Beena v. Surendran

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 26TH FEBRUARY 2008 / 7TH PHALGUNA 1929 AS.427/2003 of ADDL.DISTRICT COURT, THRISSUR OS.239/1998 of PRL.SUB COURT,THRISSUR ## APPELLANT/APPELLANT/DEFENDANT : BEENA, AGED 36, W/O.KOZHIPARAMBIL NANDAKUMAR, PADIYAM VILLAGE DESOM P.O. KANDASSAMKADAVU, THRISSUR TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) ## RESPONDENT:RESPONDENT/PLAINTIFF SURENDRAN, S/O.OLLAKKAT SANKARA NARAYANAN, KOODAPUZHA DESOM, CHALAKUDY VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.G.UNNIKRISHNON THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 26/02/2008, THE COURT ON THE SAME DAY PASSED THE ## **M.SASIDHARAN NAMBIAR,J.** =========================== R.S.A.(Indigent) NO. 224 OF 2007 =========================== Dated this the 26[th] day of February, 2008 ## JUDGMENT Defendant in O.S.239/1998 on the file of Sub Court, Thrissur is the appellant. Plaintiff is the respondent. Respondent instituted the suit for specific performance of Ext.A1 agreement for sale or in the alternative for return of Rs.1 lakh paid as advance and damages for Rs.50,000/-. According to respondent, respondent and husband of appellant are known to each other and respondent till four years prior to the institution of the suit was a resident of Kandassamkadavu and later he shifted his residence to Chalakudy and he intended to resettle at Kandassamkadavu and while so he realised the intention of appellant to sell the plaint schedule property through her brother-in-law Shanmughan. It was contended that respondent approached appellant and explained his intention to purchase the property and appellant agreed to R.S.A.224/07 2 sell the property for a total consideration of Rs.1,50,000/- after paying Rs.1 lakh as advance amount and fixing the time for performance of the contract till 18.1.1998, Ext.A1 agreement was executed. It was further contended that respondent was always ready and willing to perform his part of the contract but on the request of the appellant the period was extended till 31.3.1998 and even thereafter sale deed was not executed and respondent got suspicious and Ext.A3 telegram was sent informing readiness and willingness to purchase the property and while so husband of the appellant caused to sent Ext.A6 notice on 6.4.1998 raising untenable contentions for which Ext.A5 reply was sent. It was further contended that attempt of the appellant was wriggle out of the contract and respondent is entitled to a decree for specific performance of the agreement or in the alternative for return of the advance amount with damages of Rs.50,000/-. Appellant resisted the suit contending that she had no intention to sell R.S.A.224/07 3 the property and she with her ailing mother-in-law and her husband are residing in the building therein and she did not execute Ext.A1 agreement and Ext.A1 is a fabricated document and she did not receive any amount from the respondent and she is not liable to execute any sale deed and the suit is to be dismissed. 2. Learned Sub Judge on the evidence of Pws. 1 to 3, Dws.1 to 3, Exts.A1 to A6(b) and Exts.B1 to B6(b) found that Ext.A1 agreement was executed by the appellant agreeing to sell the plaint schedule property for a total consideration of Rs.1,50,000/and Rs.1,00,000/- was received as advance. Learned Sub Judge also found that though under Ext.A1 appellant agreed to execute the sale deed, respondent is not entitled to a decree for specific performance of the agreement for sale. Instead he is entitled to a decree for return of the advance amount paid with interest. The claim for damages was disallowed. Appellant challenged the judgment before District Court, Thrissur in A.S.427/2003. R.S.A.224/07 4 Learned District Judge on reappreciation of evidence confirmed the findings of the trial court and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for appellant was heard. 