K.E. George v. M.K. Reghu and K.E. Savy

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH MONDAY, THE 15TH DAY OF JULY 2013/24TH ASHADHA, 1935 CRP.No. 726 of 2008 -----------------------CMA 9/2007 of PRINCIPAL SUB COURT,KOCHI DATED 28-02-2008 OS 288/2005 of ADDL.MUNSIFF COURT,KOCHI DATED 08.03.2007 REVISION PETITIONER(S): -------------------------------------------- K.E.GEORGE, S/O.BASI, AGED 38, KANDATHIPARAMBIL HOUSE, KUMBALANGI P.O. KUMBALANGI VILLAGE, KOCHI TALUK. BY ADV. SRI.K.C.CHARLES RESPONDENT(S): ---------------------------- 1. M.K.REGHU, S/O. NALLAKKAN, AGED 64, MANAKKAPADATH (H) CHOTTANIKKARA CHOTTANIKKARA VILLAGE, KANAYANNUR TALUK. 2. K.E.SAVY, S/O.BASI, AGED 38 KANDATHIPARAMBIL HOUSE, KUMBALANGI P.O. KUMBALANGI VILLAGE, KOCHI TALUK. BY ADV. SRI.ABRAHAM P.GEORGE BY ADV. SMT.K.V.LEKSHMY THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15-07-2013, ALONG WITH FAO.27/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **THOMAS P. JOSEPH, J** - - - - - - - - - - - - - - - - - C.R.P.726 of 2008 & F.A.O.27 of 2009 - - - - - - - - - - - Dated this the 15[th] day of July, 2013 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** Parties are referred as plaintiffs and defendants as in the trial Court for convenience. 2. The Civil Revision and Appeal concern a dispute regarding title and possession of bus No.KL-07-S/8191. Plaintiff claims the said bus belonged to the 1[st] defendant and while so, himself and 1[st] defendant entered into an agreement on 25.03.2004 as per which he purchased that bus for a consideration of Rs.6 Lakhs. He paid Rs.5 ½ Lakhs as consideration to the 1[st] defendant. The remaining Rs.50,000/- was retained with the plaintiff since the bus had only a temporary permit and the 1[st] defendant had offered to obtain a permanent permit. The bus was given to the possession of the plaintiff who started plying it from the date of agreement. While so, it was found missing from 19.04.2005. According to the plaintiff, the defendants took possession of the bus violating the agreement dated **CRP.726/08 FAO.27/09** 2 25.03.2004. The plaintiff filed O.S.288 of 2005 in the Munsiff's Court, Kochi for a decree for mandatory injunction to direct the defendants to hand over the said bus to the plaintiff and for a decree for prohibitory injunction to restrain the defendants from causing obstruction to the plaintiff plying the bus. 3. The defendants contended that the agreement dated 25.03.2004 is concocted. According to them, the 1[st] defendant had borrowed some amount from the plaintiff. The 2[nd] defendant was the driver of the bus. The plaintiff, under coercion obtained a sale letter signed by the 1[st] defendant. Since the plaintiff attempted to take forceful possession of the bus, the 1[st] defendant filed writ petition seeking police protection. This Court directed that dispute regarding the agreement is to be agitated in the proper forum and that law and order problem if any shall be tackled by the police. The plaintiff took possession of the bus on 19.04.2005. The 1[st] defendant filed criminal complaint against the plaintiff and others. The plaintiff filed a complaint against the 1[st] defendant alleging that the 1[st] defendant took forceful possession of the bus. **CRP.726/08 FAO.27/09** 3 4. The plaintiff filed I.A.1247 of 2005 for an order of temporary injunction against the defendants alienating and dismantling the bus and I.A.No.1556 of 2005 for an order of temporary mandatory injunction to direct the defendants hand over possession of bus to the plaintiff. The trial Court passed a temporary order prohibiting the defendants from alienating and/or dismantling the bus. Prayer for temporary mandatory injunction was disallowed. 5. The plaintiff filed I.A.2496 of 2005 to appoint him as receiver for the bus. On that application the trial Court passed an order appointing the 1[st] defendant as party receiver. He was directed to execute a bond for the value of the bus within ten days. The 1[st] defendant did not comply with that order. 6. The 1[st] defendant challenged the order on I.A.2496 of 2005 in C.M.A.7 of 2006. That appeal and W.P.(C).33702 of 2006 arising therefrom were dismissed. **CRP.726/08 FAO.27/09** 4 7. Next, it was the turn of the plaintiff. He filed I.A.568 of 2006 to remove the 1[st] defendant from receivership. That application was allowed and the plaintiff was appointed as party receiver. 1[st] defendant was directed to hand over the bus to the plaintiff. But the 1[st] defendant did not comply. 