Jalaludeen Rawther v. Fathima Beevi and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **MONDAY, THE 26TH DAY OF MAY 2014/5TH JYAISHTA, 1936** ## **RSA.No. 272 of 2012** **-------------------------------A.S.NO 32/2009 OF DISTRICT COURT, PATHANAMTHITTA** **O.S.NO. 23/2005 OF SUB COURT, PATHANAMTHITTA ----------------** ## **APPELLANT/APPELLANT/PLAINTIFF:** **------------------------------------------------------** **JALALUDEEN RAWTHER, AGED 58 YEARS, S/O.SHEIK MUHAMMED RAWTHER, KURUVIKKATTU HOUSE, CHITTOOR MURI, PATHANAMTHITTA VILLAGE, KOZHENCHERRY TALUK.** **BY ADVS.SRI.M.NARENDRA KUMAR SMT.LAYA SIMON** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** **--------------------------------------------------------------------------** **1. FATHIMA BEEVI, PLAMKOOTTATHIL HOUSE,** - **CHATHANTHARA P.O., KOLLAMULA, PIN – 691 524.** **2. MEERA SAHIB P.S., PAZHAYA VEEDU, PETTA, PATHANAMTHITTA, PIN – 691 523.** **3. NURJAHAN,** - **PUTHUPARAMBIL VEEDU, PETTA, THYKAVU, PATHANAMTHITTA, PIN – 691 523.** **4. SALSATH BEEVI, KALEEKKAL, MUTHOOR P.O., THIRUVALLA, PIN – 689 101.** **5. SALEENA, KIZHAKKE VEEDU, PETTA, PATHANAMTHITTA, PIN – 691 523.** **6. THANKAMMAL BEEVI,** - **PULINILKUNNATHIL VEEDU, MUNDUKOTTACKAL P.O., PATHANAMTHITTA, PIN – 691 523.** **7. UMMAR KHAN, PAZHAYA VEEDU, PETTA, PATHANAMTHITTA, PIN – 691 523.** **8. SHYJU HASSAN, PAZHAYA VEEDU,** - **PETTA, PATHANAMTHITTA, PIN – 691 523.** **BY ADVS. SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26-05-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. **RSA.No. 272 of 2012** **--------------------------------** ## **APPENDIX** **---------------** ## **PETITIONER(S)' ANNEXURES:** **ANNEXURE A1 : TRUE COPY OF THE JUDGMENT DATED 05-07-2011 IN W.P.(C). 24647 OF 2010 AND W.P.(C).NO.28020/2010.** ## **RESPONDENT(S)' ANNEXURES:** **NIL** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. ## **P.BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 272 of 2012 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26[th] day of May, 2014 ## **J U D G M E N T** Shorn off unnecessary details, the essential facts absolutely necessary for the disposal of this appeal are as follows: 2. The suit was one for money based on Ext.A1, cheque dated 13.12.2004. The plaintiff is the younger brother of the first defendant. 3. It is not in dispute that the property in relation to which the dispute arose between the parties originally belonged to the first defendant and mother of the plaintiff and the first defendant. Consequent on the death of the mother, it is claimed that the other heirs relinquished their share in favour of the first defendant. The plaintiff then was a minor. Out of 39 cents thus over which the defendant laid claim, 23 cents was acquired under the Land Acquisition Act. For the balance 16 cents, the plaintiff seems to have instituted a suit for partition. As against the award in the **-2-** ## **R.S.A. No. 272 of 2012** land acquisition proceedings, reference was made under Sections 18 and 31 of the Land Acquisition Act. Reference under Section 31 of the Land Acquisition Act became necessary since the plaintiff laid claim to a portion of the award amount. It is not in dispute that the Land Acquisition Reference Court rejected the claim of the plaintiff in the suit and a land acquisition appeal was preferred before this Court. During the pendency of the appeal, Ext.A8 agreement was entered into between the parties and Ext.A1 cheque was issued which is seen made mention of in Ext.A8 agreement. 4. According to the plaintiff, on being informed that funds are available, he presented the cheque for encashment and it was returned for want of funds. He issued Ext.A4, notice which invoked no response from the original first defendant. He therefore laid the suit. 5. The original first defendant resisted the suit by pointing out that the suit was premature in the sense that **-3-** ## **R.S.A. No. 272 of 2012** Ext.A8 agreement contained clauses under which the plaintiff had to perform certain acts and since he had not performed his part of the contract, the time for payment had not arrived. The essential conditions, on the basis of which contention was raised, were that the plaintiff would take necessary steps to have the stay granted by this Court vacated and also that he would not object to the first defendant withdrawing the entire amount on deposit by the Government in the land acquisition proceedings. 