IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 RSA.No. 766 of 2009(G) ---------------------- AS.3/2006 of II ADDL. DISTRICT COURT, TRIVANDRUM OS.642/1995 of II ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT/DEFENDANT --------------------------------------- A.VIJAYAN, V.R.SADANAM, KALLIYOOR VILLAGE, PALLICHAL.P.O., TRIVANDRUM DIST. BY ADV. SMT.M.A.ZOHRA SRI.R.S.MADHU RESPONDENT: PLAINTIFF ------------------------------------ J.DEVARETNAM,KARAKKATTUVILA, PUTHENVEEDU, KALLIYOOR DESOM, KALLIYOOR VILLAGE, TRIVANDRUM. ADV. SMT.M.HEMALATHA(CAVEATOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. --------------------------------------- R.S.A.No.766 of 2009 -------------------------------------- Dated this the 12th day of August, 2009 JUDGMENT The defendant in O.S.No.642 of 1995 on the file of the Second Additional Sub Court, Thiruvananthapuram is the appellant. The appeal is directed against the judgment and decree in A.S.No.3 of 2006 on the file of the Additional District Judge-2, Thiruvananthapuram. The suit is for specific performance of the contract for sale. Ext.A1 is the agreement. The extent of property is 21 ½ cents admittedly belonged to the defendant. The sale consideration stated in Ext.A1 is Rs.41,200/-. The contract is dated 1/5/1995. The defendant resisted the suit and sought for dismissal of the same. The execution of the agreement is admitted but the receipt of Rs.25,500/- as advance is denied. According to the defendant, the plaintiff has violated the terms of the contract by not paying the advance amount. According to him the plaintiff agreed to discharge his liability to the tune of Rs.25,000/- payable to the Co-Operative Bank. The plaintiff has agreed to deposit the advance amount in the account of the defendant. 2. The contentions were examined by the trial court on the R.S.A.No.766 of 2009 2 basis of oral and documentary evidence of PWS.1 and 2, DW.1, Exts.A1 to A7. This is a case where the execution of the agreement is admitted. The only question posted for examination before the trial court was as to which party had violated the Ext.A1 agreement. According to the plaintiff they have paid Rs.25,500/- as advance and the parties executed Ext.A1 agreement. The defendant contented that he had not received any amount as advance amount. The trial court held that Ext.A1 agreement would definitely discharge the initial party’s lien on the plaintiff. The trial court also held that the defendant failed to adduce evidence to show the lien of non-receipt of the advanced amount by the defendant. On the basis of the finding arrived at on facts and evidence, the trial court held that the contentions of the defendant that the plaintiff unanimously violated the terms and conditions by not paying the advance amount will not stand in the light of the admission of execution of Ext.A1 agreement. The trial court relied on Ext.A1 and held that the defendant received the advance amount and failed to carry out his obligation under Ext.A1 contract. Therefore, the trial court passed a decree for specific performance. The plaintiff R.S.A.No.766 of 2009 3 deposited the balance consideration before the trial court. The trial court directed the defendant to execute the sale deed within four months. 3. The appellate court also examined the contentions raised by the appellant/defendant and rests its conclusions on the basis of facts and circumstances. The appellate court agreed in all respects the reasons and findings recorded by the trial court and dismissed the appeal. 4. Since the matter was decided solely on the basis of the facts and evidence I do not find any reason to invoke this court’s jurisdiction under Section 100 C.P.C. No question of law much less any substantial questions of law arises for consideration in this appeal. Therefore the appeal fails and accordingly dismissed in limine. HARUN-UL-RASHID, JUDGE skj.