IN THE HIGH COURT OF KERALA AT ERNAKULAM
RFA No. 377 of 2003()
1. GOPALAKRISHNAN S/O. VELU AGED 56,
... Petitioner
Vs
1. SURESH, AGED 39 YEARS, S/O. SADANANDAN,
... Respondent
2. SUMA, AGED 33 YEARS D/O. VASANTHI,
3. L.SHAJI AGED 45 YEARS, SURYA BHAVAN,
4. BABU AGED ABOUT 32 YEARS,
For Petitioner :SRI.S.SREEKUMAR
For Respondent :SRI.E.K.NANDAKUMAR
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice V.K.MOHANAN
Dated :30/11/2007
O R D E R
P.R.RAMAN & V.K.MOHANAN, JJ.
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R.F.A.NO.377 OF 2003
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Dated this the 30th day of November, 2007
JUDGMENT
Raman, J.
This is an appeal against the judgment and decree passed by the
Subordinate Judge’s Court, Mavelikara in O.S.No.211/95. First
defendant is the appellant. Plaintiff instituted the suit for specific
performance of an agreement for sale. Ext.A2 is the agreement dated
30/7/1994 executed in favour of the plaintiffs. According to the
plaintiffs, the plaint schedule property belonged to the lst defendant
(appellant herein). His father died and thus the lst defendant has
become the absolute owner of the property, which was agreed to be
sold for a total consideration of Rs.4,06,000/- out of which
Rs.1,50,000/- was paid on the date of the agreement. Agreement was
signed by the lst defendant on 30/7/94. After evicting the tenants from
the two rooms of the building and after shifting the residence of the lst
defendant from the other two rooms, the plaintiff requested the lst
defendant to execute the sale deed, after receiving the balance
consideration. But the lst defendant did not heed to the request. The
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agreement dated 30/7/1994 is stated to be in continuation of the previous
agreement dated 3/5/94. After issuing registered notice, the suit was
instituted. It is stated that the plaintiff is always willing and ready to
perform his obligation by paying the balance consideration. But the lst
defendant committed breach of the agreement. The plaintiff also sought
for an amount of Rs.40,000/- per month as mesne profits from the date of
deposit of the balance sale consideration. The lst defendant in his written
statement admitted the execution of the sale deed for a total consideration
Rs.4,06,000/-. But he denied the receipt of an amount of Rs.1,50,000/-.
According to him, only an amount of Rs.15,000/- was received by way of
advance and the balance amount of Rs.1,35,000/- was promised to be paid
within two months from 30/7/1994, the date of the agreement. But the
same was never paid later. The two tenants in the shop rooms refused to
vacate, in spite of efforts made by the lst defendant. The calculation of
the balance sale consideration as per the plaint is false and not acceptable
to the lst defendant. The plaintiffs were not willing to pay the balance
consideration. Defendants 2 and 3 are not necessary parties.
2. The court below framed necessary issues and one of the issues
was as to whether the lst defendant had received Rs.1,50,000/- as advance
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sale consideration from the plaintiffs. Besides whether the plaintiffs were
willing to perform their part of the agreement and they are entitled to
specific performance of the agreement were also raised for consideration.
3. PWs.1to 3 were examined on the side of the plaintiffs. Exts.A1
to A4 were also marked on their side. No documentary evidence was
adduced on the side of the defendants and the lst defendant gave evidence
as DW-1. The court below considered all the issues together for the
purpose of convenience. In the light of the clause contained in the
agreement regarding the advance payment of Rs.1,50,000/- it was held
that no oral evidence could substitute the recitals contained in the written
document nor is it permissible under Section 92 and 93 of the Evidence
Act. The court below did not give credence to the oral testimony of DW1
holding that a literate person could not have acknowledged the receipt of
Rs.1,50,000/-, if actually the consideration paid was only Rs.15,000/-. The
burden to prove that only Rs.15,000/- was paid as against Rs.1,50,000/-
recorded in the agreement itself, was on the defendant, since he is
contradicting the terms contained in the agreement. The plaintiff
examined PW-3 who is the licensee and scribe in Ext.A2. He identified
the handwriting in Ext.A2. He also deposed that he had seen the passing
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of part consideration under Ext.A2. The court below believed his
deposition as true. The court below therefore rejected the plea of the
defendant in this regard. The discussions on the relevant issues are
contained in paragraph 6 of the judgment. The court below rejected the
oral testimony of DW1, but failed to see that the plaintiff did not even
mount the box. But in spite of that, the court below did not accept the
testimony of DW-1 stating that it is an interested testimony and drew an
inference that a literate person like the lst defendant would not affix his
signature in Ext.A2 to vouchsafe or acknowledge receipt of Rs.1,50,000/-,
if as a matter of fact, what was paid was only Rs.15,000/-. The court
below found that the burden to show that only an amount of Rs.15,000/-
was received by the lst defendant is on him. At the same time, according
to the court below, it is difficult to establish the same. In the absence of
any evidence on the part of the defendants to show that what was
received is only Rs.15,000/-, the case as put forth by the defendants was
not accepted. According to the court below, the document having recited
the receipt of consideration of Rs.1,50,000/- execution of which is not
disputed, there is no further onus on the part of the plaintiffs to discharge.
