ABDUL KAREEM v. JIJO GEORGE

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **FRIDAY, THE 12TH DAY OF APRIL 2019 / 22ND CHAITHRA, 1941** **RFA.No. 235 of 2014** **AGAINST THE JUDGMENT AND DECREE IN OS 18/2012 of ADDITIONAL SUB COURT,NORTH PARAVUR DATED 24-08-2013** ## **APPELLANT/PLAINTIFF:** **ABDUL KAREEM AGED 62 YEARS S/O.MOIDEENKUTTY, THAYIKKATTUKARAYIL KALLUNGAL HOUSE, ALUVA TALUK, ALUVA WEST VILLAGE, ALUVA** **BY ADV. SRI.PAUL K.VARGHESE** ## **RESPONDENT/DEFENDANT:** **JIJO GEORGE S/O.GEORGE, PALLITHANATH HOUSE, (M.C. R.A-38) THAIKKATTUKARA OF ALUVA WEST VILLAGE, ALUVA BY ADV. SRI.RAJIV NAMBISAN** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RFA 235/2014 2 ## **JUDGMENT** The appellant is the plaintiff in O.S.No. 18/20012 on the file of the Additional Sub Court, North Paravur. The suit for realization of money was dismissed by a judgment and decree dated 24[th] August 2013. Challenge in this appeal is by the plaintiff. 2. The plaintiff had pleaded in the plaint that the defendant is a person known to him for so many years. On 22.11.2010 they have entered into an agreement and as per the agreement the defendant agreed to discharge the liabilities of the plaintiff on or before 22.11.2011. He had also issued a cheque dated 26.9.2011 for Rs.5 lakhs to discharge the debt. But when the cheque was presented for collection, it was dishonoured and so he issued a lawyer notice demanding the money. But he did not pay the amount. Hence the suit. 3. The defendant filed written statement admitting the execution of the agreement dated 22.11.2011. As per the agreement, he agreed that he will do all necessary things to RFA 235/2014 3 prefer an appeal against the decree of the Principal Sub Court, North Paravur in O.S.No.384/2009 filed against the defendant and some others by one Aakbar. In O.S.No.384/2009, the plaintiff filed a claim petition, but it was dismissed and a decree was passed charging the decree debt over the property belonging to the plaintiff. The defendant, as agreed, spent money for the appeal and preferred appeal before this Court against the order of dismissal of the claim petition and an order of stay was obtained. The plaintiff had also filed appeal. Subsequently, the plaintiff and Akbar have settled the matter and the plaintiff had withdrawn the appeal and sold his property to Akbar. The cheque issued had no date at the time of execution and it was issued not for discharging any legally enforceable debt and in fact the plaintiff had cheated the defendant . 4. Before the court below, PW1 was examined and Exts.A1 to A6 were marked on his side. The defendant was examined as DW1 and Exts.B1 and B2 were marked. The court below after an evaluation of the evidence dismissed the suit by the judgment and decree under challenge. 5. Heard the learned counsel for the appellant and the RFA 235/2014 4 learned counsel for the respondent. 6. On going through the pleadings in the plaint it appears to be a simple suit for realization of money based on Exts.A2 cheque. It was also averred that Ext.A1 agreement was executed between the parties on 22.11.2011 whereby the defendant agreed to discharge the liabilities of the plaintiff. From the pleadings, it is further revealed that on the basis of the said agreement, Ext.A2 cheque was issued by the defendant. In the written statement the defendant admitted the execution of Ext.A1 agreement and issuance of Ext.A2 cheque. But contended that the cheque was not issued for discharge of any liability, but only as a collateral security for due performance of Ext.A1. 7. It is pertinent to note that though the suit appears to be a simple suit for money based on a cheque as evident from the pleadings before the court, when PW1 was examined, he narrated a story to the effect that a property having an extent of 5.18 Ares in Survey No. 357/3A, 357/ 3 B1 originally belonged to one Joy. He entered into an agreement to sell the property to one Sabu. Subsequent to the said agreement, the defendant entered into another agreement to purchase the property from RFA 235/2014 5 Sabu. Then the defendant entered into another agreement for sale of the property to the plaintiff therein. During the existence of these three agreements, this plaintiff directly purchased the property from Joy in the year 2008 by virtue of sale deed No.2743/2008. After purchase of the property by the plaintiff, one Akbar, who had paid advance sale consideration to Sabu prior to the agreement between the defendant and the plaintiff, filed O.S.No.384/2009 before the Principal Sub Court, North Paravur and obtained a decree for realization of advance money. A charge was also created for the decree amount in the property purchased by the plaintiff. That suit was filed against Joy and Sabu. The plaintiff sustained loss in the transaction and in order to compensate the loss, Ext.A1 agreement was executed and for due performance of the agreement, Ext.A2 was issued by the defendant to the plaintiff and it was issued only as a security. The most interesting thing to be looked into is that so much of evidence had been adduced by the plaintiff regarding the transaction between Joy, Sabu and Akbar with respect to a property