Manoj Joseph v. Eronimoose, Paul Joseph, and Jayakrishnan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932** ## **WP(C).No. 2553 of 2008(D)** **-------------------------------------** **AGAINST THE ORDER DATED 11/12/2007 IN IA.6013/07 IN OS.136/2000 of I ADDL. MUNSIFF COURT, ERNAKULAM** **....................** **PETITIONER(S):** **-----------------------** **MANOJ JOSEPH, S/O.JOSEPH, KAPADAKKATTU HOUSE, CHETHIKODU DESOM, EDAKKATTUVAYAL VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** **BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR** **RESPONDENT(S):** **-------------------------** **1. ERONIMOSE, S/O.OUSEPH, THACHAPPILLY HOUSE, PONJIKKARA DESOM, MULAVUKAD VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** **2. PAUL JOSEPH, S/O.JOSEPH, CHEERAKATHU HOUSE, M.M. MATHEW LANE, POTTAKKUZHI ROAD, KALOOR, ERNAKULAM VILLAGE, KANAYANNUR TALUK.** **3. JAYAKRISHNAN, S/O.RAMACHANDRA KURUP, KOTTANATTU, MANIMALA ROAD, KOCHI – 24.** **R1 BY ADV. SRI.ABRAHAM P.GEORGE, SMT.K.V.LEKSHMY.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/07/2010,ALONG WITH WPC NO. 2562 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 2553/2008-D** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE COMPORMISED PETITION FILED BY THE PLAINTIFF AND DEFENDATNS IN O.S.136/2000, DATED 17/03/2006.** **EXT.P2: COPY OF THE COMPROMISE DECREE, DATED 17/03/2006 IN O.S.136/2000, MUNSIFF'S COURT, ERNAKULAM** **EXT.P3: COPY OF THE AFFIDAVIT AND PETITION (I.A.6013/2007) FILED BY THE 1ST RESPONDENT BEFORE THE MUNSIFF'S COURT, ERNAKULAM.** **EXT.P4: COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER IN I.A.6013/2007 IN O.S.136/2000, MUNSIFF'S COUT, ERNAKULAM.** **EXT.P5: COPY OF THE ORDER DATED 11/12/2007 IN I.A.6013/2007 IN O.S.136/2000, MUNSIFF'S COURT, ERNAKULAM.** ## **RESPONDENT'S EXHIBITS: NIL** **//TRUE COPY//** **P.A. TO JUDGE** **rs.** ## **THOMAS P JOSEPH, J.** ## **----------------------------------------** **W.P.C.Nos.2553 and 2562 of 2008** **--------------------------------------Dated this 28[th] day of July, 2010** ## **JUDGMENT** These writ petitions are filed by plaintiff in O.S.Nos.136 and 133 of 2000 respectively of the court of learned Principal Munsiff-I, Ernakulam. It is the case of plaintiff that on 31-03-1999 defendant No.1 in these cases agreed to sell the suit properties to defendant No.3 and while so, defendant No.1 executed a power of attorney in favour of defendant No.2. On 08-11-1999 defendant No.1 in these cases through power of attorney (defendant No.2) executed sale deeds in respect of suit property in favour of plaintiff as nominees of defendant No.3. At that time, plaintiff permitted defendant No.1 in these cases to continue residence in the building in the suit properties on condition that he will vacate the building on expiry of the time agreed. Since defendant No.1 did not vacate as agreed, plaintiff filed the suits above referred seeking mandatory injunction to direct defendant No.1 in these cases to vacate the building in the suit property. Defendant No.1 while resisting the suit made a counter claim for a declaration that power of attorney executed by them in favour of defendant No.2 is not valid, registered agreement for sale in favour of W.P.C.Nos.2553 and 2562 of 2008 : 2 : defendant No.3 was not intended to sell the property but meant to be a security for the loan availed by them and for other reliefs. It is the contention of defendant No.1 (in these cases) that they, for rendering financial assistance to a close relative of their's had availed a loan of Rs.1,50,000/- from defendant No.2 and as security documents above referred were executed. It was also their contention that notwithstanding the agreement and sale deed they continued in possession and enjoyment of the suit properties as absolute owners. While so parties entered into an agreement (Ext.P1 in the writ petitions) as per which they settled the dispute. It was agreed that defendant No.1 in the cases withdrew their contention in the written statements and counter claim and that they have no objection in the suits being decreed in favour of plaintiff. Plaintiff agreed that if defendant No.1 in the cases paid aggregate sum of Rs.3,50,000/- within a period of six months from the date of agreement (17-03-2006) plaintiff shall not execute the decree in the cases. Plaintiff also agreed that on receipt of the said amount within time stipulated he will execute the deed of re-conveyance in respect of the suit property in