{"id":86114,"date":"2007-11-30T00:00:00","date_gmt":"2007-11-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gopalakrishnan-vs-suresh-on-30-november-2007"},"modified":"2018-02-09T16:30:46","modified_gmt":"2018-02-09T11:00:46","slug":"gopalakrishnan-vs-suresh-on-30-november-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gopalakrishnan-vs-suresh-on-30-november-2007","title":{"rendered":"Gopalakrishnan vs Suresh on 30 November, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
Gopalakrishnan vs Suresh on 30 November, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nRFA No. 377 of 2003()\n\n\n1. GOPALAKRISHNAN S\/O. VELU AGED 56,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. SURESH, AGED 39 YEARS, S\/O. SADANANDAN,\n                       ...       Respondent\n\n2. SUMA, AGED 33 YEARS D\/O. VASANTHI,\n\n3. L.SHAJI AGED 45 YEARS, SURYA BHAVAN,\n\n4. BABU AGED ABOUT 32 YEARS,\n\n                For Petitioner  :SRI.S.SREEKUMAR\n\n                For Respondent  :SRI.E.K.NANDAKUMAR\n\nThe Hon'ble MR. Justice P.R.RAMAN\nThe Hon'ble MR. Justice V.K.MOHANAN\n\n Dated :30\/11\/2007\n\n O R D E R\n                P.R.RAMAN & V.K.MOHANAN, JJ.\n              -------------------------------\n                      R.F.A.NO.377 OF 2003\n             --------------------------------\n              Dated this the 30th day of November, 2007\n\n                             JUDGMENT\n<\/pre>\n
Raman, J.\n<\/p>\n
      This is an appeal against the judgment and decree passed by the<\/p>\n
Subordinate Judge’s Court, Mavelikara in O.S.No.211\/95.            First<\/p>\n
defendant is the appellant. Plaintiff instituted the suit for specific<\/p>\n
performance of an agreement for sale. Ext.A2 is the agreement dated<\/p>\n
30\/7\/1994 executed in favour of the plaintiffs.       According to the<\/p>\n
plaintiffs, the plaint schedule property belonged to the lst defendant<\/p>\n
(appellant herein). His father died and thus the lst defendant has<\/p>\n
become the absolute owner of the property, which was agreed to be<\/p>\n
sold for a total consideration of Rs.4,06,000\/- out of which<\/p>\n
Rs.1,50,000\/- was paid on the date of the agreement. Agreement was<\/p>\n
signed by the lst defendant on 30\/7\/94. After evicting the tenants from<\/p>\n
the two rooms of the building and after shifting the residence of the lst<\/p>\n
defendant from the other two rooms, the plaintiff requested the lst<\/p>\n
defendant to execute the sale deed, after receiving the balance<\/p>\n
consideration. But the lst defendant did not heed to the request. The<\/p>\n
                                    -2-<\/span>
\nR.F.A.No.377\/2003<\/p>\n
agreement dated 30\/7\/1994 is stated to be in continuation of the previous<\/p>\n
agreement dated 3\/5\/94. After issuing registered notice, the suit was<\/p>\n
instituted. It is stated that the plaintiff is always willing and ready to<\/p>\n
perform his obligation by paying the balance consideration. But the lst<\/p>\n
defendant committed breach of the agreement. The plaintiff also sought<\/p>\n
for an amount of Rs.40,000\/- per month as mesne profits from the date of<\/p>\n
deposit of the balance sale consideration. The lst defendant in his written<\/p>\n
statement admitted the execution of the sale deed for a total consideration<\/p>\n
Rs.4,06,000\/-. But he denied the receipt of an amount of Rs.1,50,000\/-.<\/p>\n
According to him, only an amount of Rs.15,000\/- was received by way of<\/p>\n
advance and the balance amount of Rs.1,35,000\/- was promised to be paid<\/p>\n
within two months from 30\/7\/1994, the date of the agreement. But the<\/p>\n
same was never paid later. The two tenants in the shop rooms refused to<\/p>\n
vacate, in spite of efforts made by the lst defendant. The calculation of<\/p>\n
the balance sale consideration as per the plaint is false and not acceptable<\/p>\n
to the lst defendant. The plaintiffs were not willing to pay the balance<\/p>\n
consideration. Defendants 2 and 3 are not necessary parties.<\/p>\n
       2. The court below framed necessary issues and one of the issues<\/p>\n
was as to whether the lst defendant had received Rs.1,50,000\/- as advance<\/p>\n
                                     -3-<\/span>
\nR.F.A.No.377\/2003<\/p>\n
