MANGANALLI SANTHOSH S/O.CHINNAYYAN v. M.K.NARAYANI @ K.SANNAMMA and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN WEDNESDAY, THE 27[TH] DAY OF OCTOBER 2021 / 5TH KARTHIKA, 1943** **AS NO. 885 OF 1998** **AGAINST THE JUDGMENT & DECREE IN OS 284/1995 OF SUB COURT,** **THALASSERY** ## **APPELLANT/PLAINTIFF:** MANGANALLI SANTHOSH S/O.CHINNAYYAN, THEKKI BAZAR, KANNUR-II AMSOM, KANNUR TALUK, KANNUR DISTRICT. BY ADV SRI.P.V.SURENDRANATH ## **RESPONDENTS/DEFENDANTS 1 TO 3 & 5 TO 7 IN O.S.:** 1 M.K.NARAYANI @ K.SANNAMMA, WIDOW OF GOVINDAN, KANNUR AMSOM, THAVAKKARA DESOM, KANNUR TALUK, KANNUR DISTRICT. (DIED) 2 M.K.KRISHNAN S/O.LATE GOVINDAN KANNUR AMSOM, THAVAKKARA DESOM KANNUR TALUK, KANNUR DISTRICT It is recorded that the second respondent is one of the legal heirs of deceased first respondent vide order dated 27/10/2021 in memo dated 20/01/2021 3 M.K.RADHA D/O.LATE GOVINDAN, KANNUR AMSOM, THAVAKKARA DESOM, KANNUR TALUK, KANNUR DISTRICT (DIED) 4 M.K.LAKSHMANAN S/O.LATE GOVINDAN, KANNUR AMSOM, THAVAKKARA DESOM, KANNUR TALUK, KANNUR DISTRICT 5 V.MEENAKSHI D/O.KALLIYANI KANADA AMSOM, THAVAKKARA DESOM HARIJAN COLONI, KANNUR DISTRICT 6 V.VASU S/O.KALLIYANI, KANNUR AMSOM, A.S.No.885 of 1998 2 THAVAKKARA DESOM, HARIJAN COLONY, KANNUR TALUK ADDL.R7 LEELA D/O.RADHA,PANOTCHAL HOUSE,P.O.EMBATE, PARIYARAM,KANNUR Supplemental respondent No.7 is impleaded as the legal heir of deceased respondents 1 & 3 vide order dated 27/10/2021 in I.A.No.338/2011 ( I.A.No.5/2011) BY ADVS. SMT.BINDUMOL JOSEPH FOR R2 & R7 SRI.K.S.MADHUSOODANAN FOR R4 TO R6 SRI.C.P.PEETHAMBARAN FOR R4 TO R6 THIS APPEAL SUITS HAVING COME UP FOR HEARING ON 27.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.S.No.885 of 1998 3 ## **CR** ## **JUDGMENT** In a suit for specific performance of contract for sale, an application I.A.No.881/1998 was submitted for amending the plaint for incorporating an alternative relief of return of the advance amount. But it was dismissed by the trial court on the sole reason of delay. Subsequently the suit was dismissed on merits, against which the plaintiff came up in appeal. 2. Ext.A1 is the agreement for sale dated 14/7/1994 executed between the plaintiff and one Govindan, the predecessor-in-interest of the defendant. He passed away before the expiry of the period of the agreement. After the issuance of demand notice to some of the legal heirs, a suit was filed for specific performance of the contract. The trial court on consideration of oral evidence of PW2 and the discrepancies therein found that Ext.A1 agreement is not genuine and dismissed the A.S.No.885 of 1998 4 suit. It is under challenge on the reason that the discrepancy in the oral evidence of PW2 regarding the number of thumb impressions affixed in Ext.A1 is quite natural as he was examined after the expiry of more than four years from the date of execution of Ext.A1. Further, the evidence adduced by the two attesting witnesses was rejected without going into its reliability or credibility on the simple reason that, their full address was not disclosed in Ext.A1 document. The fact that PW2 could not recollect the exact number of thumb impressions affixed by the executant when he was examined after the expiry of four years is only minor abrasion and cannot be termed as a material discrepancy. There is total failure on the part of the trial court to appreciate the oral evidence tendered by PW2 with the attending circumstance, such as he was examined after the expiry of four years from the date of execution of the document, he was actively practicing as an Advocate for a long period of forty one years and also during the A.S.No.885 of 1998 5 abovesaid period of four years. It may not be humanly possible to recollect the number of signatures or thumb impressions, which were affixed on a document four years back by a testator either by the attesting witness or by the scribe, who had witnessed the execution, especially an Advocate by profession. What is material is whether his oral evidence was impeached as enumerated under Section 155 of the Evidence Act or whether he is an interested witness. While analysing and appreciating the oral testimony of a witness, it is incumbent upon the court to ascertain whether there is any ground available as enumerated under Section 155 of the Evidence Act to discredit or impeach the credence of the witness. Minor discrepancies, unless constitute a material deviation to the fact to be proved, cannot be termed relevant so as to outweigh the oral evidence tendered, especially when it is probable by lapse of long time. The cognitive faculty of the witness may also have some relevance and it should be tested with the time A.S.No.885 of 1998 6 factor involved in the case. It is not permissible to pick and choose minor discrepancies so as to outweigh the oral evidence tendered especially when the witness was examined after the expiry of four years. Hence,there is no justification for rejection of the oral evidence of PW2 by the trial court. 