IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 5TH JULY 2010 / 14TH ASHADHA 1932 AS.No. 477 of 1996() ----------------------------- OS.344/1991 of IIND ADDL. SUB COURT,THALASSERY .................... APPELLANT(S)/ PLAINTIFF: ------------------------ K.V.DINESH KUMAR, S/O. ACHUTHAN, 'DEVI NILAYAM', NARANAGAPURAM, TELLICHERRY. BY ADV. SRI.M.P.ASHOK KUMAR RESPONDENT(S)/ DEFENDANT: ----------------------- CHALIL VIJAYAN, S/O. KANNAN, AUTHOLI THAZHE KUNIYIL HOUSE, P.O.KADIRUR. ADV. SMT.SUMATHI DANDAPANI,SRI.K.JAJU BABU THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 05/07/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 477 OF 1996 = = = = = = = = = = = = = = = Dated this the 5th day of July, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Thalassery in O.S.344/91. The suit is one for realisation of the amount and the Court below dismissed the suit with costs. It is against that the plaintiff has come up in appeal. 2. Heard the counsel for both the sides. A perusal of the plaint and written statement would reveal that the parties are putting up different stories in this case. It is the case of plaintiff that as per his request the defendant promised to make him as a partner in a bus service and he paid Rs.45,000/- for the same and have received three months profit for the A.S. 477 OF 1996 -2- same. When profits were ceased to be paid the plaintiff approached defendant and requested for the return of the amount paid by him. Then it is contended that the plaintiff had been given two cheques by the defendant for Rs.25,000/- and Rs.20,000/- and which when presented for encashment were returned with the endorsement of insufficiency of funds. Therefore again the plaintiff approached the defendant and it was clearly agreed to sell the bus in favour of the plaintiff for a further consideration of Rs.25,000/- plus Rs.50,000/- to be paid to the financiers. i.e. Rs.45,000/- already due plus Rs.25,000/- paid and Rs.50,000/- due to the financiers. Even there were criminals cases between the parties and in the criminal case the bus was released in favour of the defendant. Therefore the plaintiff has filed a case for return of Rs.45,000/- on the basis of the dishonoured cheque. A.S. 477 OF 1996 -3- 3. On the other hand the defendant would contend that the story of the plaintiff that he was agreed to be made a partner and that he had paid Rs.45,000/- and that two cheques were issued towards the discharge of Rs.45,000/- and that there was an agreement to sell the bus in favour of the plaintiff are all facts which are not true. According to the defendant the plaintiff is a money lender and advanced Rs.25,000/- to the defendant and at that time he had taken one blank paper worth Rs.50/- signed by the defendant and two blank signed unfilled cheques towards security for the borrowed amount. According to the defendant he had paid more than Rs.41,500/- to the plaintiff still the plaintiff, a money lender has moved a case of this nature. 4. In this case the plaintiff alone was examined. But unfortunately the plaintiff did not make any of the documents marked and after A.S. 477 OF 1996 -4- the closure of the evidence he moved an application before the trial court as I.A.1826/92 to reopen the evidence and receive documents. Learned Subordinate Judge dismissed those applications on the ground that the case is reserved for judgment. A perusal of the judgment would reveal that the Subordinate Judge has even felt that the plaintiff had not produced enough evidence for a proper disposal of the case. It is not correct on the part of the Court to deny such an opportunity to tender evidence though at a belated stage and dispose of the matter stating that documents are not produced. It will result in miscarriage of justice. I don't want to further amplify it further and I am inclined to grant an opportunity. It is absolutely necessary in this case to adduce further evidence to decide the matter. A.S. 477 OF 1996 -5- 5. Therefore the judgment and decree under challenge are set aside and the matter is remitted back to the Court below with a direction to reopen the case and receive additional documents as well as evidence if tendered by the parties and then dispose of the matter in accordance with law. Parties are directed to appear before the Tribunal on 6.8.2010 and being a matter of 1991 the Court below is directed to dispose of the matter as expeditiously as possible. 6. The question of Court fee due under Order 33 C.P.C. may be decided when the matter is finally disposed of. Registry is also directed to transmit the records immediately. M.N. KRISHNAN, JUDGE. ul/- A.S. 477 OF 1996 -6- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 477 OF 1996 = = = = = = = = = = = J U D G M E N T 5th July, 2010.