IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 23RD FEBRUARY 2010 / 4TH PHALGUNA 1931 CRP.No. 355 of 2009() --------------------- {AS.73/1999 OF THE SUB COURT, OTTAPPALAM OS.422/1997 of MUNSIFF COURT, OTTAPPALAM} .................... REVN. PETITIONER(S): RESPONDENT/DEFENDANT ----------------------------------------- VIJAYAKUMAR, S/O.KOOLAMPARAMBIL VELU, KULAPPULLY AMSOM DESOM, OTTAPALAM TALUK. BY ADV. SRI.K.B.ARUNKUMAR RESPONDENT(S): APPELLANT/PLAINTIFF ---------------------------------- MURLEEDHARAN, S/O.PARIYANGATT ANKOTH LAKSHMIKUTTY AMMA, KULAPPULLY AMSOM DESOM, OTTAPALAM TALUK. ADV. SMT.T.D.RAJALAKSHMI SRI.R.SREEHARI THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/01/2010, THE COURT ON 23/02/2010 PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------------------------ C.R.P.No.355 of 2009 ----------------------------------------------- Dated this the 23rd day of February, 2010 O R D E R Revision is directed against the judgment dated 31.10.2008 in A.S.No.73/99 passed by the Sub Judge, Ottapalam. The above appeal arose from the dismissal of the suit O.S.No.422/97 on the file of the Munsiff's Court, Ottapalam. Suit was one for money based on an agreement. That suit, after trial, was dismissed by the learned Munsiff. Plaintiff preferred the appeal challenging the dismissal of the suit. The appellate court, under the impugned judgment, reversing the dismissal of the suit, decreed the suit. Feeling aggrieved, the defendant has filed this revision. 2. Parties are hereinafter referred to as the plaintiff and defendant for the sake of convenience. The case of the plaintiff, in brief, is that the defendant borrowed a sum of Rs.20,000/- for his business purposes, agreeing to repay the amount within 3 months with interest at C.R.P.No.355 of 2009 :: 2 :: the rate of 22% per annum. An agreement evidencing the transaction was also executed by the defendant. Demand made for payment not being heeded to, an advocate notice was issued, which after being acknowledged, was also not responded. Hence the suit was laid for realisation of the amount due. 3. The defendant resisted the claim filing a written statement in which it was contended that the plaintiff was a mediator when a criminal complaint was lodged by another against the defendant in respect of a cheque issued which, on presentation, was dishonoured. During the course of the mediation, plaintiff had obtained blank signed stamp papers and also a cheque from him and later that blank signed paper had been used for fabricating the agreement produced in te case was his defence. He had settled the criminal complaint by paying cheque amount to the complainant, but there was no money transaction with the plaintiff C.R.P.No.355 of 2009 :: 3 :: was the case of the defendant. Two witnesses were examined on behalf of the plaintiff as Pws.1 and 2 and Exts.A1 to A2 series were marked. Plaintiff got himself examined as PW.1 and an attester to Ext.A1 agreement as PW.2. Ext.A2 was the copy of the advocate notice issued to the defendant and Ext.A2(a) the postal receipt evidencing its issue. The defendant got himself examined as DW.1, apart from exhibiting Exts.B1 to B3 documents pertaining to the criminal complaint stated in his written statement. The learned Munsiff, after appreciating the materials and hearing the counsel on both sides, found the testimonies of the plaintiff and also his witness unworthy of acceptance. Forming a conclusion that the plaintiff has not established the due execution of the agreement, which had been disputed by the defendant, he was non suited. In the appeal preferred by the plaintiff, the learned Sub Judge, after re- appreciating the evidence reversed the dismissal C.R.P.No.355 of 2009 :: 4 :: and decreed the suit as prayed for. Feeling aggrieved the defendant has filed the revision. 4. I heard the counsel on both sides. The learned counsel for the defendant urged before me that the appellate court, without adverting to the proved facts and circumstances established in the case by the materials produced, has interfered with the decision of the trial Judge dismissing the suit on flimsy reasonings which are unworthy of acceptance. The learned Munsiff, after meticulous consideration of the materials produced, according to the counsel, found that the plaintiff had failed to prove the execution of the agreement and the evidence tendered by him was unworthy of acceptance, which resulted in the dismissal of the suit. However, the appellate court, without expressing any view as to why the findings of fact entered by the trial Judge on the disputed questions involved are incorrect, has set aside the dismissal of the suit and allowed the C.R.P.No.355 of 2009 :: 5 :: appeal granting a decree in favour of the plaintiff, submits the counsel. On the other hand, the learned counsel appearing for the plaintiff contended that the dismissal of the suit reversed in the appeal by the learned Sub Judge is proper, valid and correct and it does not call for any interference in the proved facts and circumstances of the case especially in exercise of the revisional jurisdiction vested with this court. As the appellate court is the final court which can enter a finding on disputed questions of fact, even if a different view is possible on the materials produced, according to the learned counsel, this court in exercise of the revisional jurisdiction cannot supplement such a view as different from that of the appellate court unless it is shown that the conclusion formed by the appellate court is perverse. The appellate court, on re-appreciating the evidence, has found that the dismissal of the suit was not proper and C.R.P.No.355 of 2009 :: 6 :: correct, and the decree granted reversing such dismissal, according to the counsel, is not liable to be interfered with in revision. 