IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 11TH JANUARY 2008 / 21ST POUSHA 1929 CRP.No. 852 of 2005() --------------------- AS.75/2004 of ADDITIONAL DISTRICT COURT (ADHOC-1), THODUPUZHA OS.396/1996 of MUNSIFF COURT,THODUPUZHA .................... REVN. PETITIONER: PETITIONER/1STRESPONDENT/1STDEFENDANT. -------------------------------------------------------- K.V.LUKOSE, S/O. VARKEY, KUNNAPPILLIL HOUSE, KARIMANNOOR KARA & VILLAGE, THODUPUZHA. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENTS: APPELLANT & R2-PLAINTIFF & 2ND DEFENDANT. ------------------------------------------------------ 1. MARY JOSEPH, W/O. JOSEPH, KUZHIKKATTUMYALIL, PANNOOR KARE, KARIMANNUR VILLAGE, THODUPUZHA. 2. K.J.JOSE, S/O. JOSEPH, KUZHIKKATTUMYALIL HOUSE, PANNOOR KARE, KARIMANNOOR, THODUPUZHA. BY ADV. SRI.T.J.MICHAEL SRI.P.NOOR SEMIR THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON IA2455/05 IN CRP 852/05 DISMISSED 11.1.08 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ PA TO JUDGE. M.N.KRISHNAN, J. -------------------------- C.R.P. NO. 852 OF 2005 --------------------- Dated this the 11th day of January, 2008 ORDER This revision is preferred against the judgment of the Additional District Judge, Thodupuzha in A.S. 75/04 whereby the learned District Judge had set aside the judgment and the decree passed by the learned Munsiff, Thodupuzha, in O.S. 396/96. The brief facts necessary for disposal of the civil revision petition are stated as follows. 2. Admittedly, the appellant/plaintiff has joined a kuri conducted by the 1st defendant by signing the necessary variyola. The kuri had been bid in auction. Now the dispute is with respect to the receipt of the amount that is due to her on the bid. According to the plaintiff, when she along with her husband and son went to receive the amount, as she was physically incapable she remained in the down portion of a building and her husband and son came and told her that the 1st defendant is insisting for a demand promissory note for which they did not agree and therefore the amount was not received. It is her case that she had preferred a complaint to the Sub Registrar, Karikkode, who was acting as an authority under the Kerala Chit funds Act and had also filed a criminal complaint against the 1st defendant with respect to the same. Her contention is that the amount which she had bid in auction is entitled to be received by her and as the 1st defendant had C.R.P. NO.852/05 2 not paid it, she must be given a decree for the same. 3. On the other hand, the 1st defendant would contend that the case of the plaintiff is incorrect. It is true that she had joined the kuri. But the payment of the instalments and the conduct of the kuri etc., were done by her son and after bidding the kuri, as stated by the plaintiff, all of them came and the plaintiff sat in the down portion of a building and thereafter as the plaintiff could not climb up, her son went upstairs signed the kuri bond and brought it to downstairs to get it signed by the plaintiff and thereafter presented it before the 1st defendant and obtained the bid amount. Thus, there is payment of the amount due to her under the bond. 4. According to the 1st defendant, subsequently he had sent a notice for payment of the defaulted instalments and thereafter only a case of this type has been set up. The court below examined PW1, DW1, DW2 & DW3 and marked Exts. A1, A2 and Exts. D1 to D5. On appreciation of evidence, the court below dismissed the case of the plaintiff and allowed the counter claim filed by the 1stdefendant. In the appeal, learned District Judge has reversed the finding of dismissal of the suit and granted a decree in favour of the plaintiff and at the same time confirmed the finding of a decree in the counter claim. Now the question that has come up before the revisional court is only regarding the finding on the main suit. 5. I am conscious of the fact that the court is now only entertaining the case under the revisional jurisdiction and there are limitations for the C.R.P. NO.852/05 3 court and the main duty of the court is to find out whether there is any illegality or irregularity in the approach committed by the court below, which requires interference at the hands of this court. Learned counsel for the defendant in the suit had pointed out the said fact to me while analysing the matter. 6. Unlike other cases, this is a case where the approach of the court has to be carefully done considering the peculiar facts and circumstances of the case. It is a settled principle that it is the preponderance of probabilities that has to be weighed in a civil case and the result of the case should depend upon whose favour the preponderance of probability lies. I may also like to first answer the question regarding the interestedness of a witness namely DW2. Even in criminal cases this court had taken a consistent view that it is the intrinsic reliability and inherent probability that has to be weighed in analysing evidence and just because a person is related or interested the court shall not desist from analysing and accepting the evidence, if it is found to be proper. So, with these things in mind, I discuss the facts involved in this case. Admittedly, the plaintiff is the mother and the 2nd defendant is the son. There cannot be any dispute that the 2nd defendant had been attending to the affairs of the mother. Even the evidence of PW1 would show that there are instances where the 2nd defendant had gone and deposited the kuri amount. It is also seen that it is not she who does the kuri transaction but it is either by her C.R.P. NO.852/05 4 husband or son. There is no strained relationship between the mother and the son. So this is tell tale fact on the facts and circumstances of the case. Mere analysis of the matter on a technical view may not result in meeting the ends of justice but it may work it in rendering injustice. That is the point which has to be precisely considered in this case. The contention of the plaintiff is to the effect that she had not signed Ext.B3 bond. Admittedly, on the date of alleged receipt of the amount, as contended by the 1st defendant, the plaintiff had gone at least to a building very near to the office of the 1st defendant. She had been accompanied by her husband and son. It is also stated by her that on account of her ill-health she was not in a position to climb up the stairs. It is in these circumstances the matter has to be viewed. The 1st defendant would contend that after the bond was executed, the son signed the same and with his permission had taken it to the mother who was in the down stairs obtained her signature and brought back the same and the payment was made. Is there any inherent improbability in such a situation when the mother’s affairs are looked after by the son as well as by the husband. When the son goes to the upstairs gets the bond for signature by the mother who was in the down stairs on account of her ill-health, I feel one cannot say it is not natural also. That is why the trial court while appreciating the evidence had put the mind in that direction to appreciate the evidence of the matter. It may be true that when the evidence of PW 1 and DWs 1 and 2 are analysed in a technical sense C.R.P. NO.852/05 5 or may find some difference in the signature of the plaintiff in the variyola and kuri bond. When the disputed point is considered, there may be differences which under the ordinary circumstances in the case of strangers may be of great significance causing a lethal blow to the case. But here it is the case that admittedly on the date of the alleged execution of the bond the plaintiff was present within the vicinity of the office of the 1st defendant and the 1st defendant deposed that the son had taken the bond for signature from his mother. One cannot categorise it as a built up story to disbelieve the version of DW1. Then the evidence of PW1 cannot be accepted in toto for the following reasons as well. It is her definite case that she had not received any amount and it is her case that she had filed a complaint to the Sub Registrar functioning under the Chitties Act. Except for the mere ipsi dixit of the person, there is no documentary evidence produced to establish that fact. For the first time a case of non receipt of the money and non execution of the bond is projected when the plaintiffs issues a notice when the bidder commits default of payment of instalments. So this is to be viewed with great caution. Similarly, she initiated criminal proceedings before the court which after trial had ended in acquittal and that also indicates that all is not well with the case of the plaintiff. It is true that there are some inconsistencies in the version of DWs 1 and 2 as well. DW1 had a twin case namely (i) sending the document for signature through her son (ii) that the son himself had put the signature of the mother C.R.P. NO.852/05 6 and brought it back. Here, considering the relationship of the parties who is the mother and son, one cannot disbelieve the facts emanating under those circumstances especially in the back drop that the son was looking after the affairs of the mother and was attending the office for depositing the kuri amount due. However, it is also evident that the 1st defendant and the plaintiff are totally not strangers. They do not have a any strained relationship. So it also indicates the probability of the 1st defendant permitting the son of the plaintiff to take the document for signature. It is a well known factum that when persons put their signature in different times there is possibility of some differences. But it is not that alone that has to be weighed to find out the truthfulness of the transaction. It is true that a categoric assertion is there for denying the signature in the document. But I am inclined to accept the appreciation done by the trial court rather than that of the learned District Judge, who had considered the matter totally under a technical approach. 7. Learned counsel for the 1st respondent herein had submitted that under the provisions of the Kerala Chitties Act it is mandatory on the part of the firm to obtain a receipt for payment of the amount. He would also submit that an oral authorisaton is not permissible. It may be true. But, as stated by me earlier, the mother had admittedly come to the down stair portion of the building. Her son who is looking after her affairs climbs up and submits. Under such circumstances, the son is only acting on behalf C.R.P. NO.852/05 7 of the mother and as the mother was there in the down stairs, one need not insist for an authorisation to receive the amount considering the relationship between the parties. So far as the issuance of a receipt is concerned, it is only a necessity under the Act. But if it is proved that by Ext.B3 document and the recital therein that the amount has been paid and just because a receipt is not obtained it will not take away the liability of the person who had received the amount. 8. Learned counsel for the 1st respondent had drawn my attention to the evidence of DWs 1 and 2. Admittedly neither DW1 nor DW2 had seen the plaintiff putting her signature in Ext.B3 bond. Evidence of DW2 would show that when he put his signature, the signature of others were there in the document. There is no case for anybody that the plaintiff has affixed her signature in front of any witnesses. So just because DWs 1 and 2 had not signed the PW1 affixing the signature one cannot jump to the conclusion that there was no receipt of the amount at all. The evidence of DW2 would shows that his evidence need not be brushed aside in toto. From an over all analysis of the entire materials I feel that the broad probabilities and materials available in this case would only come to show that the plaintiff had executed the bond and had obtained the money even if it is true that the 2nd defendant had obtained it, it is only her amount since there is no dispute between the mother and son. If the son had received the amount in some other capacity and as he was impleaded as 2nd C.R.P. NO.852/05 8 defendant certainly the 2nd defendant could have mounted the box to give evidence in support of the same. That is also absent in this case. Therefore, I feel that this is a fit case where there is totally an erroneous approach made by the appellate court in appreciating the evidence and it has resulted in injustice which requires interference at the hands of the revisional court. Therefore, the civil revision petition is allowed. The judgment passed in the suit by the Munsiff is restored. Considering the facts and circumstances, I direct the parties in the civil revision petition to bear their respective cost. M.N.KRISHNAN, JUDGE vps C.R.P. NO.852/05 9