IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 SA.No. 875 of 1996(D) --------------------- AS.194/1989 of I ADDL. DISTRICT COURT, PALAKKAD OS.505/1993 of PRL.MUNSIFF COURT, PALAKKAD .................... APPELLANT(S)/APPELLANT/DEFENDANT: ---------------------------------------------------------- KUMARU, S/O. SUBRAMANIAN, DRILLER, MALABAR CEMENTS LTD., WALAYAR PALAKKAD TALUK. (DIED. LRS IMPLEADED) ADDL. APPELLANTS 2 TO 4. 2. SANTHAMMA, W/O. LATE KUMARU, AGED 55 YEARS, THEVALLY HOUSE, NEAR ASSISI SCHOOL, KANJIKODE, PALAKKAD PRESENTLY RESIDING AT MUNDUCHIRAYIL HOUSE, CMC 10, NEAR SAVASSENY TEMPLE, CHERTHALA (P.O.), ALAPPUZHA. 3. BINDU, W/O. RAVICHANDRAN, AGED 31 YEARS, “NANDANAM”, KANAKAYIL WARD, THETHAMPALLY (PO), CHERTHALA. 4. SANTHOSH KUMAR, S/O. LATE KUMARU, AGED 30 YEARS, THEVALLY HOUSE, NEAR ASSISI SCHOOL, KANJIKODE, PALAKKAD PRESENTLY RESIDING AT MUNDUCHIRAYIL HOUSE, CMC 10, NEAR SAVASSENY TEMPLE, CHERTHALA (P.O.), ALAPPUZHA. ADDL. APPELLANTS 2 TO 4 IMPLEADED AS THE LEGAL HEIRS OF DECEASED SOLE APPELLANT AS PER ORDER DATED 18.6.2007 IN I.A. 859/07 IN RSA. BY ADV. SRI.P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE SRI.K.MOHANA KANNAN RESPONDENT(S)/RESPONDENT/PLAINTIFF: ------------------------------------------------------------ THANKAN, S/O. KESAVAN, WORKING IN MALABAR CEMENTS LTD, QUARTERS NO.143/3 H.E.O. WALAYAR, PALAKKAD TALUK. ADV. SRI.T.C.MOHANDAS THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/06/2009, ALONG WITH SA NO.876 OF 1996 THE COURT ON 18/06/2009 DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. Nos. 875 & 876 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of June, 2009. JUDGMENT Three suits, namely, O.S.505 of 1993, O.S. 23 of 1994 and O.S. 85 of 1994 were jointly tried and disposed of by a common judgment. Even though the plaintiffs in the suit were different, the suit was against the same defendant and the issues involved were common. All the three suits were decreed, against which three appeals were filed. All the appeals were also dismissed. S.A. No.875 of 1996 is directed against the judgment and decree in A.S. No.194 of 1989 on the file of the District Court, Palakkad arising from O.S. 505 of 1993 of Munsiff's Court, Palakkad. S.A. 876 of 1996 is directed against the judgment and decree in A.S. 192 of 1995 on the file of the District Court, Palakkad arising from O.S. 23 of 1994 of Munsiff's Court, Palakkad. In both the appeals, it appears that the appellant died during the pendency of the appeal and his legal representatives have been impleaded. 2. All the three suits were for money. The plaintiffs and the defendant were employees of Malabar Cements Limited. It appears that a fund was constituted by the employees of the S.A.875 & 876/1996. 2 Company including the plaintiffs and the defendant. Each employee was to pay Rs.300/- per month. The period of the fund was 40 months. Every month there used to be a bid and the amount is given to the successful bidder. The allegation is that all the three plaintiffs had to get a sum of Rs.11,559/- from the defendant. Even after that arrangement ran out of time, the amount was not paid. Even though the defendant on demand promised to pay within one month, he did not do so. To the notice sent by the plaintiffs, the defendant sent a reply containing false contentions. Therefore the suits were laid. 3. The defendant resisted the suits and denied the allegations in the plaint. He pointed out that he too was only a member and there is no obligation for the defendant to pay the amount to the plaintiffs as averred by them. The plaintiffs had filed the suits against the defendant to escape from the consequences of the criminal complaint filed against them. He prayed for dismissal of the suits. 4. The court below had P.Ws.1 to 6 examined and Exts.A1 to A11 marked on the side of the plaintiffs. Defendant had D.W.1 S.A.875 & 876/1996. 3 examined and Ext.B1 marked. Exts.X1 and X2 were third party exhibits. On a consideration of the materials before it, the court below came to the conclusion that the plaintiffs had succeeded in establishing their claim and accordingly decreed the suits. 5. The defendant carried the matter in appeal and the appellate court also dismissed all the three appeals, confirming the judgment and decree of the court below. 6. Learned counsel for the appellant pointed out that there were no documents produced by the plaintiffs to establish that any amount was due to them. According to learned counsel, it is inconceivable that in a transaction of the nature claimed by the plaintiffs there would not have been documents. 7. At the time of admission notice was issued on the substantial questions of law framed in the appeal memorandum. According to learned counsel, the courts below were not justified in relying on the oral evidence alone and ought to have dismissed the suits. S.A.875 & 876/1996. 4 8. There is absolutely no merit in the above contention. The plaintiffs had examined six witnesses and had produced Exts.A1 to A11, which would clearly show that there was money due to them from the defendant. In fact it would appear from the evidence that the matter was taken to the police station and there was a mediation in the police station also. Even though the defendant had set up a case that though documents were executed under threat and coercion, he was unable to establish the same. It is also seen that P.W.6 had mediated in the dispute and tried to bring about a settlement. In fact he himself was a subscriber to the arrangement run by the defendant. But he was lucky enough to get his amount. Even though the defendant claimed that he was only a subscriber to the arrangement, the evidence clearly show that it was otherwise. Even though the defendant claimed that he was in possession of several documents to show that he was only a subscriber, for the reasons best known to him he has not chosen to produce any of them. It is true that the plaintiffs relied on oral transactions. But the evidence of P.Ws.1 to 6 and the documents S.A.875 & 876/1996. 5 produced by the plaintiffs clearly show that their claims are true. Both the courts below have considered the evidence in detail and came to the conclusion that the defendant is liable to pay the amount due to the plaintiffs. 9. This court, in Second Appeal, may not be justified in re- appreciating the evidence to find out if any other conclusion is possible. Both the courts below, as already observed, had considered the evidence in detail and on the facts have found that the defendant is liable. No question of law, much less any substantial question of law arises in these appeals for interference. The appeals are without merit and they are accordingly dismissed, confirming the judgment and decree of the court below. However, there will be no order as to costs. P. BHAVADASAN, JUDGE sb. S.A.875 & 876/1996. 6 P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. Nos. 875 & 876 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 18.06.2009.