Abubacker v. Rasheed

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 04TH DAY OF MARCH 2020 / 14TH PHALGUNA, 1941** ## **RFA (MISC.).No.3 OF 2019** **AGAINST THE ORDER IN I.A.No.250/2015 in OS 7/2015 DATED 17-12-2018 OF SUB COURT, MUVATTUPUZHA** ## **APPELLANT:** **ABUBACKER AGED 67 YEARS S/O. VAPPUKUTTY, PLAMOOTTIL HOUSE, PADINJAREPUNNAMATTOM KARA, ENANALLOOR VILLAGE, MUVATTUPUZHA TALUK.** **BY ADVS. VIPIN D G SRI.KAROL MATHEWS SEBASTIAN ALENCHERRY** ## **RESPONDENT:** ## **RASHEED** **S/O. MUHAMMED HAJI, PADINJARECHALIL HOUSE, KAVUMKARA KARA, VELLOORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.** **R1 BY ADV. SHRI.SACHIN RAMESH** **THIS REGULAR FIRST APPEAL(MISCELLANEOUS) HAVING COME UP FOR ADMISSION ON 04.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:18** **RFA (MISC.).No.3 OF 2019 2** ## **JUDGMENT** I have heard Shri.Vipin D.G., learned counsel appearing for the appellant and Shri.Sachin Ramesh, learned counsel appearing for the respondent. 2. Since both counsel agreed that this matter can be disposed of at the stage of admission itself, I have proceeded to hear this matter in detail. 3. The essential facts involved in this case would show that the appellant preferred a claim numbered as I.A.No.250 of 2015 in O.S.No.7 of 2015 on the file of the Sub Court, Muvattupuzha, under the provisions of Order IIIVIII Rule 8 of the Code of Civil Procedure (CPC for short), seeking that an order of attachment before the judgment obtained by the respondent – who is the plaintiff in the suit – against the plaint schedule property owned by the defendant in the suit be lifted on the ## **RFA (MISC.).No.3 OF 2019 3** allegation that he is the bonafide purchaser of the same for valuable consideration even before the suit have been field. 4. The appellant says that even though an application under Order IIIVIII Rule 8 of the CPC ought to have been considered like a fresh suit going by the judgment of a Full Bench of this Court in _**Verizon Builders & Developers Ltd** ._ _**v. Jyothi Susan John**_ **[2019 (1)KLT 100** ], the Trial Court has rejected the I.A. without even affording him an opportunity of leading evidence. He says that the Trial Court has, without proper consideration, concluded that since the defendant in the suit had sold the property pending a sale agreement with the plaintiff, in which an amount of Rs.30 lakhs had been accepted as advance, the same operates as a first charge on the property and therefore, that the claim petition under Order IIIVIII Rule 8 of the CPC at the instance of the appellant is not maintainable. The appellant ## **RFA (MISC.).No.3 OF 2019 4** contends that this finding of the Trial Court is wholly contrary to law and therefore, liable to be set aside by this Court. 5. The learned counsel appearing for the respondent, Shri.Sachin Ramesh, on the contrary, submitted that the averments in the claim petition filed by the appellant herein merely states that he had purchased the plaint schedule property, as per Sale Deed No.262/1/2015 dated 21/01/2015 of the SRO, Muvattupuzha, without even mentioning from whom this transaction had been made. He says that the claim petition is completely silent as to who the vendor of the appellant was and he asserts that, in fact, this transaction was not between the defendant and the appellant but between somebody else. He says that, therefore, the Trial Court was completely without error in having dismissed the application, particularly because the said Court has found that the advance of **RFA (MISC.).No.3 OF 2019 5** Rs.30 lakhs paid by his client to the defendant operates as a first charge on the plaint schedule property; and consequently, that a subsequent sale transaction would be of no effect. He added to the above submissions by saying that the malafides involved in the application filed by the appellant is manifest from the fact that the defendant has not been made a party therein, even though it is clear that certain specific averments have been made in the said application touching upon the conduct of the defendant also. He thus prays that this appeal be dismissed. 6. I have evaluated the afore submissions of the learned counsel for the parties and I have also examined the order of the Trial court impugned in this appeal. **==> picture [338 x 13] intentionally omitted <==** appears to have proceeded on the impression that the appellant has purchased the ## **RFA (MISC.).No.3 OF 2019 6** property from the defendant on 21/01/2015, which was a few days before the suit had been field. The Trial Court, thereafter, concluded that since the amount of Rs.30 lakhs - allegedly accepted by the defendant from the plaintiff on the strength of an agreement of sale between them dated 22/11/2014 - would operate as a first charge over the plaint schedule property under the provisions of the Transfer of Property Act. It is in such manner that the said Court has now dismissed the application. 8. That said, however, there are certain very pertinent issues in this case that appears to have been lost sight of by the Trial Court. 9. For the first, the claim petition filed by the appellant does not show how he came to be in possession and ownership of the plaint schedule property and he concedes that his vendor is not the defendant in the ## **RFA (MISC.).No.3 OF 2019 7** suit but some one else by name Shri.Binoy. He does not explain in the application how Shri.Binoy came to be in ownership of the property and how he claimed title to the same, when concededly, the defendant was its earlier owner. 10. For the second, the claim petition has been filed without arraying the defendant on the party array and, as rightly pointed out by Shri.Sachin Ramesh, this may have been to keep away the actual truth from the notice of the Trial Court. 11. For the third, as the Trial Court has also noticed, the transaction between the plaintiff and the defendant - as per the alleged agreement between them - was for an amount of Rs.50 lakhs, out of which an amount of Rs.30 lakhs is stated to have been paid as advance; but the document relied upon by the appellant, namely his sale deed, shows the value of the property only as ## **RFA (MISC.).No.3 OF 2019 8** Rs.8,10,000/-. This certainly appears to be grossly disproportionate to the value of the transaction shown in the agreement of sale between the parties to the suit and certainly enjoins the appellant to establish it to be otherwise. 12. That being said, I find some force in the submissions of Shri.Vipin D.G. that the claim petition could have been disposed of only after affording an opportunity to the appellant of establishing his case based on cogent evidence. This, not having been done by the Trial Court, I am of the firm view that it will require a re-look by the said Court after following due procedure, taking note of the afore mentioned vital circumstances that are involved in this case. In the afore circumstances and for the sole reason above, I allow this appeal and set aside the impugned order of the Trial **RFA (MISC.).No.3 OF 2019 9** Court; with a consequential direction to the said Court to take up I.A.No.250 of 2015 in O.S.No.7 of 2015 and dispose of the same, after following due procedure under the mandate of Order IIIVIII Rule 8 of the CPC and adverting to my observations above - which, however, are clarified to be only _prima facie_ in its nature - leading to a final order in terms of law, as expeditiously as is possible, but not later than 08/04/2020, when the Civil Courts are to close for the summer recess for the year 2020. To facilitate the above, I direct the parties to mark appearance before the Trial Court on 12/03/2020, so as to enable the said Court to commence proceedings immediately thereafter. **==> picture [338 x 13] intentionally omitted <==** circumstances noticed in this appeal, I make no order as to costs and direct the parties **RFA (MISC.).No.3 OF 2019 10** to suffer their respective costs. **Sd/-** **DEVAN RAMACHANDRAN** **JUDGE** **MC/4.3.2020**