favour of defendant No.1. If the latter did not pay the amount plaintiff could execute the decree (passed pursuant to the W.P.C.Nos.2553 and 2562 of 2008 : 3 : compromise). It is the admitted case of both parties that compromise decree was passed in both the suits as per which defendant No.1 in the suits were to pay/deposit a sum of Rs.3,50,000/- on or before 16-09-2006. However, defendant No.1 did not pay/deposit the amount within the said time. In the meantime plaintiff launched execution of the decree in both the cases and on 07-07-2007 there was an order for delivery of property. Defendant No.1 in both the cases sought review of the said order. While so, they filed Ext.P3, application on 25-07-2007 seeking extension of time for deposit of the amount as stated in the compromise statement and decree. Those applications were opposed by plaintiff on several grounds including that court could not extent the time fixed as per compromise. Plaintiff also contended that there was no reason why time should be extended as prayed for and that he is entitled to execute the decree in terms of compromise and decree. Learned Munsiff disposed of Ext.P3, applications vide Ext.P5, common order dated 11-12-2007 whereby applications were allowed and defendant No.1 in both the cases were directed to deposit a sum of Rs.3,50,000/- with interest @12% from the date of default till deposit to be paid within the period of one week W.P.C.Nos.2553 and 2562 of 2008 : 4 : from 11-12-2007. Learned counsel for defendant No.1 contends that deposit was made even as on the date of Ext.P3, application on 25-07-2007 (but this is contested by learned counsel for plaintiff). It is however not disputed by either side that the sum of Rs.3,50,000/- with interest as directed by the learned Munsiff in Ext.P5, order was deposited within the time granted by Ext.P5, order. That common order is under challenge in these writ petitions. Learned counsel for petitioner/plaintiff contend that there was no justifiable reason and certainly the present case was not a rare case where the court could rewrite terms of agreement and extent the time for deposit of the amount. Learned counsel has invited my attention to the observation made by the Supreme Court in paragraph 4 of the decision relied on by learned counsel in **Smt. Periyakkal and Ors. vs. Smt. Dakshyani (AIR 1983 SC 428)** . Learned counsel points out that the court below did not take into account the fact that there is an executable decree in favour of petitioner/plaintiff on defendant No.1 in the cases defaulting payment of the amount. That right of petitioner/plaintiff could taken away only for valid reason. Learned counsel for defendant No.1 apart from decision of the Supreme Court referred supra has also relied on the decision in W.P.C.Nos.2553 and 2562 of 2008 : 5 : ## **Thambikunju Elyas Vs. Abdul Razak Shukoor (1999(1) KLT** **770)** and contends that even under Section 151 of the Code of Civil Procedure, it is within the power of court to extent time in accordance with the facts and circumstances of the case. According to learned counsel, facts and circumstances proved in the cases are such that indulgence of the court was necessary in favour of defendant No.1 and to relieve them of forfeiture clause mentioned in the compromise decree. 2. True, Supreme Court while deciding **Smt. Periyakkal and Ors. vs. Smt. Dakshyani (supra)** has observed in paragraph 4 that though it is within the power of court to extent time referred to in the decree though it has emanated from the compromise agreed to between parties and though courts do not generally rewrite the agreement between parties it is open to the court to do so but such power has to be exercised by the court in rare cases to prevent manifest injustice to the parties concerned. It is stated that the court has no power to rewrite the contract but court would relieve parties against a forfeiture clause in appropriate circumstances. Principle laid down by this court in ## **Thambikunju Elyas Vs. Abdul Razak Shukoor (supra)** is also the same. Now the question is whether having regard to the W.P.C.Nos.2553 and 2562 of 2008 : 6 : principles laid down in the decisions referred to above learned Munsiff was justified in allowing Ext.P3, applications (in both cases). 