5. I have considered the rival submissions made by the counsel with reference to the judgment rendered by both the courts below. The learned Munsiff, after appreciating the evidence of Pws.1 and 2, the plaintiff and his witness, has found both of them unreliable. The evidence of PW.1 that he had signed the agreement Ext.A1 was belied by that document. He also admitted before court, apart from the agreement, he had collected a cheque also from the defendant. He claimed that he is having business in furniture. He denied that he is an employee in Milma as a security guard. Suit had been previously dismissed and restored on an application moved by the plaintiff produced with a medical certificate to substantiate his illness for non-appearance. The medical certificate issued by the doctor showed that he is C.R.P.No.355 of 2009 :: 7 :: an employee as a security guard in Milma. PW.2 who is an attester to Ext.A1 agreement also gave evidence that the plaintiff is so employed. Considering the evidence of PW.1, the learned Munsiff held that the plaintiff has no regard for truth and he was stating falsehood before court. The evidence of PW.2, who was examined to prove the execution was also found not worthy of acceptance. PW.2 has stated in his evidence that he did not see the signing of the Ext.A1 agreement by the defendant. He further stated that he had signed in the agreement just below the signature of the plaintiff. That document however evidenced that plaintiff had not subscribed his signature therein. In that back drop, on the evidence of Pws.1 and 2 as referred to above, the learned Munsiff concluded that the execution of Ext.A1 agreement which was disputed by the defendant has not been proved in the case, and in that view, dismissed the suit. Strangely enough, without C.R.P.No.355 of 2009 :: 8 :: adverting to any of the findings on disputed facts entered by the learned Munsiff, the appellate judge has reversed the dismissal and granted a decree in favour of the plaintiff. The appellate judgment impugned in the revision disclose that dismissal of the suit was reversed taking a different view that when the plaintiff got himself examined as PW.1 and also a witness, an attester to the agreement as PW.2, he had discharged his burden of proving Ext.A1 agreement and thus the burden shifted to the defendant to establish his case of disproving the case of the plaintiff. I am afraid, the reasoning of the learned appellate Judge is patently erroneous. Mere examination of the plaintiff or one or more witnesses as attestors or ocular witnesses present at the time of transaction, by themselves is not sufficient to prove execution of an agreement which had been disputed. The evidence has to be appreciated and a definite finding has to be entered whether the C.R.P.No.355 of 2009 :: 9 :: execution of the agreement has been proved. Plaintiff mounting the box and getting himself examined and a witness as also examining some others on his behalf, is not the sole criteria to examine whether the execution has been established. The evidence of plaintiff and his witness has to be appreciated as to whether there is proof of due execution. The learned Munsiff, after appreciating such evidence, has found the evidence let in by the plaintiff is unworthy of acceptance. That finding is not liable to be disturbed by the appellate court in the absence of better reasoning why a different view has to be taken on re-appreciating such evidence. Not only there is no re-appreciation of the evidence of Pws.1 and 2, there is not even advertance to such evidence in the judgment of the appellate court. The only other circumstance which weighed with the appellate court to disturb the findings of the trial court, it is seen, is the default of the C.R.P.No.355 of 2009 :: 10 :: defendant to respond to the advocate notice issued by the plaintiff before instituting the suit. The defendant had failed to respond to the notice of course is a circumstance capable of giving rise to an inference adverse to his defence. But that by itself, the drawing of an adverse inference without anything more will assist the plaintiff to sustain the suit claim. The claim raised in the suit based on the agreement when the very execution of such agreement was disputed require to be proved by convincing evidence. When the plaintiff had failed to prove the execution and more so when the evidence let in by the plaintiff was found to be unworthy of acceptance with the trial judge expressing a view that the plaintiff has no regard for truth, the adverse inference to be drawn against the defendant for not sending a reply to the advocate notice has the least consequence. I find that the reversal of the dismissal of the suit by the appellate court in C.R.P.No.355 of 2009 :: 11 :: the given facts and circumstances of the case, for the reasons stated in its judgment is patently unsustainable and that being so, it is liable to be set aside. Setting aside the judgment of the appellate court, the dismissal of the suit by the trial court is restored. Civil Revision Petition is allowed, directing both sides to suffer their respective costs. Sd/- (S.S.SATHEESACHANDRAN) JUDGE SK/- //true copy// P.S. to Judge.