IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 AS.No. 185 of 2002() ------------------------- OS.832/1994 of PRL.SUB COURT,IRINJALAKUDA .................... APPELLANT(S): APPELLANT/PLAINTIFF IN O.S.832/1994: ---------------------------------------------------------------------------------- CHANDRAN, S/O. CHERAMPARAMBIL AYYAPPAN, AGED 42 YEARS, RESIDING AT CHERAMPARAMBIL, THURAVU VILLAGE, MUKUNDAPURAM TALUK, THRISSUR. BY ADV. SRI.P.GOPAKUMARAN NAIR SRI.C.S.DIAS RESPONDENT(S): RESPONDENT/DEFENDANT IN O.S.832/1994: ----------------------------------------------------------------------------------------- PREMAN, S/O. THURAVU PALLATH THRIPPAKKAL ACHUTHAN, THURAVU VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. ADV. SRI.T.M.CHANDRAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 19/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN,J. ====================== A.S.No.185 OF 2002 ====================== Dated this the 19th day of May 2010. JUDGMENT This is an appeal preferred against the judgment and decree passed by Additional Subordinate Judge's Court, Irinjalakuda in O.S.No.832 of 1994. The suit is one for realisation of the amount due from the defendant. It is the case of the plaintiff that the defendant had agreed to purchase 350 bunches of banana and in pursuance of the same had cut and removed the banana bunches on 10-6- 1994 and 15.6.1994 but failed to pay the amount at the rate of Rs.80/- per bunch as promised and therefore the suit is filed for recovery of the said amount due to him. On the other hand the defendant totally denies the transaction and contends that it is on account of some enmity that the suit is instituted. In the trial court PWs. 1 to 7 and DW1 were examined and Exts. A1, A2 and X1 to X1(b) were marked. On analysis of the materials the trial court did not find in A.S.No.185 OF 2002 2 favour of the plaintiff and it is against that decision the plaintiff has come up in appeal. 2. Perused the records and heard. 3. The plaintiff who is an owner of about 2.75 acres of land would contend that he had planted 750 banana plantains and had agreed to sell 350 bunches of banana to the defendant at the rate of Rs.80/- per bunch and accordingly on 10.6.1994 and 15.6.1994 those bunches were cut and removed but the amount was not paid. The defendant has denied the transaction. A perusal of the plaint would reveal that it was one Subran on behalf of the defendant who had cut and removed the bunches. According to the plaintiff one Gangadharan and Krishnan and Raman were the workers who loaded the banana and the goods were transported in the vehicle KL 8C-8416. PW2 Gangadharan, PW3 Raman, PW4 Devassy, PW5 Subran did not support the case of the plaintiff at all. The person who is alleged to have cut the banana bunches and the driver of the mini lorry had denied the same. PW5 had also denied of any transportation and the workers had denied the factum A.S.No.185 OF 2002 3 of any loading of banana in the mini lorry. So, what is left out is the evidence of PW1 to PW7 and DW1. DW1 the defendant has denied everything. Independent evidence is that of PW7. The name of PW7 does not figure anywhere in the plaint. Admittedly, he is an 80 year old man and he is doing agricultural operation for the plaintiff and family for the last 50 years. According to the plaintiff 350 bunches were sold but according to PW7 500 bunches were sold and out of this 100 were cut and removed only after some time. He had also admitted that he is not having proper memory. The trial court who had the opportunity to see the witness and understand the demeanor of the witness had held that the evidence of PW7 does not inspire confidence. I am conscious of the fact just because a person is a relative or an employee his evidence cannot be tainted as an interested evidence. The law always looks upon for the intrinsic reliability and inherent probability of the evidence. The persons like PWs. 2 to 5 who had, even according to the plaintiff, something to do so with the transaction as his witnesses had spoken against him and A.S.No.185 OF 2002 4 in that background a witness coming as PW7 after all other witnesses has turned hostile, that to a workman of the family for 50 years has to be viewed with caution. The evidence of PW7 is contradictory to that of PW1 on material points. Therefore, the trial court was right in rejecting the evidence of PW7 and on analysis PWs.2 to 7 also arrived at a decision that evidence of PW1 also cannot be believed. Admittedly, the whole transaction is oral transaction and though there is no bar for oral transaction but in order to substantiate the same there must be sufficient materials. It is absolutely lacking in this case. Therefore, I find that the learned Subordinate Judge has arrived at a proper decision on the materials available and that judgment and decree does not call for any interference. Therefore, appeal fails and the same is dismissed without costs. M.N.KRISHNAN,JUDGE. mns