IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 11TH APRIL 2008 / 22ND CHAITHRA 1930 CRP.No. 360 of 2008() ------------------------------ (AS. NO.109/02 OF THE SUB COURT, TIRUR. O.S. NO.32/2001 OF THE MUNSIFF'S COURT TIRUR. REVN. PETITIONER/ APPELLANT/ DEFENDATN ----------------------------- SADALIKKUTTY, S/O. MACHINCHERI MUHAMMED HAJI, THRIPPRANGODE AMSOM AND DESOM P.O. THRIPPRANGODE, TIRUR TALUK. BY ADV. SMT.PRABHA R.MENON SRI.M.KRISHNAKUMAR RESPONDENT/ RESPONDENT/ PLAINTIFF ---------------------- KUNHIMUHAMMED S/O. PASHAYAKATHU VALIYA PEEDIYAKKAL MUHAMMED PACHATHIRI AMSOM, PARAVANNA DESOM, P.O.PARAVANNA, TIRUR TALUK, MALAPPURAM DISTRICT. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRP. NO.360/2008 ORDER ON IA. NO.994/2008 IN CRP. NO.360//2008 DISMISSED 11.04.2008 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = C.R.P. NO. 360 OF 2008 = = = = = = = = = = = = = = = Dated this the 11th day of April, 2008. O R D E R This revision petition is preferred against the judgment of the Subordinate Judge, Tirur in A.S.109/02. The suit was one for realisation of the amount due under an agreement. It was the case of the plaintiff that he had given a sum of Rs.35,000/- out of which Rs.20,000/- has been paid and the balance Rs.15,000/- is the amount due for which the suit is instituted. PW1 and PW2 were examined. PW1 is the plaintiff and PW2 is the attesting witness. Their evidence has been evaluated and accepted by the Court below. DW1 is neither the defendant nor the wife of the defendant. It is submitted that the defendant is abroad and the wife is laid up and therefore she cannot come to be examined. It has come out in the evidence of DW1 itself that the wife is having some ailment but it is not to be stated that she is unable to move or she cannot come to the Court. Now, the learned counsel CRP NO. 360 of 2008 -:2:- for the revision petitioner wants to argue before this Court that the evidence is totally mis-appreciated by the Courts below and therefore it requires indulgence. 2. This question has been considered by the Apex Court regarding the jurisdictional aspect by a High Court while entertaining a second appeal. Though this is a revision petition it has a status of a second appeal for the reason that a second appeal is tabooed under the provisions of the CPC. The Apex Court in the decision reported in Gurudev Kaur v. Kaki (AIR 2006 SC 1975) held that after the amendment of the CPC unless there are real substantial questions of law, the Court should not interfere. The Court held that in paragraph 70 as follows. “The fact that, in a series of cases, this Court was compelled to interfere was because the true legislative intendment and scope of Section 100 CPC have neither been appreciated nor applied. A class of judges while administering law honestly believe that, if they are satisfied that, in any second appeal brought before them evidence has been grossly mis- CRP NO. 360 of 2008 -:3:- appreciated either by the lower appellate court or by both the courts below, it is their duty to interfere, because they seem to feel that a decree following upon a gross mis- appreciation of evidence involves injustice and it is the duty of the High Court to redress such injustice. We would like to reiterate that the justice has to be administered in accordance with law. 3. The Supreme Court also further held that it must be clearly understood that the legislative intendment was very clear that the legislature never wanted a second appeal to become a third trial on facts or one more dice in the gamble. The effect of amendment has to be understood in this proper perspective. Therefore the contention regarding re-appreciation of evidence does not arise for consideration in a case of this nature when two Courts have concurrently held so. 4. I cannot also hold that the approach is totally perverse for the reason the Court did consider the evidence of PW1 who is the plaintiff and PW2 who is the attesting witness to arrive at a decision. Evidence of DW1 and DW2 was not CRP NO. 360 of 2008 -:4:- accepted by the Court below for its own reasons. Neither the defendant nor his wife stepped into the box to deny the contentions and only it was their uncle who had entered he box. At one point of time he had deposed before the Court below that he even does not know whether any amount is due to the plaintiff from the defendant. So on any aspect one cannot hold that there is total misappreciation or perverse approach by the Courts below. So I do not find any ground to interfere with the decisions rendered by the Courts below and therefore this C.R.P. is dismissed. M.N. KRISHNAN, JUDGE. ul/-