IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 28TH SEPTEMBER 2011 / 6TH ASWINA 1933 RSA.No. 377 of 2011() --------------------- AS.358/2008 of DISTRICT COURT, PALAKKAD OS.194/2007 of ADDL.MUNSIFF COURT, PALAKKAD .................... APPELLANT/ APPELLANT/DEFENDANT --------------------------------------------------------- VANAPRASTHAM TRUST,PAIMKULAM POST, THRISSUR REPRESENTED BY ITS MANAGING TRUSTEE NANDAKUMAR,S/O.HARICHANDRAN,PAIMKULAM POST,NEAR G U P SCHOOL,PAIMKULAM VILLAGE,THALAPPILLY TALUK, THRISSUR DISTRICT. BY ADV. SMT.T.D.RAJALAKSHMI SRI.R.SREEHARI RESPONDENT(S):RESPONDENT/ PLAINTIFF -------------------------------------------------------------- P.BALAKRISHNAN,AGED 70 YEARS, S/O.A.K.R.NEDUNGADI,SREERAGAM EDAYAR STREET, MANKAVU,PALAKKAD-678007. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 377 OF 2011 =========================== Dated this the 28th day of September,2011 JUDGMENT Defendant in O.S.No.194/2007 on the file of Munsiff Court, Palakkad is the appellant. Plaintiff is the respondent. Respondent instituted the suit for realisation of Rs.1,00,000/- deposited with the appellant contending that respondent contacted the appellant with regard to the Old Age Home being run by them at Cheruthuruthy on 14.11.2004. A representative of the appellant contacted the respondent at Palakkad and discussed the various facilities available at the Old Age Home and on discussion it was agreed between the appellant if respondent deposits Rs.1,00,000/- a separate cottage will be allotted to him in the Old Age Home and respondent agreed for the same. The RSA 377/2011 2 representative of the appellant obtained signature of the respondent in various forms. It is contended that respondent could not read or understand the contents thereof due to illness of his eyes and the respondent was informed that he need not pay any rent for living in the separate cottage and need only pay the expenses for food and other requirements and the amount deposited will be refunded if there is no allotment of a separate cottage. According to the respondent Rs.1,00,000/- was paid in three instalments viz Rs.35,000/- on 18.11.2004, Rs.35,000/- on 31.1.2005 and Rs.30,000/- on 21.2.2005 and receipts were issued for payment. The respondent never intended to pay it as donation. It was paid as consideration for allotment of a separate cottage. It is contended that appellant failed to provide the separate cottage and therefore respondent is entitled to get back the deposit with interest. Appellant resisted the suit contending that Munsiff Court,Palakkad has no territorial RSA 377/2011 3 jurisdiction as no part of t cause of action taken place within the jurisdiction of the court. It was contended that Rs.1,00,000/- was donated by the respondent at Painkulam, Thrissur District and the prescribed forms were signed by the respondent at Thrissur and a representative of the appellant had no occasion to go to Palakkad and discuss with the respondent and no agreement was executed at Palakkad and hence the court has no territorial jurisdiction to try the suit. It was also contended that there was no agreement to allot a separate cottage, as canvassed and as the payment was donation appellant is not liable to repay the same. 2. Learned Munsiff on the evidence of PW1, DW1, Exts.A1 to A5 and B1 found that Munsiff Court, Palakkad has no territorial jurisdiction to try the case. Learned Munsiff also found that Rs.1,00,000/- was paid by the respondent not as donation but as consideration for a separate cottage to be allotted and it was not allotted and therefore respondent is entitled to realise the RSA 377/2011 4 amount with interest at 9% per annum from the date of the institution of the suit. Appellant challenged the decree and judgment before District Court, Palakkad in A.S.358/2008. Learned District Judge on reappreciation of the evidence confirmed the findings of the learned Munsiff but modified the decree reducing the interest subsequent to the date of the decree at 6% per annum. It is challenged in the Second Appeal. 3. Learned counsel appearing for the appellant was heard. 4. The argument of the learned counsel is that appellant was contending before the trial court as well as before the first appellate court that Munsiff Court, Palakkad has no territorial jurisdiction to try the suit and though the trial court found that court has territorial jurisdiction the first appellate court did not consider the question at all. Learned counsel argued that the question of territorial jurisdiction was taken as a ground in the appeal RSA 377/2011 5 memorandum and first appellate court is bound to consider the same and as it was not considered the decree is not sustainable. 5. Learned counsel made available copy of the appeal memorandum which shows that the question of territorial jurisdiction was taken as one of the grounds. The judgment of the first appellate court shows that question of territorial jurisdiction was not considered. But the question is whether on that ground the appeal is to be admitted or the judgment of the first appellate court is to be reversed. The fact that the question of territorial jurisdiction was not considered by the learned District Judge shows the said ground was not raised before the learned District Judge when the appeal was heard. The submission of the learned counsel is that though that was the only ground which was agitated before the first appellate court but it was not considered. That submission is without any basis because if that was the real fact appellant would have filed a RSA 377/2011 6 petition to review the judgment on that ground. If the only ground canvassed before the first appellate court is lack of jurisdiction as argued by the counsel when it was not considered and appellant did not file a review petition before the first appellate court, it can only be found that the question of territorial jurisdiction was not argued before the first appellate court. Therefore the reason that the question of territorial jurisdiction was not considered by the first appellate court is not a ground to admit the appeal. 6. The argument of the learned counsel is that though it was alleged in the plaint that a representative of the appellant had gone to Palakkad to met the respondent and there was a discussion and the representative obtained signature in some forms at Palakkad, evidence of the appellant as PW1 does not establish that fact. Learned counsel made available copy of the deposition of PW1. The chief examination of PW1 RSA 377/2011 7 shows that there is a specific statement by PW1 that on 14.11.2004 representative of the appellant had gone to Palakkad and had a discussion with the respondent on the facility available at the Old Age Home and the provision for allotment of separate cottage and also promised to provide a separate cottage on deposit of Rs.1,00,000/- and pursuant to the discussion, respondent agreed to make the deposit and at that time his signature was obtained in some papers. Though PW1 was cross examined at length, the evidence of PW1 that a representative had gone to Palakkad and had discussion with the respondent was not challenged at all. The argument of the learned counsel is that in cross examination PW1 deposed that he had gone to Painkulam either on 14th or 16th November,2004 and Ext.B1 shows that it was executed at Painkulam on 14-11-2004 and therefore the evidence that a representative had gone to Palakkad on 14.11.2004 and had a discussion with the respondent cannot be true. On the evidence I RSA 377/2011 8 cannot agree. Though it was suggested to PW1 that the document was executed at Painkulam, PW1 denied it and deposed that he had signed it at Palakkad. When the evidence of PW1 that the representative of the appellant came to Palakkad and there was a discussion and in that discussion with him at Palakkadrespondent agreed to deposit Rs.1,00,000/- on the promise that a separate cottage will be allotted to him was not challenged, it could only be taken as proved. If so the said discussion would definitely form part of the cause of action which had taken place within the territorial jurisdiction of Munsiff Court, Palakkad. Hence finding of the trial court that court has jurisdiction to try the suit is perfectly legal and correct. 7. Then the question is whether the deposit made by the respondent was as donation as claimed by the appellant or was consideration for allotment of a separate cottage as claimed by the respondent. Learned Munsiff and the learned RSA 377/2011 9 District Judge on proper appreciation of the evidence, rendered a factual finding that the amount was not paid as donation but was deposited as a consideration for allotment of separate cottage. On the facts and evidence, I find no substantial question of law is involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006