K.V. Moideen Koya v. N.P. Pari

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 7[TH] DAY OF FEBRUARY 2022 / 18TH MAGHA, 1943 RSA NO. 1067 OF 2005** **AGAINST THE JUDGMENT & DECREE IN AS 60/2003 OF IST ADDITIONAL** **DISTRICT COURT, KOZHIKODE OS 293/1999 OF III ADDITIONAL SUB COURT, KOZHIKODE** ## **APPELLANT/APPELLANT/DEFENDANT:** K.V.MOIDEEN KOYA, S/O.KALANTHAN KUNHI, KOZHISSERY VEETTIL, MOOZHIKKAL, CHELAVOOR AMSOM DESOM, KOZHIKODE TALUK. BY ADVS. SRI.T.G.RAJENDRAN SRI.P.K.ANIL ## **RESPONDENT/RESPONDENT/PLAINTIFF:** N.P.PARI, S/O.KOYA PARI, THACHARAKKAL HOUSE, NELLICODE AMSOM, KOVOOR DESOM, KOZHIKODE TALUK. BY ADVS. SRI.K.M.MOHAMMED KUNHI SRI.M.MUHAMMED SHAFI THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.S.A No.1067 of 2005 2 K.BABU, J . -------------------------------------- R.S.A No.1067 of 2005 --------------------------------------Dated this the 7[th] day of February, 2022 ## JUDGMENT The judgment dated 24.02.2005 in A.S.No.60/2003 passed by the 1[st] Additional District Court, Kozhikode is under challenge in this Regular Second Appeal. A.S.No.60/2003 arose from the judgment dated 30.01.2002 in O.S.No.293/1999 passed by the Subordinate Judge's Court, Kozhikode. The defendant who lost his case in the Courts below is the appellant. The plaintiff is the respondent. 2. Material facts relevant for the adjudication of this appeal are as follows: 2.1. The appellant/defendant and his wife were the owners of a landed property covered by assignment deed No.2705/1986 of S.R.O, Kakkadi. The defendant wanted to sell that property. The plaintiff agreed to purchase the property for a consideration of Rs.3 Lakhs. An agreement was executed on 17.11.1998 between the parties (Ext.A1). The plaintiff paid a sum of Rs.1 Lakh as advance. He agreed to pay the balance amount within six months. The plaintiff was R.S.A No.1067 of 2005 3 ready and willing to perform his part of the agreement. But the defendant was neither ready to transfer the property nor return the amount received as advance. The plaintiff instituted the suit for realising the advance amount from the defendant. 2.2. The defendant resisted the suit contending that he had not executed Ext.A1 agreement as pleaded. He also denied receipt of Rs.1 Lakh as advance consideration for the property owned by him. According to the defendant, he had been conducting a business in the name and style “Shoby Auto Consultant”, a partnership business. The plaintiff obtained four blank cheques from the defendant making him believe that the cheques were required for availing a financial loan. Later, when the parties fell apart, the partnership was dissolved. Exhibit A1 agreement relied on by the plaintiff is a concocted document. The defendant had not affixed his signature in Ext.A1 agreement. 3. The parties went to trial. PWs 1 and 2 were examined and Exts.A1 and A2 were marked on the side of the plaintiff. No evidence was adduced on the side of the defendant. 4. The Trial Court decreed the suit allowing the plaintiff to R.S.A No.1067 of 2005 4 realise Rs.1 Lakh with interest @ 6% per annum from the date of the suit till realisation with costs. The defendant challenged the decree passed by the Trial Court by filing A.S.No.60/2003. The First Appellate Court confirmed the judgment and decree of the Trial Court. 5. This Court admitted the appeal on the following substantial question of law: “Is it proper and legal for the court to compare the disputed signature and form an opinion that signatures of the defendant in written statement and Ext.A1 agreement are the same.” 6. Heard Sri.T.G.Rajendran, the learned counsel appearing for the appellant/defendant and Sri.M.Muhammed Shafi, the learned counsel appearing for the respondent/plaintiff. 7. The learned counsel for the appellant contended that the Trial Court was not justified in entering into a conclusion as to the execution of Ext.A1 agreement relying on the comparison made by the Court itself of the disputed signature in Ext.A1 and the admitted signatures of the defendant in the written statement. The learned counsel further contended that the plaintiff failed to establish the execution of Ext.A1 agreement. The learned counsel also contended that the failure of the plaintiff to mount the box and give evidence in R.S.A No.1067 of 2005 5 support of the pleadings in the plaint is fatal to the case pleaded by him. 8. Per contra, the learned counsel for the respondent/plaintiff contended that there is ample evidence to establish the execution of Ext.A1 agreement and receipt of advance money as pleaded by the plaintiff. The learned counsel further contended that even without the opinion formed by the Trial Court, comparing the disputed and admitted signatures of the defendant, there was evidence independent of that to record a finding that the defendant executed Ext.A1 agreement and received money as advance. The learned counsel further contended that the Power of Attorney holder of the plaintiff (PW1), who is none other than the son-in-law of the plaintiff, had direct knowledge regarding the transaction. So his evidence as a witness is admissible. 9. Exhibit A1 is the agreement executed between the parties, wherein the defendant agreed to sell the property referred to therein for a consideration of Rs.3 Lakhs to the plaintiff. It is further recited in Ext.A1 that on the date of execution of the agreement, the defendant received a sum of Rs.1 Lakh as advance. R.S.A No.1067 of 2005 6 10. The case of the plaintiff is that he was ready and willing to perform his part of the agreement and it was the defendant who went back upon the undertakings in Ext.A1. PW1, the son-in-law of the plaintiff, gave evidence in support of the pleadings in the plaint. He deposed that he had direct knowledge regarding the transactions alleged in the plaint. He would further depose that the defendant purchased the stamp paper used for the execution of Ext.A1 agreement and the same was executed in his presence. PW1 would further state the defendant himself got the document prepared. PW2 is an Attester to Ext.A1 agreement. He also supported the case of the plaintiff. PW2 stated that he had seen the execution of Ext.A1 agreement by the defendant. 11. The learned counsel for the appellant/defendant submitted that the evidence of PW1, being the Power of Attorney holder of the plaintiff, is not admissible in evidence. 12. Relying on Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd., and others (2004 AIR SCW 7064), the learned counsel for the appellant contended that the evidence of PW1 cannot be accepted in support of the pleadings in the plaint. In Janki's case R.S.A No.1067 of 2005 7 (supra) the Apex Court held that the Power of Attorney cannot depose for the principal for the acts done by the principal and not by him and that he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. 13. In the present case, the Power of Attorney holder of the plaintiff (PW1) had deposed regarding the facts over which he has direct knowledge. He had deposed that the defendant executed Ext.A1 agreement in his presence. The evidence of PW1 to that extent is admissible. The pleadings in the plaint, supported by the oral evidence of PWs 1 & 2 and corroborated by Ext.A1 established the execution of Ext.A1 agreement and receipt of advance consideration by the defendant from the plaintiff as alleged. 14. The learned counsel for the appellant/defendant further contended that the opinion formed by the Trial Court by comparing the disputed signature in Ext.A1 and the admitted signatures in the written statement could not be taken as a basis for recording the finding that the plaintiff proved the execution of Ext.A1 agreement. 15. The Trial Court, in paragraph 10 of the judgment, after R.S.A No.1067 of 2005 8 comparing the signature alleged to have been affixed by the defendant in Ext.A1 and his admitted signatures in the written statement, held that the writing of name and signature in Ext.A1 appears to be identical with the writing of names and signatures of the defendant as appeared in his written statement. As per Section 73 of the Indian Evidence Act, the Court may compare the admitted and disputed writing, signature etc, of the person by whom it purports to have been written or made. Section 73 of the Indian Evidence Act, 1872 reads thus: 73. Comparison of signature, writing or seal with others admitted or proved. —In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. [This section applies also, with any necessary modifications, to finger-impressions.] 16. It is also settled that the Court should be slow to compare the disputed document with an admitted document although Section 73 empowers the Court to compare disputed writings with the specimen or admitted documents shown to be genuine. In the present case, the Trial Court though concluded that the disputed R.S.A No.1067 of 2005 9 writings and signatures of the defendant are identical to the admitted signatures seen in the written statement, it was not on that basis the First Appellate Court entered into a conclusion as to the execution of Ext.A1 by the defendant. The First Appellate Court carefully examined the pleadings, evidence and documents produced on the part of the plaintiff and after re-appreciating the entire materials, concluded that the plaintiff satisfactorily established execution of Ext.A1 and receipt of advance amount as pleaded. 17. The appellant/defendant has not pleaded any ground to retain the advance amount received by him. This Court finds no reason to interfere with the impugned judgment. The appeal lacks merits. The Regular Second Appeal is dismissed. The parties are directed to bear their respective costs in the second appeal. Pending Interlocutory Applications, if any, stand closed. Sd/K.BABU, JUDGE KAS