IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 14TH MARCH 2008 / 24TH PHALGUNA 1929 CRP.No. 59 of 2008() -------------------- AS.26/2007 of SUB COURT, PERUMBAVOOR OS.23/2002 of MUNSIFF COURT, KOLENCHERRRY .................... REVN. PETITIONER: RESPONDENT/PLAINTIFF -------------------------------------- T.P.DAVID, AGED 71 YEARS, S/O.PAULOSE, THOPPILVEETTIL, KOKAPPILLY P.O. 682 035, KOKAPPILLY KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.H.B.SHENOY SRI.B.ASHOK SHENOY SRI.THOMAS P.MAKIL SMT.LAKSHMI B.SHENOY SRI.ABU MATHEW SRI.SOBHAN GEORGE RESPONDENTS: REVISION PETITIONER/DEFENDANT ------------------------------------------ ANTONY, AGED 71 YEARS, S/O.DEVASSY, KOYIKARAVEETTIL, MANAKKAKADAVU BHAGOM, KUMARAPURAM P.O., PALLIKKARA, KUMARAPURAM KARA, AIKARANADU NORTH VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- C.R.P. NO. 59 OF 2008 --------------------- Dated this the 14th day of March, 2008 ORDER This civil revision petition is preferred against the judgment of the Subordinate Judge, Perumbavoor, in AS 26/07. An appeal is preferred against the judgment of the Munsiff, Kolenchery, in OS 23/02. The suit is one for realisation of the amount. 2. It is the case of the plaintiff that in the month of April 2000, the defendant had sold the earth of his property to the plaintiff for which he has given Rs.15,000/- as advance. When the plaintiff went to excavate the soil in the month of May, the defendant did not allow the same stating that it is sold to a third person. Therefore the suit is filed with a prayer to return the amount with 18% interest. The defendant in the written statement would contend that he has never sold the soil to the plaintiff and that he has no connection with the plaintiff and it is not correct to say that the defendant sold the soil to one Mathukutty. It is further alleged that the plaintiff, who is a retired Police official, had made the police to register a case against the defendant. C.R.P. No. 59/08 2 3. In the lower court PWs 1 to 4 and Exts.A1 to A6 were marked. DW1 was also examined. On analysis of the entire materials, the trial court granted a decree in favour of the plaintiff. Against that decision an appeal is preferred in which the appellate court reversed the decree and judgment and dismissed the suit. It is against that decision the present revision is filed. 4. The point that arises for determination in the revision petition is whether there is any illegality or irregularity committed by the court below in reversing the judgment of the learned Munsiff. Firstly the suit is one for realisation of the amount. It is the case of the plaintiff there was an agreement between him and the defendant in the suit with respect to excavation of soil from the defendant’s property for which he has paid advance of Rs.15,000/- The said agreement according to him was entered into in the month of April and when he visited the property in May for excavation purpose, he was resisted by the defendant holding that it has already been sold to one Mathukutty. The case of the defendant is a total denial of the same. The trial court itself found that there is a deviated case for the plaintiff in evidence from the pleadings in his case. At the stage of evidence the plaintiff wanted to bring the new case to the effect that C.R.P. No. 59/08 3 he had done the excavation of the soil for two or three days after the agreement and it was thereafter the objection was raised by the defendant. Whereas this categorically pleaded case in the plaint is that he was never permitted to excavate soil from the property. Similarly it has also been found that when the plaintiff went to the house of the defendant demanding the money, the defendant along with his relatives restrained him and the plaintiff was manhandled for which a crime is registered. The appellate court on appreciation of evidence found that even the date in recording those incidents are incorrect for the reason that in the case it is stated that the incident took place on 10.4.01 but in evidence it has been stated as 18.4.01. 5. I am conscious of the fact that these are all matters which are not very meticulously to be looked into because evidence of a witness is normally with some defect otherwise it will amount to a tutored evidence. But when there is a fundamental difference between the pleaded case and the evidence adduced, then the court has to view it in caution especially when the witness is a educated man who had retired from the police service. The appellate court had reappreciated the evidence and held that there is discrepancy in the evidence of PW1 and there is no documentary evidence to prove C.R.P. No. 59/08 4 the same. The court found that PW3 is a close associate of the plaintiff whose oral evidence cannot be accepted. The court also found that there is no averment or evidence to show where exactly the money was paid. It is also stated that there has been no former acquaintance between the plaintiff and defendant except for once or twice and there has been no previous transactions as well. The court also found that there is a case of handing over of a blank cheque which is consequently absent in the pleadings. On reappreciation of the entire evidence, the appellate court found that the evidence is not sufficient to prove the case of the plaintiff. When the case is on the basis of an oral transaction and there is nothing to show that whether the agreement has been entered into or the amount has been has been paid, it requires meticulous evidence to grant a decree in favour of the plaintiff. There is a specific vitiated case in evidence from the pleaded case which has to be considered as a vital aspect for the reason that it will go into the root of the case. I do not find any illegality, irregularity committed by the appellate court in approaching the matter. Even a reading of the judgment of the trial court would reveal that it has its own suspicion in this matter to held that PW4 has stated so and therefore the defendant is not speaking the truth C.R.P. No. 59/08 5 and the plaintiff is entitled to the decree. It is not the manner in which the matter has to be approached to. It is the preponderance of probability that has to be considered. Preponderance of probabilities depends upon credibility of the evidence that is adduced in this case. From the discussions made above, I find that the learned appellate Judge has approached the matter in the correct perspective . The civil revision petition lacks merit and it is accordingly dismissed. M.N.KRISHNAN, JUDGE vps C.R.P. No. 59/08 6