P.B. Jeeva Kumar v. Biju M. Johny

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A Muhammed Mustaque
Shoba Annamma Eapen Monday
Judgment Date: 2023-01-16
Court Decision / Holding: Appeal not admitted; RFA 76 of 2021 dismissed.
Final Disposition: Appeal dismissed

Parties to the Case

Appellants / Petitioners

P.B.JEEVA KUMAR

Respondents

BIJU M JOHNY

Legal Representation & Advocates

Counsels for Petitioners

• P.B. Krishnan
• Sri P.B. Subramanyan
• Sri Sabu George
• Sri Manu Vyasan Peter

Counsels for Respondents

• P.K. Babu
• CGC
• Smt. T.V. Neema

Case Synopsis & Summary

This Regular First Appeal, RFA No. 76 of 2021, arises from a suit for specific performance of an agreement of sale Ext. A1 dated 06 July 2005, in which the plaintiff contends the defendant failed to perform. The Sub Court decree for specific performance was challenged by the defendant, leading to a remand by this Court to examine the disputed signature after sending Ext. A1 to handwriting experts. The expert report of Forensic Science Laboratory, Trivandrum (PW3) concluded that the disputed signature bears similarity to the admitted signature; the report was relied upon by the court on remand. The defendant had disputed the signature on Ext. A1 and had not admitted all pages; counsel invoked Chandrasekharan Nair v. Olympic Credit Corporation (2014) (2) KLT 242 to argue that an expert opinion must be supported by data and that the opinion alone cannot sustain proof. The plaintiff contends readiness and willingness to perform, and that the defendant did not reply to Ext. A3 notice; the suit was filed in 2006; time extensions via Ext. A2 were granted; after more than 16 years, the trial court’s reasons for granting specific performance were cogent. The High Court, however, declined to admit the appeal, finding no basis to exercise discretionary relief and dismissing the appeal.

Legal Doctrines & Maxims

Discretion in grant of specific performance
Expert opinion on signatures requires supportive data (data part) in addition to opinion part
Burden of proof shifts to the defendant when signatures are proved to be genuine on a document

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the handwriting expert’s report has two parts: data and opinion. Citing Chandrasekharan Nair v. Olympic Credit Corporation (2014) (2) KLT 242, they argue that the opinion part cannot stand without the data part, and that reliance on the expert alone is weak. The appellant asserts that the matter was remanded to obtain expert opinion due to disputes over signatures on Ext.A1; they sought admission of the appeal, arguing that discretionary relief should be exercised in favor of admitting the appeal given long pendency and readiness to perform on the plaintiff’s side.