3. The trial court also went wrong in accepting the comparison and opinion given by PW2 with respect to difference in the disputed signatures found affixed in Ext.A1 document as that of the executant. During the cross examination, PW2 had admitted that there is some difference in the signatures affixed by the executant in page Nos.1 and 2. But the fact that the executant had also affixed his thumb impression in page No.1 and 2 besides his signature was overlooked by the trial court and proceeded on the premise that PW2 had admitted difference between the disputed signatures found affixed in Ext.A1. PW2 is neither an executant nor a party to the suit. He is only one A.S.No.885 of 1998 7 of the witnesses to the execution and his admission that there are some differences in the signature affixed as that of the executant will not carry any consequences known to the law. It is not upto the witness who had witnessed the execution to depose about the differences in the signatures or similarity or dissimilarity and no such authority can be given under any of the statute to such a witness either to compare or give his opinion in that behalf, except by an expert witness, who was summoned for the said purpose. Hence, the oral evidence tendered by PW2 that there are some differences in the signature found affixed in the document as that of the executant has no much relevance and it cannot be used either to discredit or to reject the oral evidence tendered by the said witness regarding the due execution. 4. The oral evidence tendered by PW3 and PW4 and its rejection on the ground that Ext.A1 did not show the address of those witnesses is patently wrong and incorrect. They were examined as PW3 and 8 A.S.No.885 of 1998 PW4 and nothing material was brought out to discredit their evidence. The trial court has not even gone into the abovesaid questions, but rejected their oral evidence without adhering to the mandate under Section 155 of the Evidence Act. Virtually, it has created miscarriage of justice. All the witnesses PW1 to PW4 are in agreement regarding the due execution of Ext.A1 agreement and they had witnessed its due execution. Nothing was brought out to discredit their evidence and as such, the court below is not justified in rejecting their oral evidence. 5. Further, it is not within the jurisdiction of civil court to compare the thumb impression or finger print under Section 73 of the Evidence Act. The power under Section 73 of the Act is limited to disputed signature, writing or seal, for which the court can take admitted signature, writing or seal or procure the same by summoning the person concerned. It is only a rule of prudence and cannot be substituted in the place of expert evidence. It A.S.No.885 of 1998 9 can be used only as a supporting evidence or for corroboration. By any stretch of imagination it cannot be said that the court will have authority or power to compare thumb impression or finger print, which is in dispute. The observation and finding of the trial court by comparing thumb impressions found affixed as that of the executant are obviously without any jurisdiction and hence cannot be sustained. It is not within the jurisdiction of the court to compare the similarity between the thumb impression or the finger print by stepping into the shoes of an expert. The only exception to the abovesaid rule is when there is defacement of thumb impression which is explicit and visible from the document to the extent of making it fully and completely unidentifiable, but the court can exercise its jurisdiction with care and caution. Further, the observation of the trial court that some of the thumb impressions are found to be vague is yet another mistake committed by the trial court. There cannot be any vagueness in the A.S.No.885 of 1998 10 thumb impression affixed, though there may be case of defacement of thumb impression. 6. Yet another mistake has been committed by the trial court by comparing the various signatures found affixed as that of the executant in Ext.A1 document overlooking the fact that the document contains not only the signatures of the executant, but also the thumb impression as that of him. No evidence was adduced to show that the thumb impressions does not belong to the executant, except the minor discrepancy brought out at the time of examination of PW2, the scribe. Hence, the trial court ought to have found that the plaintiff had succeeded in proving the due execution of Ext.A1 agreement. 7. The dismissal of amendment application for incorporation of alternative relief of return of advance amount in the suit for specific performance of contract on the ground of delay cannot be sustained in view of the mandate under Section 22 of the Specific Relief Act. It is really an A.S.No.885 of 1998 11 exception to the general proposition that the court can mould relief so as to grant a lesser one on entitlement than the larger relief sought. The proviso attached to sub-section (2) of Section 22 of the Act is obligatory that the court shall allow amendment of the plaint on such terms as may be just for including a claim of return of earnest money, partition, possession etc. arising out of the contract so as to give a complete decree. The proviso attached to Section 22(2) of the Specific Relief Act hence will have overriding effect over the provision dealing with amendment of plaint enumerated in the Code of Civil Procedure i.e. Order VI Rule 17. The reason behind it is that an incorporation of any of the relief made mentioned in clause (a) or (b) of Section 22(1) of the Act will not change the nature and character of the suit and will not cause any prejudice to the parties or change in the evidence to be tendered, even after the incorporation of alternative relief of return of advance amount or the relief annexed A.S.No.885 of 1998 12 with the performance of contract in full and complete. This might be the reason why the legislature has incorporated the proviso to Section 22(2) of the Act with the word “shall” so as to make it mandatory on the court to allow amendment when it is brought under that proviso. Hence, the question of delay in amending the plaint would not arise and it can be done even at the first appellate stage or at the second appellate stage as there is no restriction or time limit imposed anywhere under Section 22 of the Act. Hence,it is obligatory on the court to allow amendment in accordance with the mandate under Section 22(2) of the Specific Relief Act, wherein there is no scope for applying the mandate under Order VI Rule 17 C.P.C.. 8. In the instant case, the amendment application was submitted after the closing of the evidence. Since no further evidence is required in the matter of determination of return of advance amount, which would be a normal consequence flowing 13 A.S.No.885 of 1998 out of the contract for sale, the court is not justified in denying the amendment on the reason that it is belated. Hence, there is failure on the part of the trial court to exercise the statutory obligation under Section 22(2) of the Specific Relief Act. The order dismissing the amendment application is hence set aside. I.A.No.881/1998 will stand allowed. 9. In the instant case, the agreement is dated back to 14/7/1994 and now more than 27 years have elapsed. The original executant passed away in the meanwhile. What is received by way of advance is less than the 30% of the total consideration agreed. As such, in view of the legal position settled in **Antony K.O. and Another** ## **v. M.K.Krishnankutty Menoki and Others (2017(1)KHC** **479 = 2017(1)KLJ 357 = ILR 2017 (1) Ker 444)** , it is not proper to exercise the discretion to grant specific performance. The decree and judgment of the trial court are set aside. The matter is remanded back to the A.S.No.885 of 1998 14 trial court for the limited purpose of deciding the entitlement of refund of the advance amount, for which the parties may be permitted to carry out the amendment in the trial court within the time specified by the court in that behalf. The trial court shall dispose of the suit within a time schedule of three months from the date of appearance of parties. The parties shall appear before the trial court on 03/12/2021. Sd/- ## **P.SOMARAJAN** **JUDGE** SV