Seema and Sindhu v. Johny Thomas and Sheela Johny

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH MONDAY, THE 5TH DAY OF NOVEMBER 2012/14TH KARTHIKA 1934 RP.No. 393 of 2012 () IN RSA.NO.1408/2011 --------------------------------------AGAINST THE JUDGMENT IN RSA.1408/2011 DATED 18.01.2012 REVIEW PETITIONER(S)/APPELLANTS: ------------------------------- ## 1. SEEMA BUILDING NO.C.C.40/2439, MUZHANGANTHARA HOUSE, ETTUKATTU TEMPLE ROAD, ELAMAKKARA.P.O., KOCHI-26. ## 2. SINDHU BUILDING NO.C.C.40/2439, MUZHANGANTHARA HOUSE, ETTUKATTU TEMPLE ROAD, ELAMAKKARA.P.O., KOCHI-26. BY SENIOR ADVOCATE SHRI T. KRISHNAN UNNI BY ADV. SRI.PHILIP T.VARGHESE RESPONDENT(S)/RESPONDENTS: -------------------------- 1. JOHNY THOMAS S/O.EYYO THOMAS, PATTUPURACKAL HOUSE, KALOOR DESOM ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM KOCHI-682 017. ## 2. SHEELA JOHNY W/O.JOHNY THOMAS, PATTUPURACKAL HOUSE, KALOOR DESOM ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM KOCHI-682 017. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 05-11-2012, ALONG WITH R.P. NO.1024/2012 AND O.P.(C) NO.3640/2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **THOMAS P.JOSEPH, J.** **==================================== R.P. No.393 of 2012 in R.S.A.No.1408 of 2011, R.P. No.1024 of 2012 in R.S.A.No.991 of 2011 & O.P(C) No.3640 of 2012 ==================================== Dated this the 05[th] day of November, 2012** ## **O R D E R** R.P. No.1024 of 2012 relates to the judgment and decree in R.S.A. No.991 of 2011 while R.P. No.393 of 2012 relates to R.S.A. No.1408 of 2011. Since the learned Senior Advocate appears for the petitioners in the review petitions as well, those review petitions are tagged on to the Original Petition No.3640 of 2012. 2. Petitioners are the appellants in R.S.A. Nos.991 and 1408 of 2011 which arose from the common judgment and decree in O.S. Nos.561 of 1999 and 185 of 2002. O.S. No.561 of 1999 is for declaration that sale deed Nos.1953 and 1954 of 1998 and 4355 of 1999 are null and void and for a decree for prohibitory injunction. O.S. No.185 of 2002 is filed by the respondents for eviction of the petitioners from the first floor of the building and for recovery of Rs.1,16,000/- with interest at the rate of 10% per ## **R.P. Nos.393 & 1024 of 2012 & O.P(C) No.3640 of 2012** -: 2 :- annum for unauthorized use and occupation. The trail court allowed O.S. No.561 of 1999 and dismissed O.S. No.185 of 2002. That common judgment and decree were challenged in A.S. Nos.210, 212 and 217 of 2007. The first appellate court reversed the judgment and decree of the trial court and dismissed O.S. No.561 of 1999 while a decree was granted in O.S. No.185 of 2002. That common judgment and decree were challenged in R.S.A. Nos.991 and 1408 of 2011. 3. When the appeals came up for hearing, I heard the learned Senior Advocate who then appeared for the petitioners/appellants and by judgment dated 18.01.2012 dismissed the appeals in liminie holding that no substantial questions of law are involved to entertain the Second Appeals. That common judgment and decree in the Second Appeals are sought to be reviewed by the petitioners/appellants in the review petitions. 4. The same petitioners have filed O.P(C) No.3640 of 2012 for stay of execution proceedings on the ground that the petitioners intend to challenge the common judgment and decree of this Court (sought to be reviewed) before the Apex Court. In ## **R.P. Nos.393 & 1024 of 2012 & O.P(C) No.3640 of 2012** -: 3 :- the Original Petition it is stated that the executing court is proceeding with the execution of the decree pursuant to the judgment and decree of this Court and if petitioners are not given breathing time, they will be evicted and they have no other place to reside. In the circumstances it is prayed that the execution proceedings in O.S. No.185 of 2002 be stayed for appropriate period. 5. The learned Senior Advocate has contended that there are sufficient grounds justifying review of the judgment and decree of this Court in R.S.A. Nos.991 and 1408 of 2011. It is submitted by the learned Senior Advocate that it was without paying the entire balance court fee that the respondents got a decree in O.S. No.185 of 2002. According to the learned Senior Advocate on the evidence on record this Court ought to have found that the impugned sale deeds were executed by the petitioners on the impression that they are deeds of mortgage executed as security for the loan availed by them from the respondents. 6. The learned counsel who took notice for respondents contended that there is neither any error apparent on the face of ## **R.P. Nos.393 & 1024 of 2012 & O.P(C) No.3640 of 2012** -: 4 :- the record nor any other sufficient reason justifying review of the judgment of this Court. It is pointed out by the learned counsel that this Court has referred to all the contentions raised by the petitioners in the Second Appeals, rejected those contentions and found that there is no substantial question of law involved in the Second Appeals. 