IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 18TH JANUARY 2008 / 28TH POUSHA 1929 RFA.No. 613 of 2007() --------------------- OS.183/2007 of PRL.SUB COURT,KOTTAYAM .................... APPELLANTS/PLAINTIFFS -------------------------------------- 1. VINODKUMAR , AGED 40, S/O. RAMACHANDRAN NAIR THURUTHEL VAYPEL HOUSE, VADAKARAMURI VELLOOR VILLAGE, VAIKOM TALUK. 2. SUKUMARAN NAIR AGED 51,S/O. SIVAN PILLA, MADATHIPARAMBIL HOUSE VADAKARAMURI, VELLOOR VILLAGE, VAIKOM TALUK. BY ADV. SRI.S.MOHAMMED AL RAFI RESPONDENTS: DEFENDANTS ----------------------- 1. BHARGAVIAMMA, AGED 73 YEARS D/O.KAVAMMA,VALVAKKOTTU PUTHENPURAYIL VADAKARA MURI, VELLOOR VILLAGE VAIKOM TALUK. 2. VALSALA, AGED 54 YEARS, W/O.RADHAKARISHNAN NAIR PANCHAKSHRIYIL HOUSE, KIZHAKKUMCHERRY THEKKEMURI NADUVILE VILLAGE,VAIKOM TALUK. THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.RAMAN & V.K.MOHANAN, JJ. --------------------------------- R.F.A.No.613 OF 2007 ------------------------------------ Dated this the 18th day of January, 2008 JUDGMENT Raman, J. This appeal arises out the judgment in O.S.No.183/2007 on the file of Principal Sub Court, Kottayam. The suit is one for specific performance and alternate prayer is for return of the amount with interest. The court below granted the alternate prayer. No evidence was recorded. In the judgment it is stated that no written statement is filed. Both sides agree that written statement was filed and that the observation that no written statement was filed itself is wrong. The court did not frame any issues or the parties lead to adduce any evidence in the matter. In the facts and circumstances of the case, when the court below has itself gone wrong in stating that no written statement was filed clearly shows the non-application of the mind. Further it is not stated as to why parties were not allowed to adduce the evidence in the matter. In the circumstances, judgment and decree is set aside and the matter is remanded back for fresh consideration. The court below shall dispose of the matter in RFA.NO.613/07 2 accordance with law and after permitting the parties to adduce evidence. Party shall appear before the court below on 12/02/2008. The entire court fee shall be refunded. (P.R.RAMAN, JUDGE) (V.K.MOHANAN, JUDGE) sv.