SECOND APPEAL

Sec.100- Trial court decreed the suit finding that there is not limitation, but the lower appellate court reversed the order on the reason that the claim was beyond the period of limitation. The amount from the deposit with the minimum wages authority and that had. The factual finding had never been appealed against. So this court found that the suit is within the period of limitation. [The Bhavani Tea and Produce Co. Ltd. v. K.V.K. Panicker. S.A.No. 221 of 1990, dated 14-7-1999. Mr. Justice K.A. Abdul Gafoor.]

C.P.C. O.XXIII, R.1A - Substantial question can be substantial question of fact also. [George Paul Vs. Thankamma Paulose, 2003 (1) KLT SN 76, Page No.55. Pius C. Kuriakose (J)]

Sec.100 - Mixed question of law and fact cannot be raised for the first time in the second appeal without foundation for such pleadings in the written statement. A suit for declaration of right of easement by prescription the plaintiffs are not bound to prove by independent cogent evidence the uninterrupted use for the prescribed period. In a second appeal re-appreciation of evidence is not possible. [Mariamma v. Kalyani Amma. S.A.No.538 of 1999, dated 29-9-1999. Justice K.A. Abdul Gafoor, J.]

Sec. 100 - Substantial question of law - Re-appreciation of evidence not permissible under Sec.100. High Court cannot substitute its opinion of the first appellate court unless it is found to that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence. [Antony vs. Joseph. S.A.No. 70 of 1992. 14-6-1999. K.A.Abdul Gafoor.(J).]

Sec. 100- Finding of facts concurrently recorded by the trial court and also by the appellate court – cannot be up settled by the High Court under section 100 of the code of civil procedure unless it is shown that the findings are perverse based on evidence or that on the evidence on record no reasonable person could come to that conclusion. [Guddappa Rai and others Vs. Narayanana Rai and another. SA 1153 / 89 dated 13-07-99, K.A.Abdul Gafoor (J)].

Sec. 100 - To be a substantial question of law and attract the provisions of this section the question must be of substantial importance with regard to the right of the parties to be settled in the appeal. [Paramu vs Balan. 2001 (3) KLT 803 = 2001 (2) KLJ 603. R.Bhaskaran (J)]

O.XXIII R.1A - Transposing a person as appellant - Applies to proceedings in appeal also and is not restricted to proceedings in a suit.The the expression 'suit' and the 'plaintiff, it cannot, for that reason, be sought to restrict the application of the provision to a proceeding in a suit alone since the appeal is the continuation of the proceedings of the suit and in the absence of any separate provision to deal with such a situation it has to be held that the principles contained under O.XXIII R.1A and O.1R, 10 must apply to the proceedings in appeal as well. Hence the application filed by the petitioner herein for transposing himself as an appellant cannot be rejected on the mere ground that the application was filed in an appeal and not in a suit, since as already observed above, the provisions of O.XXIII R.1A read with O.1R, 10 C.P.C. will apply to a proceeding in appeal as well. A respondent in an appeal is entitled to seek himself to be transposed as an appellant, if he satisfies the conditions otherwise., [Abraham Vs. Joseph, 2002 (1) KLT 936. P.R.Raman (J)]