sale consideration from the plaintiffs. Besides whether the plaintiffs were<\/p>\n
willing to perform their part of the agreement and they are entitled to<\/p>\n
specific performance of the agreement were also raised for consideration.<\/p>\n
      3. PWs.1to 3 were examined on the side of the plaintiffs. Exts.A1<\/p>\n
to A4 were also marked on their side. No documentary evidence was<\/p>\n
adduced on the side of the defendants and the lst defendant gave evidence<\/p>\n
as DW-1. The court below considered all the issues together for the<\/p>\n
purpose of convenience.      In the light of the clause contained in the<\/p>\n
agreement regarding the advance payment of Rs.1,50,000\/- it was held<\/p>\n
that no oral evidence could substitute the recitals contained in the written<\/p>\n
document nor is it permissible under Section 92 and 93 of the Evidence<\/p>\n
Act. The court below did not give credence to the oral testimony of DW1<\/p>\n
holding that a literate person could not have acknowledged the receipt of<\/p>\n
Rs.1,50,000\/-, if actually the consideration paid was only Rs.15,000\/-. The<\/p>\n
burden to prove that only Rs.15,000\/- was paid as against Rs.1,50,000\/-<\/p>\n
recorded   in the agreement itself, was on the defendant, since he is<\/p>\n
contradicting the terms contained in the agreement. The plaintiff<\/p>\n
examined PW-3 who is the licensee and scribe in Ext.A2. He identified<\/p>\n
the handwriting in Ext.A2. He also deposed that he had seen the passing<\/p>\n
                                     -4-<\/span>
\nR.F.A.No.377\/2003<\/p>\n
of part consideration under Ext.A2.        The court below believed his<\/p>\n
deposition as true. The court below therefore rejected the plea of the<\/p>\n
defendant in this regard. The discussions on the relevant issues are<\/p>\n
contained in paragraph 6 of the judgment. The court below rejected the<\/p>\n
oral testimony of DW1, but failed to see that the plaintiff did not even<\/p>\n
mount the box. But in spite of that, the court below did not accept the<\/p>\n
testimony of DW-1 stating that it is an interested testimony and drew an<\/p>\n
inference that a literate person like the lst defendant would not affix his<\/p>\n
signature in Ext.A2 to vouchsafe or acknowledge receipt of Rs.1,50,000\/-,<\/p>\n
if as a matter of fact, what was paid was only Rs.15,000\/-. The court<\/p>\n
below found that the burden to show that only an amount of Rs.15,000\/-<\/p>\n
was received by the lst defendant is on him. At the same time, according<\/p>\n
to the court below, it is difficult to establish the same. In the absence of<\/p>\n
any   evidence on the part of the defendants to show that what was<\/p>\n
received is only Rs.15,000\/-, the case as put forth by the defendants was<\/p>\n
not accepted. According to the court below, the document having recited<\/p>\n
the receipt of consideration of Rs.1,50,000\/- execution of which is not<\/p>\n
disputed, there is no further onus on the part of the plaintiffs to discharge.<\/p>\n
In these circumstances, the court below rejected the contention as set up<\/p>\n
                                     -5-<\/span>
\nR.F.A.No.377\/2003<\/p>\n
by the defendants.\n<\/p>\n
       4. The learned counsel appearing on behalf of the appellant<\/p>\n
contended that the finding of the court below precluding the defendants<\/p>\n
from adducing any oral evidence to prove that the recitals contained in<\/p>\n
Ext.A2 showing a larger amount as received by way of advance are untrue<\/p>\n
is not prohibited by Sections 91 and 92 of the Indian Evidence Act. He<\/p>\n
placed reliance on some of the decisions in support of his contention. In<\/p>\n
Mathew v. Lakshmanan (1990 (2) KLT 446) a Division Bench of this<\/p>\n
Court considered the very same question. That was also a case of specific<\/p>\n
performance. There is an acknowledgment of an amount of Rs.3,000\/- by<\/p>\n
way of advance as per the recitals contained in Ext.A1 agreement for sale.<\/p>\n
Contrary to the said recitals it was contended by the defendant that he has<\/p>\n
not received the sale consideration. The trial court by relying on Sections<\/p>\n
91 and 92 of the Evidence Act held that the defendant would not have<\/p>\n
