Kesavan Pillai Lekshmanan and Mohanan alias Subramonia Pillai Mano Mohanan v. Nanu Nadar Chellakuttan

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 2[ND] DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943** **RSA NO. 627 OF 2009** **AGAINST THE JUDGMENT AND DECREE DATED 14.01.2009 IN AS 148/2001 OF III ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM AGAINST THE JUDGMENT AND DECREE DATED 30.11.2000 IN OS 96/1998 OF SUB COURT, NEYYATTINKARA** ## **APPELLANTS/RESPONDENTS/DEFENDANTS:** 1 KESAVAN PILLA LEKSHMANAN, AGED 52 YEARS, BUSINESS, MAVILA PURAYIDOM, PUTHEN THERUVU, BALARAMAPURAM FROM AMARAVILA NARAYANAPURAM, THERUVU, NADUVOORKOLLA DESOM, KOLLAYIL VILLAGE. 2 MOHANAN @ SUBRAMONIA PILLA MANO MOHANAN, S/O. RAJA, AGED 41 YEARS, BUSINESS, AKARATH VILAKAM PUTHAN VEEDU, AMARAVILA, KEEZHKOLLA DESOM, KOLLAYIL VILLAGE, NEYYATTINKARA, TRIVANDRUM DISTRICT. BY ADV SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH, SRI.VINAY MENON V. SRI.AJAY M. ## **RESPONDENT/APPELLANT/PLAINTIFF:** NANU NADAR CHELLAKUTTAN, AGED 52 YEARS, AKARATH VILAKATH VEEDU, NADUVOORKOLLA DESOM, KOLLAYIL VILLAGE, NEYYATTINKARA,, TRIVANDRUM DISTRICT. BY ADV SRI.G.S.REGHUNATH THIS REGULAR SECOND APPEAL HAVING BEEN HEARD ON 02.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RSA No.627 of 2009 2 ## **K.BABU, J.** ------------------------------------------- ## R.S.A. No.627 of 2009 --------------------------------------------- Dated this the 2[nd] day of November, 2021 ## **JUDGMENT** The defendants are the appellants. The plaintiff is the respondent. 2 _._ The plaintiff instituted the suit for specific performance of a contract for the sale of 750 square links of land. An agreement for sale was executed between the plaintiff and defendant No.1 on 13.05.1998 in respect of the aforesaid immovable property for a consideration of Rs.1,35,000/-. A sum of Rs.35,000/- was paid as advance consideration on 13.05.1998. The time fixed for the performance of the contract was six months from the date of its execution. The plaintiff issued a cheque for Rs.25,000/- in favour of defendant No. 1 towards the balance consideration on 30.05.1998. Defendant No.1 was not ready and willing to perform his part of the contract. Subsequently, a lawyer's notice was caused to be issued to defendant No.1 to appear before the Sub-Registrar on 09.11.1998 for execution of the sale deed. Defendant No.1 failed to appear before the Sub- RSA No.627 of 2009 3 Registrar's office to execute the necessary deed of conveyance. 3. The defendants pleaded that it was due to the failure on the part of the plaintiff to perform his part of the contract within the stipulated time that defendant No.1 could not execute the sale deed, as agreed. The defendants further contended that time was the essence of the contract. Defendant No.2 who was conducting business in a shop room in the plaint schedule property was not at all bound by the agreement and hence, the suit was bad for mis-joinder of parties. 4. The Trial Court declined to grant specific performance as prayed for and dismissed the suit. The plaintiff challenged the judgment and decree dated 30.11.2000 passed by the Trial Court, before the District Court, Thiruvananthapuram in A.S.No.148/2001. The First Appellate Court reversed the decree and judgment of the Trial Court and decreed specific performance in favour of the plaintiff. 5. Aggrieved by the judgment and decree of the First Appellate Court in A.S. No.148/2001, the defendants preferred this Second Appeal. RSA No.627 of 2009 4 ## 6. After hearing both sides, this Court reformulated the substantial questions of law as follows:- (i) Has not the First Appellate Court erred in relying on the pleadings sought to be incorporated by way of I.A.No.1778/2001, an application filed under Order 6 Rule 17 CPC, before that Court without even allowing the interlocutory application? (ii) Was not the First Appellate Court under obligation to give an opportunity to the defendants to lead additional evidence by way of rebuttal when the Court received Exts.A6 and A7 under Order 41 Rule 27 CPC? 7. Heard Sri.R.S.Kalkura, the learned counsel for the appellants/defendants and Sri.G.S.Reghunath, the learned counsel for the respondent/plaintiff. 8. The learned counsel for the appellants contended that prejudice had been caused to the appellants when the First Appellate Court relied on the pleadings sought to be incorporated by way of amendment without affording an opportunity to the appellants to contest the same. The learned counsel further contended that, reception of Exts.A6 and A7 as per Order 41 Rule 27 of the CPC without affording opportunity to the appellants to challenge the contents of RSA No.627 of 2009 5 them has also caused prejudice to the appellants/defendants. 