IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 21ST DECEMBER 2006 / 30TH AGRAHAYANA 1928 CRP.No. 1048 of 2006() ---------------------- AS.25/2002 of SUB COURT,THODUPUZHA OS.214/1999 of MUNI-MAGI.COURT,THODUPUZHA .................... REVN. PETITIONERAPPELLANT/1ST DEFENDANT: ------------------ JAIJU, S/O.JOSEPH, ILLICKAL HOUSE, VANNAPPURAM VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.GEORGE THOMAS (MEVADA) RESPONDENTS/RESPONDENTS/PLAINTIFF/2ND DEFENDANT: ------------- 1. VARKEY, S/O. VARKEY, CHIRAPPARAMBIL HOUSE, CHEENGAL CITY, VANNAPPURAM VILLAGE, THODUPUZHA TALUK. 2. T.V.BINISH, S/O.VASU, THURUTHEL HOUSE, KODIKULAM KARA, THODUPUZHA TALUK. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/12/2006, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.3682/06 IN CRP 1048/06 DISMISSED 21/12/2006 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ C.R.P .NO. 1048 OF 2006 ------------------------------------------ Dated 21st December 2006 O R D E R Petitioner is first defendant and respondents the plaintiff and second defendant in O.S.214/99 on the file of Munsiff court, Thodupuzha. First respondent filed suit for realisation of money due under the chitty transaction. First respondent in the plaint contended that petitioner along with second respondent conducted an unregistered chitty at Vannapuram for Rs.25,000/- and first respondent became a member on the instigation of petitioner who is son of brother of first respondent and he remitted 22 instalments and when petitioner went to remit 23rd instalment at the shop where business was being carried out, it was found locked. On enquiry it was found out that they stopped chitty business. Therefore Ext.A2 notice was sent on 20/2/1999 to both petitioner and second respondent. In spite of receipt of notice amount was not paid and therefore suit is filed for realisation of Rs.22,250/- with interest. 2 Second respondent remained ex-parte. Petitioner filed written statement contending that he never conducted any chitty business either alone or with second respondent and he did not collect any amount from first respondent and did not instigate first respondent to join any chitty and he is not liable to pay any amount. It was contended that after receipt of notice petitioner approached first respondent and first respondent told him that notice was sent only to pressurise second respondent, a classmate of petitioner, to pay the amount and therefore no reply was sent. Learned Munsiff framed necessary issues. On the side of first respondent he was examined as PW1. Petitioner was examined as DW1. Exts.A1 to A5 were marked. Learned Munsiff on appreciation of evidence found that chitty was conducted jointly by petitioner and second respondent and Rs.22,250/- was paid by petitioner and he is entitled to the decree against petitioner and second respondent. Suit was decreed as sought for with future interest of 6%. Petitioner challenged the decree and judgment before Sub court, Thodupuzha in A.S.25/02. Learned Sub Judge on re- 3 appreciation of evidence confirmed the decree and judgment and dismissed the appeal. Challenging the said decree and judgment petitioner originally filed R.S.A.739/05. But finding that decree is for less than Rs.25,000/- and no second appeal will lie, petitioner filed C.M.P.1561/05 to convert the second appeal to revision. It was allowed by this court as per order dated 2/11/2005. Revision was heard at the admission stage. 2. Learned counsel appearing for petitioner vehemently argued that courts below failed to note that there is absolutely no evidence to prove that petitioner conducted chitty or collected any amount from petitioner and in the absence of any documentary evidence to establish that petitioner has any connection with the chitty transaction or collected any amount from first respondent, no decree could have been passed against petitioner and therefore decree and judgment are to be set aside. 3. On hearing learned counsel appearing for petitioner and on going through judgments of trial court and appellate court, I do not find any 4 substantive question of law involved or any merit to admit the revision. True, there is no documentary evidence to prove that petitioner was conducting the chitty transaction. But there are circumstance, rightly taken note by courts below. Chitty was admittedly being conducted in the building obtained by petitioner on lease. True, chitty was started even before the lease arrangement, evidenced by Ext.A5. But it is not a disputed fact that subsequently chitty was being conducted in the building obtained by petitioner on rent. One could have appreciated, if petitioner had given any satisfactory explanation as to how chitty business was being conducted in the building obtained by petitioner on rent. If petitioner had a case that at the request of second respondent he had permitted the business being carried out in the buildinga at least to that extent one could have appreciated the case. But petitioner has absolutely no explanation as to how the chitty business, with which according to him he had no connection, was being run in the building obtained by petitioner on rent. Added to this, what was contended 5 before the court below at the time of evidence was that the said building was obtained by him for the purpose of running a STD booth. Evidence disclosed that petitioner had not even applied for the license from P&T Department. Courts below rightly taken note of these circumstances and found that petitioner conducted chitty business. 4. Added to this, first respondent had sent Ext.A2 notice before the institution of suit claiming the amount from the petitioner stating that chitty was being conducted jointly by petitioner and respondent. Petitioner admittedly received Ext.A2 notice but did not send any reply. Failure to send reply was tried to be explained by contending that after receipt of the notice petitioner met first respondent who is a close relative, and he disclosed that it was sent to pressurise second respondent, who is a classmate of petitioner. At the time of evidence DW1 admitted that second respondent is not a classmate. More over, that explanation does not appear to be a sufficient or proper explanation. Both the courts did not accept the same. More over trial 6 court and appellate court after appreciating evidence of PW1 and DW1 found that evidence of PW1 that he was persuaded by petitioner to join the chitty is correct. Appreciation of evidence cannot be interfered at the second appellate stage. Though this is a revision because of non availability of revision challenging the decree being for less than Rs.22,250/- the same yardstick would apply. I find no infirmity in the concurrent decree and judgment passed by the courts below. Revision petition is dismissed in limine. M.SASIDHARAN NAMBIAR, JUDGE. uj.