Rajesh Sudersan v. Sivaram E.R. and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 6[TH] DAY OF DECEMBER 2023 / 15TH AGRAHAYANA, 1945 ``` ## **`RFA NO. 328 OF 2016`** ``` AGAINST THE ORDER/JUDGMENT OS 541/2013 OF ASSISTANT SESSIONS ``` ## **`COURT/SUB COURT, CHAVAKKAD`** ## **`APPELLANT/PLAINTIFF:`** ``` RAJESH SUDERSAN AGED 31 YEARS, S/O.ERATTU RAMAKRISHNAN, KAZHIMBRAM DESOM, PALLIPRAM AMSOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. BY ADVS. SRI.K.S.BHARATHAN SMT.S.ANJUSHA ``` ## **`RESPONDENTS/DEFENDANTS 2 TO 9:`** - `1 SIVARAMAN E.R. AGED 62 YEARS, S/O.LATE ERATTU RAGHAVAN, KAZHIMBRAM DESOM, VALAPPAD VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT-680 506` - `2 THAMBI E.R. AGED 57 YEARS, S/O.LATE ERATTU RAGHAVAN, KAZHIMBRAM DESOM, VALAPPAD VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT.` ``` 3SAVITHRI MURALIDHARAN AGED 52 YEARS W/O.KAITHAVALAPPIL MURALEEDHARAN, KAZHIMBRAM DESOM, VALAPPAD VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT. ``` - `4 RAMACHANDRAN E.R. AGED 50 YEARS S/O.LATE ERATTU RAGHAVAN, KAZHIMBRAM DESOM, VALAPPAD VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT.` - `5 USHA ASOKAN AGED 47 YEARS W/O.LATE NEDIYIRIPPIL ASOKAN, PUTHUVAIPPU (PO), VIA MURUKKUMPADAM, ERNAKULAM DISTRICT. 680 506` - `6 BABU.E.R. AGED 45 YEARS S/O.LATE ERATTU RAGHAVAN, KAZHIMBRAM DESOM, VALAPPAD VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT.680 506` - `7 SUDHEENDRAN E.R AGED 42 YEARS S/O.LATE ERATTU RAGHAVAN, KAZHIMBRAM DESOM, VALAPPAD` ``` RFA NO. 328 OF 2016 ``` ``` 2 ``` ``` VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT.680 506 8SOBHANA ARAVINDAKSHAN AGED 40 YEARS W/O.KAVUNGAL ARAVINDAKSHAN, D/O.LATE ERATTU RAGHAVAN, KAZHIMBRAM DESOM, VALAPPAD VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT. ``` ``` BY ADV T.N SURESH ``` DHANUJA VETTATHU, MONSY.K.V --FOR RESPONDENT Nos.1,2,3,4,5,8 ``` THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 06.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RFA NO. 328 OF 2016 ``` ``` 3 ``` ## **K.BABU, J.** ------------------------------------ ## **R.F.A.No.328 of 2016 -------------------------------------Dated this the 6[th] day of December, 2023** ## **J U D G M E N T** The plaintiff in O.S.No.541 of 2013 on the file of the Subordinate Judges’ Court, Chavakkad challenges the decree and judgment passed in a suit for specific performance. 2. The plaintiff pleaded that on 24.05.2008, by way of an agreement, the defendants agreed to sell the plaint schedule property to the plaintiff for a total consideration of Rs.12,00,000/-. Rs.8,00,000/- was given as advance. Defendant No.1 resisted the pleadings by filing a written statement, inter alia, challenging that the agreement relied on by the plaintiff is not genuine. He further contented that on 21.05.2008 Shri. Thambi, one of his issues, had fraudulently taken possession of the title deeds in respect of the property and handed over the same to the plaintiff and at the instigation of Shri.Thambi, the suit was instituted. Defendant No.1 further contented that the entire property was dealt with in three other title deeds bearing ``` RFA NO. 328 OF 2016 ``` ``` 4 ``` Nos.2140/2008, 2139/2008 and 2138/2008 and that the properties are in the possession of strangers. Defendant No.1 specifically contented that the agreement relied on by the plaintiff is a forged one. In the trial court, though defendant No.1 filed a written statement, during the pendency of the suit he died. His Legal Representatives were impleaded as additional defendant Nos. 2 to 9. When the case was taken up for trial, the defendants remained ex parte. ## 3. The Trial court passed the impugned judgment and decree, which reads thus:- “Suit for specific performance and in the alternate relief for return of advance amount. 2. Defendants declared ex parte. PW 1 was examined and Exts.A1 to A4 were marked. In the absence of contra evidence, the suit claim stands proved. Considering the entire inputs, granting the alternate relief would be sufficient to meet the ends of justice. In the result, a) Suit is decreed. b) Plaintiff is allowed to realise an amount of Rs.8,00,000/- (Rupees eight lakhs only) together with 12% interest per annum from 24.05.2008 till the date of decree and thereafter at the rate of 6% per annum till realisation c) Plaintiff is entitled to get the costs of the suit as well. d) There will be charge over the plaint schedule property for the decree debt.” ``` RFA NO. 328 OF 2016 ``` ``` 5 ``` 4. The trial court has not taken into account the contentions raised by defendant No.1 in the written statement, though it declined to grant specific performance. 