IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 SA.No. 511 of 1995() --------------------------- AS.115/1991 of ADDL.DISTRICT COURT, ALAPPUZHA. OS.434/1987 of ADDL.MUNSIFF COURT, ALAPPUZHA .................... APPELLANT(S): RESPONDENT:DEFENDANT: -------------------------------------------------------------- JOSE SEBASTIAN, MUKKATHU, CHAKKACHAMPAKKE MURI, KAVALAM VILLAGE. BY ADV. SRI.VIJU ABRAHAM SRI.VIJU ABRAHAM SRI.JOY C. PAUL RESPONDENT(S): APPELLANT: PLAINTIFF: ------------------------------------------------------------ VIMALA, W/O.KRISHNAN, SREESADANAM, KAVALAM MURI, KAVALAM VILLAGE, KUTTANADU TALUK. BY ADV. SRI.JOMY GEORGE SRI.JOHN VARGHESE SRI.VIJU ABRAHAM THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/07/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH, J. ------------------------------------------------------ S.A.No.511 of 1995 ---------------------------------------------- Dated, this the 29th day of July, 2009 J U D G M E N T Appellant is the defendant in a suit for money on the strength of Ext.A1 agreement. The suit stands decreed by the Ist appellate court which court reversed the decree of the trial court dismissing the suit. 2. The case of the respondent/plaintiff in brief was as follows:-- The appellant was a pumping contractor of second crop of the Eravukary-Kalarcode Padasekharam during 1161 M.E. The appellant hired a Kirloscar Motor Pump and its accessories owned by the respondent/plaintiff on the basis of a rent deed executed on 15.4.1986 (Ext.A1). Rs.120/- per one H.P. was fixed as the rent. It was a 40 HP motor. Advance of Rs.1,500/- though agreed upon was not given. It was agreed that the motor and its accessories will be returned back to the plaintiff's residence on or before 30.9.1986. The appellant did not deliver the motor. Hence the respondent/plaintiff was forced to take back the motor and its accessories at her own expense. There is a loss of S.A.No.511/1995 -2- Rs.1,500/- also because of the negligence. 3. The appellant contended that the rent deed is only a proposal and the motor and its accessories were not taken by the appellant. The plaintiff was not owning a Kirloscar motor pump of 40 HP and 40HP motor was not used for pumping works in the padasekharam in 1161 M.E. 4. The husband of the respondent/plaintiff was examined as Pw1. Pw2 is the pumping operator. Pw3 an employee of the respondent's husband was examined to prove that he and others took back the motor and its accessories to the house of the plaintiff. Pw2 was also examined in the same regard. Appellant did not examine himself. He examined the Assistant Executive Engineer as Dw1. This is to prove Ext.X1. Ext.X1 purports to be the record maintained in the Electricity Board, inter alia, in relation to the padasekharam in question and therefrom it is sought to be proved that the case of the respondent/plaintiff that the appellant had indeed taken the 40 HP motor from the respondent as alleged is false. This is sought to be done by showing that it shows that the motor employed by the appellant is only a 25 HP motor and not a 40 S.A.No.511/1995 -3- HP motor. Appellant produced Ext.B1 which is an agreement dated 7.5.1986 which apparently relates some other transaction between the parties. 5. I heard learned counsel for the appellant and learned counsel for the respondent. 6. The questions of law raised in the memorandum of appeal on which notice has been issued read as follows: “a). Has not the lower appellate Court acted illegally and with material irregularity when it overruled the finding of the trial Court that the motor used for the pumping operation was only 25 HP motor and not 40 HP motor without considering the evidentary value of Ext.A1 relied on for its finding by the trial court. b). Is not the finding of the lower appellate Court that Ext.A1 is a concluded contract and not a proposal only an error apparent on the face of the record and a wrong interpretation of the document. 7. Learned counsel for the appellant would of course contend that Ext.A1 can only be treated as a proposal. He further contends that it is an admitted case of the respondent that she did not receive advance of Rs.1,500/- as contemplated in Ext.A1 agreement and it should not inspire confidence of the Court to believe that the respondent would S.A.No.511/1995 -4- part with the motor without even receiving Rs.1,500/-. He would further submit that the finding of the Ist appellate court in regard to the contents of Ext.X1 is perverse. He would submit that Ext.X1 is a record maintained by a public official. He would contend that the Court should draw a presumption about the correctness of the said record and it is for him who seek to impugne the same to prove it. In other words, the fact that the power was shown as 25 HP in a public document which has been proved by Dw1 should have been taken as a clear and conclusive matter particularly in a case where as already noticed the appellant has admittedly not paid any advance as contemplated in the agreement, he contends. 