been permitted to lead oral evidence against the express terms contained<\/p>\n
in the agreement. In paragraph 9 this Court posed the question as to<\/p>\n
whether the trial court was justified in its assumption that the defendant<\/p>\n
was precluded by the provisions of Sections 91 and 92 of the Evidence<\/p>\n
Act from leading oral evidence to the effect that the plaintiff had not paid<\/p>\n
                                     -6-<\/span>
\nR.F.A.No.377\/2003<\/p>\n
the advance of Rs.3,000\/- and the defendant had not put the plaintiff in<\/p>\n
possession as a consequence thereof of the thatched shed, which formed<\/p>\n
part of the plaint property. After referring to the provisions contained in<\/p>\n
Sections 91 and 92 of the Evidence Act and after referring to some of the<\/p>\n
case law on the subject including the decisions of this Court in<\/p>\n
Thommen v. Taluk Land Board (1976 KLT 840) and Kunhammed<\/p>\n
Kutty v. Avokker (1984 KLT 716) it was held that the decisions have<\/p>\n
kept the nice but real distinction between the terms of the contract and<\/p>\n
recital of fact therein. The courts have always held, that consideration for<\/p>\n
the contract not being a term of the contract, it is open to the vendor to<\/p>\n
lead oral evidence to the effect that no consideration or only part thereof<\/p>\n
was actually received, notwithstanding recitals in the contract. It will<\/p>\n
therefore be competent to a party to a contract to adduce evidence to<\/p>\n
prove want or failure of consideration. Want or failure of consideration<\/p>\n
invalidates the document, so that the terms of the above proviso<\/p>\n
automatically applies. The assumption of the trial court that Sections 91<\/p>\n
and 92 of the Evidence Act operated to exclude oral evidence in support<\/p>\n
of the specific plea of the defendant-appellant, that the advance, recited in<\/p>\n
Ext.A1 document, was not paid, is therefore clearly faulty. In the light of<\/p>\n
                                      -7-<\/span>
\nR.F.A.No.377\/2003<\/p>\n
the decision as laid down by a Bench decision of this Court in categorical<\/p>\n
terms which are in identical situation, it has to be held that the finding of<\/p>\n
the court below precluding the defendants from adducing any oral<\/p>\n
evidence contrary to the recitals contained in Ext.A1 is not correct in law.<\/p>\n
When such contention is available to be raised and evidence adduced,<\/p>\n
necessarily such evidence adduced will have to be weighed. As against<\/p>\n
the oral testimony of DW1, who said that he has not received the amounts<\/p>\n
as recited, the plaintiff did not rebut the same by mounting the box. Onus<\/p>\n
thus shifted    on the person, who alleges that the entire amount of<\/p>\n
Rs.1,50,000\/- has in fact been received by the defendant.           Proof of<\/p>\n
payment being a positive fact can easily be proved by the party, who<\/p>\n
pleads the same by cogent evidence. It is open to them to prove the source<\/p>\n
from which the amount was raised and paid. Thus the court below was no<\/p>\n
right in casting the entire burden on the defendants to prove that over and<\/p>\n
above Rs.15,000\/- they have not received anything further.<\/p>\n
       5. In this case Ext.A2 is an agreement for sale and there is hardly<\/p>\n
any dispute on that. The plaintiff has specifically pleaded that he was<\/p>\n
ready and willing to perform his part of his obligation by paying the<\/p>\n
balance consideration, but he did not mount the box to give evidence in<\/p>\n
                                      -8-<\/span>
\nR.F.A.No.377\/2003<\/p>\n
support thereof. Since this was denied by the defendants, it is for the<\/p>\n
plaintiff to establish the same. On the side of the plaintiff, the power of<\/p>\n
attorney holder was examined as PW-1. There was a dispute that the<\/p>\n
plaintiff has not executed any power of attorney in favour of PW-1 as per<\/p>\n
Ext.A1. But the court below did not consider as to whether Ext.A1 power<\/p>\n
of attorney was executed in favour of PW-1 or not; but held that in view<\/p>\n
of the previous orders passed, the plea is barred by explanation 4 of<\/p>\n
Section 11 of the C.P.C. It is true that there was an ex parte decree passed<\/p>\n
earlier in favour of the plaintiff, but the same was set aside on an<\/p>\n
application made by the defendants. Thus whatever finding in the ex<\/p>\n
parte order stood set aside. Hence that order cannot be a bar under<\/p>\n
Section 11 of the C.P.C. The suit itself has to be tried denovo and there<\/p>\n
was no decree in the eye of law. Every issues that arise for consideration<\/p>\n
have to be considered, in the light of the materials placed.<\/p>\n
       6. According to the defendant, the plaintiff was not available in<\/p>\n
India at the time of institution of the suit and disputed the signature in the<\/p>\n
plaint. The lower court has referred to this contention in paragraph 12 of<\/p>\n
the judgment. But the court below repelled these contentions holding that<\/p>\n
these contentions are not raised in the written statement or in the proof<\/p>\n
                                     -9-<\/span>
\nR.F.A.No.377\/2003<\/p>\n
affidavit of DW-1 and therefore, there is no substance in the contentions<\/p>\n
made.    It must be remembered that there was no occasion for the<\/p>\n
defendant to be suspicious about the signature until the original was seen<\/p>\n
by him and hence there was no occasion to raise any plea in the written<\/p>\n
statement. But later when it came to his knowledge that the plaintiffs<\/p>\n
were    not available during the period when the plaint was presented<\/p>\n
before the court below, he had made suggestions regarding the same to<\/p>\n
the witnesses examined on the side of the plaintiffs.         We have gone<\/p>\n
through the original of the plaint and the signatures put on the bottom of<\/p>\n
every page of the plaint and found that the signature in each of the page<\/p>\n
differs from other. Together with this the plaintiffs have not mounted the<\/p>\n
box to give any evidence in support of the plaint allegations. Plaintiff, is<\/p>\n
not an ordinary resident in India. Hence, when a serious dispute is raised<\/p>\n
regarding the presence of the plaintiff on the day when the plaint was<\/p>\n
presented, in the factual background, the court below ought to have<\/p>\n
enquired into the same and if only the plaint was perused, it would have<\/p>\n
come to light that there is serious doubt to think that it is not the plaintiff<\/p>\n
who has signed the plaint. At any rate, the court below ought to have,<\/p>\n
after giving an opportunity of being heard in the matter, dealt with the<\/p>\n
                                     -10-<\/span>
\nR.F.A.No.377\/2003<\/p>\n
question in more detail than precluding the defendants from raising this<\/p>\n
contention on the sole ground that in the written statement they have not<\/p>\n
raised this contention. If a plaint presented to the court was not signed by<\/p>\n
the plaintiff, necessarily, the allegation of impersonation could not have<\/p>\n
gone unnoticed.    Further a power of attorney holder is not competent to<\/p>\n
depose as to the plaint averments when the suit itself is laid not by the<\/p>\n
power of attorney holder. The deposition of the power of attorney holder<\/p>\n
at best could be an evidence in the case; but when the plaintiff himself<\/p>\n
has not mounted the box, in such circumstances, there arises suspicion<\/p>\n
about the genuineness of the case put forth in the plaint.            In this<\/p>\n
connection, it may be noticed that PW-1 power of attorney holder himself<\/p>\n
admits in the cross-examination that for the past 20 years the lst plaintiff<\/p>\n
was abroad and the 2nd plaintiff was abroad for the past six years. He also<\/p>\n
admits that the 2nd plaintiff alone was available in India on 13\/7\/1997<\/p>\n
and the lst plaintiff was not available in India. The date of the plaint is<\/p>\n
June, 1995. In this connection, it is rightly pointed out by the learned<\/p>\n
counsel for the appellant that even PW-2 has admitted while in the box<\/p>\n
about the non-availability of the plaintiff at the time of presentation of the<\/p>\n
plaint.\n<\/p>\n
                                      -11-<\/span>
\nR.F.A.No.377\/2003<\/p>\n
      7. In the decision reported in Vidhyadhar v. Manikrao and<\/a><\/p>\n
another ((1993)3 SCC 573) the Apex Court in paragraph 17 held as<\/p>\n
follows:\n<\/p>\n
