Omana Mathai v. K. Joseph Easo

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.UBAID FRIDAY, THE 3RD DAY OF JANUARY 2014/13TH POUSHA, 1935 RFA.No. 542 of 2008 ( A) --------------------------------- AGAINST THE JUDGMENT IN OS 78/2002 of II ADDL.SUB COURT,TRIVANDRUM DATED 26-07-2002 APPELLANT : - ---------------------- OMANA MATHAI, W/o M.K.THOMAS, TC.2/2166, ADARSH NAGAR, PATTOM, THIRUVANANTHAPURAM. BY ADV. SRI.MATHEW SEBASTIAN RESPONDENT : - ------------------------ K.JOSEPH EASO, S/O.JOSEPH, TC.2/2166, ADARSH NAGAR, PATTOM, THIRUVANANTHAPURAM. BY ADV. SRI.M.BALAGOVINDAN BY ADV. SRI.S.MOHAMMED AL RAFI THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03-01-2014. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RFA.No. 542 of 2008 ( A) --------------------------------- ## **APPENDIX** ## APPELLANT'S ANNEXURE :- ANNEXURE I : CERTIFIED COPY OF THE AGREEMENT DATED 02.06.2001. RESPONDENT'S ANNEXURES : ANNEXURE A : COPY OF THE ORDER OF INJUNCTION PASSED BY THE SUB COURT, THIRUVANANTHAPURAM ALONG WITH THE REPORT OF THE OFFICER OF THE COURT. ANNEXURE B : COPY OF THE JUDGMENT IN O.S. 78/2002 OF THE 2[nd] ADDL. SUB COURT, THIRUVANANTHAPURAM. ANNEXURE C : COPY OF THE ORDER IN I.A. 4909/2002 OF THE 2[nd] ADDL. SUB COURT, THIRUVANANTHAPURAM. ANNEXURE D : COPY OF THE AFFIDAVIT SWORN BY THE APPELLANT FOR CONDONATION OF DELAY DATED 27.06.2005. ANNEXURE E : COPY OF THE ORDER CONDONING THE DELAY IN I.A 2453/2005 IN O.S. 78/2002 OF THE 2[nd] ADDL. SUB COURT, THIRUVANANTHAPURAM. ANNEXURE F : COPY OF THE ORDER ALLOWING I.A. 2452/2005 OF THE 2[nd] ADDL. SUB COURT, THIRUVANANTHAPURAM DATED 12.12.2006. ANNEXURE G : TRUE COPY OF THE JUDGMENT IN W.P. 3512/2007 OF THIS HON'BLE COURT. ANNEXURE H : COPY OF THE SALE DEED. ANNEXURE R1 : COPY OF THE ORDER DATED 17.03.2004 IN I.A. 4909/2002 IN O.S. 78/02 ON THE FILE OF IInd ADDL. SUB COURT, THIRUVANANTHAPURAM. ANNEXURE R2 : COPY OF THE ORDER DATED 31.1.2008 IN I.A. No. 2452/05 IN O.S. 78/02 ON THE FILE OF IInd ADDL. SUB COURT, THIRUVANANTHAPURAM. ANNEXURE R3 : COPY OF ORDER DATED 10.7.12 IN F.A.O. 62/08 PASSED BY THIS HON'BLE COURT. ANNEXURE R4 : COPY OF THE LETTER No. 89570/P.U.A3/04/Fin DATED 05.01.2005 ISSUED BY THE PRINCIPAL SECRETARY, FINANCE. // TRUE COPY // P.A. TO JUDGE DMR/- **“C.R.”** ## **THOTTATHIL B. RADHAKRISHNAN &** **P. UBAID, JJ.** --------------------------------------------- **R.F.A. No. 542 of 2008** --------------------------------------------Dated this the 3[rd] day of January, 2014. ## **JUDGMENT** ## Thottathil B. Radhakrishnan, J. - 1.This appeal is against an ex parte decree for specific performance of a contract for sale of immovable property. 2.Appellant had filed an application to set aside the ex parte decree. That was decided against her. She, therefore, filed an appeal to this Court against the order refusing to set aside the ex parte decree. That appeal was allowed to be withdrawn without prejudice to the prosecution of this appeal challenging the decree on merits. So much so, the examination of this appeal would be based on the merits of the substance of the litigation and also from the angle whether the court below could have decided the case without the defendant delivering defence. See for support, Bhanu Kumar v. Archana Kumar [2005 (1) KLT 456 (SC)], R.F.A.542/08 2 Ajith Mathews v. Sheelamma Thomas [2011 (2) KLT 225 (DB)] and Haridas v. Madhavi Amma [1987 (2) KLT 701]. - 3.Plaintiff sued for specific performance of Ext.A1 contract for sale, the recitals of which show that the proposed sale is against part consideration. Not a penny was left as balance consideration due at the sale. Nor was any payment made even on the date of the agreement. Consideration for the proposed sale is showed to have been accounted as against amounts received by the defendant during a spread out span of time. 4.No written statement was filed. One material we have before us on behalf of the appellant is a certificate that she is a deaf and dumb woman. It is stated that she was working in the lowest rank as a Class IV employee in the Government Secretariat. Description of the parties in Ext.A1, indicates that respondent/plaintiff is a retired Professor and that the parties are neighbours. R.F.A.542/08 3 5.With the aforesaid, we looked into the impugned ex parte judgment, reminding ourselves that it is a judgment delivered in a suit for specific performance of a contract for sale, to which the provisions of the Specific Relief Act, 1963, for short, “the Act” apply, also enjoining exercise of judicial discretion in granting such decrees. ## 6.The impugned judgment reads as follows : ## “Suit is for specific performance of contract. Defendant remained absent and is set ex parte. Plaintiff filed affidavit to prove the case. Marked Exts. A1 to A9. Ext.A1 is the agreement of sale of the plaint schedule property. Plaintiff affirmed that the sale consideration was given. I am satisfied that plaintiff is entitled for the decree prayed. In the result it is decreed that plaintiff is entitled for specific performance of contract of sale in respect of plaint schedule property and for costs of the suit from the defendant. Defendant is directed to execute and register sale deed in favour of the plaintiff within 4 months from the date of decree at the costs of the plaintiff. If the defendant did not comply the same, plaintiff can get executed and registered the sale deed through court.” R.F.A.542/08 4 7.The reasoning process in the aforequoted impugned judgment is reflected in the second paragraph thereof. The fact that the defendant remained ex parte is recorded. The judgment proceeds to record that the plaintiff has filed an affidavit to prove the case. The marking of documents is recorded. Ext. A1 is noted as the agreement for sale. All that the learned trial Judge has thereafter noted is that the plaintiff affirmed that sale consideration was given. This reflects that the reasoning process discloses the consideration of the fact that the plaintiff affirmed that sale consideration was given. The judgment then proceeds to say that the learned Judge is satisfied that plaintiff is entitled for the decree prayed for. That sentence in the impugned judgment is only the recording of the satisfaction in that regard, however without stating any reasons whatsoever. This assumes importance because Section 20(1) of the Act enjoins that the jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, R.F.A.542/08 5 guided by judicial principles and capable of correction by a court of appeal. Therefore, the exercise of discretion is a judicial act in terms of that section and that judicial act has to be expressed by stating the reasons which would be discernible from the judgment by a court of appeal if a party were to carry an appeal against the judgment. Without the reasons being expressed by the court of first instance, a court of appeal would be totally handicapped in deciding any appeal against such a judgment and decree. The impugned one is not a consent decree, but an ex parte decree. The eligibility of a litigant to have his appeal considered by a court of appeal is a statutory entitlement in terms of Section 96 of the Code of Civil Procedure. That eligibility is legislatively remembered and reminded while enacting sub-section (1) of Section 20 of the Act. Therefore, when a judgment which is delivered in a suit for specific performance of a contract for sale does not express the reasons, at least, its basic requirements, to exercise the discretion in a particular manner, the decree will not have legs to stand. We may also recall here that whatever is R.F.A.542/08 6 enumerated in sub-section (2) of Section 20 of the Act and different circumstances mentioned in Section 20 are only illustrative and not exhaustive. The circumstances of each case would be matter for consideration and the conduct of parties and respective interests under the contract would also be relevant. For support, see Sardar Singh v. Krishna Devi (smt) and another [(1994) 4 SCC 18]. - 8.Hence, we are of the view that the impugned decree and judgment have necessarily to go, paving way for a reconsideration of the suit de novo. - 9.Here, we may record the submission on behalf of the contesting respondent that his client after obtaining the decree had to clear off some of the debts due to the Kerala Financial Corporation and had incurred very many other liabilities referable to the defendant. He, therefore, says that his client is entitled to the benefit of Section 20(3) of the Act. We are clear in our mind that all these matters can be agitated by further appropriate pleadings and materials R.F.A.542/08 7 before the court of first instance following this order of remand. In the result, this appeal is allowed setting aside the impugned decree and judgment. The suit is remitted to the trial court. The defendant will deliver written statement before the trial court within a period of two months from today. Parties are directed to mark appearance before the court below on 03.02.2014. Having regard to the order of remand being made on ground referable to the manner of adjudication and recording of reasons while delivering the judgment, we order full refund of court fee paid on this appeal. The court below will decide the suit untrammelled by anything stated herein touching the merits of the rival contentions on merits as regards the plea in the suit and the defence set up thereto. ## **THOTTATHIL B. RADHAKRISHNAN, JUDGE** ## **P. UBAID, JUDGE** DMR/-