5. A Division Bench of this Court in **Centre for Management Development and Panayam Gramapanchayat [2017 (1) KLT 609 ]** had dealt with a similar situation and laid down the procedure to be followed when the defendant remains ex parte. The relevant paragraphs of the judgment are extracted below:- "6. Rule 10 enables the court to pronounce a judgment against the defendant or to make such orders in relation to the suit as it think fit and to draw up a decree on pronouncement of judgment, when there is failure on the part of the defendant to submit his written statement within the time permitted or fixed by the court as required under Rule 1 or Rule 9 of Order VIII CPC. Needless to say that Rule 1 stands for submission of written statement and the time specified is 30 days. Proviso enables the court to extend the time up to 90 days from the date of service of summons. Rule 9 deals with the subsequent pleadings by way of additional written statement with the leave of court other than by way of defence to set off or counter claim. Rule 10 shall not be misunderstood as the enabling provision mandating the court to pass a judgment against the defendant invariably in all cases. It is really procedural law in effect. It has to read along with Rule 5 of Order VIII CPC . 7. Sub rule 1 of Rule 5 of Order VIII CPC deals with what amounts to admissions of fact in a pleading. What the rule says is that any allegation of fact must either be denied specifically or by necessary implication or there should be a statement that the fact is not admitted. The provisio to subrule 1 of Rule 5 says that even in such situation the court may in its discretion require any fact so admitted to be proved otherwise than by such admission. The proviso attached to Rule 5(1) of Order VIII CPC is really an exception to the general rule that the admitted fact need not be ``` RFA NO. 328 OF 2016 ``` ``` 6 ``` proved. The legislative intention is well explicit and clear by the incorporation of an exception to the general principle that the admitted fact need not be proved in the proviso attached to Rule 5(1) of Order VIII CPC. That would clearly show the duty cast on a court while dealing with a case which would fall under Order VIII Rule 5 CPC. The Rule of utmost caution incorporated in the proviso to Rule (5) (1) of Order VIII CPC to enable the court to exercise its discretion in the matter of proof, irrespective of the fact of admission, if any made, or caused to be made under Rule 5. So, the court is expected to exercise its discretion while pronouncing the judgment by virtue of power under Rule 5 of Order VIII CPC so as to satisfy itself with respect to the probative value of document and evidence adduced by the plaintiff in support of the pleading in the plaint. It is not permissible to pronounce a judgment by simply receiving a proof affidavit and document without looking into its content, its probative value, nature of document, admissibility of document etc. 10. It is brought to our notice that the written statement was filed in time. Nothing is mentioned in the impugned order with respect to the written statement submitted or with respect to the question of any admission, denial of pleadings of the plaintiff either specifically or impliedly. No discussion is made with respect to any admission or exercise of discretion, or the nature of document produced or its admissibility. Further, in a case wherein the written statement was filed and thereafter the defendant remained ex parte, it is the duty of the court to look into the pleading raised in the written statement, so as to have an appreciation with respect to the requirement under Rule 5 of Order VIII CPC including the specific denial of pleading of plaintiff, if any, or admission, if any, thereof." 6. It appears that the court below has ignored the principles laid down by the Division Bench of this Court in **Centre for Management Development.** 7 **.** Reasons for the findings are the life of a judgment. A Division Bench of this Court in **V.B. Sherla** ``` RFA NO. 328 OF 2016 ``` ``` 7 ``` ## **and Ors. v. Punjab National Bank and Ors** . **[FAO.** **304/2007]** , while dealing with a case where the trial Court failed to give reasons to the conclusions, held thus:- 15. Providing reasons in orders is an essential attribute of judicial proceedings. The reason is the very life of the law. Every litigant who approaches the court with a prayer is entitled to know the reasons for acceptance or rejection of such prayer. Reasons are also essential for either of the parties to the lis to make the remedy of appeal meaningful. It is the reasoning which ultimately culminates into a final decision which may be subject to examination of the higher courts. 16. While highlighting the principle that, to give reasons is the rule of natural justice, the Apex Court in the **Secretary & Curator, Victoria Memorial v. Howrah Ganatantrik Nagrik Samity and others [AIR 2010 SC 1285]** held that, not only administrative but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of an order and exercise of judicial power by a judicial forum is to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration justice-delivery system, to make known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of principles of natural justice. The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before Courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the Court concerned had really applied its mind. The Apex Court further held that absence of reasons renders the order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. It was further held that the recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and ``` RFA NO. 328 OF 2016 ``` ``` 8 ``` fairness in decision making. The person who is adversely affected may know, as why his application has been rejected. 