IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 22ND FEBRUARY 2011 / 3RD PHALGUNA 1932 SA.No. 224 of 1998(B) ------------------------------ OS.452/1991 of MUNSIFF COURT, MAVELIKKARA AS.35/1993 of ADDL.DISTRICT COURT-I,MAVELIKKARA .................... APPELLANT(S): RESPONDENT/DEFENDANT --------------------------------------------------------------- N.RAGHAVA KURUP, RADHAKRISHNA BHAVANAM, VETTIYAR MURI, VETTIYAR VILLAGE. BY ADVS. SRI.M.K.CHANDRA MOHANDAS SRI.C.S.MANILAL RESPONDENT(S): APPELLANT/PLAINTIFF ----------------------------------------------------------- N.PURUSHOTHAMAN, SARASWATHI BHAVAN, CHERUKUNNAM, THEKKEKARA VILLAGE, MAVELIKKARA. ADV. SRI.R.KRISHNA RAJ THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/02/2011, ALONG WITH SA NO. 600 OF 1998 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P.BHAVADASAN, J. ---------------------------- S.A.Nos. 224 and 600 of 1998 ---------------------------------------- Dated this the 22nd day of February, 2011 JUDGMENT Two suits namely O.S.No.428/1991, which was one for cancellation of deed filed by the respondent herein and O.S.No.452/1991 which was the suit for money filed by the appellant herein were jointly tried. The trial court decreed O.S.No.452/1991 and dismissed O.S.No. 428/1991. The lower appellate court reversed the findings of the trial court. The lower appellate court decreed O.S.No.428/1991 and dismissed O.S.No. 452/1991 that has brought the plaintiff in O.S.No.452/1991 before this court. 2. The appellant's suit was one for money which he alleged was borrowed by the defendant. His further case was that defendant in a suit had executed Ext.B1 agreement agreeing to pay the amount in two installments. Since that was not paid the suit was laid. 3. The defendant in O.S.No.452/1991 resisted the suit pointing out that so called agreement in Ext.B1 was entered into under threat and coercion from a police officer and no amount was due to the plaintiff at all. He instituted O.S.452/1991 for cancellation of Ext.B1, which was alleged to be vitiated by threat and coercion. He also S.A.Nos. 224 and 600 of 1998 2 contended that he had a transaction with the plaintiff in O.S.No.452/1991, but he had discharged the debt due to him and no amount was due from him. 4. O.S.No.428/1991 was treated as the leading case and evidence was adduced in the said case. 5. The evidence consists of the testimony of PWs 1 to 3 from the side of the plaintiff. The defendants had examined DW1 and Exts.B1 to B4 marked from the side of the defendant. As already noticed by the trial court accepted Ext.B1 and granted a decree in favour of the plaintiff in O.S.No.452/1991, consequently the other suit was dismissed. 6. Notice is seen issued on the following substantial questions of law: 1. Can a person be declared hostile and to reject his evidence outright without that person being the author or maker of the statement or recitals of a document which was previously executed under Section 145 of the Evidence Act. 2. Whether Section 145 of the Evidence Act is applicable to an attestor to a document who merely sign as an attestor without writing the recitals which has been done between the principal parties and in such case, the attestor can be declared hostile and reject his evidence. 3. Whether the statement made in writing or reduced to writing will include the mere signature of an attestor and in such circumstance by merely attesting it will make it a statement in writing by him as stipulated by Section 145 S.A.Nos. 224 and 600 of 1998 3 of the Evidence Act. 7. The learned counsel appearing for the appellant pointed out that the execution of Ext.B1 is admitted and it has also come out in evidence that it was executed in the office of the scribe and not in the police station. Even though, Ext.B4 notice is said to have been sent by the respondent herein informing the plaintiff about the agreement Ext.B1 is dated 15.10.1991, the seal on the cover shows that it was sent only on 21.10.1991. According to the learned counsel if as a matter of fact Ext.B1 was vitiated by the reasons stated by the respondents, a complaint would been made immediately before the superior officer. It is also stated that a reference to the evidence of PW2 would show the truth of the case of the plaintiff in O.S.No.428/1991. 8. According to the appellate court the trial court was justified in decreeing the suit and the lower appellate court erred in reversing the same. 9. Per contra the learned counsel appearing for the respondent in these appeals pointed out that notice issued by him was received by appellant but no reply notice has been sent by the appellant. Apart from that the plaintiff had no consistent case regarding the S.A.Nos. 224 and 600 of 1998 4 consideration paid to the respondent. In the plaint what is alleged is that a sum of Rs.3850/- was due as balance amount with reference to a earlier transaction. But at the time of evidence, a totally different case was put forward and it was stated that the respondent had borrowed the amount from the shop of the appellant. These aspects were omitted to be noticed the trial court and those circumstances led the lower appellate court to reverse the findings of the trial court. The learned counsel pointed out that the finding is essentially based on the appreciation of evidence and is a questions of fact. No substantial questions of law arises for consideration. 10. It is admitted by the respondent Ext.B1 contained his signature but he offers an explanation regarding the circumstances under which it came to be executed. Even assuming that two circumstances relied on by the respondent may not be fully convincing the fact remains that the appellant has to prove his case. In the plaint in the suit O.S.452/1991 the amount covered by Ext.B1 was stated to the amount due as balance worth regard to as earlier transaction. But at the time of evidence the amount covered by Ext.B1 was stated to have been received by the defendant as a lump sum. Apart from the above fact it is also to be noticed that it is admitted by the appellant that he is a money lender and he keeps accounts. If that be S.A.Nos. 224 and 600 of 1998 5 so the transaction involved in these suits must find a place in his accounts. There was no justification for him not to produce his accounts and to establish his case. Further his act of not replying to the notice issued by the respondent, further makes things difficult for him. It was these facts and circumstances which weighed with the lower appellate court and which the trial court omitted to consider and that had resulted in a decree against the respondent. The finding of the lower appellate court is based on evidence on record and are essentially questions of facts. The finding of the lower appellate court is not shown to be either perverse or unwarranted by the evidence on record. No question of law much less any substantial question of law arises for consideration in these appeals. These second appeals are without merits and they are accordingly dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln