IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931 AS.No. 257 of 1997() -------------------- OS.193/1991 of SUB COURT, MAVELIKKARA .................... APPELLANT/PLAINTIFF: ------------------- K. VISWANATAN NAIR, KOMACHETHU VADAKKETHIL VEEDU, KUTTAMPEROOR MURI, MANNAR VILLAGE. BY ADV. SRI.R.RAMADAS RESPONDENTS/DEFENDANTS: --------------------- K.C. UMMAN ALIAS CHACKO OOMMEN, VALLAKKALIL KALAPPURAYIL VEEDU, KUTTAMPEROOR MURI, MANNAR VILLAGE. ADDL.2. THANKAMMA OOMMAN, W/O. LATE; K.C. UMMAN @ CHACKO OOMMAN, -DO- -DO- '' 3. K.O.JACOB, S/O.LATE K.C.UMMAN @ CHA KO OOMMAN, -DO- -DO- '' 4. GEETHA MATHAN, D/O. LATE K.C. UMMAN @ CHACKO OOMMEN, KALLOOPARAMPIL, 4B, GOLDEN ENCLAVE APARTMENT, NEAR G. MART, KOTTAYAM-4. '' 5. RANI THOMAS, D/O. LATE K.C. UMMAN @ LCHACKO OOMMEN, KANNUKUZHIYIL HOUS, KANJIKUZHY, KOTTAYAM. (Legal representatives of the deceased sole respondent are impleaded as additional respondents 2 to 5 as per order dated 17/8/2009 on IA.NO.2753/08) ADV. SRI.G.GOPAKUMAR ADV. SRI.K.SASIKUMAR FOR R2 THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 08/03/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.2218/97 IN A.S.NO.257/97 --------------- Dismissed 8/3/2010 Sd/- HARUN-UL-RASHID, JUDGE. True Copy HARUN-UL-RASHID,J. -------------------------- A.S.NO.257 OF 1997 -------------------------- DATED THIS THE 8TH DAY OF MARCH, 2010 JUDGMENT Plaintiff in O.S.No.193/91 on the file of the Sub Court, Mavelikara is the appellant. The suit is for realisation of Rs.31,450/- with interest. The trial court dismissed the suit. Hence, this appeal. The parties hereinafter referred to are plaintiff and defendant as arrayed in the suit. 2. It is the plaintiff's case that he was appointed as an employee of the defendant in March, 1972. Defendant is the Proprietor of Mannar Trust Fund. He is also the Managing Director of M/s. Thottakkat Estate Pvt. Ltd. According to the plaintiff, the defendant conducted an interview on 7/3/1972 and he was appointed as a Clerk on 15/3/1972. It is his further case that on appointing him as a Clerk in the financial institution, the defendant demanded security amount of Rs.10,000/- and the amount was paid on 15/3/1972 and that the defendant agreed to -2- A.S.No.257/97 return the security amount with interest on termination of his employment. According to the plaintiff, he worked as an employee till 1989 and on 28/3/89 the defendant denied employment to him and manhandled him. He was not paid his service benefits nor repaid the security amount. Therefore, he issued a lawyer notice to the defendant. Since the defendant did not repay the security deposit, the plaintiff filed the present suit. 3. In the written statement the defendant denied the allegations in the plaint and contended inter alia that the plaintiff was appointed as an employee during 1974 and continued in service till 1989. He also denied the receipt of security amount and the allegation in the plaint that he had agreed to repay the security amount with interest. He also contended that Ext.A1 appointment order is a fabricated document. The document was created by misusing his position as an employee of the firm. 4. The trial court examined the question whether Ext.A1 appointment order was issued by the defendant. The -3- A.S.No.257/97 plaintiff tendered evidence in support of the plaint and produced Ext.A1, which according to him, is the appointment order issued by the defendant. The signature in Ext.A1 is admitted by the defendant. The case of the defendant is that the plaintiff was never in service during 1972 and 1973. Ext.A1 contains the signature of the defendant, the round seal and designation seal of the Trust Fund. In Ext.A1 it is stated that the plaintiff was appointed as Clerk in the Trust Fund as per the interview held on 7/3/1972 for a salary of Rs.75/- per month, that an amount of Rs.10,000/- was collected from the plaintiff on 15/3/1972 as security and the same will be credited as his deposit and that it will be returned with interest on the date of termination of the service. 5. The defendant strongly denied Ext.A1 and contended that he was running a chitty company and the plaintiff was dealing with the cash register, signed papers etc. for various transactions for and on behalf of the defendant, that he used to -4- A.S.No.257/97 entrust signed blank papers, that the defendant used to entrust the plaintiff the key of shelves and tables in his absence and the plaintiff must have prepared Ext.A1 document using such signed blank papers entrusted to him and the seals taken from the office. The defendant also contended that the plaintiff has no financial capacity to raise Rs.10,000/- during 1972 to pay as security and that it is highly improbable that the plaintiff deposited Rs.10,000/- for receiving a monthly salary of Rs.75/- during the relevant period. 6. The trial court did not place reliance on the oral evidence of PW1. The trial court observed that no witness was examined to prove the issuance of Ext.A1 and the payment of Rs.10,000/- to the defendant. The trial court further observed that the loose drafting of the content and the spaced out typing together with the unusual positioning of the signature and seal will conclude that it is a document created on a pre-signed paper. The observation made by the court below is not justified for the -5- A.S.No.257/97 reason that even the defendant did not deny the signature in Ext.A1. I have perused Ext.A1. I do not find an unusual positioning of the seal or signature in Ext.A1. The question to be examined is whether the case of the plaintiff stands proved as alleged. The issue to be examined is as to whether the defendant has executed Ext.A1 and received Rs.10,000/-. The question to be examined is whether the plaintiff was in service of the defendant from 1972 to 1974 and whether any security amount was received by the defendant, which is denied by the defendant. 7. It is submitted by the learned counsel for the appellant that the case of the plaintiff is that he was working with the defendant during 1972 to 1974 and that his salary was disbursed from the account of Thottakkat Estate Pvt. Ltd. According to him, the ledger and day book maintained by Thottakkat Estate Pvt. Ltd. will reveal the details of salary and other benefits disbursed to the plaintiff. I.A.No.1261/92 for production of ledger, day book etc. maintained by the Mannar Trust Fund for -6- A.S.No.257/97 the period 1977 to 1989 March was opposed by the defendant. According to him, he has filed an affidavit stating the facts that which disable him from producing the said ledger and day book etc. 8. I am of the view that an opportunity shall be given to the defendant, who testified before the court below that he was the Managing Director of Thottakkat Estate Pvt. Ltd., to produce the ledger and day book etc. Thottakkat Estate Pvt. Ltd. is a concern of his family and he was the Managing Director at the relevant time. The evidence tendered by the plaintiff also is not sufficient to prove his case of payment of Rs.10,000/- on 15/3/1972. On such circumstances, I direct the trial court to re- appreciate the facts and decide the case afresh, after giving an opportunity to both sides to adduce evidence, if any. 9. In the result, the judgment and decree passed by the court below are set aside. The case is remanded to the trial court for fresh consideration. Since the suit is of the year 1991, the trial -7- A.S.No.257/97 court shall dispose of the suit as early as possible, at any rate within a period of six months from the date of receipt of a copy of this judgment. The parties shall appear before the trial court on 30/3/2010. Send back the records immediately. Appeal is allowed. No order as to costs. HARUN-UL-RASHID, JUDGE. kcv.