8. According to the plaintiff, the 1[st] defendant had sold the bus to one Somanathan on 18.01.2007 in violation of the order on I.A.1247 of 2005 and against the spirit of the order appointing the 1[st] defendant as party Receiver. Plaintiff filed I.A.40 of 2007 to take action against the 1[st] defendant under Rule 2A of Order 39 of the Code of Civil Procedure (for short 'the Code') and I.A.159 of 2007 to issue warrant of arrest to the 1[st] defendant. Trial Court recorded evidence on I.A.Nos. 40 and 159 of 2007, concluded that the 1[st] defendant has violated the order of injunction on I.A.1247 of 2005, ordered attachment of immovable property of the 1[st] defendant for one year and directed his detention on the civil prison for six months. I.A.159 of 2007 was dismissed. **CRP.726/08 FAO.27/09** 5 9. The 1[st] defendant challenged the order ion I.A.40 of 2007 in C.M.A.9 of 2007 in the Sub Court, Kochi. The learned Sub Judge by judgment dated 28.02.2008 dismissed that appeal. C.R.P.7 of 2006 arises from that judgment. 10. Alleging that the 1[st] defendant has violated the order of injunction on I.A.1247 of 2005 and has refused to comply with the order on I.A.568 of 2006 which directed the 1[st] defendant to hand over the bus to the plaintiff, the latter filed I.A.201 of 2007 to strike off defence of the defendants. That application was allowed. Later, the Suit was decreed in favour of the plaintiff (without the defendants getting opportunity to contest the Suit). The defendants challenged that judgment and decree in the Sub Court, Kochi in A.S.25 of 2007. Learned Sub Judge by judgment dated 29.10.2008 confirmed the order striking off defence of the defendants but, set aside the judgment and decree of the trial Court observing that even if the defence was struck off, trial Court was bound to go into the question of genuineness of the agreement dated 25.03.2004. O.S.288 of 2005 was remitted to the trial Court for fresh decision. **CRP.726/08 FAO.27/09** 6 The defendants challenge that judgment in FAO.27 of 2009. ## 11. The following substantial questions of law are raised for decision in the appeal. (A). Have not the Courts below gone wrong in striking of the defence for the mere non-compliance with the Trial Court's order ? (B). Whether in the facts and circumstances of the case the Courts below are justified in striking off the defence and allowing the defendants to contest the suit without defence ? 12. The learned counsel for the defendants contended that the order on I.A.40 of 2007 (under Order 39 Rule 2A of the Code) cannot stand. It is argued that the defendants did not get opportunity to cross examine the plaintiff whose defence was recorded on I.A. 40 and 159 of 2007 as PW1. The learned counsel submits that to excuse absence of the 1[st] defendant a medical certificate was produced on the relevant day but that was not accepted by the learned Munsiff. It is also argued that the question whether **CRP.726/08 FAO.27/09** 7 agreement dated 25.03.2004 is fabricated or not and whether the agreement produced by the plaintiff to show that the 1[st] defendant had (allegedly) sold the vehicle to Somanathan on 18.01.2007 is forged or not, were not considered by the trial Court. In the circumstances it is contended that the order on I.A.40 of 2007 cannot stand. 13. Referring to the judgment in A.S.25 of 2007 it is argued that the lower appellate Court was not right in confirming the order striking off defence of the defendants. It is argued that at any rate, conduct of the defendants is not such that their defence should have been struck off which can be done only in exceptional cases of contumacious conduct on the part of the party concerned. It is further argued that circumstances reveal that the plaintiff had taken forceful possession of the vehicle on 19.04.2005. 14. The learned counsel for the plaintiff has contended that there is wilful non compliance of the order on I.A.568 of 2006 to produce the vehicle in Court and hand over the same to the plaintiff and hence **CRP.726/08 FAO.27/09** 8 the order striking off the defence of the defendants is valid. It is contended that the defendants were given sufficient opportunity to cross examine PW1 on I.A.Nos.40 and 159 of 2007. But that opportunity was not availed. In the circumstances, no interference is required either with the order on I.A.40 of 2007 or the judgment of learned Sub Judge in A.S.25 of 2007. 15. I shall first advert to the order on I.A.40 of 2007 as confirmed by the judgment in C.M.A.9 of 2007. PW1 was not cross examined on behalf of the defendants. The defendants have their own explanation for that which is disputed by the plaintiff. But, having regard to the penal consequence that followed the finding on I.A.40 of 2007 I am inclined to think that the defendants could be given an opportunity to cross examine PW1 and adduce further evidence. 