3. To decide that, it is necessary to refer to the facts of the cases. No doubt, petitioner has a case that a sale deed was executed in his favour by defendant No.2 on the strength of power of attorney allegedly executed by defendant No.1 and as nominees of defendant No.3 to whom defendant No.1 had executed an agreement for sale. It is also his case that it was on the compromise agreement reached between himself and defendant No.1 in these cases that the latter were permitted to continue their occupation of the building in the suit property. But the case pleaded by defendant No.1 in these cases is that they availed a loan of Rs.1,50,000/- from defendant No.2 to help a close relative of their's in his difficult situation and that it was only as a security for the said loan that a power of attorney and agreement for sale was executed. It is also their contention that they had paid a major portion of the interest payable on the said amount. But, petitioner/plaintiff was not satisfied with that and instituted the suit for mandatory injunction. Those circumstances necessitated their resisting the suit and making counter claim in W.P.C.Nos.2553 and 2562 of 2008 : 7 : the suits. It is true that petitioner disputes the above contentions. But there are certain circumstances which loom large in the case. It is not disputed that these properties are only the items of properties belonging to defendant No.1 in these cases. It is also not disputed that even after the impugned sale deeds defendant No.1 continued their occupation or possession of the building in the suit property, according to them they continued to be in possession of the entire property and not merely the building alone. It is in the above circumstances that compromise was entered into by petitioner/plaintiff who was satisfied with getting Rs.3,50,000/- in which case he was not to execute the decrees he obtained and even agreed to execute reconveyance of the suit properties. It is therefore clear that even as per the compromise decree that followed, ultimate aim of petitioner/plaintiff was not to get possession of the property from defendant No.1 but to get the sum of Rs.3,50,000/-. Evidence of PW1 in these cases is that they have no property except the suit property. It is also stated by learned counsel that on the hope that they can raise the amount within the time stipulated by compromise and decree and they can get the sale deeds executed in their respective names they purchased non judicial stamp W.P.C.Nos.2553 and 2562 of 2008 : 8 : papers but, being unable to raise the sum of Rs.3,50,000/-, they had to get refund of the same by surrendering non judicial stamp papers as revealed from Ext.X1. Ext.X1 justifies the contention of defendant No.1 in these cases that they had the bonafide intention to get aback property by getting the sale deeds in their names before expiry of time stipulated. There is no reason to think, and at any rate there is no circumstance to come to a conclusion that it was the ulterior motives that defendant No.1 in these cases failed to get sale deed executed within the time aforesaid. The effect of learned Munsiff refusing to allow Ext.P3, application would be that defendant No.1 in these case would loose their only property forever. It is in these circumstances that learned Munsiff has allowed Ext.P3, application vide Ext.P5, common order. Having regard to the facts and circumstances of the case I am persuaded to think that as the Supreme Court pointed out in paragraph 4 of **Smt. Periyakkal and Ors. vs. Smt. Dakshyani (supra)** this is a case where if the court did not come to the rescue of defendant No.1, result will be manifest injustice in that they will loose their only property where they are residing. On the other hand no such injustice will be caused to the petitioner/plaintiff in that, he had also agreed not to execute W.P.C.Nos.2553 and 2562 of 2008 : 9 : decrees in favour of defendant No.1 on receipt of the amount and the loss that has been caused to the petitioner/plaintiff by non payment of the amount by the stipulated time has been compensated by learned Musniff directing defendant No.1 to pay the amount with interest @12% per annum from the date of default till deposit. Thus grievance of petitioner/plaintiff stands redressed. Having regard to these aspects and also considering the fact that learned Munsiff has exercised the discretion in accordance with the known principles of law governing the issue in favour of defendant No.1 in these cases I do not find reason to interfere with Ext.P5, common order. Resultantly writ petitions fail and are accordingly dismissed. **(THOMAS P JOSEPH, JUDGE)** Sbna/-