6. On the above pleadings, issues were raised by the courts below and the parties went to trial. The evidence consists of the testimony of PW1 and the documents marked as Exts.A1 to A8 from the side of the plaintiff. Ext.B1 is marked from the side of the defendants. No oral evidence was adduced by the original first defendant. 7. Both the courts below took the view that the suit was premature in the sense that a suit was filed at a point of time when the amount for his land acquisition proceeding **-4-** ## **R.S.A. No. 272 of 2012** had not been deposited. Suit was dismissed. The dismissal of the suit was confirmed in appeal. 8. Notice was issued on the following substantial questions of law formulated: “(i) Whether the courts below are justified in holding that the suit is filed on the cause of action arising on dishonour of the cheque alone and not on the basis of the cause of action arising on the basis of Ext.A8, agreement also? (ii) Whether the Courts are justified in holding that the suit is premature?” 9. The learned counsel appearing for the appellant Sri. M. Narendra Kumar contended that both the courts below have erred in law in coming to the conclusion that the suit is a premature one. Apart from the fact that the premature suit is maintainable, it is also contended that on a reading of Ext.A8, it could not be said that the time of payment had not arrived. The clauses in Ext.A8 agreement would only indicate that the plaintiff, for having the cheque **-5-** ## **R.S.A. No. 272 of 2012** encashed, should take steps to have the stay vacated and should not object to the withdrawal of the deposit made by the Government in relation to the land acquisition proceedings. According to the learned counsel, the liability does not arise on vacation of the stay or on deposit but the liability is independent of those two contingencies. That will be abundantly clear, according to the learned counsel, from the last clause in Ext.A8 that due to the act of any of the parties the other party suffers damages, the party who suffered damages would entitle to recover the same. Both the courts below have erred in law and on facts in dismissing the suit. 10. Sri. Joseph P. Alex, the learned counsel appearing for the respondents on the other hand contended that Ext.A8 is a reciprocal agreement whereby both the parties were called upon to perform their part of the contract. The plaintiff having failed to perform his part of the contract cannot enforce, part of the contract as against the original **-6-** ## **R.S.A. No. 272 of 2012** first defendant. The terms of Ext.A8 are clear and explicit and that amount is to be paid only under two conditions. They are (1) the plaintiff taking immediate necessary steps to have the stay granted by this Court vacated and (2) also not objecting to the first defendant withdrawing the amount on deposit. Having not done his part, the plaintiff cannot enforce the contract. Both the courts below held in favour of the original first defendant. 11. It is difficult to accept the findings of the courts below in this regard. It is extremely difficult to come to the conclusion that the liability to pay one lakh for which the₹ cheque was given arises on vacating the stay or on plaintiff not objecting to the withdrawal of the amount by the first defendant on deposit being made by the State in relation to the land acquisition proceedings. On a reading of Ext.A8 agreement, the liability incurred by the first defendant seems to be independent of the two actions to be taken by the plaintiff. **-7-** ## **R.S.A. No. 272 of 2012** 12. Probably, it could be said that it was intended that the cheque should be presented only when the funds are available. The plaintiff has a definite contention that the cheque was presented when he was informed that the funds were available and on dishonour of the cheque, he had issued a notice to the first defendant. It is significant to notice that there is no reply issued by the first defendant. 