LexUSAMMAANTONY AND ANOTHER versus KARTHIYAYANI AND ANOTHER
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I [2015) 3 S.C.R. 737 USAMMAANTONYANDANOTHER A v. KARTHIYAYANIANDANOTHER (Civil Appeal Nos. 3066-3067 of 2015) MARCH 20, 2015 B [DIPAK MISRA AND PRAFULLA C. PANT, JJ.] Code of Civil Procedure, 1908 - s. 100 and Order XL/ n: 23, 23A and 24 - Second appeal - Scope of- Remand of case- Propriety of- Suit for injunction decreed by trial court C as well as first appellate court - High Court allowed the second appeal and remanded the matter to trial court- On appeal, held: The question formulated by High Court cannot be termed as substantial question of law - High Court by 0 merely re-appreciating the evidence, reversed the concurrent findings of fact and remanded the matter - Hence second appeal not maintainable - Remand of the present case was not called for- Remand in such case amounts to harassment of litigant- Unnecessary delay in final disposal of a lis shakes E the faith of litigants in the court. Allowing the appeals, the Court HELD: 1. Second appeal uls. 100 of CPC, cannot be admitted unless there is substantial question of.law F involved in it. The question formulated by the High Court in the present case, cannot be termed to be a question of law, much less a substantial question of law. The question formulated is nothing but a question of fact G Merely for the reason that on appreciation of evidence, another. view could have been taken, it cannot be said that the High Court can assume the jurisdiction by terming such a question as a substantial question of law. [Paras 11and12] [742-F; 743·E-F] H 737 738 SUPREME COURT REPORTS [2015] 3 S.C.R. A 2. The High Court has, by merely re-appreciating the evidence, reversed concurrent findings of fact, and remanded the matter. The second appellate court should have restrained itself from remanding a case to the trial court. Remanding a case for re-appreciation of evidence B and fresh decision in the matter like the present one, is nothing but harassment of the litigant. The unnecessary delay in final disposal of a lis, shakes the faith of litigants in the court. [Paras 17 and 18] [744-G-H; 745-A-B] C Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and D Ors. (1999) 3 SCC 722: 1999 (2) SCR 728 - relied on. Case Law Reference 1999 (2) SCR 728 relied on. Para 11 CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3066-3067 of2015. From the Judgment and Order of the High Court of Kerala E at Ernakulam dated 06.06.2013 and 07.02.2014 in Regular Second Appeal No. 188 of 2013 and Review Petition No. 611 of2013 respectively. Harshad V. Hameed, Dileep Poolakkot, Ashly Hameed F for the Appellants. The Judgment of the Court was delivered by PRAFULLA C. PANT, J. 1. These appeals have arisen G out of judgment and decree dated 6.6.2013,passed by the High Court of Kerala in Regular Second Appeal No. 188 of 2013, whereby said appeal was allowed by the High Court. By the order dated 7.2.2014, passed by the High Court, Review Petition No. 611 of2013 in second appeal was dismissed. H LI SAM MA ANTONY v. KARTHIYAYANI [PRAFULLA C. PANT, J.] 739 2. We heard learned counsel for the parties and perused A the papers on record. 3. Briefly stated, plaintiff Annamma Thomas (predecessor- in-title of the present appellants) instituted suit No. 415 of 2005 before the Principal Munsiff, Alappuzha, for injunction B restraining the defendants from trespassing into the property mentioned in the schedule of the plaint, and from demolishing its boundary. It is pleaded in the plaint that the plaintiff Annamma and her two children Mathew and Benny were the absolute owners of the property, which they purchased vide C Sale Deed No. 824/80 dated 3.5.1980. They further pleaded that they were in possession of the property. It is also pleaded by the plaintiffs that the defendants are the Kudikidappukari (persons holding tenancy rights) of the previous owners to the 0 extent of 10 cents of property (1/10th of an acre), which is on the northern side of the property in suit. The defendants were in possession of said part. It is further pleaded by the plaintiffs that boundary between the property in question and that of the defendants is well demarcated. It is alleged by the plaintiffs E that on 19.6.2005, the defendants attempted to demolish the existing fence. Therefore, the suit filed. 4. The defendants filed written statement and additional written statement, and contested the suit. They denied the F title of the plaintiff o
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