having an extent of 5.18 Ares, referred above. But unfortunately there was no pleadings in the plaint regarding the RFA 235/2014 6 alleged transaction. Under what circumstance, the agreement was executed and the cheque was issued etc were not pleaded in the plaint. But the parties have adduced voluminous evidence without any pleadings in the suit. 8. It is to be noted that Order 6 of the Code of Civil Procedure deals with pleadings of the parties and the object of the pleadings. The main object to introduce Order 6 is to bring the parties to an issue to plead the case of both sides to decide the issue/dispute in question. Only if the pleadings are complete with clarity, the issue involved between the parties could be decided. For the sake of convenience Order 6 Rule 2 is reiterated which reads as follows: “2. Pleading to state material facts and not evidence (1) Every pleading shall contain, and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved. (2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph. (3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.” RFA 235/2014 7 So every pleadings must state the facts of the case in a concise form of all necessary and material facts to support the case set up by it. It is well settled that in the absence of pleadings, evidence cannot be let in. Here, as mentioned earlier the plaintiff had given evidence to the effect that there was a sale agreement between the owner of certain extent of land with the proposed purchaser and during the existence of the sale agreement itself, another person had entered into an agreement to purchase the property with the proposed purchaser and on the basis of that agreement, a further agreement for sale was entered between third parties and during the existence of all these three sale agreements, the plaintiff had directly purchased the property from the original owner, which invited filing of O.S.384/2009 before the Principal Sub Court and a charge decree was passed in that suit. 9. After the said decree, Ext.A1 agreement was executed and as security for compliance of that agreement, the cheque in question was issued which ultimately resulted in filing of this case. But no such pleadings were available to find out the extact transaction between the parties and without necessary pleadings RFA 235/2014 8 the court below had permitted the parties to adduce evidence. It is pertinent to note that no amendment to the pleadings was filed by the plaintiff and the necessary pleadings had not been made available in the suit even by way of an amendment so as to decide the issue involved. Therefore ,without any hesitation I could say that the plaint is lacking in material particulars. 10. It is held in **Hari Chand v. Daulat Ram, [AIR 1987 SC 94]** by the Apex Court that the failure to state material facts may entail dismissal of the suit. 11. In **Bondar Singh and others v. Nihal Singh and Others [AIR 2003 SC 1905** ], the Apex Court again held that it is the settled law that in the absence of a plea no amount of evidence led in relation thereto can be looked into. 12. Without necessary pleadings there was absolutely no meaning in adducing evidence and the court was not supposed to look into the evidence led in by the parties in relation to certain sale agreements Here though a detailed description had been narrated by the plaintiff in box regarding sale agreements with respect to a property between more than two persons, no averments have been made by the plaintiff to the effect that the RFA 235/2014 9 execution of Ext.A1 sale agreement and the issuance of the cheque was on the basis of the decree passed in favour of one Akbar in O.S.No.384/2009. If only the plaint averments are clear the defendant can advance his contentions to defend the suit or make admissions if any with clarity. A fair trial is possible only if the person who approach the court state the material facts. Then only the party on the opposite side could present his/her case with details. If only necessary pleadings are available the court will able to evaluate the evidence adduced by the parties and decide the issue. Therefore, proof to any extent without pleadings is of no relevance at all. 13. So in short, I hold that due to the deficiency of pleadings in the plaint regarding the actual transaction and the circumstances for execution of Ext.A1 agreement as well issuance of Ext.A2 cheque in favour of the plaintiff by the defendant, it is absolutely not possible to evaluate the issue involved and the evidence let in, in the case by both parties. It is doubtless that the lack of pleadings will dis entitle the plaintiff from getting a verdict in the actual issue involved. The attempt made by the court below based on the evidence let in by RFA 235/2014 10 the parties in the absence of pleadings is absolutely wrong and the suit deserves a dismissal on the sole ground of absence of necessary pleadings in the case. 14. Considering the nature of the materials available on record, I am constrained to conclude that the appeal deserves a dismissal and I do so. Accordingly, the appeal is dismissed. The parties shall bear their respective costs. Sd/- 12.04.2019 **SHIRCY V., JUDGE** ## **ks**