IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 AS.No. 238 of 1997(C) --------------------- OS.360/1994 of SUB COURT, OTTAPPALAM .................... APPELLANT(S): -------------- A.P.REJI, AGED 25 YEARS, D/O.ALATHUPADATH A.O.PAILI ELAMBULASSERI AMSOM, POMBRA DESOM IN OTTAPPALAM TALUK BY ADV. SRI.BENOY THOMAS MARYKUTTY JOSEPH,PARTY JOLLY JOSEPH,PARTY RESPONDENT(S): --------------- 1. JOSE SEBASTIAN ALIAS JOYICHAN, AGED 34 YEARS, S/O.VADAKKEL JOSEPH P.O.OLIMKADAVU, MANGALAM DAM VILLAGE ALATHUR TALUK * 2. VADAKKEL JOSEPH, AGED 60 YEARS (DIED) FATHER OF 1ST DEFENDANT, (FATHER'S NAME NOT KNOWN) P.O.OLIMKADAVU, MANGALAM DAM VILLAGE, ALATHUR TALUK 3. MARYKUTTY JOSEPH, AGED 55 YEARS W/O. 2ND DEFENDANT, P.O.OLIMKADAVU, MANGALAM DAM VILLAGE, ALATHUR TALUK 4. JOLY JOSEPH, AGED 25 YEARS D/O.DEFENDANTS 2 AND 3 ASST. TEACHER, A.U.P. SCHOOL KALLADIKKODE, MANARKKAD. (IT IS RECORDED THAT RESPONDENTS 1, 3 AND 4 ARE THE LEGAL REPRESENTATIVES OF DECEASED R2. VIDE ORDER DT 1.1.2008 IN MEMO CF.5844/07) ADV. SRI.ASOK M.CHERIAN FOR R1 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 25/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. SURENDRA MOHAN, J. ```````````````````````````````` A.S. No. 238 of 1997 ````````````````````````````````` Dated this the 25th day of September, 2009 J U D G M E N T The plaintiff in O.S.No.360/1994 of the Sub Court, Ottappalam is the appellant. The respondents are the defendants in the suit. The first respondent is the husband, the second and third respondents, his father and mother and the fourth respondent his sister. The suit was filed for the recovery of money allegedly due from the defendants to the plaintiff. After trial, the court below dismissed the suit. The judgment and decree of the Sub Court, Ottappalam is under challenge in this appeal. 2. The brief facts of the case are as follows:- The parties are referred to in the same oder as in the court below. The plaintiff and the first defendant had got married on 05.02.1990. Just before the marriage, on the date of their engagement on 27.01.1990, it is alleged that an amount of Rs.60,000/- was paid to the defendants. Out of the said amount, Rs.38,000/- was utilized for purchasing gold ornaments for the plaintiff herself. But, the balance amount of Rs.22,000/- was appropriated by the defendants. It is the further case of the plaintiff AS.238/97 : 2 : that an amount of Rs.16,000/- was borrowed by the defendants from the plaintiff on 30.10.1990. That amount was obtained by pledging the gold ornaments of the plaintiff and was utilized for the purpose of getting a job for the fourth defendant in a School. The above amounts, totaling Rs.38,000/-, was due from the defendants to the plaintiff. 3. According to the plaintiff, after marriage, the plaintiff and the first defendant resided together for two months. Thereafter, the first defendant went abroad and returned after eight months. After that, they again resided together for four months. During the period that they had lived together, the plaintiff was ill treated by the defendants and she was subsequently brought back to her parental home. The intention was to extract more money from the plaintiff. It is further alleged that a complaint was made to the Assistant Superintendent of Police, which was forwarded to the Sub Inspector of Police, Mannarkkad. In the presence of the Sub Inspector of Police, the plaintiff and the first defendant executed an agreement dated 14.11.1991 for the dissolution of the marriage. In the said agreement, the first AS.238/97 : 3 : defendant had agreed to pay an amount of Rs.38,000/- to the plaintiff. Towards payment of the said amount, a post dated cheque was also handed over. The agreement has been marked as Ext.A1 and the cheque has been marked as Ext.A2. It is the admitted case of the parties that later on, there was rapprochement among themselves and they started residing together again. Thus, the cheque was not encashed. 4. It is further alleged that an amount of Rs.20,000/- was borrowed by the defendants on 22.01.1992 for conducting repairs to their house. Apart from the above, the plaintiff also alleges that various movable articles like steel almirah, wooden cot, clock, etc. were given to the first defendant when the plaintiff started residing together with the first defendant. The value of the above articles totalling an amount of Rs.15,200/- also is sought to be recovered by the plaintiff. Thus, the plaintiff filed the suit claiming recovery of a total amount of Rs.73,200/- from the defendants. 