IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 3RD AUGUST 2010 / 12TH SRAVANA 1932 FAO.NO. 159 OF 2010() --------------------- {OS.1703/2006 OF PRINCIPAL SUB COURT, PARAVUR} .................... APPELLANT/PETITIONER/IST DEFENDANT ----------------------------------------------- MOHANDAS, S/O.VASUDEVAN PILLAI, THACHETH HOUSE, KADAKKARA KARA, EZHIKKARA VILLAGE, NORTH PARAVUR. BY ADV.SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE & SRI.R.AZAD BABU RESPONDENT(S): COUNTER PETITIONERS/PLAINTIFFS ------------------------------------------------------------- 1. PARAVUR TOWN MERCHANTS ASSOCIATION, VYAPARA BHAVAN, CHENDAMANGALAM JUNCTION, NORTH PARAVUR REPRESENTED BY ITS PRESIDENT. 2. PRESIDENT, S.DIVAKARAN PILLAI, S/O.SANKARA PILLAI, THITTAZHATH, THIRUVONAM, KAITHARAM MURI, KOTTUVALLY VILLAGE. 3. GENERAL SECRETARY, RAVI SIVARAMAN, S/O.SIVARAMA PILLAI, ALUMPARAMBIL MADOM, CHERIYAPALLAMTHURUTHU, NORTH PARAVUR. 4. TREASURER, T.A.JOY, S/O.ANTHONY, THEKKINEDATH, PARAVOOTHARA, NORTH PARAVUR. FAO.NO. 159 OF 2010 :: 2 :: 5. N.A.JOB, S/O.ANTONY, MANAKKAL, DO. 6. PAULOSE, S/O.PAULOSE, PAYYAPPILLY, DO. ADV. SRI.DINESH R.SHENOY SRI.G.HARIKRISHNAN (TRIPUNITHURA) & SRI.MAHESH MENON THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 03/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. --------------------------------------- F.A.O.No.159 of 2010 --------------------------------------- Dated this the 3rd day of August, 2010 JUDGMENT THOTTATHIL B.RADHAKRISHNAN, J. The defendant, in a suit for specific performance of a contract for sale, challenges the dismissal of the applications filed by him to set aside the ex parte decree passed on 15.9.2007 and the application to condone the delay in filing such application. 2. Around 16 and odd cents of land is the subject matter of the contract for sale. The total consideration, going by the plaint averments, is around Rs.13,35,000/-. The defendant did not appear. Later, he was set ex parte. Thereafter, the ex parte decree was passed on 15.9.2007. F.A.O.No.159 of 2010 :: 2 :: 3. The defendant's application to set aside the ex parte decree and to condone the delay in making that application were supported by affidavits, in which, the case projected was that he had been sick and was under the treatment of a doctor, who issued the Medical Certificate produced in the case and marked as Ext.A1. Ext.A1 is issued by an Ayurvedic Physician possessing B.Sc and BAMS degree. She issued it on 15.4.2008 stating that the defendant has been suffering from acute arthritis from 1.5.2006 to 15.4.2008 and was advised bed rest for the period of treatment, and also that his condition has very much improved. 4. The application to set aside the decree was opposed by the plaintiff filing a counter affidavit through its president. 5. The defendant/petitioner was examined as AW.1 and the doctor was examined as AW.2. The F.A.O.No.159 of 2010 :: 3 :: doctor stated that she issued the certificate in question and that the defendant was under her treatment. Though she had stated that the defendant was advised bed rest, in cross- examination she also stated that the defendant could travel by car. To a specific question in cross-examination suggesting that there was nothing preventing the defendant in travelling in a car, she further stated that while travelling, there will be acceleration of the disease. During the course of his examination-in-chief, the defendant/petitioner initially attempted to say that the summons in the suit was not taken to him and that he was not served with summons. Later, he moved on to say that he could not get appropriate advice to have a written statement filed. In his cross-examination, an affidavit and petition filed by him in yet another case F.A.O.No.159 of 2010 :: 4 :: (certified copy) was put to him and because he had admitted having filed such an application in a different suit, the court below marked that document as Ext.B1, overruling the objection to such marking. However, it has been recorded by the court below that the document was not produced along with any list of documents, as called for. There is a statement in Ext.B1 that he could not appear in the case in relation to which Ext.B1 was filed because he had to proceed to outside the State of Kerala for some purpose. The court below has acted on that material. We would sound a word of caution regarding admission of materials of such nature. It is not an admitted document that was being marked. The opposition was as to the admissibility of the document. The affidavit accompanying the statement filed by the defendant in a previous case was nothing but a prior F.A.O.No.159 of 2010 :: 5 :: statement on oath and the extent to which it could be utilised during the course of cross-examination in a subsequent matter is regulated by the well settled principles of admission and appreciation of evidence, in particular, Section 145 of the Evidence Act. The prior statement was not utilised to contradict any testimony that was being rendered. Not only that, we also find that no part of that affidavit was put to the witness and his admission elicited at least regarding the contents and context of the affidavit, which is part of Ext.B1. 6. In his cross-examination, he was asked as to whether there is any construction in the property in question. He said that he does not know. He also said that after the agreement, he has not visited the site. Though the learned counsel for the plaintiff says that there is some F.A.O.No.159 of 2010 :: 6 :: pleading in the plaint about a construction, we find from the impugned order that the court below has expressed that now the respondent (plaintiff) had submitted that years have passed after getting the decree and he had completed a multi-storeyed building in that property, so that any disturbance will cause irreparable loss and injury to the respondent (plaintiff). We would take it only as a submission or argument advanced in the case at the time of hearing because, we did not see any such thing in the counter affidavit filed in support of the application. We also do not find that any witness was examined on behalf of the plaintiff in opposition to the application to set aside the ex parte decree. 7. Having considered the aforesaid as regards the appreciation of evidence, we need to state that the court below had before it, the F.A.O.No.159 of 2010 :: 7 :: version of AW.2 doctor, stating that the defendant was sick and he was suffering from acute arthritis. The fact that she is a competent doctor is not under challenge. Her statement that the defendant was advised bed rest is on record. Though she stated that he could travel in a car, she had also deposed that travel would aggravate his condition. The court below did not disbelieve the doctor. The version of the doctor eloquently supports and corroborates the version of the defendant on oath that he was sick and was unable to go to court. 8. At one time, we thought that there is a fairly long distance between Vyttila, the doctor's clinic and the place North Parur, where, going by the address, the defendant is shown to reside. The doctor's clinic is in Vyttila, which is not very near to North Parur. This litigation F.A.O.No.159 of 2010 :: 8 :: comes from the North Parur Sub Court. However, we find, even from the opening part of the testimony of the defendant as AW.1, that he resides in Vyttila and he was having treatment from AW.2 in Vyttila. This is also not seriously challenged in his cross-examination. 9. On the totality of the evidence, as aforesaid, we are of the view that the case of the defendant commanded acceptance and the court below would have only been justified to set aside the ex parte decree on terms and provide the defendant an opportunity to contest the suit on merits. 10. We have also looked into the plaint claim. It is by a Merchants' Association. The suit agreement is not a registered one. It is one executed after the amendment of Section 53-A of the Transfer of Property Act in 2001. We also notice that, as of now, there are litigations F.A.O.No.159 of 2010 :: 9 :: between the defendant and the plaintiff- Association relating to the construction activity and the parties are also before the Tribunal for Local Self-Government Institutions, the competent statutory Tribunal under the Kerala Municipalities Act, 1994. It is also suggested that there is a controversy between the parties as to whether some of the papers relied on by the plaintiff are those signed by the defendants. We, however, note that there is no such plea on record in the case, as of now. We, however, caution ourselves from stating any further because the court adjudicating a suit for specific performance of a contract for sale, is essentially a court of equity and would be guided by the precedents, while ultimately moulding the reliefs. 11. For the aforesaid reasons, we are satisfied that the impugned order is liable to be F.A.O.No.159 of 2010 :: 10 :: set aside and the application to set aside the ex parte decree and the application to condone the delay in filing such application are to be allowed on terms. In the result, this appeal is allowed, setting aside the impugned orders and allowing I.A.Nos.1703/08 and 1704/08 and consequently, restoring the suit, O.S.No.163/06 to the file of the Court of the Principal Sub Judge, North Paravur, on condition that the appealing defendant will pay the plaintiff, payable to the counsel appearing before this court, an amount of Rs.25,000/- as costs, within a period of two weeks from today. If such costs is paid and memo filed before the court below, in obedience to this judgment, having regard to the desire of the plaintiff to have the suit concluded at the earliest, the court below will endeavour to F.A.O.No.159 of 2010 :: 11 :: dispose of the suit finally, in any event, before the end of 2010. In that event, the court below will decide the matter untrammelled by any observation in this judgment. Parties are directed to appear before the court below, subject to payment of costs, on 31.08.2010. Sd/- (THOTTATHIL B.RADHAKRISHNAN) JUDGE Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/ //true copy// P.S. to Judge.