C.S.Varkey (Zacharia Varkey) vs Sunny Zacharias

“CR” ## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: ## THE HONOURABLE MR.JUSTICE V.RAMKUMAR & THE HONOURABLE MR.JUSTICE K.HARILAL TUESDAY, THE 3RD DAY OF JANUARY 2012/13TH POUSHA 1933 ## AFA.No. 108 of 1994 ( ) =================== AGAINST THE ORDER/JUDGMENT IN AS.269/1988 IN OS.237/1984 OF SUBORDINATE JUDGES' COURT,KOTTAYAM ## APPELLANT(S) ## ============ C.S.VARKEY (ZACHARIA VARKEY), CHERIYANITHOTTATHIL, NEDUMKUNNAM KARA, NEDUMKUNNAM VILLAGE, KOTTAYAM. ## BY ADV.SRI.S.V.BALAKRISHNA IYER ## SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN ## RESPONDENT(S) ## ============= SUNNY ZACHARIAS, CHEMBANNOOR HOUSE, NEDUMKUNNAM KARA, NEDUMKUNNAM VILLAGE, KOTTAYAM. ## BY ADV.M/S. N.SUBRAMANIAN, LAL GEORGE, ## M.S.NARAYANAN THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03-012012 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **“CR”** ## **V. RAMKUMAR & K.Harilal JJ.** **= = = = = = = = = = = = = A.F.A.No.108 of 1994** ## **= = = = = = = = = = = = = = Dated this the 3rd day of January, 2012** ## **JUDGMENT** ## **V.Ramkumar J** In this intra-court appeal filed under Section 5 of the Kerala High Court Act, 1958, the appellant who was the plaintiff in O.S.No.237/1984 on the file of the Subordinate Judge's Court, Kottayam challenges the judgment and decree dated 03.02.1997 passed by a learned Single Judge of this Court in A.S.No.269/1988. 2. The aforementioned suit O.S.No.237/1984 was one for realisation of a sum of `28966.65 with 12% interest on the principal amount of `25,000/- from the date of the suit namely 09.11.1984. 3. The case of the plaintiff can be summarised as follows:- The plaintiff and the defendant are close friends. There were previous money transactions between them. On 20.06.1983 the defendant borrowed a **AFA No.108 of 1994** **2** sum of `5000/- from the plaintiff. Subsequently on 15.07.1983 he borrowed a further amount of `20,000/from the plaintiff. The defendant agreed to repay the total amount of `25,000/- with interest at the rate of 12% per annum on or before 30.08.1983. The defendant, however, failed to fulfill the promise. To a lawyer notice sent on 22.06.1984 demanding the said amount, the defendant did not comply with the said demand. Hence the suit. 4. The suit is resisted by the defendant contending inter alia as follows:- The plaint averments are false. The defendant did not borrow any amount as alleged in the plaint and there was no necessity also for the defendants to obtain a loan from the plaintiff. A proper reply notice was given to the lawyer notice sent by the plaintiff. The defendant is not bound to repay any amount to the plaintiff. The suit is, therefore, liable to be dismissed. 5. The trial court framed two issues for trial, the principal issue being whether the defendant obtained a loan of `25,000/from the plaintiff as alleged. 6. On the side of the plaintiff, the plaintiff examined himself as PW1 and got marked Exts.A1 to A3. On the side of **AFA No.108 of 1994** **3** the defendant, he examined himself as DW1 and also examined one Thankappan Nair as DW2. No documentary evidence was adduced on the side of the defence. 7. The learned Sub Judge after trial as per judgment and decree dated 29.8.1987 decreed the suit as prayed for. 8. Aggrieved by the judgment and decree passed by the learned Sub Judge the defendant preferred an appeal to this Court as A.S.NO.269/1988. As per judgment and decree dated 03.02.1994 a learned Single Judge of this Court allowed the appeal setting aside the judgment and decree passed by the trial court and dismissed the suit filed by the plaintiff. Hence this intra-court appeal to this Division Bench. 9. Eventhough the respondent/defendant was duly served, he has not chosen to enter appearance or contest this appeal. We, therefore, heard Senior Adv.Sri.S.V.Balakrishna Iyer, the learned counsel appearing for the plaintiff and also perused the records. 10. After hearing the learned counsel appearing for the appellant and perusing the records we are of the view that the judgment and decree passed by the learned Judge cannot be **AFA No.108 of 1994** **4** sustained in law and that the judgment and decree passed by the trial court are liable to be restored. 11. The trial court which decreed the suit had mainly relied on the following circumstances to support its conclusion that the suit claim was true and sustainable:- - 1.Since on the question of borrowal, there was only oath against oath between the disputing parties, the court was left with the only option of going by the probabilities of the case. - 2.Admittedly both the plaintiff and the defendant are close friends and there was no convincing reason forthcoming as to why the plaintiff was constrained to sue his friend, the defendant, unless the plaintiff's case was true.