8. Per contra, learned counsel for the respondent would contend that there is no merit in the appeal and no substantial question of law arises for consideration of this Court. 9. The trial Court has no doubt placed reliance on Ext.X1. The trial court has not relied on the versions of Pw2 and Pw3. It is found that the evidence of Pw3 cannot be relied on on the ground that he is interested as he was a casual labourer doing works in a saw mill owned by the S.A.No.511/1995 -5- husband of the plaintiff. It was also found that he was unable to say anything regarding the nature and type of the motor. As far as Pw2 is concerned it is stated that he was a pumping driver under the plaintiff during 1161 M.E. The court found that for the cultivation during that period there arose some disputes between the plaintiff and the defendant and Pw2 pretended ignorance about the same in cross examination. Stating that when asked about the fact that during the period 1162 ME whether there was some dispute between the plaintiff and defendant in cross examination Pw2 pretended ignorance the court has come to the conclusion that much reliance cannot be placed upon the witness. Ext.B2 certificate issued by the Assistant Executive Engineer was rejected for the reason that the person was not examined. Learned Munsiff relied on Ext.X1 which I have already referred. The trial court also found that the plaintiff was not having a motor of her own at the time of execution of Ext.A1 going by evidence. He also took note that there is no document to show purchase of motor ten days prior to execution of Ext.A1 by the plaintiff. It has also found that there is no concluded contract as per Ext.A1. S.A.No.511/1995 -6- 10. The first appellate court found from the evidence that the motor and its accessories were taken to the residence of the plaintiff. Apparently whether Ext.A1 is a concluded contract or a proposal is pressed before me. No doubt, it relates to the construction of a contract. The main reason why the learned counsel for the appellant submits that there is only a proposal and not concluded contract is that the appellant did not pay the advance and that it was not acted upon and there is no concluded contract. Admittedly, Ext.A1 has been executed by the appellant. Under the terms of Ext.A1 the appellant had agreed to take 40 HP motor from the respondent for rent. Rs.1,500/- was to be paid as advance. The fact that Rs.1,500/- has not been paid is not in dispute. But, the question which arises is whether the learned Munsiff is correct in concluding that there was no concluded contract. It cannot be said that Ext.A1 cannot be treated as a concluded contract for the reason that Rs.1,500/- was not paid as advance. There is evidence adduced to explain why it was allowed to be taken without payment of Rs.1,500/-. The fact that the party in the course of execution of contract decides to waive a right under the contract would not mean that the S.A.No.511/1995 -7- contract which has come into existence is not a concluded contract and is merely a proposal. The mere fact that the appellant did not pay Rs.1,500/- would not in my view render Ext.A1 a mere proposal. Of course, the most important question to be considered is as to what is the effect of Ext.X1 on which reliance is placed by the learned counsel for the appellant. The oral testimony consists of as already noted the evidence of the husband of the respondent, Pw2 the pumping operator and Pw3 a worker of the husband of the respondent and Dw1. Pw2, the pump operator has categorically stated that 40HP motor belonging to the plaintiff was taken and that it was used by the appellant. I am not satisfied with the reasons given by the learned Munsiff to discard the evidence of Pw2. His evidence has inspired confidence of the Ist appellate court. The execution of Ext.A1 is not in dispute and the only question is whether acting on the basis of Ext.A1 the motor was actually taken, used and upon failure of the appellant to return it the motor was taken back as alleged in the plaint. It cannot be said that there is lack of evidence in this regard. No doubt, Ext.X1 is a public record. But there is a case for the respondent apparently S.A.No.511/1995 -8- that it cannot be treated as totally unassailable going by evidence of Pw1. He would apparently seek to cast shadow of doubt over the same by setting up a case that the entry may not be correct. Upon going through the evidence a possibility that entry in Ext.X1 may not be fully reliable cannot be ruled out. I must also not overlook the fact that the appellant has not chosen to mount the witness box. I cannot accept the case of the learned counsel for the appellant that the finding is perverse that it warrants my interference in the limited jurisdiction under Section 100 of Code of Civil Procedure. I cannot on the whole take the view that the view taken by the first appellate court is not a plausible view. In such circumstances, the second appeal fails, and it is dismissed with costs. (K.M.JOSEPH) JUDGE. MS