Nalini v. Sherry Joseph & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN &** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** ## **FRIDAY, THE 29TH OCTOBER 2010 / 7TH KARTHIKA 1932** **RFA.No. 116 of 2010() (INDIGENT)** **( AGAINST THE JUDGEMENT IN OS NO.299/2008 DATED 20.3.2009 SUB COURT, ALAPPUZHA )** **....................** **APPELLANT/DEFENDANT NO.1** **---------------------------------------------** **NALINI, W/O.LATE GANGADHARAN, KUNDATHIL PURAYIDAM, THIRUMALA WARD, ALAPPUZHA MURI, MULLACKAL VILLAGE.** **BY ADVS. SRI.GEORGE SEBASTIAN SRI.V.MAHENDRANATH SMT.NALINI (PARTY IN PERSON).** ## **RESPONDENTS/PLAINTIFF AND DEFENDANTS 2-11:** **----------------------------------------------------------------------------** **1. SHERRY JOSEPH, S/O.LATE JOSEPH, KUNDATHIL HOUSE, ALAPPUZHA MURI, MULLACKAL VILLAGE.** **2. VASANTHI, D/O.LATE GANGADHARAN, KUNDATHIL PURAYIDAM, THIRUMALA WARD, ALAPPUZHA MURI, MULLACKAL VILLAGE.** **3. PADMAJAN, S/O.LATE GANGADHARAN, KUNDATHIL PURAYIDAM, THIRUMALA WARD, ALAPPUZHA MURI, MULLACKAL VILLAGE.** **4. BABU, S/O.LATE GANGADHARAN, KUNDATHIL PURAYIDAM, THIRUMALA WARD, ALAPPUZHA MURI, MULLACKAL VILLAGE.** **5. JAYANTHI, D/O. LATE GANGADHARAN, KUNDATHIL PURAYIDAM, THIRUMALA WARD, ALAPPUZHA MURI, MULLACKAL VILLAGE.** **6. ANADHI, D/O. LATE GANGADHARAN, KUNDATHIL PURAYIDAM, THIRUMALA WARD, ALAPPUZHA MURI, MULLACKAL VILLAGE.** **7. GANESH, D/O. LATE GANGADHARAN, KUNDATHIL PURAYIDAM, THIRUMALA WARD, ALAPPUZHA MURI, MULLACKAL VILLAGE.** **-2-** **8. SUNANDHI, D/O. LATE GANGADHARAN, KUNDATHIL PURAYIDAM, THIRUMALA WARD, ALAPPUZHA MURI, MULLACKAL VILLAGE.** **9. SARAVANAN, S /O. LATE GANGADHARAN, KUNDATHIL PURAYIDAM, THIRUMALA WARD, ALAPPUZHA MURI, MULLACKAL VILLAGE.** **10. THANKAMANI, D/O. LATE GANGADHARAN, KUNDATHIL PURAYIDAM, THIRUMALA WARD, ALAPPUZHA MURI, MULLACKAL VILLAGE.** **11. SANTHI, S/O. LATE GANGADHARAN, KUNDATHIL PURAYIDAM, THIRUMALA WARD, ALAPPUZHA MURI, MULLACKAL VILLAGE.** ## **R1 BY ADVS. SRI.A.KRISHNAN** ## **SRI.V.SATHEESH** **R2 & 5 TO 11 BY ADV. SRI.EGY.N.ELIAS** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 29/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **VK** ## Thottathil B.Radhakrishnan ## & ## P.Bhavadasan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = R.F.A.No.116 of 2010 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 29[th ] day of October, 2010. ## Judgment ## Thottathil B.Radhakrishnan, J. 1.The first defendant in a suit for specific performance of a contract for sale is the appellant. She is the mother of the other defendants who are 10 in number. The suit property is a piece of 12.5 cents in Alappuzha town, that is to say, in an area called Mullackal. The plaintiff owns the properties on the south, east and north of the suit property. He has a resort thereon. On 5.12.2007, all the defendants admittedly entered into an agreement whereby they agreed to sell the plaint schedule property for a total consideration of Rs.14,10,000/- to the plaintiff. On allegation RFA116/2010 -: 2 :- that defendants have failed to perform their part of the contract, the plaintiff sued by filing the suit on 21.5.2008. The suit was decreed on 20.3.2009 overruling the contentions, including as regards the plea that defendants 1 and 9 are residing in the building in the suit property. 2.In this appeal by the first defendant, the fundamental plea projected is that the court below has failed to exercise its discretionary jurisdiction in terms of the provisions of the Special Relief Act. It is pointed out that having regard to the fact that defendants 1 and 9 have no other place of residence, the decree for specific performance ought to have been refused. Learned counsel for the appellant also very persuasively states that with the passage of time, the price of land in the area has gone up. He says that had the court below appropriately exercised its discretion and thereby refused specific performance, the first defendant would have had a residence of hers in her old age. Relying on the decision in Alias v. RFA116/2010 -: 3 :- Aboobacker, 2006(4) KLT 282 and the various precedents therein, in particular, Lalithambika v. Varghese, 2004(3) KLT 892, it was argued that the case in hand is similar to the one that fell for consideration in Alias(supra) and on facts, the materials tend to show that it ought to be presumed that the plaintiff was in a dominating position as far as the execution of the agreement is concerned and this is one of the reasons on which the specific performance ought to have been refused. 3.Per contra, the learned counsel for the first respondent-plaintiff argued that on the totality of the facts and circumstances, the appealing defendant no.1 does not demonstrate any plea of her own. He says that the first defendant did not tender any evidence before the court below and the entire exercise, including the filing of the appeal in forma pauperis is the mechanisation of the 9[th] defendant who alone had tendered evidence on behalf of the defendants. He further pointed out that defendants 3 to 6 had filed written statement RFA116/2010 -: 4 :- before the court below agreeing to convey the property for the agreed price. He further argued that the defendants had no contention before the court below regarding the price fixed for the property and that there was no question of any escalation affecting the exercise of discretion because the agreement was on 5.12.2007 and the period fixed for performance was three months and the suit was filed promptly on 21.5.2008 and as of now, it stands decreed on 20.3.2009 following which documentation was already effected and the matter is listed for delivery. 4.The learned counsel for the appellant may be right in saying that in exercise of discretion, the defence taken as against the conditions of the agreement or even denial of agreement may not necessarily be the dissuading factor against the defendant. However, we may notice that in the case in hand, even if we were to assume that the plaintiff could have been non-suited on the allegation of breach by him, the defendants had no RFA116/2010 -: 5 :- contention before the court below that the pricing of the property for the purpose of the agreed sale was, in any manner, against their interest. Defendants 1 and 9 very well knew that they were residing in the building in question. However, they had refused to sell the property only because of the plaintiff not performing his part of the agreement. We may notice that an amount of Rs.2 lakhs was taken as advance. With this, we have necessarily to infer that the thrust of the case of the defendants before the court below, including that of the appealing first defendant, was not a plea requesting that the discretion be exercised against specific performance. Under such circumstances, we do not find any ground to hold that the discretion exercised by the court below in ordering specific performance is bad. 5.However, having given our anxious consideration to the entire facts of the case, we notice that the first defendant who has filed this appeal in forma pauperis is an elderly person and a woman seeking RFA116/2010 -: 6 :- to sustain herself and the ultimate intention appears to be that she needs more funds for her livelihood. Under such circumstances, we put it to the parties, particularly the plaintiff, as to whether he would provide a lumpsum payment for the appealing first defendant, not as part of consideration, but as a deposit in her name which she could utilise of her own choice. It has been fairly suggested by the learned counsel for the first respondent- plaintiff with the concurrence of his client that the first defendant could be paid an amount of Rs.1.5 lakhs in such manner, however being treated as part of consideration. This is recorded. This means that the further proceedings before the court below on the basis of the impugned direction for specific performance and any consequential documentation will be subject to the plaintiff producing before the court below a fixed deposit for a minimum term for an amount of Rs.1.5 lakhs drawn in the name of the first defendant on a nationalised bank in Alappuzha, within three weeks. The first defendant can be dispossessed only after RFA116/2010 -: 7 :- six weeks provided she gives undertaking by way of affidavit. It is clarified that all other defendants can be dispossessed immediately. 6.To give effect to the aforesaid direction, we deem it appropriate to remit the case for further consideration without vacating the judgment but adding the directions herein above. In the result, we remit this case as aforesaid. We are also of the view that in the interregnum, the appellant would not be compelled to pay any court fee as we also order of refund on remit. Hence, we direct that no court fee is leviable from the appellant in so far as this first appeal is concerned. RFA ordered accordingly. **==> picture [215 x 26] intentionally omitted <==** Judge. Sha/1611 Sd/P.Bhavadasan, Judge.