( _para 5_ ) 3. The defence story put forward and that too for the first time in evidence that the plaintiff's brother had purchased a Mahindra Jeep which was outstanding on hire purchase and the plaintiff's brother approached the defendant for assistance and with his help pledged the jeep with one C.V.John, a cousin of the defendant, that the hirers seized the vehicle for realising the loan amount which was in arrears and the amount due to C.V.John was paid by the hirers who got back the R.C.book and on account of the seizure of the jeep the plaintiff's brother sustained a pecuniary loss **AFA No.108 of 1994** **5** of `3000/- and the suit was on account of the spite which plaintiff had in pursuance of a quarrel between him and the defendant for not making good the loss sustained by the defendant's brother, was false. 4. There was no pleading in the written statement in support of the aforementioned story put forward by the defendant. - 5.Ext.A3 reply notice sent in answer to the suit notice was also silent about the aforementioned story and if the above story is eschewed from consideration, the defendant's version regarding the motive for the institution of the suit cannot be accepted. - 6.Ext.A1 letter sent by the defendant to one Chacko Mathew and produced along with the plaint is not disputed by the defendant and if so his acknowledgment of indebtedness to the plaintiff is a relevant fact and - 7.the defendant who was admittedly convicted in a criminal case for counterfeiting of currency notes did not appear to be a truthful witness as against the plaintiff who seemed to be an honest and reliable person. 12. The learned single judge while interfering with the judgment and decree passed by the trial court mainly gave the following grounds to buttress his conclusion:- **AFA No.108 of 1994** **6** 1. Ext.A1 letter relied on by the plaintiff does not show that the suit amount, much less any specific amount was borrowed by the defendant from the plaintiff. The request of the plaintiff that Ext.A1 which was produced along with the plaint should be treated as part of the pleadings cannot be acceded to. There was no whisper in the plaint about Ext.A1 letter issued by the defendant. Ext.A1 was scheduled to the plaint after the plaint was duly verified by the plaintiff and his counsel and no verification of the pleading as required by Order VI Rule 15 C.P.C was made below the schedule of documents mentioned in the plaint. Hence Ext.A1 which was not referred to in the body of the plaint cannot be treated as part of the pleadings. 2. The trial court which did not make a note regarding the demeanour of witnesses while recording the deposition was not entitled to make any comment regarding the credibility of the witnesses, particularly the demeanour of the plaintiff examined as PW1. 3. The trial court went wrong in decreeing the suit solely based on the demeanour of the witnesses. 4. The plaintiff has not proved that he was possessed of sufficient means to advance the money to the defendant. **AFA No.108 of 1994** **7** 13. We are afraid that none of the above grounds stated by the learned Judge is sufficient to justify the interference with the judgment and decree passed by the trial court. The Code of Civil Procedure, 1908 (“CPC for short) does not contemplate verification of the list of documents given at the foot of the plaint. The relevant provision in the C.P.C with regard to the production of document by the plaintiff is Order VII Rule 14. But since the suit was instituted prior to the coming into force of the Code of Civil Procedure Amendment Act of 1999 with effect from 01.7.2002, the relevant provision which was applicable was the pre-amended Order VII Rule 14 which is given below :- ## “ **DOCUMENTS RELIED ON IN PLAINT** **14. Production of documents on which plaintiff sues:** -(1) Where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented , and shall at the same time deliver the document and a copy thereof, to be filed with the plaint. - (2) **List of other documents:** - Where he relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint”. **AFA No.108 of 1994** **8** Thus in a case where plaintiff sues upon a document or relies upon a document he has to produce it along with the plaint. Here the plaintiff was not suing upon Exhibit A1 but was merely relying upon Ext.A1 as corroborative evidence in support of his claim. So he had no obligation to produce it along with the plaint as enjoined by Order VII Rule 14(1) CPC. It was sufficient if he merely entered Ext.A1 in a list added or annexed to the plaint as provided under Order VII Rule 14(2) C.P.C. 14. Where the plaintiff relies on any document as evidence in support of his claim, he need only enter such document in a list to be added or annexed to the plaint as provided under Order VII Rule 14(2) C.P.C. Rule 16(1) of the Kerala Civil Rules of Practice deals with the procedure regarding the production of documents by the plaintiff etc. The said rule reads as follows:- ## “ **R.16(1) List of documents to accompany plaint or** **proceeding** .:- Every plaint or other proceeding shall at the foot there-of, contain a list, signed by the party or his pleader, of the documents filed therewith as in Form No.7 or a statement signed as aforesaid, that no document is filed therewith.” **AFA No.108 of 1994** **9** Thus Rule 16 read with Form No.7 given in the Judicial Forms appended to the Civil Rules of Practice will go to show that the list of documents to be filed by the plaintiff can be filed either by the party or his pleader. 