13. The learned counsel appearing for the appellant relied on the decision reported in **Vithalbhai (P) Ltd. v. Union Bank of India** [(2005) 4 SCC 315] and **Raghbinder Singh** v. **Bant Kaur and Others** [(2011) 1 SCC 106] wherein it was held that merely because the suit is a premature one, it cannot be dismissed. After going through the decisions, it is felt that the principles in the decisions apply with all course to the facts of the case. 14. One cannot omit to note the final clause in Ext.A8 which reads as follows: **-8-** ## **R.S.A. No. 272 of 2012** “...........çÎWMùEßGáU ÕcÕØíÅÏíAÈáØøߺîí §øáµfßµ{ᢠdÉÕVJߺîáæµÞUÞæÎKí ØNÄߺîßGáUÄᢠ¥ÜïÞJÉf¢ ¯æÄCßÜᢠµfßÏáæ¿ dÉÕVJßÎâÜ¢ Îçx µfßAí È×í¿¢ Ø¢ ÍÕߺîÞW È×í¿¢ ÕøáJßÏ µfßÏßW ÈßKᢠ¦ÏÄí ¨¿ÞAßæÏ¿áAáKÄßÈí È×í¿¢ ÕK µfßAí ¥ÕµÞÖ¢ ©IÞÏßøßAáKÄáÎÞÃí.” It amply clarifies the position that if as a consequence of the act committed by any one of the parties the another party suffers damages, the party who suffered damages was entitled to claim the same from the other party. The clause says that if either of the party does not perform his part of the contract resulting the damage to the other, that person is entitled to claim damge. 15. It may be said that as a consequence of the failure on the part of the plaintiff to act in accordance with the terms of Ext.A8, the receipt of payment by the first defendant may be delayed or that she might have had to take certain steps to enable her to withdraw the amount. But that by itself is not a ground to hold that the liability to **-9-** ## **R.S.A. No. 272 of 2012** pay the amount arises only under those circumstances or such remedies being made available to the first defendant. As already noticed, it could not be said that that liability is consequent on the act to be performed by the plaintiff. It can at best be treated as only clauses which will facilitate the payment or withdrawal of amount deposited. However, it must be made clear that if as a consequence of the act committed by the plaintiff, the first defendant suffers any damages, she is certainly entitled to recover the same. Viewed thus, it is difficult to uphold the finding of the courts below. 16. The issuance of the cheque can be treated only as acceptance of the liability of the defendant as a consequence of the right asserted by the plaintiff in respect of the property acquired. It cannot therefore be said that liability arose only on the plaintiff getting the stay vacated and not objecting to the withdrawal of the amount that may be deposited by the State in acquisition proceedings. **-10-** ## **R.S.A. No. 272 of 2012** 17. Yet another fact also has to be noticed. During the pendency of the appeal before the lower court, the State had deposited the entire amount towards the land acquisition proceedings. It is not shown before this Court that the State had not paid interest for the period during which the stay was in force as granted by this Court at the instance of the plaintiff. However, when funds became available, there was liability on the part of the defendant and at that time, no suit was pending. However, that does not mean that if as a matter of fact, the first defendant has suffered damages due to the act of the plaintiff, she is not entitled to recover the same. For the above reason, this appeal is allowed. The judgments and decrees of the courts below are set aside. The matter is remanded to trial court for fresh disposal in accordance with law and in the light of what has been stated above. It is also made clear that the first defendant or such other persons who have inherited her estate will be entitled **-11-** ## **R.S.A. No. 272 of 2012** to raise a counter claim, if so advised regarding claim for damages. The parties will be at liberty to adduce further evidence. They shall appear before the lower court on **04.07.2014** . The trial court may make every endeavour to dispose of the suit as expeditiously as possible at any rate within a period of four months from the date of appearance. It is also made clear that if ultimately the suit is decreed in granting interest for the amount, the trial court shall take note of the conduct of the plaintiff. There will be no order as to costs. The appellant is entitled to refund of the entire court fee. Sd/- **P.BHAVADASAN JUDGE** ds //True Copy// P.A. To Judge