16. I am also inclined to think that it was appropriate that the trial Court disposed of I.A.40 of 2007 along with the Suit though, by separate orders. But there cannot be a remand of I.A.40 of 2007 for the mere asking. I must notice that as per order on I.A.2496 of 2005, **CRP.726/08 FAO.27/09** 9 the 1[st] defendant was appointed as party receiver and was put in possession of the vehicle. For whatever reason it be, he did not produce the vehicle as directed by the order on I.A.568 of 2006. I do not forget that the defendants have a case that the vehicle was taken forceful possession by the plaintiff on 19.04.2005 but, that is a matter to be proved. Hence remand of I.A.40 of 2007 must be conditional on the 1[st] defendant furnishing sufficient security to the satisfaction of the trial Court for Rs.5½ Lakhs with interest at the rate of 9% per annum from the date of agreement (25.03.2004) until this day, within two months from this day. In case the said condition is not complied, CRP.726 of 2008 will stand dismissed in confirmation of the order on I.A.40 of 2007 as confirmed by the judgment in C.M.A.9 of 2007. 17. Turning to the judgment in A.S.25 of 2007, I must bear in mind that it is without going into the genuineness of the agreement dated 25.03.2004 that the trial Court has decreed the Suit (without the defendants contesting due to their defence having been struck off). Whether acceptable or not, the defendants have a contention that **CRP.726/08 FAO.27/09** 10 the plaintiff had taken forceful possession of the vehicle on 19.04.2005. I am not inclined to think that conduct of the defendants is such that the extreme step of striking of their defence should have been adopted. Hence the order striking off defence of the defendants should go. The defendants should be given opportunity to contest the Suit with reference to the defence they have taken up in their written statement. Hence to the extent that the order striking off the defence vide I.A.201 of 2007 is confirmed by the lower appellant Court, I am inclined to interfere. The substantial questions of law framed in the appeal are answered as above. Resultantly, the Civil Revision and the Appeal are disposed of as under:- CRP.726 of 2008 i. The order on I.A.No.40 of 2007 in O.S.288 2005 11 ## **CRP.726/08 FAO.27/09** of the Munsiff's Court, Kochi as confirmed by the judgment in C.M.A.No. 9 of 2007 of the Sub Court, Kochi will stand set aside and I.A.40 of 2007 remitted to the trial Court for fresh decision on condition that the 1[st] defendant executes sufficient security in the trial Court to its satisfaction for the sum of Rs.5½ Lakhs with interest at the rate of 9% per annum from 25.03.2004 till this day within two months from this day. - ii.In case security is thus furnished, ultimately the Suit is decided in favour of the plaintiff and the defendants are not able to hand over the bus to the plaintiff in proper condition as may be ordered by the trial Court, the plaintiff can recover the amount due to him from the property offered as security. - iii.In case the condition for furnishing security is not complied CRP.726 of 2008 will stand dismissed. - iv.On compliance of the condition and I.A.40 of 2007 being remitted to the Munsiff's Court, **CRP.726/08 FAO.27/09** 12 Kochi for fresh decision both parties shall be given opportunity to adduce further evidence. Needless to say that the defendants will get opportunity to cross examine PW1. - v. It is directed that if the learned Munsiff proceeds with the trial of the Suit and evidence of PW1 is recorded in continuation of what is already recorded, evidence on I.A.40 of 2007 also can be taken simultaneously with the evidence in the Suit. But, the learned Munsiff has to dispose of the Suit and I.A.40 of 2007 separately though, based on the same evidence. - vi.Parties shall suffer their cost in the Civil Revision. ## FAO.27 of 2009 The Appeal is allowed in part to the following extent. - i. Confirmation of the order on I.A.201 of 2007 striking off defence of the defendants in O.S.No.288 of 2005 is set aside. **CRP.726/08 FAO.27/09** 13 ii.Learned Munsiff, Kochi is directed to dispose of O.S.288 of 2005 after recording evidence of the parties and as provided under the law. iii.Documents if any produced by the parties in the Appeal shall be transmitted to the trial Court along with its records. iv.Parties shall suffer their cost in the Appeal. ## **Sd/- THOMAS P. JOSEPH, Judge** mrcs //true copy// P.A.To Judge