Contentions of Respondents

The respondent-plaintiff pressed that the expert opinion (PW3) supported that the disputed signature resembles the admitted one, and Ext.A3 notice details show the plaintiff’s attempts to perform. The caveat was entered by the plaintiff. The respondent argued that the lower court’s cogent reasons for granting specific performance should stand, and that the delay of over 16 years weighs against granting discretionary relief to admit the appeal.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Chandrasekharan Nair v. Olympic Credit Corporation	2014 (2) KLT 242	Mentioned Only	Cited by counsel to support argument about expert opinion requiring data, but the present court does not rely on it as a controlling authority in its decision.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN MONDAY, THE 16[TH] DAY OF JANUARY 2023 / 26TH POUSHA, 1944** **RFA NO. 76 OF 2021** **AGAINST THE JUDGMENT & DECREE IN O.S.No.187/2006 OF SUB** ## **COURT,KOTTARAKKARA** **APPELLANT:/DEFENDANT IN O.S** **P.B.JEEVA KUMAR, AGED 57 YEARS, S/O BHANU PANICKER, PUSHPAMANGALATHU HOUSE, BHARANIKKAVU, PUNALUR VILLAGE, KOLLAM DISTRICT, PIN-691305.** **BY ADVS. P.B.KRISHNAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.MANU VYASAN PETER** ## **RESPONDENT:/PLAINTIFF IN O.S** **BIJU M JOHNY, AGED 52 YEARS, S/O JOHNY, RESIDING AT RESHMA VILLA, CHEMMANTHOOR, PUNALUR VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT, PIN-691001.** **BY ADVS. P.K.BABU, CGC SMT.T.V.NEEMA** ## **THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON** **16.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RFA NO. 76 OF 2021** **2** ## **JUDGMENT** Dated this the 16[th] day of January, 2023 A Muhammed Mustaque, J. This appeal has come up for admission today. The defendant in a suit for specific performance is the appellant. This is the 2[nd] round of appeal. The earlier appeal is filed by the defendant. challenging the decree of specific performance, remanded by this Court for a fresh consideration after sending the disputed signature with admitted signature to handwriting experts. This Court remanded the matter, because the defendant had specifically disputed the signature in Ext.A1 sale agreement allegedly to have executed on 06.07.2005. He has admitted the signature in the first page, however he has not admitted the signature in the other pages. Thereafter, the signature in **RFA NO. 76 OF 2021** **3** Ext.A1 sale agreement, and the admitted signature were sent for experts opinion of Forensic Science Laboratory, Trivandrum. Dr.Sumi Mithra, Assistant Director of Forensic Science Laboratory, Trivandrum gave expert report in fvaour of the plaintiff, with opinion that, disputed signature have similarity with admitted signature. The expert was also examined as PW3. 2. The agreement of sale was executed in the year 2005. This Court ordered, remand, taking note of the fact that, in spite of the specific contentions taken by the defendant, who is the appellant herein, no steps were taken to obtain opinion of expert to make comparison of the signature. 3. The learned Counsel for the appellant, placing reliance of judgment of this Court in **Chandrasekharan Nair v. Olympic Credit** **RFA NO. 76 OF 2021** **4** **Corporation []2014 (2) KLT 242],** submitted that the appellant made out a case for admission and the appeal may be admitted. 4. The respondent/plaintiff entered on caveat. 5. Heard the the learned Counsel for the appellant in detail. The learned Counsel submitted that, expert opinion has two parts in a document. One is related to data part and other is opinion part. Placing reliance ondecision in **Chandrasekharan Nair (supra, it** is submitted that, opinion part is used as without data part. It is submitted that, expert opinion on a signature is a weak type of evidence and without there being any proof as to the contents of the document, the court could not have relied on expert opinion. 6. The suit was filed in the year 2006. The agreement of sale stipulated one year **RFA NO. 76 OF 2021** **5** period for performance. It was preceded by a notice which was marked as Ext.A3. Ext.A2 is another agreement extending the time. The total consideration fixed was Rs.45,25,000/-. According to the plaintiff, he had paid Rs.18,00,000/- as advance. It is to be noted that, the defendant was set ex-parte on earlier occasion and consequent upon passing the exparte decree, the plaintiff also appears to have paid balance consideration by depositing it in the court below. 5. It is to be noted that in Ext.A3 notice, it was specifically mentioned the details of agreement including the sale consideration. However, the defendant did not respond to the notice. According to the defendant, he borrowed money from the father of plaintiff, namely Shri. Johny and a signed blank paper was handed over. PW2 is a real **RFA NO. 76 OF 2021** **6** estate agent/broker who claims that he has introduced the plaintiff to the defendant. He testified in favour of plaintiff. According to him, the defendant expresed his willingness to sell the property and accordingly, he introduced the plaintiff to the defendant. It is to be noted that, signatures in Exts.A1 and A2 have been proved. PW2 is the witness. When the signature and the execution of the agreement would stand proved, especially when PW2, who is one of the witnesses, was also examined the matter, the burden then shifts to the defendant to prove that contents were fabricated by converting it to a sale agreement. 6. The learned Counsel for the appellant further argued that, the court ought to have considered the discretion while considering the relief for specific performance. It is true, **RFA NO. 76 OF 2021** **7** merely because, an agreement found to be genuine, the court should not grant a relief of specific performance in favour of the plaintiff. Discretion is an aspect, which would arise on particular facts and circumstances of the case, here is a case, the defendant disputed the signature in the agreement and put forwarded a case of fabrication of agreement for sale. That is found to be false, after the examination of disputed signature by an expert pursuant to remand. The plaintiff was always ready and willing to perform his part of the contract and he had even sent a lawyer notice calling upon the defendant to perform his part of the contract. The defendant even failed to respond to that notice. In such circumstances, there is nothing on record and not to exercise the discretion in **RFA NO. 76 OF 2021** **8** favour of the plaintiff. As already noted, more than 16 years elapsed after the suit. We find no reason to admit this case. The court below has given cogent reasons for granting relief for specific performance. We decline to admit this case and the appeal is dismissed. Sd/- **A MUHAMED MUSTAQUE JUDGE** **Sd/SHOBA ANNAMMA EAPEN JUDGE** SAAP