal only if

the court is satisfied that there is a substantial question of law involved

in it. It is also true that in a second appeal the parties are to be heard and

the decision is to be made only on the substantial questions so

formulated. As I have already noted above, the only substantial question

formulated in this second appeal was regarding the conduct of the first

appellate court in finding fault with the appellant/plaintiff, in not amending

the suit for recovery of possession and mandatory injunction, while the

amendment application seeking same reliefs was already dismissed by the

Munsiff's Court.

18. In this case the defendant/respondent has already constructed RP No.802/2024 in RSA. 198/2014

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the building encroaching into a distance of 1.6 meters into the plaint

schedule property. He has not raised any manner of right over any

portion of the plaint schedule property, beyond the eastern wall of the

building. It was in the above context, in the impugned judgment this

court found that the first appellate court was not justified in directing the

plaintiff to leave a further 2 feet width space from the wall of the

building constructed by the defendant.

19. It is true that, before modifying the judgment passed by the

first appellate court, this Court ought to have formulated a further

substantial question of law as to whether the first appellate court was

justified in directing the plaintiff to leave a space of 2 feet width from

the wall of the building constructed encroaching into the plaint schedule

property, without any claim from the side of the defendant. Further, this

court ought to have heard both sides on that substantial question of law

as well. Since this Court modified the decree of the first appellate court

without formulating such a substantial question of law, it is an error

apparent on the face of the record, liable to be rectified by invoking RP No.802/2024 in RSA. 198/2014

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power under Order XLVII Rule (1) CPC.

20. In the result, this review petition is allowed. The impugned

judgment dated 2.7.2024 in RSA No.198/2014 is reviewed and set aside.

The Registry is directed to place the RSA before the Hon'ble Chief

Justice to decide which Bench shall hear and decide it afresh.

Sd/-

C. PRATHEEP KUMAR, JUDGE sou.