JUMON v BEENA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **MONDAY, THE 6TH DAY OF AUGUST 2012/15TH SRAVANA 1934** ## **RSA.NO. 992 OF 2012 ()** **-----------------------------------AS.258/2007 OF SECOND ADDITIONAL SUB COURT, THRISSUR OS.19/1997 OF THIRD ADDITIONAL MUNSIFF'S COURT, THRISSUR** ## **APPELLANT/RESPONDENT/PLAINTIFF:** **----------------------------------------------------------** **JUMON, S/O.MATHEW, CHIRAKKEKARAN HOUSE, KOTTAPPURAM AMSOM THRISSUR VILLAGE,THRISSUR TALUK REPRESENTED BY HIS POWER OF ATTORNEY HOLDER BEAULA MATHEW D/O.MATHEW,RESIDING AT CHIRAKKEKARAN HOUSE KOTTAPPURAM AMSOM, THRISSUR VILLAGE,THRISSUR TALUK.** **BY SENIOR ADVOCATE SHRI S.V. BALAKRISHNA IYER BY ADVS.SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.B.SUBRAMANYAN** ## **RESPONDENT/APPELLANT/DEFENDANT:** **-----------------------------------------------------------** ## **BEENA,** **D/O.PALISSERY PORINCHU AND W/O.KOCHU PAUL CHIRAKKEKARAN HOUSE,KIZHAKKUMAPTTUKARA DESOM CHEMBUKKAVU VILLAGE,THRISSUR TALUK,PIN-680020.** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== R.S.A. No.992 of 2012 ==================================== Dated this the 06[th] day of August, 2012** ## **J U D G M E N T** The plaintiff in O.S. No.19 of 1997 of the court of learned Third Additional Munsiff, Thirssur is aggrieved by the judgment and decree of learned Second Additional Sub Judge, Thrissur in A.S. No.258 of 2007 interfering with the decree granted by the trial court for specific performance and allowing the alternative relief of refund of advance money with interest. 2. Respondent is the wife of brother of the appellant. According to the appellant, himself and the respondent executed Ext.A2, agreement dated 30.06.1996 for purchase of the shop rooms referred to in the plaint schedule for a total consideration of Rs.1,00,000/- and paid Rs.25,000/- by way of earnest money at the time of the said agreement. The time for performance was fixed as six months. Appellant asked the respondent on 28.12.1996 to execute the sale deed. Respondent agreed to do so on 02.01.1997. Appellant presented himself at the office of the Registrar on 02.01.1997 but the respondent did not turn up. Hence the suit for specific performance with an alternative prayer **R.S.A. No. 992 of 2012** ## -: 2 :- for refund of the advance money with interest. Respondent denied that she executed Ext.A2, agreement and contended that it is concocted. She claimed that there were several litigations between the parties from 1993 onwards, the relationship between them was strained and in that situation there was no possibility of such agreement being entered into. She claimed that property was worth Rs.10,00,000/- (obviously at the time Ext.A2, agreement was allegedly executed). 3. The trial court found that Ext.A2, agreement was executed by the respondent and granted a decree for specific performance. 4. Respondent challenged that judgment and decree before the first appellate court. The first appellate court found that there is no evidence to show that the appellant was ready and willing to perform his part of the contract and consequently, reversing the judgment and decree of the trial court, granted a decree for recovery of Rs.25,000/- with interest at the rate of 9% per annum from 01.07.1997 till 17.06.2004 and thereafter at 6% per annum till realization. That judgment and decree of the first appellate court are under challenge in this Second Appeal. 5. The learned Senior Advocate for the appellant has ## **R.S.A. No. 992 of 2012** ## -: 3 :- contended that finding of the first appellate court is not correct. It is contended that the only plea the respondent had raised in the written statement is that Ext.A2, agreement was not executed by her, which the trial and first appellate courts found against. It is also contended that the appellant had deposited the balance sale consideration of Rs.75,000/- in the trial court (in the year, 2000) which itself indicated his readiness and willingness to perform his part of the contract. In that situation finding of the first appellate court that the appellant was not ready and willing to perform his part of the contract is not correct. It is contended that Ext.A2, agreement was executed on 30.06.1996 fixing time for performance as six months, the suit was filed in the year, 1997 and hence there was no delay on the part of the appellant in seeking specific performance. According to the learned Senior Advocate in the above circumstances the mere rise in the price of property is not by itself sufficient to deny specific performance. 