IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933 RSA.No. 1034 of 2011() ---------------------- AS.51/2008 of ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR OS.3747/2004 of III ADDL. MUNSIFF COURT, THRISSUR .................... APPELLANT/APPELLANT IN AS/PLAINTIFF IN O.S ------------------------------------ RAMESH BABU,AGED 43 YEARS, S/O.LATE KANJIRATHINKAL VEETIL MADHAVAN, THIRUVALOOR KARA,ALANGAD VILLAGE, PARAVUR TALUK,ERNAKULAM DISTRICT. BY ADV. SMT.K.R.KRISHNAKUMARI RESPONDENT(S): DEFENDANTS IN O.S -------------------------------- 1. PREENA,AGED 33 YEARS, D/O.KANNAMKULANGARA CHITTATTUKARA VEETIL RAGHAVAN KOORKKENCHERY KARA,THRISSUR TALUK. 680 016. 2. GIRIJAN,AGED 54 YEARS, S/O.KANNAMKULANGARA CHITTATTUKARA VEETTIL RAGHAVAN KOORKKENCHERY KARA,THRISSUR TALUK. 680 016. 3. SAROJINI,AGED 79 YEARS, W/O.KANNAMKULANGARA CHITTATTUKARA VEETTI RAGHAVAN, KOORKKENCHERY KARA,THRISSUR TALUK. 680 016. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10/11/2011, ALONG WITH RSA NO. 1036 OF 2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA Nos.1034 & 1036 of 2011 ............................................ DATED THIS THE 10th DAY OF NOVEMBER, 2011 JUDGMENT Plaintiff in O.S.3747 of 2004, who is the first defendant in O.S.327 of 2003 on the file of III Additional Munsiff Court, Thrissur is the appellant in RSA 1034 of 2011 and the first appellant in RSA 1036 of 2011. Respondents in RSA 1034 of 2011 are the defendants in O.S.3747 of 2004 and respondent in RSA 1036 of 2011 is the plaintiff in O.S.327 of 2003 who is the first defendant in O.S.3747 of 2004. O.S.3747 of 2004 is filed by the appellant claiming damages of Rs.50,000/- contending that the marriage fixation ceremony of the appellant with the first respondent was conducted on 28.10.2001 and the marriage was to be solemnized on 27.12.2001. Appellant had made all arrangements for the marriage. Meanwhile, he received information about the bride regarding her chastity. He made enquiries and found the allegations true and therefore he decided to withdraw from the marriage. The fact was intimated to the respondents. On account of the suppression of facts the marriage RSA 1034 & 1036/11 2 could not be performed. The act of the respondents dishonoured the appellant and resulted in mental torture and agony. He claimed Rs.35000/- for mental agony, and Rs.50,000/- being the expenses incurred for preparation of the proposed marriage. He limited the claims to Rs.50,000/- and claimed it from all the respondents alleging that they are jointly and severally liable. 2. Respondents resisted the suit contending that appellant withdrew from the marriage without valid reason and the alleged information was false and the fact that appellant is withdrawing from the marriage was known to respondents only by letter sent by him dated 5.12.2001 and no mental agony was caused to the appellant and instead, it resulted in mental agony and untold difficulties to the respondents. It was also contended that first respondent filed a private complaint before JFCM-I, Thrissur against the appellant and his brothers, the defendants in O.S.327 of 2003, for cheating and it was referred to Nedupuzha police and Crime No.340 of 2001 was registered and the suit was instituted to escape from the case. It was also contended that respondents sustained damages on account of the breach of promise to marry RSA 1034 & 1036/11 3 committed by the appellant. O.S.327 of 2003 is filed claiming damages. In O.S.327 of 2003, first respondent claimed Rs.60,000/- as the amount paid to appellant and Rs.26,615/- as expenses incurred for preparation of the engagement ceremony and marriage. Rs.50,000/- was claimed as damages for mental agony but limited it to Rs.10,000/-. She has claimed a total amount of Rs.95,615/- as damages. It was contended that for paying the amount as demanded by the appellant after fixation of the marriage, the amount was withdrawn by the mother of the first respondent from the bank by prematurely closing the fixed deposit. Appellant, along with his brothers filed a written statement in O.S.327 of 2003 denying the contentions raised by respondents and reiterating the contentions raised in the plaint in O.S.3747 of 2004. 3. Learned Munsiff tried both suits together. Appellant was examined as PW1. First respondent was examined as DW1 and second respondent was examined as DW2. In addition, five other witnesses were examined as DWs 3 to 7 on the side of respondents, the plaintiff in O.S.327 of 2003. Exts.A1 to A5 were RSA 1034 & 1036/11 4 marked on the side of appellant, including Ext.A4, the judgment in C.C.359 of 2002, which ended in acquittal. Exts.B1 to B25 and Exts.X1 to X2 were also marked. Learned Munsiff, on the evidence dismsised O.S.3747 of 2004 and granted a decree directing the defendants in O.S.327 of 2003 to pay Rs.86,950/- as damages. Out of the said amount, Rs.60,000/- was the amount found to be paid by the respondents and received by the appellant and Rs.16,950/-, the amount spent for the marriage engagement ceremony and for the preparation of the marriage and Rs.10,000/- as damages for the mental agony sustained by the first respondent. A.S.51 of 2008 is filed challenging the decree in O.S.3747 of 2004 and A.S.52 of 2008, challenging the decree in O.S.327 of 2003. Learned Additional District Judge, on re-appreciation of the evidence, confirmed the decree and dismissed both the appeals. RSA 1034 of 2011 is filed challenging the decree in O.S.3747 of 2004 and RSA 1036 of 2011, challenging the decree in O.S.327 of 2003. 