In these circumstances, the court below rejected the contention as set up
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by the defendants.
4. The learned counsel appearing on behalf of the appellant
contended that the finding of the court below precluding the defendants
from adducing any oral evidence to prove that the recitals contained in
Ext.A2 showing a larger amount as received by way of advance are untrue
is not prohibited by Sections 91 and 92 of the Indian Evidence Act. He
placed reliance on some of the decisions in support of his contention. In
Mathew v. Lakshmanan (1990 (2) KLT 446) a Division Bench of this
Court considered the very same question. That was also a case of specific
performance. There is an acknowledgment of an amount of Rs.3,000/- by
way of advance as per the recitals contained in Ext.A1 agreement for sale.
Contrary to the said recitals it was contended by the defendant that he has
not received the sale consideration. The trial court by relying on Sections
91 and 92 of the Evidence Act held that the defendant would not have
been permitted to lead oral evidence against the express terms contained
in the agreement. In paragraph 9 this Court posed the question as to
whether the trial court was justified in its assumption that the defendant
was precluded by the provisions of Sections 91 and 92 of the Evidence
Act from leading oral evidence to the effect that the plaintiff had not paid
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the advance of Rs.3,000/- and the defendant had not put the plaintiff in
possession as a consequence thereof of the thatched shed, which formed
part of the plaint property. After referring to the provisions contained in
Sections 91 and 92 of the Evidence Act and after referring to some of the
case law on the subject including the decisions of this Court in
Thommen v. Taluk Land Board (1976 KLT 840) and Kunhammed
Kutty v. Avokker (1984 KLT 716) it was held that the decisions have
kept the nice but real distinction between the terms of the contract and
recital of fact therein. The courts have always held, that consideration for
the contract not being a term of the contract, it is open to the vendor to
lead oral evidence to the effect that no consideration or only part thereof
was actually received, notwithstanding recitals in the contract. It will
therefore be competent to a party to a contract to adduce evidence to
prove want or failure of consideration. Want or failure of consideration
invalidates the document, so that the terms of the above proviso
automatically applies. The assumption of the trial court that Sections 91
and 92 of the Evidence Act operated to exclude oral evidence in support
of the specific plea of the defendant-appellant, that the advance, recited in
Ext.A1 document, was not paid, is therefore clearly faulty. In the light of
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the decision as laid down by a Bench decision of this Court in categorical
terms which are in identical situation, it has to be held that the finding of
the court below precluding the defendants from adducing any oral
evidence contrary to the recitals contained in Ext.A1 is not correct in law.
When such contention is available to be raised and evidence adduced,
necessarily such evidence adduced will have to be weighed. As against
the oral testimony of DW1, who said that he has not received the amounts
as recited, the plaintiff did not rebut the same by mounting the box. Onus
thus shifted on the person, who alleges that the entire amount of
Rs.1,50,000/- has in fact been received by the defendant. Proof of
payment being a positive fact can easily be proved by the party, who
pleads the same by cogent evidence. It is open to them to prove the source
from which the amount was raised and paid. Thus the court below was no
right in casting the entire burden on the defendants to prove that over and
above Rs.15,000/- they have not received anything further.
5. In this case Ext.A2 is an agreement for sale and there is hardly
any dispute on that. The plaintiff has specifically pleaded that he was
ready and willing to perform his part of his obligation by paying the
balance consideration, but he did not mount the box to give evidence in
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support thereof. Since this was denied by the defendants, it is for the
plaintiff to establish the same. On the side of the plaintiff, the power of
attorney holder was examined as PW-1. There was a dispute that the
plaintiff has not executed any power of attorney in favour of PW-1 as per
Ext.A1. But the court below did not consider as to whether Ext.A1 power
of attorney was executed in favour of PW-1 or not; but held that in view
of the previous orders passed, the plea is barred by explanation 4 of
Section 11 of the C.P.C. It is true that there was an ex parte decree passed
earlier in favour of the plaintiff, but the same was set aside on an
application made by the defendants. Thus whatever finding in the ex
parte order stood set aside. Hence that order cannot be a bar under
Section 11 of the C.P.C. The suit itself has to be tried denovo and there
was no decree in the eye of law. Every issues that arise for consideration
have to be considered, in the light of the materials placed.
