IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 12TH MARCH 2010 / 21ST PHALGUNA 1931 RSA.No. 1187 of 2009() ---------------------- AS.17/2007 of ADDL. DISTRICT COURT, PARAVUR OS.75/1998 of PRINCIPAL SUB COURT,PARAVUR .................... APPELLANT/APPELLANT/APPELLANT --------------------------------------- ABDUL REHIMAN ,AGED 47,S/O.KUNJIN PILLAI PLAMATTATHUKUDI, KIZHAKKUMBHAGOM VILLAGE KIZHAKKUMBHAGOM DESOM, ALUVA TALUK. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENTS/RESPONDENTS/DEFENDANTS: -------------------------------------------- 1. MEETHIAN KUNJU,S/O.ABUBACKER PLAMATTATHUKUDI, KIZHAKKUMBHAGOM VILLAGE KIZHAKKUMBHAGOM DESOM, ALUVA TALUK. 2. NABEESA,W/O. MEETHIAN KUNJU PLAMATTATHUKUDI, KIZHAKKUMBHAGOM VILLAGE KIZHAKKUMBHAGOM DESOM, ALUVA TALUK. ADV. SRI.P.N.PURUSHOTHAMA KAIMAL FOR R1,2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.1187 of 2009G --------------------------------------- Dated this 12th day of March, 2010 JUDGMENT On an agreement for sale executed between appellant and respondents on 02-04-1997 in respect of the suit property, appellant laid the suit for its specific performance. Appellant stated that the suit property was agreed to be assigned to him for a total consideration of Rs.1,60,000/-, Rs.5,000/- was paid to the respondents as advance on the date of agreement and eight months' time was provided for execution of the assignment deed. On 20-04-1997 appellant paid further sum of Rs.1,20,000/- to the respondents who made an endorsement to that effect on the back of Ext.A1 itself. On 23-12-1997 appellant issued notice to the respondents to perform their part of the contract. That notice was returned unclaimed. A further notice was issued on 23-01-1998 for which there was no reply. Hence the suit. Respondents admitted Ext.A1, agreement for sale and receipt of Rs.5,000/- that day but denied that there was any further payment. They claimed that appellant failed to perform his part of the contract. Trial court granted decree in favour of the appellant. Respondents took up the matter in appeal and there was a remand. Thereafter, appellant adduced further evidence but trial court was not impressed by that evidence and refused to grant specific performance but, a R.S.A.No.1187 of 2009 2 decree for recovery of Rs.5,000/- was granted. Appellant challenged that judgment and decree before the first appellate court but, in vain. Hence second appeal urging by way of substantial questions of law whether failure to reply to a notice affected case of respondents and whether appellant is entitled to get the disputed signature in Ext.A1(a) examined by an expert in the second appeal. Learned counsel would request that appellant may be given an opportunity to prove the authenticity of the disputed signature in Ext.A1(a) by taking the same to an expert. Counsel for respondents would submit that no substantial question of law is involved in the appeal requiring its admission and hence the question of sending the document to expert at his stage does not arise. According to the learned counsel, on the evidence on record courts below are justified in refusing to grant specific performance. 2. The whole dispute centers round Ext.A1(a), the endorsement allegedly made by or on behalf of respondents on the back of Ext.A1 which is to the effect that on 20-04-1997 they received Rs.1,20,000/- from the appellant towards balance sale consideration. The endorsement is allegedly signed by the respondents. But that is denied by the respondents. Learned Sub Judge after perusal of the admitted and disputed signatures in Exts.A1 and A1(a) has formed the opinion that the signatures do not tally. 3. According to the appellant, though as per the stipulation in R.S.A.No.1187 of 2009 3 Ext.A1 he was to pay a sum of Rs.45,000/- towards sale consideration within one week from 02-04-1997, respondents demanded a further sum of Rs.70,000/- and hence Rs.1,20,000/- was paid to the respondents on 20-04-1997. PW1 stated (before remand of the case) that Rs.1,20,000/- was withdrawn from the bank on the previous day of 20-04-1997 and produced Exts.A6 and A7 series, passbooks to prove the same but it turned out from Exts.A6 and A7 series that there was no such withdrawal on 20-04-1997 or immediately before that but, there was withdrawal of Rs.One Lakh from the account of appellant on 31-10-1996 (which is before Ext.A1 dated 02-04-1997). After remand, PW1 explained that the sum of Rs.One Lakh withdrawn on 31-10-1996 was lent to one Fakrudhin as per Ext.A7, demand promissory note (produced after remand) and Fakrudhin repaid that amount on 18-04- 1997, the said amount was used for making payment of Rs.1,20,000/- to the respondents on 20-04-1997. But appellants was not able to explain how, if the sum of Rs.One Lakh was repaid to him by Fakrudhin, Ext.A7, demand promissory note continued to be with the appellant. If that promissory note were executed by Fakrudhin, when he discharged liability under that, the same ought to have been returned to Fakrudhin and the latter should have been in custody of the same. One can understand if the appellant had summoned Fakrudhin to give evidence, produce Ext.A7 and he did so. There is no acceptable evidence to show that Ext.A7 was really executed by the R.S.A.No.1187 of 2009 4 said Fakrudhin. I must also bear in mind that this twist to the case of appellant came only after remand when he thought it necessary to explain his earlier version that Rs.1,20,000/- was drawn from his account on the day previous day of 20-04-1997 and that amount was paid to the respondents as evidenced by Ext.A1(a). In the circumstance, that version of appellant cannot be accepted. 4. PW3 is a witness in Ext.A1 and A7. It is strange to see that he happened to be a witness in both the transactions. PW3 was examined only after remand. Courts below were not impressed by the evidence of appellant regarding the payment of Rs.1,20,000/- to the respondents. Trial court has also observed that the admitted and disputed signatures in Exts.A1 and A1(a) did not appear to be the same. Since the records have been called for I also had the occasion to peruse the signatures in Exts.A1 and A1(a) and I am not able to say that the opinion expressed by the learned Sub Judge is wrong. 5. Now the request is to send Ext.A1(a) for expert opinion. This is a case of 1998 and the written statement specifically denied receiving any amount on 20-04-1997 or, making any endorsement as per Exts.A1(a). No attempt was made by the appellant to send Ext.A1 (a) to the expert for opinion. Atleast after remand such a step ought to have been taken if that were helpful to the appellant. Having not done and having invited adverse verdicts from the courts below it is not open to the appellant at this belated stage to request this court to send R.S.A.No.1187 of 2009 5 Ext.A1(a) to the expert for opinion. I have gone through the records, perused judgments under challenge and heard counsel on both sides. I am not satisfied that there is any substantial question of law involved in the appeal requiring interference. Resultantly the second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/