4. Learned counsel appearing for appellant was heard. Learned counsel vehemently argued that courts below did not RSA 1034 & 1036/11 5 properly appreciate the evidence and first appellant, the plaintiff in O.S.3747 of 2004 had to withdraw from the marriage to be solemnized on 27.12.2001, as fixed by the engagement ceremony held on 28.10.2001, because of the information received by him regarding the chastity of the first respondent and on account of the marriage fixed suppressing the conduct of the first respondent, appellant sustained damages and courts below were not justified in not granting the damages as sought for in O.S.3747 of 2004. Learned counsel argued that even if it is to be found that plaintiff in O.S.327 of 2003 is entitled to damages, as found by the courts below, there is no justification to grant a decree for Rs.60,000/- in the absence of acceptable evidence to prove the payment or receipt of the amount by appellant. Learned counsel argued that there is no scrap of paper evidencing the payment of Rs.60,000/- as found by courts below. It was argued that the courts relied on the evidence of DW2, brother of first respondent, but his evidence was not properly appreciated. It was also argued that the case pleaded was that appellant first contacted over phone and demanded Rs.60,000/- RSA 1034 & 1036/11 6 and he was asked to come personally and on that night, appellant and his brothers came to the house of the first respondent and demanded the amount and Rs.60,000/- was prematurely withdrawn from the bank on 19.11.2001 and the amount was paid on 20.11.2001 which was denied by the appellant. It was argued that the evidence of DW2 who allegedly paid the amount show that no amount was paid on 20.11.2001 as claimed but the amount was paid on 19.11.2001 which is contrary to the case pleaded and in such circumstances, based on that evidence, courts below should not have granted a decree. 5. The fact that the appellant agreed to marry the first respondent and the marriage was fixed, to be solemnized on 27.12.2001, in the marriage fixation ceremony held on 28.10.2001 is not disputed. A copy of the deposition of PW1, the appellant made available by the learned counsel show that even according to the appellant, the marriage proposal was received through one of the relatives of appellant. On 5.8.2001, he went to the house of first respondent and getting satisfied, decided to verify the horoscopes. Later on 19.8.2001, relatives of the RSA 1034 & 1036/11 7 appellant went to the house of first respondent. On 2.9.2001, the relatives of first respondent came to the house of appellant. Finally appellant decided to marry the first respondent and to fix the marriage on 28.10.2001. It is also admitted by PW1 that the entire expenses for the fixation ceremony was made by the first respondent and her family. The marriage was agreed to be solemnized on 27.12.2001. Meanwhile, on 5.12.2001 appellant sent a letter to the brother of the first respondent, intimating that he is not prepared to proceed with the proposed marriage and is withdrawing from the marriage. The allegation in Ext.B3 letter is that he got some information about the character of the respondent and on enquiry, it is found to be correct and therefore he decided to withdraw from the marriage. Admittedly, appellant unilaterally withdrew from the marriage and marriage was not solemnized as agreed. It is also admitted fact that subsequently appellant as well as respondent entered into separate marital relationship. O.S.3747 of 2004 was filed by the appellant claiming damages on the allegation that on account of the suppression of facts, which led to the appellant to agree for the RSA 1034 & 1036/11 8 marriage, he has sustained damages. 6. The question is whether the finding of the courts below that appellant is not entitled to damages is legal and correct. When appellant has withdrawn from the marriage by sending Ext.B3 letter, even though respondent was prepared to proceed with the marriage, appellant is not entitled to claim damages unless he could establish that respondent suppressed material facts, which led the appellant to agree for the marriage. Though it was alleged that appellant received information by anonymous letters that respondent was having an affair earlier and it was found to be correct on verification, as rightly found by courts below, no evidence was adduced in support of the allegation. On the evidence, courts below were justified in holding that appellant, who agreed to marry the first respondent and on wild allegations, withdrew from the marriage. Hence he is not entitled to claim damages is perfectly correct. 