IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 2ND APRIL 2009 / 12TH CHAITHRA 1931 RSA.No. 736 of 2008 --------------------------------- AS.162/2007 of III ADDL. DISTRICT COURT, KOLLAM OS.234/2004 of MUNSIFF COURT, KARUNAGAPPALLY .................... APPELLANT/APPELLANT/DEFENDANT: MADHAVAN GOPALAKRISHNAN, AGED 66, S/O. MADHAVAN, THARAYUDEVADAKKETHIL, ADINADU THEKKUMURI, ADINADU VILLAGE, KOLLAM DIST. BY ADV. SRI.S.SACHITHANANDA PAI RESPONDENT/RESPONDENT/PLAINTIFF: BALAKRISHNAN GOPI, LAKSHMIVILASOM VEEDU, KAIKULANGARA CHERRI, KOLLAM WEST VILLAGE, KOLLAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- R.S.A.No.736 of 2008 -------------------------- JUDGMENT The defendant in O.S.No.234/04 on the file of the Munsiff's Court, Karunagappally is the appellant in this Regular Second Appeal filed assailing the concurrent verdicts passed by the courts below in favour of the respondent/plaintiff directing the appellant/defendant to pay the respondent/plaintiff the plaint claim of Rs.54,000/- together with interest at 12% per annum on the principal sum of Rs.40,000/- from the date of suit till realisation. 2. The respondent as plaintiff instituted the suit aforesaid, inter alia, on the allegations that the appellant/defendant is the absolute owner in possession of an extent of fourteen cents of property comprised in Sy.No.2005 (R.S.No.24/21) of Thekkumbhagom Village, he having obtained the property under Sale Deed No.661/73 of SRO, Chavara; RSA 736/08 2 that on 21.4.2001, the appellant/defendant entered into Exhibit A1 agreement for sale to him of the said property; that as per the terms of the said agreement, the property was agreed to be sold for a total consideration of Rs.45,000/-; that on the date of execution of the agreement for sale, he paid an amount of Rs.40,000/- as advance and the balance sale consideration of Rs.5,000/- was payable within two months from 21.4.2001; that he was ready and willing to perform his part of the contract, but the appellant/defendant was not prepared to execute the sale deed, receiving the balance consideration of Rs.5,000/-; that therefore, he demanded the appellant/defendant to return the advance amount with interest, but he did not do that either and that on 2.7.2001, he caused a lawyer notice to be issued to the appellant/ defendant demanding return of the advance money with interest under Exhibit A2 postal registration receipt and that was accepted by the appellant/ RSA 736/08 3 defendant under Exhibit A3 postal acknowledgment card, but he did not comply with the demand. 3. The appellant/defendant resisted the suit denying execution of Exhibit A1 agreement and receipt of advance amount of Rs.40,000/- and contending that the respondent/plaintiff had instituted the suit for realisation of money to the tune of Rs.37,166/- against his son Lalu as O.S.No. 339/01 before the Munsiff's Court, Kollam that on I.A.No.1664/01 filed under Order XXXVIII Rule 5 CPC, the court ordered notice and under the pretext of effecting service of notice, the respondent/ plaintiff and some other persons came to his house and threatened him that the court had ordered attachment of the movables kept in his house and they directed him to handover some signed blank papers and stamp papers to the respondent/plaintiff if he wanted to avoid attachment; that thereafter, the respondent/plaintiff and others have forcibly obtained some signed blank papers and stamp papers RSA 736/08 4 from him; that he apprehends that the suit agreement is brought into existence fabricating those papers; that the respondent/plaintiff has no cause of action and that the suit has to be dismissed. 4. It is vehemently contended before me by the learned counsel for the appellant/defendant that Exhibit A1 agreement is unenforceable in law since the signatures of the appellant/defendant therein is obtained under coercion and fraud; that the present suit is barred in the light of the admission made by the respondent/plaintiff at the time of evidence that an earlier suit had been filed based on Exhibit A1, which was withdrawn by him; that however, the first appellate court should not have dismissed I.A.No.71/08 filed by him for receipt of additional documents in evidence and that the suit should not have been decreed without convincing evidence regarding passing of consideration. RSA 736/08 5 5. Though argument is advanced to the effect that Exhibit A1 agreement is unenforceable in law since the signatures of the appellant/defendant was obtained under coercion and fraud, there is absolutely no pleading which brings the defence case within the scope of the agreement being vitiated by fraud and coercion. The only contention is that an Officer of the court along with a few others approached the house of the appellant/ defendant to attach the movables in a suit filed against his son and he was asked to affix signatures on certain blank papers and stamp papers and accordingly he signed and delivered the signed blank papers and stamp papers for avoiding attachment. There is no case of any coercion having been exercised or any fraud having been played to get Exhibit A1 agreement executed. 