6. According to the defendant, the plaintiff was not available in
India at the time of institution of the suit and disputed the signature in the
plaint. The lower court has referred to this contention in paragraph 12 of
the judgment. But the court below repelled these contentions holding that
these contentions are not raised in the written statement or in the proof
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affidavit of DW-1 and therefore, there is no substance in the contentions
made. It must be remembered that there was no occasion for the
defendant to be suspicious about the signature until the original was seen
by him and hence there was no occasion to raise any plea in the written
statement. But later when it came to his knowledge that the plaintiffs
were not available during the period when the plaint was presented
before the court below, he had made suggestions regarding the same to
the witnesses examined on the side of the plaintiffs. We have gone
through the original of the plaint and the signatures put on the bottom of
every page of the plaint and found that the signature in each of the page
differs from other. Together with this the plaintiffs have not mounted the
box to give any evidence in support of the plaint allegations. Plaintiff, is
not an ordinary resident in India. Hence, when a serious dispute is raised
regarding the presence of the plaintiff on the day when the plaint was
presented, in the factual background, the court below ought to have
enquired into the same and if only the plaint was perused, it would have
come to light that there is serious doubt to think that it is not the plaintiff
who has signed the plaint. At any rate, the court below ought to have,
after giving an opportunity of being heard in the matter, dealt with the
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question in more detail than precluding the defendants from raising this
contention on the sole ground that in the written statement they have not
raised this contention. If a plaint presented to the court was not signed by
the plaintiff, necessarily, the allegation of impersonation could not have
gone unnoticed. Further a power of attorney holder is not competent to
depose as to the plaint averments when the suit itself is laid not by the
power of attorney holder. The deposition of the power of attorney holder
at best could be an evidence in the case; but when the plaintiff himself
has not mounted the box, in such circumstances, there arises suspicion
about the genuineness of the case put forth in the plaint. In this
connection, it may be noticed that PW-1 power of attorney holder himself
admits in the cross-examination that for the past 20 years the lst plaintiff
was abroad and the 2nd plaintiff was abroad for the past six years. He also
admits that the 2nd plaintiff alone was available in India on 13/7/1997
and the lst plaintiff was not available in India. The date of the plaint is
June, 1995. In this connection, it is rightly pointed out by the learned
counsel for the appellant that even PW-2 has admitted while in the box
about the non-availability of the plaintiff at the time of presentation of the
plaint.
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7. In the decision reported in Vidhyadhar v. Manikrao and
another ((1993)3 SCC 573) the Apex Court in paragraph 17 held as
follows:
“Where a party to the suit does not appear in
the witness box and states his own case on oath and
does not offer himself to be cross-examined by the
other side, a presumption would arise that the case
set up by him is not correct……..”
8. It is true that two other witnesses were examined as PWs.2 and 3
on the side of the plaintiff to prove the execution of Ext.A2. The court
below accepted the execution of Ext.A2. Even though it cannot be said
that the execution of Ext.A2 can be seriously disputed by the defendants,
the court below has necessarily to consider as to whether a discretionary
relief could be granted in favour of the plaintiffs. It is settled law that
specific performance being a discretionary remedy is not to be granted
merely because it is lawful to do so. If there are sufficient grounds,
necessarily, instead of granting discretionary relief, only the alternative
relief of return of advance with interest could be granted. The court
below has entered a finding that nothing was shown by the lst defendant
questioning the plaintiffs 1 and 2 so as to dis-entitle them to obtain a
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decree. It has to be mentioned that the plaintiffs’ presence at the time of
presentation of the plaint itself is seriously disputed. The signature of the
plaintiffs in the plaint differs. There is also a serious dispute as to what is
the actual amount of consideration received. Plaintiffs have not mounted
the box. These circumstances were not considered by the court below
before granting the discretionary remedy. We find that the court below
did not exercise the discretion, after proper appreciation of the entire facts
and circumstances.
9. The learned Senior Counsel Sri A.M. Shaffique appearing on
behalf of the respondents however submitted that the signature contained
in the plaint or any defect thereon will not affect the jurisdiction of the
court. In this regard it is submitted by the learned counsel for the
appellant that this is not a case of mere irregularity, but is a case of
impersonation, which allegation is taken note of even in the judgment
under appeal. However, there was no consideration of this question.
In the result, the judgment and decree of the court below is set
aside. The matter is remanded to the trial court for fresh consideration in
accordance with law. Now that we are remanding the matter for fresh
consideration, necessarily the question as to whether the plaintiff was
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present at the time when the plaint was presented in court and whether the
plaint was signed by him has also been enquired into by the court below,
after affording an opportunity of being heard to both sides in this regard.
Court fee paid is ordered to be refunded. The parties shall appear before
the court below on 3rd January, 2008.
Sd/-
P.R.RAMAN,
Judge.
Sd/-
V.K.MOHANAN,
Judge.
kcv.