IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 12TH NOVEMBER 2010 / 21ST KARTHIKA 1932 RFA.No. 331 of 2009() -------------------------------- OS.54/2008 of SUB COURT, PERUMBAVOOR .................... APPELLANTS/DEFENDANTS ----------------------------------------- 1. PAULOSE, S/O.YOHANNAN, KOKKATTU HOUSE, RESIDING AT ELAVANA, MATTAKUZHY KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK. 2. JOHNSON, S/O.GEORGE, KOIKKATTU HOUSE, RESIDING AT MANAKANDATHIL HOUSE, RACKAD KARA, VALAKOM VILLAGE, MUVATTUPUZHA TALUK. BY ADV. SRI.SAJU.S.A RESPONDENT(S): PLAINTIFF ----------------------------------------- GEEMON, S/O.CHACKO, CHETTIYATTU HOUSE, MATTAKUZHY KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK. BY ADV. SRI.PEEYUS A.KOTTAM THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts Thottathil B.Radhakrishnan & P.Bhavadasan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = R.F.A.No.331 of 2009-D = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 12th day of November, 2010. Order Thottathil B.Radhakrishnan, J. 1.This appeal arises from a suit filed on 18.3.2008. It is a suit for specific performance of a contract for sale. The suit is decreed on 15.11.2008. 2.It is a matter to be recognised that the court below has attempted to dispose of the suit within a period of around seven months. But, the complaint of the appealing defendants is that they did not have the opportunity to contest the matter by adducing appropriate evidence, including by summoning witnesses and also for further appropriate comparison of documents etc. RFA331/09 -: 2 :- 3.While the plaintiff pleads that there is a contract for sale, the first defendant denies it. The second defendant, stated to be a relative of the first defendant, is the transferee of the property covered by the alleged contract. This is the nature of the dispute. 4.The 'B' diary shows that on 9.4.2008, both defendants appeared and the case was adjourned to 11.6.2008 for filing written statement. The defendants promptly filed written statement on 11.6.2008 itself and for issues, the case was adjourned to 21.7.2008. Following settlement of issues on 21.7.2008, the matter was listed on 6.8.2008 and on 21.8.2010 for payment of balance court fee. Recording that the court fee was paid on 21.8.2008, the case was adjourned to 19.9.2008 for further steps. It appears that both sides did not take any further steps and the matter was listed to 10.11.2008 for trial in the special list. We find that I.A.1578/2008 and RFA331/09 -: 3 :- I.A.1579/2008 were filed by the defendants along with the schedule of witnesses. That was on the date on which the suit stood listed for trial. The B diary further shows that the plaintiff's counsel sought for adjournment on 10.11.2008 and accordingly, the examination of P.W.1 was adjourned to 11.11.2008. 5.With the aforesaid, we note that the documents, which were marked on the side of the plaintiff as Exts.A2, A3 and A8, the certified copies of sale deeds as also a receipt and a blank cheque, were produced before the court below only on 10.11.2008, going by the index prepared by the lower court while it sent up the LCRs. While the request of the defendant made on 10.11.2008 remains answered and no orders were issued on I.A.1578/2008 and I.A.1579/2008, we may notice that the defendant had placed two documents which are marked as Exts.B1 and B2 as early as 11.11.2008. With the aforesaid facts being noticed, we advert to the following statement in RFA331/09 -: 4 :- the memorandum of appeal filed before us: “4) The suit was posted for trial on 10.11.2008. Advocate Santhosh K.Sreedharan, a lawyer practicing at Perumbavoor and Muvattupuzha courts was appearing for the defendants in the above matter. He was having some physical ailments and he was not in a position to conduct the trial of the case. He wanted to leave the place for urgent medical check-up. The 1st defendant also was suffering from high Blood Pressure and heart ailments. He was advised complete medical rest for 2 months. He was staying in the house of the 2nd defendant at Muvattupuzha. It was at that stage the Advocate informed the 1st defendant about his difficulty in conducting the case and advised him to engage another counsel for the conduct of the case. The 2nd defendant was away in connection with his employment. The 1st defendant even though he was advised complete rest, went to the office of the Advocate and contacted him. Then he was advised that another lawyer attached RFA331/09 -: 5 :- to the office of Adv.Santhosh K.Sreedharan can be entrusted with the case and since 1st defendant is not in a position to attend the court, an adjournment can be sought for on the hearing date. Accordingly Advocate T.E.Varkey entered appearance for the 1st defendant. Adv.Santhosh K.Sreedharan has having vakalath for both the defendants. On 10.11.2008 applications were filed in the case seeking adjournment of the trial of the case and also for taking some pre-trial steps which was not taken in time. Even though the application for pre-trial steps was allowed, the case was taken for trial on that day itself. The Advocate for the appellants has to cross examine the witnesses on the side of the plaintiff but because of serious illness 1st defendant could not attend the court and give oral evidence. 2nd defendant was not available in station also. Since there was no oral evidence adduced on the side of the defendants, the trial court mainly relying on the testimony of the witnesses on the side of the RFA331/09 -: 6 :- plaintiff decreed the suit. It is submitted that it was only because of circumstances beyond the control of the defendants that they could not adduce evidence on that day.” 6.It is submitted by both sides that Adv.Sri.Santhosh K.Sreedharan mentioned of in the afore-quoted portion of the appeal memorandum is now no more. There is also no serious challenge to the fact situation disclosed by the afore- quoted averments in the memorandum of appeal. 7.We are satisfied that in the matter of trial of the case, the defendants did not have appropriate opportunity to adduce evidence and contest the suit including by appropriate cross examination of plaintiff's witnesses. We take this view because going by the materials, we are impressed that whatever was the cross examination of P.W.1 was only because of the compulsion of the circumstances. RFA331/09 -: 7 :- 8.For the aforesaid reasons, we set aside the impugned decree and judgment and all further proceedings from the stage of listing of the case in the special list. Consequently, we remand the suit for de novo consideration providing both sides to take further steps and also to adduce all evidence. It is clarified that no observation made in this judgment will stand in the way of the court below at the final hearing of the matter and we have not expressed anything on the merits. The defendants have to be given an opportunity to further cross-examine the witnesses already examined on the side of the plaintiff. The evidence already on record as evidence of P.W.1 and P.W.2 would continue on record and the opportunity being given is to adduce further evidence. The request of the plaintiff that there may be an expeditious further consideration is recorded. Appeal allowed accordingly. 9.We find that the order of remand is not caused by RFA331/09 -: 8 :- any fault of the appellants, disentitling them to refund of court fee in terms of Section 67 of Act 10 of 1960. We, accordingly, order refund of the court fee paid on this memorandum of appeal. We note that this matter being decided at the stage of admission, the court fee paid is only 1/3rd of the amount of fee due under the memorandum of appeal. Yet, we do not find any ground to refuse refund because the proviso to Section 69 which applies to cases of compromise does not apply to cases which fall under Section 67 where the court makes an order of remand. The parties shall appear before the court below on 20.12.2010. Thottathil B.Radhakrishnan, Judge. P.Bhavadasan, Judge. Sha/0712