IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 20TH FEBRUARY 2009 / 1ST PHALGUNA 1930 RSA.No. 132 of 2009 --------------------------------- AS.242/2006 of II ADDL. DISTRICT COURT, PALAKKAD OS.95/2005 of PRL.MUNSIFF COURT, PALAKKAD .................... APPELLANT/APPELLANT/DEFENDANT: SURENDRAN, AGED 42 YRS, S/O GOPALAN, AISWARYA NAGAR, KIZHAKKE VENNAKARA, PIRIYIRI AMSOM, PALAKKAD TALUK. BY ADV. SRI.P.R.VENKETESH RESPONDENT/RESPONDENT/PLAINTIFF: SHANMUGHAVEL, AGED 38 YRS, S/O.KANDASWAMI PILLAI, ANPU NILAYA, VITHUNNI, NOORANI, PALAKKAD TALUK. SMT.M.A.ZOHRA(CAVEATOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- R.S.A.No.132 of 2009 -------------------------- JUDGMENT Appellant is the defendant in O.S.No.95/05 on the file of the Munsiff's Court, Palakkad. The respondent/plaintiff filed the suit aforesaid for specific performance of Exhibit A1 agreement for sale of two cents of property for a total consideration of Rs.70,000/-. Execution of the agreement and receipt of Rs.25,000/- by way of advance are admitted. It is the case of the appellant/defendant that when time for execution of the agreement was to expire on 30.9.2004, on request made by the respondent/plaintiff, he agreed to extend the period by three months and in token thereof affixed his signature on the reverse of Exhibit A1 agreement without endorsing anything, but that the respondent/plaintiff has made endorsement above the signature to the effect that Rs.25,000/- more is paid towards sale consideration RSA 132/09 2 and the period is extended up to 31.1.2005 and the property also is surrendered to the possession of the respondent/plaintiff, but that in fact, no further amount of Rs.25,000/- was received and possession of the property also had not been handed over to the respondent/plaintiff. 2. On the above contentions, necessary issues were raised by the trial court and considering the evidence adduced at trial, which consisted of oral evidence of PWs 1 and 2 and DWs 1 and 2 and documentary evidence Exhibits A1 to A3(b), trial court decreed the suit upholding the case of the respondent/plaintiff. 3. According to the counsel for the appellant/ defendant, the court below has not accepted the contention of the respondent/plaintiff to the extent that possession of two cents of property was handed over to him, despite the endorsement made on the reverse of Exhibit A1 agreement. The finding was so entered into against the contention of the RSA 132/09 3 respondent/plaintiff regarding delivery of possession of two cents for the reason that the respondent/plaintiff could not produce any evidence to substantiate possession, when the property was lying along with the residential plot of the appellant/defendant. Though the appellant/defendant assailed the decree granted by the trial court directing specific performance of the suit agreement depositing the balance sale consideration of Rs.20,000/- as well, the first appellate court, vide judgment in A.S.No.242/06 dated 26.8.2008, dismissed the appeal concurring with the findings of the trial court. 4. In this Regular Second Appeal, the learned counsel for the appellant/defendant has no other argument to be advanced other than those advanced before the first appellate court which were repelled by the first appellate court. According to the learned counsel the discretion should not have been exercised by the courts below in favour of the RSA 132/09 4 respondent/plaintiff especially when the property, agreed to be sold, is two cents to be carved out from the residential plot of the appellant/ defendant and should have dismissed the suit or in the alternative, relief of refund of advance amount with reasonable rate of interest could have been decreed rather than ordering specific performance of the agreement and that granting decree of specific performance will give an unfair advantage to the respondent/plaintiff over the appellant/ defendant. He further contended that the disadvantage that would be suffered by the appellant/defendant by the performance of the agreement would outweigh the advantage of the respondent/plaintiff. 5. The above arguments cannot, but, be repelled as unsound when execution of the agreement as well as receipt of Rs.25,000/- as advance are admitted, and the contentions raised by the appellant were rightly found against concurrently by the courts RSA 132/09 5 below. The agreement was entered into by the appellant/defendant with his eyes wide open, initially receiving Rs.25,000/- as advance under Exhibit A1 agreement and he cannot now turn around and say, as is urged before me, that sale of the property would work out hardship to him and therefore, the decree be modified directing him to repay the amounts with interest at such rate as ordered by this Court or even ordering compensation being paid to the respondent/plaintiff. 6. Advocate Smt.M.A.Zohra, who has entered appearance on behalf of the respondent/plaintiff filing caveat, submits that by Exhibit A2 notice issued by the appellant/defendant through his counsel, the respondent/plaintiff is informed that he would sell the entire residential plot and would repay the advance amount received under Exhibit A1 agreement and this belies the contention that is advanced by the counsel for the appellant/ defendant before this Court that sale of two cents, RSA 132/09 6 carved out from the residential plot, would work out irreparable injury and inconvenience to the appellant/defendant. According to the counsel for the respondent/plaintiff, the intention of the appellant/defendant is to dispose of the entire property at a higher price retracting from Exhibit A1 agreement executed by him and to refuse relief under Exhibit A1 to the respondent/plaintiff returning the advance amount, to which the respondent/plaintiff is not agreeable. 7. Having heard the submissions of counsel on both sides, I am of the view that there is no question of law and much less any substantial question of law arising for consideration by this Court in this Regular Second Appeal. In the result, refusing admission, I dismiss this Regular Second Appeal in limine. 20th February, 2009 (K.P.Balachandran, Judge) tkv