IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 9TH DECEMBER 2008 / 18TH AGRAHAYANA 1930 AS.No. 548 of 1996() -------------------- OS.104/1989 of SUB COURT, PATHANAMTHITTA .................... APPELLANT(S): ------------------------ V.TONY, VALIYAKALAYIL, MEZHUVELI VILLAGE, KOZHENCHERY TALUK BY ADV. SRI.N.VENKATARAMA IYER,M.V.JAYASREE RESPONDENT(S)/PLAINTIFF: ---------------------------- 1. M.K.VILASINI AMMA W/O. REMESH BABU, MUDAVANA VEETTIL, ELAVUMTHITTA MURI, MEZHUVELI VILLAGE, KOZHENCHERRY TALU,. 2. D.SADANANDAN, THONIKUZHIYIL VEETTIL, ELAKOLLOOR MURI, PRAMADOM VILLAGE, KOZHENCHERRY TALUK. . ADV. SRI.MATHEWS J.NEDUMPARA SRI.K.RADHAKRISHNAN (P) THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 9 /12 /2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE,J. ------------------------ A.S.No. 548 OF 1996 ------------------------ Dated this the 9th day of December, 2008 JUDGMENT The plaintiff in a suit for realisation of money for the alleged violation of a contract Ext.A1 is aggrieved by the judgment and decree of the trial court in so far as relief is declined against the 2nd respondent - 2nd defendant in the suit. The suit was preceded by Ext.A3 lawyer notice issued to the 2nd defendant and it was acknowledged by Ext.A4. There was no response from the 2nd respondent to Ext.A3. The allegation in the plaint was that even at the time of execution of Ext.A1, under which a bus bearing No.KLB - 2437 belonging to the first respondent was agreed to be sold to the appellant plaintiff, the first respondent had transferred ownership of the bus to a stranger and that the said fact was deliberately suppressed by the respondents. A written statement was filed by the 2nd defendant contending that he is not a necessary party to the suit and that he signed the agreement only in his capacity as a A.S..No.548/1996 2 mediator. He contended that after Ext.A1 was executed, he was never informed about the subsequent developments. The learned Subordinate Judge formulated the following 8 issues for trial; 1). Is the suit maintainable ? 2). Is the suit bad for mis-joinder of parties? 3). Whether there is privity of contract between plaintiff and 2nd defendant? 4). Who committed breach of contract ? 5). Has the 1st defendant sustained any loss as contended? 6). Whether the plaintiff is entitled to any amount as damages? 7). What, if any, is the amount due to the plaintiff from both or any of the defendants? 8). Reliefs and cost. 2. The evidence in this case consisted of oral evidence of PW1 and PW2 and Exts.A1 to A5 on the side of the appellant. On the side of the 2nd respondent the same consisted of the oral evidence of DW1. Under issue Nos. 2 and 3, the learned A.S..No.548/1996 3 Subordinate Judge held that the 2nd defendant is not a necessary party to the agreement and that the suit is bad for mis joinder of the 2nd defendant. It was held that the bus which was subject matter of Ext.A1 belonged to the first defendant. According to the learned Judge, the 2nd defendant cannot in any way perform any of the obligations under that agreement. The performance of the contract rested solely within the powers of the plaintiff and the 1st defendant. The learned Judge noticed that the 2nd defendant has not received any consideration from the plaintiff. Coming to issue Nos. 4, 5 , 6 and 7, the learned Subordinate Judge would answer those issues in favour of the plaintiff and in the result he decreed the suit allowing recovery of the entire plaint claim from the first defendant alone. The suit was accordingly dismissed as against the 2nd defendant, but decreed as against the first defendant. Today, when the case was taken for hearing, there is no representation for either sides. Having gone through the pleadings and having re appreciated the evidence recorded by the court below, I do not find any reason to disagree with the findings entered by the court below. However, in the absence of A.S..No.548/1996 4 the parties, the appeal will stand dismissed only for default. The parties will suffer their cost. (PIUS.C.KURIAKOSE,JUDGE) dpk A.S..No.548/1996 5 PIUS.C.KURIAKOSE,J. ------------------------ A.S.No. 548 OF 1996 ------------------------ JUDGMENT 9TH DECEMBER 2008