9. _Per contra,_ the learned counsel for the respondent Sri.G.S.Reghunath, argued that the plaintiff is entitled to specific performance of the contract as he has satisfied all the requirements for getting the relief. 10. The Trial Court refused to grant specific performance of the contract mainly on the ground that the plaintiff has not approached the Court with clean hands. 11. The First Appellate Court found that the defendants were not ready and willing to perform their part of the contract, and they colluded together in not performing the contract. 12. In the appellate stage, the plaintiff filed IA No.1778/2001 under Order 6 Rule 17, CPC seeking amendments in the plaint. The plaintiff also filed I.A. No.2400/2005 for admitting additional evidence. 13. In the amendment application (IA No.1778/2001), the plaintiff sought to plead the circumstance under which a sum of Rs.25,000/- was paid by way of cheque on 30.05.1998 and that there was collusion on the part of defendants 1 and 2 in the transactions. RSA No.627 of 2009 6 ## 14. The First Appellate Court in Paragraph 8 of the ## impugned judgment observed the following: “The amendments sought to be introduced are to incorporate details regarding the payment of Rs.25,000/- by cheque and to explain why the 2[nd] defendant was impleaded. It is urged that subsequent to the dismissal of the suit the first defendant had executed sale deed dated 20.10.2001 in favour of the 2[nd] defendant conveying the plaint schedule property for a meagre consideration of Rs.20,000/-. It is pointed out that this was done when the plaintiff had agreed to purchase the property for Rs.1,35,000/- and Rs.75,000/- was still due from the plaintiff to the appellant. This according to the learned counsel of the appellant clearly indicates that there was collusion between the defendants to some how cancel the agreement for sale in favour of the appellant. This also indicates lack of readiness and willingness on the part of the first defendant to execute the sale deed. The argument cannot be brushed aside.” 15. This Court examined the records relating to the proceeding in the First Appellate Court. It is seen that I.A.No.1778/2001, an application seeking amendments in the plaint, was not allowed. 16. However, going by the above - extracted portion of the judgment of the First Appellate Court, it is evident that the Court has relied on the pleadings sought to be incorporated in the plaint through I.A.No.1778/2001 for recording findings against the appellants. The First Appellate Court has violated the principles of a fair trial by relying on those pleadings without affording an opportunity to the appellants to defend RSA No.627 of 2009 7 ## them. 17. The First Appellate Court also received Exts.A6 and A7 in the appellate stage invoking the provisions of Order 41 Rule 27, CPC. Ext.A7 is the certified copy of a sale deed executed by defendant No.1 in favour of defendant No.2 after the dismissal of the suit. The First Appellate Court has relied on Ext.A7 to record a finding that defendant No.1 colluded with defendant No.2. 18. Admittedly, the First Appellate Court had not given an opportunity to the defendants to contest the contents of Ext.A7. 19. In _**Union of India v. K.V.Lakshman and Others [(2016) 13 SCC (124) Paragraph 36],**_ the Apex Court held that, once the additional evidence is allowed to be taken on record, the Appellate Court is under obligation to give opportunity to the other side to file additional evidence by way of rebuttal. 20. The First Appellate Court should not have relied on the pleadings sought to be incorporated in the plaint by way of an application filed under Order 6 Rule 17, CPC in the appellate stage without even allowing the application and affording an opportunity to the defendants to file answer to RSA No.627 of 2009 8 them. The First Appellate Court has committed irregularity in receiving Exts. A6 and A7 in the appellate stage without giving an opportunity to the defendants to lead additional evidence by way of rebuttal. 21. This Court is satisfied that there had not been effectual adjudication of the proceedings in the First Appellate Court and the appellants/defendants have suffered material prejudice on that account. For the above reasons, this Second Appeal is allowed, and the judgment and decree of the First Appellate Court are set aside, and the matter is remanded to the First Appellate Court for fresh consideration in accordance with law. The parties shall appear before the First Appellate Court on 01.12.2021. The Court below shall expeditiously dispose of the appeal, at any rate, within three months from the date scheduled for the appearance of the parties. **Sd/K.BABU JUDGE** VPK