7. So far as the contention regarding non-payment of the entire court fee in O.S. No.185 of 2002 is concerned, it is argued by the learned counsel that subsequent to the common judgment and decree of this Court, petitioners filed an application in the appellate court challenging executability of the decree in O.S. No.185 of 20902 but that application was dismissed. According to the learned counsel, if any portion of the court fee remained to be paid it is not as if the court is powerless to direct the respondents to make good the deficit court fee. 8. So far as review of common judgment and decree of this Court in R.S. Nos.991 and 1408 of 2011 is concerned, I have gone through the common judgment. It is seen that the learned Senior Advocate then appearing for the petitioners had raised all the relevant points in support of the contentions raised by the ## **R.P. Nos.393 & 1024 of 2012 & O.P(C) No.3640 of 2012** -: 5 :- petitioners. This Court after hearing the learned counsel for the respondents who took notice for them also came to the conclusion that contentions raised by the petitioners in the Second Appeal cannot stand. This Court observed that it is not a case where the petitioners contended that the impugned sale deeds were executed as security for repayment of the loan allegedly taken by them with an understanding that when the loan is repaid the respondents would re-convey the property to the petitioners. This Court pointed out that on the averments in the plaint in O.S. No.561 of 1999 and the written statement in O.S. No.182 of 2002 the contention raised is that petitioners were under the impression that they were signing the documents as if they were deeds of mortgage. This Court referred to the decision in **Mathu v. Cherchi** (1990 [1] KLT 416) to state that petitioners not being blind or illiterate a plea of non-est factum is not available to them. It is relevant to note that though by a subsequent decision in **Biji Pothen v. Thankamma John** (2012 [3] KLT 658), this Court said that a plea of non-est factum is not available to a person who is neither illiterate nor blind or due to any other permanent or temporary reason was not ## **R.P. Nos.393 & 1024 of 2012 & O.P(C) No.3640 of 2012** -: 6 :- disabled from reading and understanding the contents of the document he has signed. This Court further held that if on account of negligence the person executing the document did not read and understand the contents notwithstanding that he was not blind, not illiterate and there was no other temporary or permanent reason which disabled him from doing so, he cannot, after signing the document turn round and contend that he was unaware of the contents of the document. That decision would also apply to the facts of the case to negative the contention of the petitioners that they were unaware of the contents of the documents they have signed. This Court concluded that in the circumstances the plea of non-est factum raised by the petitioners cannot be available to them. 9. This Court also referred to the various decisions including that of the Supreme Court in **Grasim Industries Limited and Another v. Agarwal Steel** ([2010] 1 SCC 83) that when a person signs a document, the presumption is that he has read the document and properly understood the contents. This Court referred to the evidence of D.W4, the Registrar who gave evidence that he had obtained satisfactory answers from ## **R.P. Nos.393 & 1024 of 2012 & O.P(C) No.3640 of 2012** -: 7 :- the petitioners that they were executing assignment deeds in favour of the respondents. It is having regard to the facts and circumstances of the case this Court came to the conclusion that the plea raised by the petitioners in challenge of the impugned documents cannot stand and the first appellate court was right in granting a decree in favour of the respondents, in O.S. No.185 of 2002 and dismissing O.S. No.561 of 2002. I do not find any error apparent on the face of the record or other justifiable reason to review of the judgment. 10. So far as the contention regarding non-payment of balance court fee in O.S. No.185 of 2002 on time is concerned, no such contention was raised before me when the Second Appeals were heard on admission. Moreover it is not as if the trial court has lost power and jurisdiction to direct the party concerned to make good the deficit if any by directing payment of the same. Therefore that the entire court fee was not paid before O.S. No.185 of 2002 was decreed cannot also be a reason justifying review of the judgment of this Court. 11. So far as error apparent on the face of the record is concerned, various authoritative pronouncements say that the ## **R.P. Nos.393 & 1024 of 2012 &** ## **O.P(C) No.3640 of 2012** -: 8 :- “error” must be apparent on the face of the record and if it requires detailed arguments, interpretation of documents and consideration of evidence, that is not an error apparent on the face of the record. Having regard to the circumstances stated I do not find any error apparent on the face of the record or other justifiable reason to review the common judgment under challenge. Hence the review petitions are liable to be dismissed. 12. Coming back to O.P(C) No.3640 of 2012, having regard to the circumstances stated I am inclined to direct that execution proceedings in O.S. No.185 of 2002 will stand in abeyance for a period of two weeks from this day on condition that petitioners shall not induct third parties into possession of the suit property, create document or encumber the same during the said period. Resultantly, (i) The Review Petitions are dismissed. (ii) O.P(C) No.3640 of 2012 is disposed of directing the Sub Court, Ernakulam to keep in abeyance the execution proceedings In O.S. No.185 of 2002 for a period of two (2) weeks ## **R.P. Nos.393 & 1024 of 2012 &** **O.P(C) No.3640 of 2012** -: 9 :- from this day on condition that petitioners shall not induct third parties into possession, create documents or encumber the suit property during the said period. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv