IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 3RD FEBRUARY 2011 / 14TH MAGHA 1932 SA.No. 521 of 1998(D) ------------------------------- AS.92/1995 of II ADDL.SUB COURT,KOZHIKODE OS.190/1992 of ADDL.MUNSIFF COURT,KOZHIKODE-I .................... APPELLANT(S): ----------------------- 1. K.GOPALAKRISHNAN, S/O. SANKARAN NAMBISSAN, PADINHATTUMMURI AMSOM,MOOTTOOLI DESOM, KOZHIKODE TALUK AND DISTRICT. 2. K.CHANDRAVALLY, D/O.SANKARAN NAMBISSAN, -DO- -DO- 3. K.VASANTHAKUMARI, D/O. SANKARAN NAMBISSAN, -DO- -DO- 4. K.SOBHANA, D/O.SANKARAN NAMBISSAN, -DO- -DO- 5. K.BALACHANDRAN, S/O.SANKARAN NAMBISSAN, -DO- -DO- 6. K.HARIDASAN, S/O.SANKARAN NAMBISSAN, -DO- -DO- 7. C.P.SANKARAN, S/O.SANKARAN NAMBISSAN, -DO- -DO- BY ADVS. SRI.C.RAMAN SMT.MEERA P.MENON SMT.M.R.MINI RESPONDENT(S): -------------------------- K.GOPALAN, S/O.VADAKKEKUNNATH CHANDU, THAMARASSERI AMSOM AND DESOM, P.O.CHELANNUR, KOZHIKODE TALUK AND DISTRICT. BY SRI.P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE BY ADV. SRI.K.MOHANAKANNAN SRI.V.K.GOPALAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts P.BHAVADASAN, J. ------------------------------------- SA No.521 of 1998-D ------------------------------------- Dated this the 3rd day of January 2011 Judgment Undaunted by the concurrent findings against them, the plaintiffs in OS No.190/92 before the Munsiff's Court, Kozhikode, have come up in appeal before this court. The original plaintiff died during the pendency of the suit and his legal heirs were brought on the party array as supplemental plaintifffs. 2. The suit was one for money, based on Ext.A1 agreement dated 14.08.1981, which, according to the plaintiff, was orally renewed on 30.09.1986. Complaining that the amount due as per the agreement has not been paid by the defendant, the suit was laid. 3. The defendant resisted the suit. He admitted the execution of Ext.A1 agreement, but disputed its renewal as claimed by the plaintiff. He pointed out that no amount is due from him after the initial period of the SA 521/98 2 agreement and the suit is only to be dismissed. 4. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A6 from the side of the plaintiffs. The defendant did not adduce any evidence. 5. The trial court, on a consideration of the materials before it, formed an opinion that there was nothing to show that there was a renewal of the agreement as claimed by the plaintiffs and therefore, the plaint could not succeed. Accordingly, the suit was dismissed. 6. The plaintiffs carried the matter in appeal as AS No.92/95 before the Sub Court, Kozhikode. The lower appellate court, on an independent evaluation of the evidence, found no infirmity or illegality in the findings of the trial court and confirmed the decree of the trial court. 7. Notice is seen issued on the following questions of law raised in the second appeal : 1.When Ext.A1 agreement is admitted and it is proved that SA 521/98 3 the acts mentioned in Exhibit A1 were continued by the defendant, were the courts below justified in not presuming that Exhibit A1 was renewed on the expiry of the period mentioned in the document ? 2.When a state of affairs is proved to exist, should not the same be presumed to continue to exist, unless the contrary is proved ? 3.Was the court below right in casting the entire burden of proof on the plaintiff ? 4.Is not the judgment of the court below vitiated due to the wrong interpretation placed by it on Exhibit A4 ? 8. As already noticed, the suit was based on an agreement dated 14.08.1981, which is said to have been renewed on 30.09.1986. The suit was laid for the amount due for the period from 03.03.1989 to 02.03.1992. It is not in dispute that the initial period of the agreement was five years. That obviously expired in 1986. If the plaintiff relied on the oral renewal of the agreement, it was for him to establish the said fact. The trial court has noticed that SA 521/98 4 even going by the evidence of the plaintiff, there were witnesses for the oral renewal of the agreement. As rightly observed by the trial court as well as the lower appellate court, all that the plaintiff had to do was to examine any one of those witnesses for establishing the said fact. But, for reasons best known to him, he did not do so. 9. It appears that considerable reliance was placed on Ext.A4 dated 06.05.1991, which is the certified copy of the counter statement filed in OS No.323/91, based on which it was contended that amount was due from the defendant. Both the courts below have considered the matter in detail and it was observed that the defendant is not a signatory to Ext.A4 and therefore, though a party to the said suit, it cannot bind him. The result was that there was no evidence whatsoever before the courts below regarding the oral renewal of the agreement said up by the plaintiff. The courts below had, therefore, no choice, but to dismiss the suit. No infirmity is shown in the findings of the courts below, which are based on appreciation of evidence. SA 521/98 5 No substantial questions of law arise for consideration in this second appeal. The second appeal is devoid of any merits and it is accordingly dismissed. There will be no order as to costs. P.Bhavadasan, Judge sta SA 521/98 6