15. Order VI Rule 15 C.P.C pertaining to verification of pleadings cannot be applied to the production of documents along with the pleadings. Verification is of the“pleadings” which by virtue of Order VI Rule 1 mean only the plaint or the written statement. In the case of Ext.A1 letter sent by the defendant, it was produced along with the plaint,not as a document which the plaintiff was suing upon. It was produced only as an item of evidence which would fall under Order VII Rule 14(2) CPC as evidence in support of his claim. Order VI Rule 2 clearly indicates that every pleading shall 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. Thus in a case where a document produced along with the plaint is not a document **AFA No.108 of 1994** **10** which is sued upon but is only a document relied on as evidence in support of the suit claim, such document, as in the present case, cannot be treated as part of the pleadings. The plaintiff in fact was not relying on Ext.A1 as a document which was sued upon falling under Order VII Rule 14(1) so as to treat the same as part of the pleadings. The learned appellate Judge was, therefore,not justified in holding that unless the list of document annexed to the plaint was also duly verified in accordance with RuleVI Order15 CPC, the document could not be treated as part of the pleadings. No doubt, a request was made by the plaintiff's counsel before the learned Judge to treat Ext.A1 as part of the pleadings. But since Ext.A1 is not a document which is sued upon but is only a document relied on in support of the suit claim as a corroborative piece of evidence, the said request was not justified. In any view of the matter, the learned appellate Judge was not right in holding that without a verification as required by Order VI Rule 15 C.P.C below the schedule of the document mentioned in the plaint, the document could not be treated as part of the pleadings even if the document was one which was sued upon within the meaning of Order VII Rule 14(1) CPC. But **AFA No.108 of 1994** **11** in this case, there was no question of Ext.A1 being treated as part of the pleadings. Hence the reasons given by the learned Judge to eschew Ext.A1 from consideration cannot be supported. Ext.A1 like any other document which is filed even subsequent to the institution of the suit but with the leave of the court and relied on as an item of evidence in support of the suit claim. Therefore, we do not endorse the reasoning given by the learned Judge for discarding Ext.A1 letter admittedly sent by the defendant to one his creditors acknowledging the defendants' indebtedness to the plaintiff . 16. The learned Appellate Judge was also not right in observing that without making a record of the demeanour of the witnesses in their depositions, it was hazardous to decide the suit by relying upon the so called demeanor of the witnesses. There is no dispute that it was the very same Sub Judge who conducted the trial, who has disposed of the suit as well. This was a case in which with regard to the issue regarding the alleged borrowal by the defendant there was only the plaintiff's oath against the defendant's oath. The trial Judge who had the unique advantage of seeing the witnesses and assessing their **AFA No.108 of 1994** **12** credibility had disbelieved the defendant who was examined as DW1 and had unmistakably observed the plaintiff who was examined as PW1 to be honest and reliable. Unfortunately, the learned appellate Judge appears to have overlooked the guiding principles to borne in mind while examining the correctness of a finding recorded by the trial court. 17. We now propose to examine the case law on the freedom of the appellate court while dealing with a finding turning upon an evaluation of the oral evidence by the trial court. “In an appeal against a trial court decree when the appellate court considers an issue pertaining to oral evidence, it must bear in mind it does not enjoy the advantage which the trial court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate Court should permit the findings of the fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular evidence has escaped the notice of the trial court or there is a sufficient balance of improbability to **AFA No.108 of 1994** **13** displace its opinion as to where credibility lies.”(See **Madusoodhan v. Narayani Bai** (AIR 1983 SC 114). “It is doubtless true that on appeal the whole case, including the facts, is within the jurisdiction of the Appeal Court. But generally speaking it is undesirable to interfere with the findings of all of the Trial Judge who sees and hears the witnesses and has an opportunity of noting their demeanour especially in cases where the issue is simple and depends on the credit which attached to one or other of conflicting witnesses. Nor should his pronouncement with respect to their credibility be put aside on a mere calculation of probabilities by the Court of Appeal. In making these observations their Lordships have no desire to restrict the discretion of the Appellate Courts in India in consideration of evidence. They only wish to point out that where the issue is simple and straightforward and the only question is which set of witnesses is to be believed the verdict of a Judge trying the case should not be lightly disregarded.” ( **Bombay** - **Cotton Manufacturig Co v R.B.Motilal Shivlal** AIR 1915 PC 1). “Where the Judge who has seen a witness, and has heard his evidence, comes to the conclusion that the witness is credible, that is to say, a witness who to the best of his recollection intends to tell the truth, it requires circumstances of exceptional character to justify a Court of Appeal in coming to a different conclusion. It is not a **AFA No.108 of 1994** **14** question of the weight of evidence, but of the attitude and trustworthiness of the witness, and of the effect of his whole demeanour in the witness box.” (See **Ma Than Than v. Ma Pwa Thit (Lord Parmoor)** (AIR 1923 PC 156) “An appellate Court which has obviously not had the same advantage will not lightly interfere with the conclusions arrived at the trial Judge under such circumstances.” (See **Muttathiparambil v. Kuriakose** (AIR 1950 TC 55- FB). “The uniform practice in the matter of appreciation of evidence has been that if the trial court has given cogent and detailed reasons for not accepting the testimony of a witness, the appellate court in all fairness to it ought to deal with those reasons before proceeding to form a contrary opinion about accepting the testimony which has been rejected by the trial court.” (See **T.D.Gopalan v. Commr.H.R & C.E** . (AIR 1972 SC 1716). 18. When the trial Judge records a finding turning upon the demeanor of the witnesses, the absence of a separate note regarding the demeanour of a witness is immaterial, especially when the judgment is written before the recollection of the judge had faded or had become dim (See the remarks of LORD ATKIN during argument in **Sitalakshmi v. Venkata** , 34 CWN **AFA No.108 of 1994** **15** 593(P.C) See also Page 209 of Sarkar on the Law of Evidence 17[th] Edition. Even in a case where the trial judge has not expressed in his judgment his reliance upon the demeanour of the witnesses, the same does not detract from the ordinary presumption that the trial Judge had placed reliance upon the demeanour of the witnesses and thereby the trial judge had an advantage over the appellate Court in seeing the witnesses examined.(See **Netherlandsche v. Chettiar Firm** (Lord Carson) 1929 PC 202 “The trial Judge who has the occasion to notice the demeanour of the witness is the best Judge to arrive at a finding with regard to their reliability and trustworthiness.” (See **Kamakshi Builders v. Ambedkar Educational Society and others** (2007) 12 SCC 27. 19. Thus, the learned Judge was in error in observing that without making a record of the demeanour of the witnesses in their depositions it will be hazardous to decide the suit by relying on the demeanour of the witnesses or the parties. 20. Equally misconceived is the observation that the trial **AFA No.108 of 1994** **16** court decreed the suit solely based on the demanour of the witnesses. As mentioned earlier in paragraph 11 above, the trial court had relied on 7 independent circumstances including the demeanour of the witnesses to arrive at the conclusion that the case of the plaintiff was true and reliable. 21. The further finding in the impugned judgment that the plaintiff has failed to prove sufficient income so as to advance money to the defendant is also unsustainable. First of all, there was no plea in the written statement that the plaintiff did not have the means to advance the money. Secondly, even if there was such a plea, the plaintiff examined as PW1 had credibly stated that his father had more than 3 acres of rubber plantation and plaintiff was taking the income therefrom and after the death of his father the plaintiff was exclusively appropriating the income. Hence it was idle for the defendant to contend and that too without any plea, that the plaintiff did not have the means to advance the money. 22. This is a case in which the learned Appellate Judge had chosen to interfere with the judgment and decree passed by the trial court ignoring the settled position that the Appellate Court **AFA No.108 of 1994** **17** will have jurisdiction to set aside the decree passed by the trial court only on arriving at the satisfaction that the judgment and decree of the trial court are wrong and not merely that the judgment and decree of the trial court are not quite right. (See **Stepney B.C. V/s Joffe** 1949(1) All ER at 256 page). This legal position is well settled, as we will presently examine. “Upon the whole, while it is difficult to form a confident judgment as to the side on which the truth lies in this case, their Lordships feel themselves constrained to say that the learned counsel for the appellant have not satisfied them that the judgment of the Chief Court was wrong and accordingly that they are unable to dissent from the finding of that Court.” (See **Debendra Nath v. N.T.Coal Co.** (AIR 1920 PC 132) “In every appeal it is incumbent upon the appellants to show some reason why the judgment appealed from should be disturbed; there must be some balance in their favour when all the circumstances are considered, to justify the alteration of the judgment that stands “(See ## **F.J.R.Kerwickv. K.M.Kerwick** (AIR 1921 PC 55). “It is the duty of the appellant to satisfy the Court that the judgment appealed against is wrong. As remarked by the Privy Council in Dinmoni Chowdhrani v. Brojo Mohini Chowdrani (1): The onus is not now on her (respondent) to show that the judgment **AFA No.108 of 1994** **18** in her favour is right; it is for the appellant to show that it is wrong and where and why it is wrong: See also Mariam Bibee v. Ibrahim (2) at p.360, where, Mukerjee J says: I am not unmindful that in this country as in England, the settled rule is that the burden lies on the appellant to satisfy the Court that the finding of the trial court which he assails is not supported by the evidence on the record. If the arguments advanced before the appellate Court and the evidence presented to it only create mere doubts as to the correctness of the lower Court's decision, then the proper thing for the appellate Court to do would be not to interfere with the lower Court's judgment not being satisfied that it was wrong” (See **Palaniappa v. Syed Gulam Ghouse** (AIR 1928 Madras 489). “The principle is well established that in an appeal the burden of proving that the judgment appealed from is wrong rests upon the appellant, and that he does not discharge that onus by merely showing that there is an equal possibility of the judgment in favour of one party or the other being correct. After giving full consideration to all the circumstances relevant to the issue of whether Mt.Imam Begum understood the transaction, their Lordships find themselves unable to hold that the judgment of the High Court is wrong.” (See **Kalyan Mal v. Ahmad Uddin** (AIR 1934 PC 208). “The plaintiff must prove his case but there is an onus on a defendant who, on appeal, contends that a judgment should be upset: he has to show that it is wrong. **AFA No.108 of 1994** **19** Their Lordships are not satisfied in this case that the Chief Justice was wrong.” (See **R.T.Grant v. Australian Knitting Mills** (Lord Wright) (AIR 1936 PC 34). “An appellate court in India is court of appeal on facts as well as law and the appeal is a rehearing of the case, (Hukumchand Sarupchand v. Hansraj 1938-2 MLJ 966); and at the hearing of the appeal, it is for the appellant to show that the decision of the trial court is wrong: Mt.Fakrunisa v. Moulvi Izarus Sadik AIR 1921 PC 55; Richard Thorlod Grant v. Australian Knitting Mills.Ltd, AIR 1936 PC 34) and his onus would not be discharged by showing merely that a contrary conclusion is possible on the evidence on record.” (See **Kunju Pakiam v Krishnan Nadar** - 1963 KLT 362). “Before reversing the judgment of the trial court it was clearly the duty of the appellate court to refer to the reasoning of the first court on the basis of which it had recorded the findings under challenge in appeal, and unless this is done, it is not possible to know whether the appellate court had applied its mind to those facts and circumstances which had influenced the trial court in arriving at those findings” (See **National Steamship Co.Ltd v. Abu** (1967 KLT 773). “Usually an appellate court will not interfere with a finding of fact where it is not satisfied that it is wrong even where it is satisfied that it is not quite right.” **(State of Kerala v. Thomas** - 1984 KLT 75(SN) . **AFA No.108 of 1994** **20** 23. Thus, even the possibility of another view is not a ground justifying an interference with the judgment and decree passed by the lower court. We are afraid that the learned Judge failed to apply the above yardstick before choosing to interfere with the judgment well considered and decree passed by the trial court. 24. The result of the foregoing discussion is that the judgment and decree passed by the learned appellate Judge cannot be sustained and are accordingly set aside. The judgment and decree passed by the trial court are restored. There will be no costs in this appeal particularly when the respondent has not chosen to enter appearance. In the result, this appeal is allowed as above. No costs. **Dated this the 3[rd] day of January, 2012** ## **V. RAMKUMAR, JUDGE** ## **K.HARILAL, JUDGE** sj