IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS No. 89 of 1994(B)
1. P.R.RAMAKRISHNAN
... Petitioner
Vs
1. T.G.KUNHIKANNAN
... Respondent
For Petitioner :SRI.T.R.RAJEEV
For Respondent :SMT.PRABHA R.MENON
The Hon'ble MR. Justice K.PADMANABHAN NAIR
Dated :26/03/2007
O R D E R
K.Padmanabhan Nair, J.
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A.S.No. 89 of 1994-B
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Dated, this the 26th day of March, 2007.
Judgment
Defendants 1 to 3 in O.S.No.63 of 1991 on the file of the Subordinate
Judge’s Court, Quilandy are the appellants. Appeal is filed challenging the
judgment and decree passed by the trial court by which the suit filed by the
plaintiffs claiming damages was decreed in part.
2. Respondents are brothers. They filed the suit for damages on the
following averments. Second respondent was unmarried at the relevant point of
time. P.W.4, one K.K.Narayanan, who was working as a teacher at Government
Valad High School at Wayanad informed second respondent that he knows the
third appellant and she will be a suitable bride for him. 1st respondent and his
neighbour G.K.Kunhikannan along with P.W.4 approached the first appellant and
made the proposal to first defendant that the second plaintiff would like to marry
his daughter. Respondents along with others went to the house of appellants to
see the third appellant and they were satisfied with the third appellant. She also
liked the second respondent. Subsequently, first appellant along with others came
to the house of respondents and they were also satisfied with the family
background of the respondents. Accordingly, respondents along with others again
A.S.No.89 of 1994 2
went to the house of third appellant and decided to conduct the marriage. At that
time, father of the respondents was laid up due to illness and he was unable to
move about and it was not possible for him to go to the house of the bride to fix a
date for marriage. Father of the bride and their relatives agreed to come to the
house of the respondents for that purpose and accordingly they came to the house
of the respondents on 10-03-1991. A decision was taken to conduct the marriage
ceremony at Guruvayoor SreeKrishna Temple. For the purpose of fixing the time
of marriage respondents1 and 2 along with others who accompanied them and first
respondent and others went to the office of one N.Kunhirama Panicker, an
astrologer After reaching the office of the astrologer they had agreed to conduct
the marriage ceremony on 22nd April, 1991. Appellants 1 and 2 had agreed that
they will be reaching Guruvayoor Temple on the previous day. Respondents
printed the invitation cards and they along with their friends and relatives went to
Guruvayoor on the previous day and stayed at Guruvayoor Sathram owned by the
Temple. Appellants did not turn up and thereby respondents were put to much
hardship. Respondents spent an amount of Rs.15,000/- as expenses and suffered a
damage of Rs.25,000/- and the suit was filed claiming Rs.40,000/- as damages.
3. Defendants filed the written statement denying all the averments. It was
contended that the suit was not maintainable. It was further contended that the
courts at Kozhikode District have no jurisdiction to entertain a suit as the
defendants were residing within the jurisdiction of Wayanad Courts. It is
A.S.No.89 of 1994 3
admitted that P.W.4 mooted the marriage proposal for third appellant and they
were informed that the second respondent will be a suitable bridegroom for the
third appellant. It was further contended that the appellants were made to believe
that second respondent was a Government employee and he was much younger
than what he actually was. Subsequently when the appellants made enquiry it was
revealed that second respondent was aged more than 40 years and he was not
having any employment and his conduct and character are not good. So they
backed out from the proposal. There was no understanding to solemnize the
marriage on 22-04-1991 as contended by the plaintiffs. The averment that on 10-
03-1991, appellants along with friends and relatives came to the house of the
respondents for fixing the marriage was denied. The averment that they went to
the office of P.W.3 astrologer and scheduled the marriage to be conducted on 22-
04-2001 was also denied. The averment that respondents and others went to
Guruvayoor and spent more than Rs.15,000/- was also denied. The averment that
respondents sustained mental agony, financial loss etc. were denied. The averment
that respondents sustained a damage to the tune of Rs.25,000/- was also denied.
It was further contended that the suit was filed for the purpose of solely harassing
the defendants. The trial court found that the plaintiffs had spent more than
Rs.10,000/- and they have suffered mental agony and loss of reputation to the tune
of Rs.10,000/- and hence they are entitled to get an amount of Rs.20,000/- as
damages. Challenging the judgment and decree, this appeal is filed.
A.S.No.89 of 1994 4
4. The only point arising for consideration is whether the finding of the
court below that respondents 1 and 2 are entitled to get a compensation of
Rs.20,000/- is sustainable or not. The materials on record show that there was a
proposal from the side of respondents to the effect that second respondent would
like to marry the third appellant who is the daughter of the first appellant. Second
respondent is the brother of the first respondent. That fact is admitted by the
appellants also. But the question to be decided is whether the case of the
plaintiffs-respondents that on 10-03-1991, appellants along with their friends and
relatives came to the house of respondents and agreed to conduct the marriage at
Guruvayoor and whether the case of the respondents that from the house of
respondents all of them went together to the office of P.W.3, the astrologer, and
the marriage was scheduled to be conducted on 22nd April, 1991is correct.
Respondents rely on Ext.A1 to show that there was an agreement on 10-03-1991
by which both sides agreed to conduct the marriage on 22-4-1991. The
genuineness of Ext.A1 was disputed by the appellants. Ext.A1 is stated to be the
slip written by P.W.3 on 10-03-1991. It was written in a plain paper. It does not
contain the signature or handwriting of the appellants. Originally the names of
parties alone were written. It does not contain the stars or horoscope of the boy or
girl. The date 10-03-1991 is written in different ink. While cross examining
P.W.1 a suggestion was put to P.W.1 that the entire writings in Ext.A1 were not
made by one person . Another suggestion was also made to him that that was a
A.S.No.89 of 1994 5
document fabricated for the purpose of creating evidence for this case. Regarding
Ext.A1, the case put forward by respondents is that appellants 1 and 2 with their
friends and relatives came to the house of respondents and from there first
respondent, the appellants and others went to the office of one N.K.Panicker-
P.W.3 who is an astrologer and he fixed 22nd April 1991 as the date of marriage.
In the plaint there was no averment that Ext.A1 was given to the first respondent
by D.W.2. There was also no averment that two copies of the slip were prepared
and one was given to appellants and another one to respondents. P.W.1 during his
chief examination had asserted that P.W.3, after fixing the date, wrote two slips
and one was given to the first respondent and another one to the first appellant. It
is further deposed that Ext.A1 was given to the first plaintiff by P.W.3 . P.W.3 is
the astrologer. During chief examination he deposed that he prepared two slips
and gave both slips to the father of the third appellant. During cross examination
also he asserted that he wrote two slips and both slips were handed over to the
father of the third appellant. If that be so, the case put forward by P.W.1 at the
time of giving evidence that Ext.A1 was given to him cannot be accepted. So no
reliance can be placed on Ext.A1 to hold that the appellants agreed for the
marriage between third appellant and second respondent to be solemnized on 22-4-
1991.
5 . There is yet another aspect. Even P.W.1 has no case that as per the
custom prevailing in the community, the betrothal ceremony will be conducted in
A.S.No.89 of 1994 6
the house of the bridegroom. According to the respondents, because of the illness
of the father of the bridegroom, the betrothal ceremony was agreed to be
conducted in the house of the respondents. P.W.1 deposed that the decision to
conduct the marriage was taken at his house and they went to the office of P.W.3
only for fixing the date of marriage. The evidence of P.W.3 assumes more
importance. According to him, he is an astrologer by profession and normally he
is fixing the dates for marriage. It is also admitted by him that Ext.A1 was written
in plain paper as all his letter pads were exhausted. He deposed that the brother of
the bridegroom and 2-3 others and the father of the bride and 2-3 others came to
his office. According to him, they came to the office by sheer chance. Then he
deposed that he prepared two slips and father of bridegroom gave him dakshina .
He had admitted that the normal practice is to peruse horoscopes of parties at the
house of bride and that too, on the date of betrothal ceremony. He deposed that at
the time of betrothal, there will be some ceremony and the date of marriage will be
fixed. He had candidly admitted that before fixing the date of marriage , in this
particular case, he had not seen or verified the horoscope of bride or bridegroom.
According to him, since the marriage is to be scheduled in the temple, he only gave
an auspicious date. It is very difficult to believe the oral evidence of P.W.3 when
he says that an astrologer had fixed the date of marriage without seeing the
horoscope and that too at his office contrary to the ordinary practice of fixing it in
the house of the bride. Even accepting the contention of the respondents that
A.S.No.89 of 1994 7
because of the illness of the father of the respondents, the parents and relatives of
the bride had agreed to conduct the ceremony in the house of the bridegroom
normally one would expect that ceremony at the house of the respondents and not
in the office of an astrologer. So no reliance can be placed on the oral evidence of
P.Ws. 1 and 3 . In the absence of evidence regarding the agreement by the
appellants for the marriage to be scheduled on 22-4-1991, they cannot be made
liable for any damage. So the further question whether respondents went to
Guruvayoor, suffered damage etc. does not arise in this case. I hold that the
evidence on record is not sufficient to hold that there was an agreement between
the appellants and respondents and third appellant had agreed to marry the second
respondent at Guruvayoor on 22-04-1991. So the findings of the court below that
since the appellants backed out from the agreement for marriage, respondents
suffered damage and appellants are liable to compensate are unsustainable and
liable to be set aside.
In the result, appeal is allowed. Judgment and decree passed by the court
below are set aside. Suit is dismissed. Parties are directed to suffer their costs.
C.M.P.No.407 of 1994 shall stand dismissed.
K.Padmanabhan Nair,
Judge.
s.
A.S.No.89 of 1994 8
K.Padmanabhan Nair, J.
A.S.No. 89 of 1994
Judgment
26th March, 2007.