IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 154 of 1996()
1. PUTHENPURAYIL ISMAIL
... Petitioner
Vs
1. KARIMBANAKKAL MEETHAL RAGHAVAN
... Respondent
For Petitioner :SRI.V.V.ASOKAN
For Respondent :SRI B PARTHASARATHY.
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :25/11/2008
O R D E R
PIUS C. KURIAKOSE,J.
- - - - - - - - - - - - - - - - - - - - - - - - -
A.S.No.154 of 1996
- - - - - - - - - - - - - - - - - - - - - - - - -
Dated: 25th November, 2008
JUDGMENT
This appeal is directed against the judgment and decree of the
Subordinate Judge’s Court, Quilandy in a suit for money based on an
agreement marked as Ext.A1. The original appellant was the
defendant and the respondent was the plaintiff. As averred in the
plaint, the defendant had received a sum of Rs.60,000/- from the
plaintiff agreeing that he will arrange visa for the plaintiff for securing
employment in gulf country. On 1.4.1993 the parties entered into
Ext.A1 agreement which was to the effect that the defendant would
arrange visa within four months from the date of agreement and on
failure to arrange visa, the amount will be returned with interest. The
defendant failed to arrange the visa as promised. In spite of demand
made by the plaintiff, the amount was not refunded. The suit was
accordingly filed for decree for money for the principal amount
mentioned in the agreement with interest and costs. The defendant
through his written statement denied the agreement and the
transaction between him and the plaintiff. It was contended that he
had never promised the plaintiff that he will obtain a visa for the
plaintiff. It was also contended that Ext.A1 is a fabricated document.
A.S.No.154/96 – 2 –
The averments regarding demand and refusal were also denied in the
written statement. The learned Subordinate Judge on the basis of the
pleadings formulated the following issues for trial:
1. Whether the plaintiff had advanced any amount to the defendant
as alleged?
2. Whether the alleged agreement is genuine?
3. Whether the alleged cause of action is true?
4. Whether the defendant is liable to pay the plaint amount?
5. What order as to relief and costs?
At trial the evidence on the side of the plaintiff consisted of Ext.A1
and the testimonies of P.Ws.1 and 2. P.W.1 was the plaintiff himself
and P.W.2 was the first attesting witness to Ext.A1. On the side of the
original defendant, absolutely no counter evidence was adduced. The
learned Subordinate Judge on evaluating the evidence would answer
all the issues in favour of the plaintiff and accordingly decreed the
suit for the plaint claim together with pendente lite and future interest
at the rate of 12% per annum. During the pendency of the appeal,
the original appellant died and his legal heirs were impleaded as
supplemental appellants.
2. I have heard the submissions of learned counsel for the
A.S.No.154/96 – 3 –
appellants and those of Mr.B.Parthasarathy, learned counsel for the
respondents.
3. Addressing me strenuously on the basis of the various
grounds raised in the appeal memo, learned counsel for the appellant
submitted that the court below erred in holding that it was having
territorial jurisdiction to try the suit. It was argued that the evidence
on record was not sufficient to establish the plaint claim and
accordingly it was argued that the findings of the court below in so far
as they are contrary to the evidence on record are vitiated. It was
argued by the learned counsel for the appellant that the application of
Section 67 of the Evidence Act by the court below was unwarranted.
Section 67 did not have any application to the facts of this case,
counsel submitted. Learned counsel drew my attention to Section 23
of the Contract Act and submitted that since apparently Ext.A1
incorporates a contract between parties to procure a visa in violation
of the provisions of the Emigration Act, Ext.A1 was a void contract in
terms of Section 23. No decree could be passed in favour of anybody
on the basis of a void contract. Ex turpi causa non oritur actio was
the maxim, according to the learned counsel. Lastly, learned counsel
for the appellants appealed that opportunity be given to the
A.S.No.154/96 – 4 –
appellants for substantiating the contentions by adducing evidence.
4. Learned counsel for the respondents would support the
impugned judgment on the basis of the reasons stated in the
judgment itself.
5. I have considered the submissions addressed at the Bar. I
have gone through the testimonies of P.Ws.1 and 2 and Ext.A1.
Having appreciated the evidence, I do not find any reason to disagree
with the learned Subordinate Judge on his findings on the various
issues. As for the question of jurisdiction, the issue governed by
Section 20. On the pleadings and on the evidence adduced in this
case, Ext.A1 was executed within the local limits of the Quilandy
Court. Section 20 governs and the court did have jurisdiction to try
the suit. As for the argument based on Section 23, it has to be noted
that the said argument as rightly noticed by the learned Subordinate
Judge did not have any foundation in the pleadings. Of course, the
argument before me was that the question is a pure question of law
and therefore it should be allowed to be raised even without
pleadings. I am not prepared to agree that the question which is now
raised on the basis of Section 23 is a pure question of law. It is a
mixed question of law and fact and going by the pleadings of the
A.S.No.154/96 – 5 –
plaintiff and the deposition given by P.Ws.1 and 2, the transaction
between the parties on the basis of which the suit is instituted was a
transaction for receiving payment and agreeing to repay subject to
the happening or non-happening of a particular contingency. The
non-examination of the 2nd attesting witness to Ext.A1 and the non-
referal of Ext.A1 to an expert were also highlighted by the learned
counsel for the appellants. As for the non-examination of the 2nd
attesting witness to Ext.A1, it is trite that the law of evidence does
not require any particular number of witnesses for proving a
particular relevant fact. It is common knowledge that even in cases
where documents are required to be attested statutorily by more than
one witness, examination of one attestor is sufficient. Having gone
through the testimonies of P.W.2, I am of the view that he has given
convincing and inspiring evidence. The learned Subordinate Judge has
also noticed that the plaintiff was all willingness to examine the other
witness also and had actually brought the other witness to the court
hall and that the court only did not permit the plaintiff to examine
that witness. The execution of Ext.A1 stood established by
testimonies of P.Ws.1 and 2. There was no cross-examination of the
deposition of P.Ws.1 and 2 that the name and signature of the
A.S.No.154/96 – 6 –
original appellant was written by himself under his own handwriting.
This may be the reason why the learned Subordinate Judge has
referred to Section 67 of the Evidence Act in her judgment. Whatever
that be, I am in agreement with all the conclusions of the learned
Subordinate Judge which in my opinion are findings on the evidence
which is on record. The appeal fails. However, I notice that the
learned Subordinate Judge has granted pendente lite and future
interest at the rate of 12% per annum. No particular rate of interest
is mentioned in Ext.A1. The plaintiff has no case that Ext.A1 has
arisen out of a commercial transaction. Taking into account all these
aspects, I am inclined to modify the impugned decree by reducing the
rate of interest both pendente lite and future to 6% per annum.
Subject to the above modification, the judgment and decree under
appeal will stand confirmed. In the circumstances of the case, the
parties will suffer their costs in this appeal.
srd PIUS C.KURIAKOSE, JUDGE