6. True that respondent contended that Ext.A2, agreement was not executed notwithstanding that her husband, D.W.2, (brother of the appellant) also figured as an attesting witness in Ext.A2. The trial and first appellate courts also referring to the admitted signature of D.W.2, husband of the **R.S.A. No. 992 of 2012** -: 4 :- respondent in Exts.X1 to X3, held in favour of due execution of Ext.A2. 7. But the first appellate court held that there is no evidence to show that the appellant was ready and willing to perform his part of the contract. Appellant was abroad during the time of trial and hence his sister, on the strength of Ext.A1, Power of Attorney gave evidence as P.W.1. She deposed to the readiness and willingness of the appellant to perform his part of the contract. But the first appellate court observed that whether appellant was ready and willing to perform his part of the contract is something which was within the personal knowledge of the appellant and hence the evidence which the appellant could have given regarding that, could not be substituted with the evidence of his Power of Attorney holder (P.W.1). 8. True that the time fixed for performance of the contract was six months from the date of the agreement (30.06.1996) and suit is filed in the year, 1997. But the case of the appellant that he had demanded execution of the sale deed, that was agreed to and date was fixed as 02.01.1997 and on that day the appellant had been to the office of the Registrar, are not proved by appropriate evidence. P.W.1, the Power of Attorney **R.S.A. No. 992 of 2012** ## -: 5 :- holder could not have given evidence on these matters. There is no case for the appellant that on those occasions P.W.1 was with him. If the appellant had been to the office of the Sub Registrar on 02.01.1997 as (allegedly) agreed he could have produced some documents showing that he had been to the office of the Sub Registrar (like attesting some documents in that office on that day). It is also relevant to note that preceding the institution of the suit, no notice was issued to the respondent calling upon her to to execute the document pursuant to Ext.A2, agreement (notwithstanding that on a prior occasion she had allegedly evaded it). Moreover for whatever reason it be, appellant has not gone into the box to give evidence. It is in the above circumstances the first appellate court found against the plea of the appellant that he was ready and willing to perform his part of the contract. Merely for the reason that balance sale consideration was deposited in the trial court in the year, 2000 (the suit itself having been filed in the year, 1997), I am unable to think that first appellate court ought to have found in favour of the readiness and willingness of the appellant. The said finding is one of fact based on evidence or lack of evidence. A finding of fact involves a substantial question of law only if it is **R.S.A. No. 992 of 2012** ## -: 6 :- perverse, is against the evidence or is not supported by any evidence and not if it is erroneous. 9. A further fact which has in come evidence is that while according to the respondent, even as on the date of execution of the agreement the value of the property was around Rs.10,00,000/- as against Rs.1,00,000/- stated in Ext.A2, P.W.1 has admitted in the course of her evidence that value of the property (obviously at the time of giving evidence) was around Rs.20,00,000/-. A meteoric rise in the value of property along with other valid reasons is sufficient to deny the discretionary relief of specific performance. The mere denial of execution of Ext.A2, agreement by itself is no ground to deny the discretionary relief in favour of the respondent (See _**Aliyas v. Aboobacker - 2006 (4) KLT 282**_ ). In this case the first appellate court also found against the appellant on the issue of readiness and willingness. 10. First appellate court having found on a consideration of the evidence that readiness and willingness on the part of appellant is not proved, the judgment and decree of the first ## **R.S.A. No. 992 of 2012** -: 7 :- appellate court is justified and it involves no substantial question of law. Second Appeal is dismissed. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv