IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 AS.No. 154 of 1996() -------------------- OS.166/1993 of SUB COURT, QUILANDY .................... APPELLANTS/DEFENDANT: ----------------------------- 1. PUTHENPURAYIL ISMAIL, S/O.MOIDEEN, POTTENTAVIDA CHOKKLI AMSOM, MEMANBRAM DESOM, TALASSERRY TALUK. (DIED) * SUPPL. APPELLANTS 2 TO 5 IMPLEADED 2. FATHIMA (INSANE), REPRESENTED BY NEXT FRIEND-RAFEELA.K.R., PEEDIKAKANDIYIL, PERINGATHUR AMSOM, ANIYARAM DESOM, THALASSERRY TALUK. 3. RAFEELA.K.R., PEEDIKAKANDIYIL, DO. DO. DO. 4. RAFEENA K.R., PEEDIKAKANDIYIL, DO. DO. DO. 5. MUNEER K.R., PEEDIKAKANDIYIL, DO. DO. DO. *1ST APPELLANT IS DIED AND LRS. ARE IMPLEADED AS SUPPL. APPELLANTS 2 TO 5 AS PER THE ORDER DATED 14.7.2008 IN I.A.NO.2653/08. BY ADV. SRI.V.V.ASOKAN SRI.K.I.MAYANKUTTY MATHER RESPONDENTS:PLAINTIFF ------------------------------ 1. KARIMBANAKKAL MEETHAL RAGHAVAN, S/O.KUNHIRAMAN, KUNNATHARA AMSOM, ULLUR DESOM, QUILANDY TALUK. ** ADDL. R2 AND R3 IMPLEADED 2. RAFEEQUE K.R., PEEDIKAKANDIYIL, PERINGATHUR AMSOM, ANIYARAM DESOM, THALASSERRY TALUK. AS 154/96 3. RASHEED K.R., PEEDIKAKANDIYIL, PERINGATHUR AMSOM, ANIYARAM DESOM, THALASSERRY TALUK. **LRS. OF DECEASED 1ST APPELLANT ARE IMPLEADED AS ADDL.R2 AND R3 AS PER THE ORDER DATED 14.7.2008 IN I.A.NO.2653/08. ADV. SRI B PARTHASARATHY. THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 25/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE,J. - - - - - - - - - - - - - - - - - - - - - - - - - A.S.No.154 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 25th November, 2008 JUDGMENT This appeal is directed against the judgment and decree of the Subordinate Judge's Court, Quilandy in a suit for money based on an agreement marked as Ext.A1. The original appellant was the defendant and the respondent was the plaintiff. As averred in the plaint, the defendant had received a sum of Rs.60,000/- from the plaintiff agreeing that he will arrange visa for the plaintiff for securing employment in gulf country. On 1.4.1993 the parties entered into Ext.A1 agreement which was to the effect that the defendant would arrange visa within four months from the date of agreement and on failure to arrange visa, the amount will be returned with interest. The defendant failed to arrange the visa as promised. In spite of demand made by the plaintiff, the amount was not refunded. The suit was accordingly filed for decree for money for the principal amount mentioned in the agreement with interest and costs. The defendant through his written statement denied the agreement and the transaction between him and the plaintiff. It was contended that he had never promised the plaintiff that he will obtain a visa for the plaintiff. It was also contended that Ext.A1 is a fabricated document. A.S.No.154/96 - 2 - The averments regarding demand and refusal were also denied in the written statement. The learned Subordinate Judge on the basis of the pleadings formulated the following issues for trial: 1. Whether the plaintiff had advanced any amount to the defendant as alleged? 2. Whether the alleged agreement is genuine? 3. Whether the alleged cause of action is true? 4. Whether the defendant is liable to pay the plaint amount? 5. What order as to relief and costs? At trial the evidence on the side of the plaintiff consisted of Ext.A1 and the testimonies of P.Ws.1 and 2. P.W.1 was the plaintiff himself and P.W.2 was the first attesting witness to Ext.A1. On the side of the original defendant, absolutely no counter evidence was adduced. The learned Subordinate Judge on evaluating the evidence would answer all the issues in favour of the plaintiff and accordingly decreed the suit for the plaint claim together with pendente lite and future interest at the rate of 12% per annum. During the pendency of the appeal, the original appellant died and his legal heirs were impleaded as supplemental appellants. 2. I have heard the submissions of learned counsel for the A.S.No.154/96 - 3 - appellants and those of Mr.B.Parthasarathy, learned counsel for the respondents. 3. Addressing me strenuously on the basis of the various grounds raised in the appeal memo, learned counsel for the appellant submitted that the court below erred in holding that it was having territorial jurisdiction to try the suit. It was argued that the evidence on record was not sufficient to establish the plaint claim and accordingly it was argued that the findings of the court below in so far as they are contrary to the evidence on record are vitiated. It was argued by the learned counsel for the appellant that the application of Section 67 of the Evidence Act by the court below was unwarranted. Section 67 did not have any application to the facts of this case, counsel submitted. Learned counsel drew my attention to Section 23 of the Contract Act and submitted that since apparently Ext.A1 incorporates a contract between parties to procure a visa in violation of the provisions of the Emigration Act, Ext.A1 was a void contract in terms of Section 23. No decree could be passed in favour of anybody on the basis of a void contract. Ex turpi causa non oritur actio was the maxim, according to the learned counsel. Lastly, learned counsel for the appellants appealed that opportunity be given to the A.S.No.154/96 - 4 - appellants for substantiating the contentions by adducing evidence. 4. Learned counsel for the respondents would support the impugned judgment on the basis of the reasons stated in the judgment itself. 5. I have considered the submissions addressed at the Bar. I have gone through the testimonies of P.Ws.1 and 2 and Ext.A1. Having appreciated the evidence, I do not find any reason to disagree with the learned Subordinate Judge on his findings on the various issues. As for the question of jurisdiction, the issue governed by Section 20. On the pleadings and on the evidence adduced in this case, Ext.A1 was executed within the local limits of the Quilandy Court. Section 20 governs and the court did have jurisdiction to try the suit. As for the argument based on Section 23, it has to be noted that the said argument as rightly noticed by the learned Subordinate Judge did not have any foundation in the pleadings. Of course, the argument before me was that the question is a pure question of law and therefore it should be allowed to be raised even without pleadings. I am not prepared to agree that the question which is now raised on the basis of Section 23 is a pure question of law. It is a mixed question of law and fact and going by the pleadings of the A.S.No.154/96 - 5 - plaintiff and the deposition given by P.Ws.1 and 2, the transaction between the parties on the basis of which the suit is instituted was a transaction for receiving payment and agreeing to repay subject to the happening or non-happening of a particular contingency. The non-examination of the 2nd attesting witness to Ext.A1 and the non- referal of Ext.A1 to an expert were also highlighted by the learned counsel for the appellants. As for the non-examination of the 2nd attesting witness to Ext.A1, it is trite that the law of evidence does not require any particular number of witnesses for proving a particular relevant fact. It is common knowledge that even in cases where documents are required to be attested statutorily by more than one witness, examination of one attestor is sufficient. Having gone through the testimonies of P.W.2, I am of the view that he has given convincing and inspiring evidence. The learned Subordinate Judge has also noticed that the plaintiff was all willingness to examine the other witness also and had actually brought the other witness to the court hall and that the court only did not permit the plaintiff to examine that witness. The execution of Ext.A1 stood established by testimonies of P.Ws.1 and 2. There was no cross-examination of the deposition of P.Ws.1 and 2 that the name and signature of the A.S.No.154/96 - 6 - original appellant was written by himself under his own handwriting. This may be the reason why the learned Subordinate Judge has referred to Section 67 of the Evidence Act in her judgment. Whatever that be, I am in agreement with all the conclusions of the learned Subordinate Judge which in my opinion are findings on the evidence which is on record. The appeal fails. However, I notice that the learned Subordinate Judge has granted pendente lite and future interest at the rate of 12% per annum. No particular rate of interest is mentioned in Ext.A1. The plaintiff has no case that Ext.A1 has arisen out of a commercial transaction. Taking into account all these aspects, I am inclined to modify the impugned decree by reducing the rate of interest both pendente lite and future to 6% per annum. Subject to the above modification, the judgment and decree under appeal will stand confirmed. In the circumstances of the case, the parties will suffer their costs in this appeal. srd PIUS C.KURIAKOSE, JUDGE