17. In **Jawahar Lal Singh v. Naresh Singh [(1987) 2 SCC 222]** the Apex Court held that recording of proper reasons would be essential, so that the appellate court would have advantage of considering the considered opinion of the High Court on the reasons which had weighed with the trial court. 18. In **State of Orissa v. Dhaniram Luhar [(2004) 5 SCC 568]** the Apex Court held that reasons in support of the decision is cardinal principle and right to reason is an indispensable part of a sound judicial system. 19. In **State of Rajasthan v. Rajendra Prasad Jain [(2008) 15 SCC 711]** the Apex Court held that reason is the heartbeat of every conclusion, and without the same it becomes lifeless. 20. In **Assistant Commissioner, Commissioner Tax Department v. Shukla and Brothers (2010 KHC 4260)** , the Apex Court held that, the principle of natural justice has twin ingredients; firstly, the person who is likely to be adversely affected by the action of the authorities should be given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion showing proper application of mind. 8. In a suit for specific performance of the contract, the court is expected to address the mandate under Sections 16 and 20 of the Specific Relief Act, 1963. While dealing with a similar fact situation, this Court in **Shahul Hameed v. Johny [2021 (6) KLT 816]** held thus:- - “ 6. When the suit is one for specific performance of the contract, the court must also address the mandate under Sections 16 and 20 of the Specific Relief Act, 1963 and ``` RFA NO. 328 OF 2016 ``` ``` 9 ``` its requirement even in a case wherein the defendant remained ex parte or absent. The courts cannot wriggle out of the liability to address the statutory mandate under Sections 16 and 20 of the Act. Before granting specific performance, it is the duty of the court to ascertain whether there is any sufficient pleading and proof regarding readiness and willingness as mandated under Section 16 of the Act. Further, the court must also address the discretion to be exercised as embodied under Section 20 of the Act before passing a decree of specific performance.” 9. In the present case, the trial Court did not care to mention the various contentions raised in the written statement and even the pleadings in the plaint. 10. On the parameters to be applied while considering the question of remand in a proceedings, a Constitution Bench of the Supreme Court in **Sankararamaiah A v. M.S.Lakshminarayanamoorty and Ors. [MANU/ SC/0446/1962:2016 (5)KHC 87]** held thus:- “7. An order remanding a proceeding may ordinarily be made under Order 41 Rule 23 of the Code of Civil Procedure when the Trial Court had decided the case on a preliminary point and the Appellate Court reverses the decision of the Trial Court. An order of retrial after remand may also be made in exercise of the inherent jurisdiction of the Court where the Court of appeal is satisfied that there has been no proper trial or no complete or effectual adjudication of the proceedings and the party complaining of the error or omission or irregularity has suffered material prejudice on that account. Such an order may also be made to prevent abuse of the process of Court. But power to ``` RFA NO. 328 OF 2016 ``` ``` 10 ``` order retrial after remand, where there has already been a trial on evidence before the Court of first instance, cannot be exercised merely because the Appellate Court is of the view that the parties who could lead better evidence in the Court of first instance have failed to do so. A trial de novo, after setting aside a final order passed by the Court of first instance may therefore by made in exceptional circumstance, where there has been no real trial of the proceeding, or where allowing the order to stand would result in abuse of the process of Court. The District Court did not decide the appeals on the merits, but merely ordered that the cases be remanded for retrial. In so ordering, in our judgment, the District Court acted illegally and with material irregularity in the exercise of its jurisdiction. Manifestly neither the statutory jurisdiction nor the inherent jurisdiction of the Court to direct a rehearing and retrial could be invoked. The High Court has considered the merits of the dispute between the parties and has agreed with the conclusion of the Trial Court that the appellant failed to prove his case that the arbitrators had mis-conducted themselves in the course of the arbitration proceeding. We see no reason to enter upon a reappraisal of the evidence, which the Court of first instance, and the High Court had appraised, especially when they have recorded concurrent opinions.” 11. In the present case, there has been no real trial or effectual adjudication of the proceedings. This has caused prejudice to both sides. The only course open to this Court is to remit the matter to the trial court for consideration afresh. ``` RFA NO. 328 OF 2016 ``` ``` 11 ``` In the result, the appeal is allowed. The judgment and decree dated 12.12.2014 are set aside. The original suit is remanded back to the trial Court for consideration afresh. The parties are directed to appear before the Court below on 15.01.2024. The court below shall dispose of the suit within three months from the date of receipt of a certified copy of this judgment. **Sd/-** **K.BABU, JUDGE** saap