               “Where a party to the suit does not appear in<\/p>\n
       the witness box and states his own case on oath and<\/p>\n
       does not offer himself to be cross-examined by the<\/p>\n
       other side, a presumption would arise that the case<\/p>\n
       set up by him is not correct……..”<\/p><\/blockquote>\n
       8. It is true that two other witnesses were examined as PWs.2 and 3<\/p>\n
on the side of the plaintiff to prove the execution of Ext.A2. The court<\/p>\n
below accepted the execution of Ext.A2. Even though it cannot be said<\/p>\n
that the execution of Ext.A2 can be seriously disputed by the defendants,<\/p>\n
the court below has necessarily to consider as to whether a discretionary<\/p>\n
relief could be granted in favour of the plaintiffs. It is settled law that<\/p>\n
specific performance being a discretionary remedy is not to be granted<\/p>\n
merely because it is lawful to do so. If there are sufficient grounds,<\/p>\n
necessarily, instead of granting discretionary relief, only the alternative<\/p>\n
relief of return of advance with interest could be granted. The court<\/p>\n
below has entered a finding that nothing was shown by the lst defendant<\/p>\n
questioning the plaintiffs 1 and 2 so as to dis-entitle them to obtain a<\/p>\n
                                      -12-<\/span>
\nR.F.A.No.377\/2003<\/p>\n
decree. It has to be mentioned that the plaintiffs’ presence at the time of<\/p>\n
presentation of the plaint itself is seriously disputed. The signature of the<\/p>\n
plaintiffs in the plaint differs. There is also a serious dispute as to what is<\/p>\n
the actual amount of consideration received. Plaintiffs have not mounted<\/p>\n
the box. These circumstances were not considered by the court below<\/p>\n
before granting the discretionary remedy. We find that the court below<\/p>\n
did not exercise the discretion, after proper appreciation of the entire facts<\/p>\n
and circumstances.\n<\/p>\n
      9. The learned Senior Counsel Sri A.M. Shaffique appearing on<\/p>\n
behalf of the respondents however submitted that the signature contained<\/p>\n
in the plaint or any defect thereon will not affect the jurisdiction of the<\/p>\n
court.     In this regard it is submitted by the learned counsel for the<\/p>\n
appellant that this is not a case of mere irregularity, but is a case of<\/p>\n
impersonation, which allegation is taken note of even in the judgment<\/p>\n
under appeal. However, there was no consideration of this question.<\/p>\n
      In the result, the judgment and decree of the court below is set<\/p>\n
aside. The matter is remanded to the trial court for fresh consideration in<\/p>\n
accordance with law. Now that we are remanding the matter for fresh<\/p>\n
consideration, necessarily the question as to whether the plaintiff was<\/p>\n
                                    -13-<\/span>
\nR.F.A.No.377\/2003<\/p>\n
present at the time when the plaint was presented in court and whether the<\/p>\n
plaint was signed by him has also been enquired into by the court below,<\/p>\n
after affording an opportunity of being heard to both sides in this regard.<\/p>\n
Court fee paid is ordered to be refunded. The parties shall appear before<\/p>\n
the court below on 3rd January, 2008.\n<\/p>\n
                                                                Sd\/-\n<\/p>\n
                                                             P.R.RAMAN,
\n                                                                 Judge.\n<\/p>\n
\n                                                                    Sd\/-\n<\/p>\n
                                                        V.K.MOHANAN,
\n                                                                 Judge.\n<\/p>\n
kcv.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Gopalakrishnan vs Suresh on 30 November, 2007 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-86114","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nGopalakrishnan vs Suresh on 30 November, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/gopalakrishnan-vs-suresh-on-30-november-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gopalakrishnan vs Suresh on 30 November, 2007 - 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