4. The argument of the learned counsel is that first appellate court did not reappreciate the evidence and had only followed the judgment of the trial court without reappreciating or analysing the evidence. It was argued that evidence of DW2 the doctor with Ext.B3 discharge card establish that appellant was admitted in the hospital on 17.1.1997 due to high blood pressure and advanced stage of pregnancy and was discharged only by 12 noon of 18.1.1997 and evidence of Pws.1 to 3 that thereafter appellant had undertaken a journey of about one hour in a car to reach the office of PW3 and executed Ext.A1 agreement should not have been believed by the courts below. It was also argued that if the evidence was properly appreciated, R.S.A.224/07 5 courts below should not have upheld the execution of Ext.A1 and appreciation of evidence was perverse and so this court has to reappreicate the evidence. Reliance was placed on the decision of the Apex Court in **Rajeshwari v. Puran Indoria (2005) 7 SCC 60** and it was argued that when first appellate court did not make any independent reappraisal of the pleadings and the evidence and only accepted the findings of the trial court, this court is to reappreciate the evidence and the powers provided udner section 100 of the Code of Civil Procedure will not curtail the jurisdiction and evidence is to be reappreciated. 5. On going through the judgments of the courts below, it is seen that the courts below appreciated the evidence in the proper perspective.Though it was contended at the time of evidence that appellant was at an advanced stage of pregnancy she was again admitted to the hospital on 24.1.1997 and had to undergo caesarean R.S.A.224/07 6 operation and in such circumstances it was not probable that appellant executed Ext.A1 agreement on 18.1.1997. Apart from respondent as PW1, the attesting witness to Ext.A1 was examined as PW2. The scribe was also examined as PW3. The trial court had the advantage of seeing and noting the demeanour of Pws.1 to 3 as well as DW1 the appellant and DW3 her husband. The trial court on appreciation of evidence found that execution of Ext.A1 agreement was properly proved by the evidence of Pws. 2 and 3. If by the evidence of DW2, corroborated by Ext.B3 discharge card, it was established that appellant was either in the hospital or could not have undertaken a journey to the office of PW2 to execute Ext.A1 on 18.1.1997, the argument could have been appreciated. Learned counsel has read over the evidence of DW2. In the light of evidence of DW2 with Ext.B3 it is not possible to hold that appellant could not have undertaken a journey to the office of PW2, after her discharge from the hospital from 18.1.1997. As R.S.A.224/07 7 found by the courts below, though she was admitted in the hospital on 17.1.1997 for advanced stage of pregnancy as well as high blood pressure, she was discharged on the next day namely on 18.1.1997. Though Ext.B3 does not show the time of discharge, evidence of DW2 was that the patient would normally be discharged by 12 noon. As there is sufficient time to reach the office of PW3 to execute Ext.A1, so long as the evidence of Pw2 and PW3 are reliable, it cannot be said that their evidence with regard to the execution of Ext.A1 is to be discarded. The trial court found the evidence of Pws.2 and 3 credible and reliable and held that execution of Ext.A1 was proved. That finding of fact was confirmed by first appellate court. That factual finding has to be final. Then the only question is whether respondent is entitled to the return of the advance amount paid. Ext.A1 establish that Rs.1,00,000/- was paid by respondent as advance towards the sale consideration which was received by appellant. On R.S.A.224/07 8 the evidence courts below accepted that case. The courts below did not grant a decree for specific performance of the agreement for sale. Instead appellant was directed to repay only the advance amount received. Though damages was claimed,it was not granted. There is no evidence to prove that by the non-performance of the agreement, appellant sustained any loss. Therefore she is not entitled to forfeit any part of the advance amount. Courts below rightly found that respondent is entitled to get return of the advance amount paid under Ext.A1. As no substantial question of law is involved in the appeal, appeal is dismissed. Learned counsel appearing for appellant then submitted that appellant may be granted three months time to repay the amount. In the interest of justice appellant granted three months time to pay the decree debt. M.SASIDHARAN NAMBIAR JUDGE tpl/- R.S.A.224/07 9 ## M.SASIDHARAN NAMBIAR, J. --------------------W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006