6. Counsel for the appellant/defendant submits that there are two witnesses to Exhibit A1 agreement, who are examined respectively as PW2 and RSA 736/08 6 DW2, of whom, PW2 has supported the case of the respondent/plaintiff and DW2 has supported the case of the appellant/defendant. 7. It is worthy to note that the material witness to the cause is the Officer of the court, who went over to the house of the appellant/ defendant to effect attachment of the movables and returned the warrant without effecting the attachment consequent on some developments that have taken place at the house of the appellant/ defendant. The said Officer of the court is the best person to give evidence as to what all transpired at the house of the appellant/defendant which paved way for him to return the warrant without effecting attachment. The appellant/ defendant has not cared to examine the said witness who would have given truthful version of what has transpired at the house of the appellant/defendant. In the normal course, the Officer of the court, if examined, would have given some evidence which RSA 736/08 7 would throw light as to whether Exhibit A1 agreement was being duly executed by the appellant/ defendant or that his signatures were being obtained on blank papers and stamp papers. The appellant/defendant who has raised contention on the lines that he has not executed Exhibit A1 agreement at all and that the respondent/plaintiff was bringing into existence Exhibit A1 misusing the signed blank papers and stamp papers obtained from him cannot be heard to contend further that the respondent/plaintiff should have proved passing of consideration to the full extent or that the consideration stated to have been paid was not actually paid, but was being adjusted in some other manner. 8. The next contention that the respondent/ plaintiff admitted, when cross-examined, that he had filed an earlier suit for specific performance and that was withdrawn has to be accepted to hold that the present suit is barred by res judicata is RSA 736/08 8 untenable as the number of the said suit or the manner in which it was withdrawn are not brought out in evidence and the appellant/defendant has no case that he is served with summons in any such case. The further contention that certain documents were produced before the first appellate court along with I.A.No.71/08 and that was improperly refused to be admitted in evidence is not a contention that can be advanced before this Court when such documents, which are said to have been produced along with I.A.No.71/08, are not even attempted to be produced and got admitted in evidence before this Court and the said IA also is not produced and there is no evidence as to what all were the documents which the appellant/ defendant wanted to get admitted in evidence at the stage of first appeal and whether those were admissible. 9. On the evidence adduced by both sides in the suit, the courts below have concurrently found that RSA 736/08 9 the defence set up is false and that the appellant/ defendant has received the advance amount of Rs.40,000/- under the suit agreement and it was, therefore, that the suit was decreed for realisation of the said amount with interest till date of suit as claimed and thereafter at the rate of 12% per annum on the principal sum from the date of suit till realisation. The decree so passed by the courts below appreciating the evidence in the proper perspective and concurrently does not deserve to be interfered with in this Regular Second Appeal. There is no question of law and much less any substantial question of law that arises for consideration by this Court in this Regular Second Appeal. In the result, I dismiss this Regular Second Appeal in limine refusing admission. 2nd April, 2009 (K.P.Balachandran, Judge) tkv