5. The suit was contested by the defendants denying the liability to pay any amount as claimed in the plaint. The first defendant filed a separate written statement while defendants 2 to AS.238/97 : 4 : 4 filed a joint written statement. The contentions in the written statements are more or less similar. The defendants denied receipt of the amounts claimed by the plaintiff. According to them, they never demanded any amount from the plaintiff nor was the plaintiff ill treated by them as alleged. The plaintiff had filed a complaint before the Police making baseless allegations. Subsequently, there was an agreement for dissolution of the marriage. At the time of executing the agreement, an amount of Rs.38,000/- was offered to be paid to her as payment to a divorced wife. It was the said amount that is seen mentioned as Rs.38,000/- in Ext.A1. However, such amount was not paid and the agreement Ext.A1 was cancelled. The allegation that an amount of Rs.20,000/- was borrowed on 22.01.1992 was also denied by the defendants. 6. The court below framed the necessary issues and tried the suit on the above pleadings. The evidence in the case consists of the oral evidence of PWs 1 to 4 and DW1. Exts.A1 to A5 and B1 and B2 documents have also been marked. 7. On a consideration of the rival contentions of the AS.238/97 : 5 : parties in the light of the evidence on record, the court below found that the plaintiff had not established that any amount was due to her from the defendants. It was found that the amount of Rs.38,000/- claimed by the plaintiff was clearly barred by limitation and there was no evidence to show that the amount of Rs.20,000/- was borrowed by the defendants. Therefore, the court below dismissed the suit. 8. I have heard Mr.Paulson Thomas, counsel for the appellant and Sri.Ashok M. Cherian, counsel for the respondents. I have gone through the records of case in detail. 9. According to the counsel for the appellant, the court below seriously erred in dismissing the suit. The court below ought to have relied on the evidence of PWs 1 to 4 that the amounts sought to be recovered were actually received by the defendants from the plaintiff. Exts.A1 and A2 are vital documents which clearly establish the liability of the defendants for an amount of Rs.38,000/-. Therefore, the court below should at least have decreed the suit to the extent of Rs.38,000/-, it is contended. The counsel for the respondents, on the other hand, justified the AS.238/97 : 6 : judgment and decree of the trial court pointing out that the payments alleged to have been made by the appellant were in fact barred by limitation and that there was no explanation as to how the bar could be got over. It is also pointed out that Exts.A1 and A2 have been cancelled and that the said documents were of no help in determining whether amounts were actually borrowed by the defendants. 10. The point that arises for consideration in the appeal is: Whether the appellant is entitled to recover the amounts claimed by her from the defendants? 11. It is the definite case of the appellant that the amount of Rs.60,000/- was paid on 27.01.1990. Out of the said amount, Rs.38,000/- was utilized for purchasing gold ornaments for the plaintiff herself. But, the allegation is that the balance amount of Rs.22,000/- was appropriated by the defendants. The further case of the plaintiff is that on 30.10.1990 an amount of Rs.16,000/- was borrowed by the defendants for securing a job for the fourth respondent in a school. The above case is totally denied by the AS.238/97 : 7 : respondents. In fact, there is absolutely no evidence to prove the above transaction. Though the plaintiff had examined PWs 1 to 4 as witnesses, the court below was not inspired by their testimonies. Nothing has been pointed out to me to take a different view in the matter. It is worth remembering that the trial court had the advantage of seeing the witnesses and watching their demeanour which I do not have. Therefore, I refrain from upsetting the findings of the trial court. 12. The claim of the plaintiff has to fail for the further reason that the claim of the plaintiff is barred by limitation. Since, the first amount was paid on 27.01.1990 and the second amount was alleged to have been paid on 30.10.1990, the suit having been filed only in 1994 was clearly time barred. Therefore, I confirm the findings of the trial court on this aspect also. 13. Regarding the third payment that is alleged to have been made on 22.01.1992, as found by the court below, there is no evidence to prove any such payment. The counsel for the appellant was not able to draw my attention to any material or evidence to show that any such payment was made. Therefore, AS.238/97 : 8 : the court below was right in rejecting the claim of the plaintiff on this aspect also. 14. No other point has been raised by the counsel on either side before me. 15. In view of the above, this appeal fails and is dismissed, confirming the judgment and decree dated 31.10.1996 of the Sub Court, Ottappalam in O.S.No.360/94. In the circumstances of the case, there will be no order as to costs. Sd/- (K. SURENDRA MOHAN, JUDGE) aks // True Copy // P.A. To Judge AS.238/97 : 9 : K. SURENDRA MOHAN, J. ```````````````````````````````` A.S. No. 238 of 1997 ````````````````````````````````` J U D G M E N T 25th day of September, 2009