IN THE HIGH COURT OF KERALA AT ERNAKULAM
RFA.No. 331 of 2009()
1. PAULOSE, S/O.YOHANNAN,
... Petitioner
2. JOHNSON, S/O.GEORGE,
Vs
1. GEEMON, S/O.CHACKO,
... Respondent
For Petitioner :SRI.SAJU.S.A
For Respondent :SRI.PEEYUS A.KOTTAM
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :12/11/2010
O R D E R
Thottathil B.Radhakrishnan
&
P.Bhavadasan, JJ.
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R.F.A.No.331 of 2009-D
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Dated this the 12th day of November, 2010.
Order
Thottathil B.Radhakrishnan, J.
1.This appeal arises from a suit filed on
18.3.2008. It is a suit for specific performance
of a contract for sale. The suit is decreed on
15.11.2008.
2.It is a matter to be recognised that the court
below has attempted to dispose of the suit within
a period of around seven months. But, the
complaint of the appealing defendants is that
they did not have the opportunity to contest the
matter by adducing appropriate evidence,
including by summoning witnesses and also for
further appropriate comparison of documents etc.
RFA331/09 -: 2 :-
3.While the plaintiff pleads that there is a
contract for sale, the first defendant denies it.
The second defendant, stated to be a relative of
the first defendant, is the transferee of the
property covered by the alleged contract. This is
the nature of the dispute.
4.The ‘B’ diary shows that on 9.4.2008, both
defendants appeared and the case was adjourned to
11.6.2008 for filing written statement. The
defendants promptly filed written statement on
11.6.2008 itself and for issues, the case was
adjourned to 21.7.2008. Following settlement of
issues on 21.7.2008, the matter was listed on
6.8.2008 and on 21.8.2010 for payment of balance
court fee. Recording that the court fee was paid
on 21.8.2008, the case was adjourned to 19.9.2008
for further steps. It appears that both sides did
not take any further steps and the matter was
listed to 10.11.2008 for trial in the special
list. We find that I.A.1578/2008 and
RFA331/09 -: 3 :-
I.A.1579/2008 were filed by the defendants along
with the schedule of witnesses. That was on the
date on which the suit stood listed for trial.
The B diary further shows that the plaintiff’s
counsel sought for adjournment on 10.11.2008 and
accordingly, the examination of P.W.1 was
adjourned to 11.11.2008.
5.With the aforesaid, we note that the documents,
which were marked on the side of the plaintiff as
Exts.A2, A3 and A8, the certified copies of sale
deeds as also a receipt and a blank cheque, were
produced before the court below only on
10.11.2008, going by the index prepared by the
lower court while it sent up the LCRs. While the
request of the defendant made on 10.11.2008
remains answered and no orders were issued on
I.A.1578/2008 and I.A.1579/2008, we may notice
that the defendant had placed two documents which
are marked as Exts.B1 and B2 as early as
11.11.2008. With the aforesaid facts being
noticed, we advert to the following statement in
RFA331/09 -: 4 :-
the memorandum of appeal filed before us:
“4) The suit was posted for trial on
10.11.2008. Advocate Santhosh
K.Sreedharan, a lawyer practicing at
Perumbavoor and Muvattupuzha courts
was appearing for the defendants in
the above matter. He was having some
physical ailments and he was not in a
position to conduct the trial of the
case. He wanted to leave the place
for urgent medical check-up. The 1st
defendant also was suffering from
high Blood Pressure and heart
ailments. He was advised complete
medical rest for 2 months. He was
staying in the house of the 2nd
defendant at Muvattupuzha. It was at
that stage the Advocate informed the
1st defendant about his difficulty in
conducting the case and advised him
to engage another counsel for the
conduct of the case. The 2nd defendant
was away in connection with his
employment. The 1st defendant even
though he was advised complete rest,
went to the office of the Advocate
and contacted him. Then he was
advised that another lawyer attachedRFA331/09 -: 5 :-
to the office of Adv.Santhosh
K.Sreedharan can be entrusted with
the case and since 1st defendant is
not in a position to attend the
court, an adjournment can be sought
for on the hearing date. Accordingly
Advocate T.E.Varkey entered
appearance for the 1st defendant.
Adv.Santhosh K.Sreedharan has having
vakalath for both the defendants. On
10.11.2008 applications were filed in
the case seeking adjournment of the
trial of the case and also for taking
some pre-trial steps which was not
taken in time. Even though the
application for pre-trial steps was
allowed, the case was taken for trial
on that day itself. The Advocate for
the appellants has to cross examine
the witnesses on the side of the
plaintiff but because of serious
illness 1st defendant could not attend
the court and give oral evidence. 2nd
defendant was not available in
station also. Since there was no oral
evidence adduced on the side of the
defendants, the trial court mainly
relying on the testimony of the
witnesses on the side of theRFA331/09 -: 6 :-
plaintiff decreed the suit. It is
submitted that it was only because of
circumstances beyond the control of
the defendants that they could not
adduce evidence on that day.”
6.It is submitted by both sides that
Adv.Sri.Santhosh K.Sreedharan mentioned of in the
afore-quoted portion of the appeal memorandum is
now no more. There is also no serious challenge
to the fact situation disclosed by the afore-
quoted averments in the memorandum of appeal.
7.We are satisfied that in the matter of trial of
the case, the defendants did not have appropriate
opportunity to adduce evidence and contest the
suit including by appropriate cross examination
of plaintiff’s witnesses. We take this view
because going by the materials, we are impressed
that whatever was the cross examination of P.W.1
was only because of the compulsion of the
circumstances.
RFA331/09 -: 7 :-
8.For the aforesaid reasons, we set aside the
impugned decree and judgment and all further
proceedings from the stage of listing of the case
in the special list. Consequently, we remand the
suit for de novo consideration providing both
sides to take further steps and also to adduce
all evidence. It is clarified that no observation
made in this judgment will stand in the way of
the court below at the final hearing of the
matter and we have not expressed anything on the
merits. The defendants have to be given an
opportunity to further cross-examine the
witnesses already examined on the side of the
plaintiff. The evidence already on record as
evidence of P.W.1 and P.W.2 would continue on
record and the opportunity being given is to
adduce further evidence. The request of the
plaintiff that there may be an expeditious
further consideration is recorded. Appeal allowed
accordingly.
9.We find that the order of remand is not caused by
RFA331/09 -: 8 :-
any fault of the appellants, disentitling them to
refund of court fee in terms of Section 67 of Act
10 of 1960. We, accordingly, order refund of the
court fee paid on this memorandum of appeal. We
note that this matter being decided at the stage
of admission, the court fee paid is only 1/3rd of
the amount of fee due under the memorandum of
appeal. Yet, we do not find any ground to refuse
refund because the proviso to Section 69 which
applies to cases of compromise does not apply to
cases which fall under Section 67 where the court
makes an order of remand.
The parties shall appear before the court below
on 20.12.2010.
Thottathil B.Radhakrishnan,
Judge.
P.Bhavadasan,
Judge.
Sha/0712