7. Then the question is whether first respondent is entitled to damages awarded in O.S.327 of 2003. Learned counsel in view of the evidence and factual findings did not challenge the RSA 1034 & 1036/11 9 damages awarded, except Rs.60,000/- which was awarded based on the finding that the amount was paid by DW2 and received by the appellant. The question is whether the said finding of the courts below is correct. The argument of the learned counsel is that when the pleading and the allegation was that Rs.60,000/- was demanded on 15.11.2001 and paid on 20.11.2001 and the amount was paid through DW2, the evidence of DW2 shows that there was no payment on 20.11.2001, but it was paid on 19.11.2001 and therefore courts below should not have relied on the said evidence, especially when there is no documentary evidence to support the payment and no other independent witness was examined. 8. Courts below relied on Ext.X1 and X2, which corroborates the claim of first respondent that Rs.60,000/- was paid to the appellant. Ext.X1 is a fixed deposit receipt which establishes that Rs.60,000/- was deposited by the mother of first respondent in Service Co-operative Bank, Koorkancherry. Ext.X2 shows that the fixed deposit was prematurely withdrawn by the mother of the first respondent by submitting Ext.X2 application. RSA 1034 & 1036/11 10 Ext.X2 establishes that the said amount was withdrawn on 19.11.2001 to pay it to the bride groom who agreed to marry the first respondent. Courts below relied on the evidence of DW3, Secretary of the Bank apart from that of DWs 1 and 2, to uphold the case that Rs.60,000/- was withdrawn prematurely and paid to the appellant. Learned counsel argued that Ext.X2 was created later, as fact that appellant is not prepared to marry the first respondent was informed to the brother of first respondent earlier and in any case based on Ext.X2, it is not possible to hold that the amount was paid to the respondent. The argument is that at best, it would establish that Rs.60,000/- was withdrawn on 19.11.2001 and when there is no satisfactory evidence to prove the payment to appellant or receipt of the amount by the appellant, courts below were not justified in upholding the case of respondents. Trial court and first appellate court on proper appreciation of the evidence, entered a factual finding that Rs.60,000/- was paid to appellant and the amount was paid as it was demanded by the appellant after fixation of marriage and first respondent could avoid the payment only at the risk of the RSA 1034 & 1036/11 11 marriage already fixed. That factual finding cannot be interfered, especially when Ext.X2 application by which Rs.60,000/- was withdrawn on 19.11.2001 at a point of time when first respondent or her relatives were unaware of the intention of the appellant to withdraw from the marriage. Though learned counsel argued that the factum of unwillingness of the appellant not to proceed with the marriage was known to the first respondent and her relatives much earlier, on the evidence, I cannot agree. Ext.B3 is the letter sent by appellant by which the brother of first respondent was intimated about the decision of the appellant not to proceed with the marriage. Copy of Ext.B3 made available by the learned counsel show that it was sent on 5.12.2001 based on a legal opinion received from an Advocate practising before this court. The recitals in Ext.B3 show that the reason for the withdrawal was the information received by the appellant one week earlier to the sending of Ext.B3 letter which on enquiry was found to be correct. If that be so, information, based on which enquiry was conducted and the appellant decided to withdraw from the marriage, was received by the appellant somewhere on RSA 1034 & 1036/11 12 28.11.2001. If that be the case, appellant could make enquiries only after 28.11.2001. If that be so, on 19.11.2001, it cannot be believed that respondents got information about the intention of the appellant to withdraw from the marriage and Ext.X2 was created. Ext.B3 establishes that even the decision to withdraw from the marriage was informed to the relatives of the first respondent only by letter dated 5.12.2001. In the light of Ext.X2 letter and the evidence on record, courts below were fully justified in holding that appellant had demanded Rs.60,000/- from the respondent and as marriage has already been fixed to be solemnized on 27.12.2001, with the intention that appellant will not break from the marriage, Rs.60,000/- was paid after withdrawing the fixed deposit prematurely, evidenced by Ext.X1 and X2. As no substantial question of law is involved, appeals are dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk