IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 6TH JANUARY 2010 / 16TH POUSHA 1931 SA.NO. 63 OF 1996(G) -------------------------------- AS.1/1992 OF SUB COURT, THIRUVALLA OS.59/1987 OF MUNSIFF COURT, THIRUVALLA .................... APPELLANT(S) – RESPONDENT - DEFENDANT: --------------------------------------------------------------- K.N. HASSAN RAWTHER, S/O. MEERAN RAWTHER, KADUVKUZHIKAL VEEDU, KANGAZHA MURI, KANGAZHA VILLAGE. BY ADV. SRI.D.KRISHNA PRASAD SRI.JOJI VARGHESE SRI.D.NARENDRANATH RESPONDENT(S) - 2ND APPELLANT – LEGAL REPRESENTATIVES OF 1ST APPELLANT/2ND PLAINTIFF AND LEGAL REPRESENTATIVES OF 1ST PLAINTIFF: ----------------------------------------------------------------------------------------- 1. ANNAMMA ABRAHAM, PAROLIKALAYA, POOVAMPAA KULATHUMKAL, ANIKADU VILLAGE, MALLAPPALLY TALUK. 2. MATHEW ABRAHAM, S/O.ANNAMMA ABRAHAM, DO. DO. 3. ANNAMMA ABRAHAM (JUNIOR) D/O. ANNAMMA ABRAHAM, ELAVANTHIKARA HOUSE, KARTHIKAPPALLY MURI, KARTHIKAPPALLY TALUK. ADV. SRI.P.R.VENKETESH FOR R.2 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06/01/2010 ALONG WITH CRP NOS.1668 & 1669 OF 1998 & WPC NO. 15608 OF 2003, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX -------------- (S.A. NO.63OF 1996) EXHIBIT B1 SALE DEED NO.1223 OF 1985 DATED 14.6.1985 THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = S.A. NO.63 OF 1996, C.R.P. NO.1668 OF 1998, C.R.P. NO.1669 OF 1998 AND W.P(C) NO.15608 OF 2003 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 6th day of January, 2010 J U D G M E N T ---------------------- The Second Appeal, Civil Revision Petitions and Writ Petition are the offshoot of an agreement for sale dated 10.9.1986 and the decree based on that agreement. Parties are referred to as plaintiffs and defendant as in O.S. No.59 of 1987. 2. O.S. No.59 of 1987 is a suit for specific performance of Ext.A1, agreement for sale dated 10.9.1986 allegedly executed by the defendant in favour of plaintiffs agreeing to sell the suit property for a total consideration of Rs.12,000/-. According to the plaintiffs suit property belonged to them. While so they executed a sale deed in favour of the defendant on 14.6.1985 but possession was not given to the defendant as agreed between them and defendant. According to the plaintiffs pursuant to the agreement for sale defendant received Rs.7,000/- by way of advance. As per the terms and conditions of the agreement, the sale deed was to be S.A. NO.63 OF 1996, C.R.P. NOS.1668 & 1669 OF 1998 & W.P(C) NO.15608 OF 2003 -: 2 :- executed on or before 31.12.1996. Demanding specific performance of the agreement plaintiffs issued notice to the defendant. But he did not respond. Hence the suit. Defendant contended that property belonged to him as per sale deed No.1223 of 1985 dated 14.6.1985 and he is in possession of the suit property. It is incorrect to say that plaintiffs continued to be in possession of the property. He denied that there was any agreement for sale of the suit property. According to him Ext.A1 is the result of fraud and he has not received any advance. Plaintiffs tried to trespass into the suit property and hence he filed O.S. No.493 of 1986 against the plaintiffs for decree for prohibitory injunction. In the court of learned Munsiff the two suits were tried together. Plaintiff No.2 gave evidence as P.W.1. P.Ws.2 to 5 are witnesses examined by the plaintiffs. Exhibits A1 to A3 were marked on the side of plaintiffs. Exhibit A1, as aforesaid is the agreement for sale. Exhibit A2 is copy of notice dated 2.12.1986 and Ext.A3 is the reply dated 26.12.1986. Uncle of defendant gave evidence as D.W.1. Learned Munsiff found in favour of due execution of Ext.A1 relying on the evidence of P.Ws.1 to 5 but held that the recital in Ext.A1 that possession was retained by the plaintiffs cannot be accepted, possession of plaintiffs S.A. NO.63 OF 1996, C.R.P. NOS.1668 & 1669 OF 1998 & W.P(C) NO.15608 OF 2003 -: 3 :- as on the date of suit is that of trespasser and hence plaintiffs are not entitled to a decree for specific performance of the agreement for sale. But they were given a decree for realisation of the advance money with interest charged on the property. So far as O.S. No.493 of 1986 is concerned consequent to the finding that defendant has no possession of the property as on the date of suit, that suit was dismissed. Defendant did not challenge the judgment and decree in O.S. No.493 of 1986. Plaintiffs being aggrieved as they were not given a decree for specific performance of the agreement for sale filed A.S. No.1 of 1992. First appellate court observed that at the time of hearing there was no challenge from the side of defendant about genuineness of Ext.A1, the agreement for sale. No Cross Objection also has been preferred against that part of the decree against plaintiffs. First appellate court came to the conclusion that finding entered by the trial court that plaintiffs did not retain possession of the suit property even as per Ext.A1 is not correct and that the finding that they are trespassers of the suit property is not supported by evidence. First appellate court held that there is no reason to deny relief of specific performance and accordingly allowed the appeal. That judgment and decree are S.A. NO.63 OF 1996, C.R.P. NOS.1668 & 1669 OF 1998 & W.P(C) NO.15608 OF 2003 -: 4 :- under challenge in S.A. No.63 of 1996. 3. To expunge the observation made by the first appellate court in the judgment under challenge that genuineness of Ext.A1 was not challenged by the defendant at the time of hearing, defendant filed I.A. No.1365 of 1995 for review of the judgment to that effect. Since application was filed beyond 30 days of the judgment, defendant filed I.A. No.1361 of 1995 to condone the delay of four months and 26 days in filing I.A. No.1365 of 1995. First appellate court not being impressed by the reasons stated for condonation of delay dismissed I.A. No.1361 of 1995. Consequently, I.A. No.1365 of 1995 was also dismissed. Orders on I.A. Nos.1365 and 1361 of 1995 are under challenge in C.R.P.Nos.1668 and 1669 of 1998. 4. I stated that Ext.A1, agreement for sale was allegedly executed between plaintiffs and defendant on 10.9.1986. Defendant in whose name title of the suit property stood availed a loan from the District Co-operative Bank, Kottayam branch (for short, “the Bank”) on the security of the suit property. Since defendant failed to discharge the liability, Bank initiated steps against the defaulter (defendant) and obtained an award for realisation of the amount by S.A. NO.63 OF 1996, C.R.P. NOS.1668 & 1669 OF 1998 & W.P(C) NO.15608 OF 2003 -: 5 :- sale of the suit property. Pursuant to that award a sale Officer was appointed to effect sale of the property. Leaning about that, legal heir of plaintiffs in O.S. No.59 of 1987 filed W.P(C) No.15608 of 2003 challenging the steps initiated by the Bank for realisation of the amount by sale of the suit property. 5. Following substantial questions of law are framed in S.A. No.63 of 1996 for a decision. (i) Whether having regard to the facts and circumstances of the case lower appellate court has exercised the discretion under Section 20 of the Specific Relief Act in decreeing specific performance? (ii) Whether in the facts and circumstances of the case court below have properly applied the provisions contained in Section 92 of the Evidence Act? (iii) Have not courts below misread the evidence on record and have not courts relied on matters which are not borne out by records in entering a finding regarding the genuineness S.A. NO.63 OF 1996, C.R.P. NOS.1668 & 1669 OF 1998 & W.P(C) NO.15608 OF 2003 -: 6 :- of Ext.A1 and possession of the property? It is contended by learned counsel for defendant (appellant in S.A. No.63 of 1996) that first appellate court was wrong in observing that genuineness of Ext.A1 was not challenged at the time of hearing of A.S. No.1 of 1992. It is also contended by learned counsel that first appellate court was not justified in dismissing I.A. No.1361 of 1995 to condone the delay in filing I.A. No.1365 of 1995 for review of judgment. Further contention is that genuineness of Ext.A1 is not proved and at any rate, first appellate court was not justified in reversing the judgment and decree of the trial court allowing realisation of advance money and granting decree for specific performance. According to the learned counsel even in cases where no written statement is filed by defendant in a suit for specific performance the court is bound to exercise the discretionary jurisdiction in a proper, sound manner having regard to the facts and circumstances of the case. That has not been done in the present case. Therefore judgment suffers from an illegality. At any rate there is no evidence to show that pursuant to Ext.A1 or even before that plaintiffs got possession of the suit property. According to the learned counsel contention of plaintiffs that S.A. NO.63 OF 1996, C.R.P. NOS.1668 & 1669 OF 1998 & W.P(C) NO.15608 OF 2003 -: 7 :- notwithstanding the assignment deed dated 14.6.1985 they continued to be in possession of the suit property cannot be sustained in view of Section 92 of the Indian Evidence Act. Learned counsel placed reliance on the decisions in K. Velayudhan v. Thankamma (1981 KLT 831), Sudhakaran v. Laila Bai (1986 KLT SN Case No.114, page No.71), Nalini v. Padmanabhan Krishnan (1994 [1] KLJ 885), Thanthai Periyar T.Corporation v. Sundari Ammal (1993 [3] KLT SN Case No.86 page 83), Sathy v. Sayed Mohammed (1998 [1] KLT 141), Thomas P.Abraham v. Aleyamma Abraham (2003 [3] KLT 864), Madhvan Achari v. Meenakshi (2003 [3] KLT 1069) and Adimakutty Hydu Ali v. Ambujam (2003 [2] KLT 328). Learned counsel requested that copy of sale deed No.1223 of 1985 executed by the plaintiffs in favour of the defendant produced in the S.A. No.63 of 1996 along with I.A. No.2626 of 2005 may be received as additional evidence. Learned counsel for plaintiffs would contend that it is not open to the defendant to challenge the genuineness of Ext.A1 at this stage S.A. NO.63 OF 1996, C.R.P. NOS.1668 & 1669 OF 1998 & W.P(C) NO.15608 OF 2003 -: 8 :- in view of the fact that based on Ext.A1 he suffered a decree for return of advance money but that decree has not been challenged by way of an appeal or Cross Objection. Hence also the first appellate court is justified in observing that there was no challenge to the genuineness of Ext.A1 at the time of hearing of the appeal. It is also the contention of plaintiffs that failure of defendant to mount the witness box is fatal and that there was no material before the court to exercise discretion under Section 20 of the Specific Relief Act in favour of the defendant. In support of that contention counsel placed reliance on the decision in Vidhyadar v. Manki Kro (AIR 1999 SC 1441 paragraph 15 and 16). 6. One of the main issues involved in the Second Appeal is whether it is open to the defendant to now challenge genuineness of Ext.A1, agreement for sale. Trial court found in favour of genuineness of Ext.A1 based on the evidence of P.Ws.1 to 5. P.Ws.2 and 3 are examined to prove the execution of Ext.A1. Trial court after referring to the evidence of P.Ws.1 to 5 held that there is no reason to disbelieve the case of plaintiffs regarding execution of Ext.A1. S.A. NO.63 OF 1996, C.R.P. NOS.1668 & 1669 OF 1998 & W.P(C) NO.15608 OF 2003 -: 9 :- 7. Then the question is whether defendant had challenged genuineness of Ext.A1 in the first appellate court and the first appellate court was correct in observing that genuineness was not challenged at the time of hearing. First appellate court has observed in paragraph 7 of the judgment that “at the time of argument before this court, the genuineness of A1 is not at all questioned by the respondent's counsel.” Again in paragraph 9 it is stated that “though the lower court has found Ext.A1 document as a genuine one, no cross objection is filed by the defendant.” The observation that genuineness of Ext.A1 was not challenged in the first appellate court at the time of hearing is sought to be expunged by filing I.A. Nos.1365 and 1361 of 1995. In these applications it is asserted by the counsel who was appearing for the defendant in the first appellate court that genuineness had been challenged. 8. So far as the observation made in the judgment is concerned, unless it is shown that the said observation is not correct the same has to stand. Normally, statement in the judgment as to what transpired in the court concerned has to prevail. Here is a case where first appellate court specifically stated in paragraph 7 of the judgment that genuineness of the agreement was not S.A. NO.63 OF 1996, C.R.P. NOS.1668 & 1669 OF 1998 & W.P(C) NO.15608 OF 2003 -: 10 :- challenged. That apart, circumstances also indicate that there was no possibility of counsel for defendant challenging genuineness of Ext.A1 in the first appellate court. Reason is that the trial court, accepting genuineness of Ext.A1 granted a decree in favour of the plaintiffs for realisation of the advance money and charged on the suit property. That decree is passed on the finding that Ext.A1 is a genuine agreement for sale. Admittedly, that part of the decree was not challenged by the defendant either by way of a separate appeal or Cross Objection as provided under Order XLI Rule 22 of the Code of Civil Procedure (for short, “the Code”). If that be so, in all probability defendant would not have urged a contention regarding genuineness of Ext.A1 in the first appellate court on the rule of res judicata. 9. When faced with the above situation learned counsel for defendant placed reliance on the decision in K. Velayudhan v. Thankamma, Sudhakaran v. Laila Bai, Nalini v. Padmanabhan Krishnan, and Thanthai Periyar T.Corporation v. Sundari Ammal (referred supra). All these decisions except the decision in Nalini's case (supra) relate to the power of the first appellate court under Order XLI Rule 33 of the Code to pass such S.A. NO.63 OF 1996, C.R.P. NOS.1668 & 1669 OF 1998 & W.P(C) NO.15608 OF 2003 -: 11 :- orders or decrees as the trial court could do to work out justice between parties. No doubt, even where a Cross Objection could have been filed, but has not been filed, appellate court does not lose the power to pass appropriate orders/decrees (See Oriental Insurance Co. v. Mary Pushpan (1996 [1] KLT 806) and Nazeer Ahmed v. State Bank of Mysore ([2007] 11 SCC 75). But the essential difference between Rules 22 and 33 of Order XLI is that the former confers right on the party to challenge part of the order/decree against him by filing a Cross Objection while the latter is neither a right or privilege of the party but the power of the court. Rule 33 enabled the appellate court to pass any decree or make any order which ought to have been passed or made by the trial court notwithstanding that the appeal is as to part only of the decree. That power of course could be exercised in favour of all or any of the respondents or parties though such respondents or parties may not have filed any appeal or objection. For instance when there are several defendants who are equally aggrieved by a decree on a ground common to all of them and only one of them challenges the decree by an appeal in his own right, the fact that S.A. NO.63 OF 1996, C.R.P. NOS.1668 & 1669 OF 1998 & W.P(C) NO.15608 OF 2003 -: 12 :- other defendants do not choose to challenge the decree, cannot render the appeal of the appealing defendant infructuous on that ground alone. I said this only to point out that in the absence of an appeal or Cross Objection against the decree for return of the advance amount based on Ext.A1, there was no probability or occasion for the defendant challenging genuineness of Ext.A1 in the first appellate court as pointed out by the learned Sub Judge in the judgment. 10. Now the question is whether delay in filing I.A. No.1365 of 1995 has been explained. Delay involved is of four months and 26 days. It is stated in the affidavit in support of the application that during the relevant time defendant was at Bombay and he returned to the native place on 15.10.1995. He learnt about the judgment (of the first appellate court) only thereafter. His Power of Attorney (D.W.1) was negligent and hence he could not get information about the nature of the judgment and decree passed by the trial court. But in that regard what is available is only the evidence of Power of Attorney of defendant as D.W.1. There is no reason or occasion to think that the Power of Attorney holder who was conducting the case in the trial court was negligent in the matter of conduct of the S.A. NO.63 OF 1996, C.R.P. NOS.1668 & 1669 OF 1998 & W.P(C) NO.15608 OF 2003 -: 13 :- appeal. It is difficult to think that defendant was unaware of the judgment and decree passed by the first appellate court on 27.1.1995. First appellate court has considered the reason for the delay stated in I.A. No.1361 of 1995 and come to the conclusion that no sufficient cause is made out to condone delay. That is a finding made on the available evidence on record. The question of exercise of discretionary jurisdiction in the matter of condonation of delay arises only when sufficient cause is made out. There is also no reason to exercise the discretion in favour of the defendant. I do not find any irregularity or illegality in the first appellate court refusing to condone the delay. Hence C.R.P. Nos.1668 and 1669 of 1998 cannot succeed. 11. Next question is whether first appellate court is justified in reversing judgment and decree of the trial court and granting a decree for specific performance. Thrust of the argument is that in doing so first appellate court has not considered the well accepted cannons regarding discretionary power of the court under Section 20 of the Specific Relief Act. Learned counsel in this regard invited my attention to the decisions in Thomas P.Abraham v. Aleyamma Abraham, Sathy v. Sayed Mohammed and Adimakutty Hydu S.A. NO.63 OF 1996, C.R.P. NOS.1668 & 1669 OF 1998 & W.P(C) NO.15608 OF 2003 -: 14 :- Ali v. Ambujam (supra). In the last two decisions it has been held by this Court that it is not obligatory on the part of the court to order specific performance though it may be lawful to do so. In the first decision it was held that even when defendant is ex parte or no written statement has been filed court is not absolved of its responsibility to consider whether on the facts and circumstances decree for specifica performance is to be granted. In response it is contended by learned counsel for plaintiffs that first appellate court has referred to the circumstances in which the agreement for sale was executed and come to the conclusion that on the facts and circumstances of the case plaintiffs are entitled to the decree for specific performance. It is also contended that nothing is brought on record to exercise the discretionary jurisdiction in favour of defendant if at all court thought that discretionary relief has to be exercised in favour of defendant. 12. Before dealing with the issue it is necessary to refer to the facts and circumstances of the case. According to the plaintiffs they had executed sale deed in favour of defendant on 14.6.1985 but as per the agreement between parties notwithstanding the execution of the sale deed and the recital contained therein S.A. NO.63 OF 1996, C.R.P. NOS.1668 & 1669 OF 1998 & W.P(C) NO.15608 OF 2003 -: 15 :- plaintiffs continued in possession of the suit property and following that on 10.9.1986 Ext.A1 was executed. Trial court found that Ext.A1 though in its earlier portion stated that possession of the property was given to the defendant, in the latter portion it is stated that possession of the property remained with the plaintiffs. Trial court was not inclined to believe that case of the plaintiffs. It is accordingly that trial court found that plaintiffs did not continue to be in possession of the suit property. Nor did the plaintiffs get possession as per Ext.A1. According to the trial court, possession of the plaintiffs is that of trespasser. That is the reason why trial court thought it fit not to grant a decree for specific performance. As against that, first appellate court found that there is no case or evidence for the defendant that at any time after execution of the sale deed plaintiffs trespassed into the suit property and took possession. First appellate court was also not impressed by the evidence of D.W.1 regarding the alleged possession of defendant in the suit property. In the circumstances first appellate court accepted the case of plaintiffs that they continued to be in possession of the suit property. 13. Though copy of sale deed dated 14.6.1985 has not been S.A. NO.63 OF 1996, C.R.P. NOS.1668 & 1669 OF 1998 & W.P(C) NO.15608 OF 2003 -: 16 :- produced by the defendant in the trial court the same has been produced in this appeal along with I.A. No.2626 of 2005. It is true that that document was not produced in any of the courts below. But that document is not disputed by the plaintiffs. Admittedly they have executed the sale deed in favour of the defendant on 14.6.1985. That document is relevant and useful for the decision of the Second Appeal. Hence I.A. No.2626 of 2005 is allowed and the document produced along with that application is marked as Ext.B1. 14. Learned counsel for defendant pointed out from Ext.B1 that it is recited therein that possession of the property has been given to the defendant following transfer of title. But recital in the document regarding transfer of possession not being a term of the contract or disposition as per Ext.B1 it is open to the plaintiffs to adduce evidence notwithstanding the said recital that possession was not transferred to defendant. Such evidence is not hit by Sec.92 of the Evidence Act. Exhibit A1 though initially stated that possession of the suit property remained with the defendant in the latter portion it is stated that possession continued with the plaintiffs. Trial court found that Ext.A1 is executed by defendant and I found that first appellate court rightly observed that no S.A. NO.63 OF 1996, C.R.P. NOS.1668 & 1669 OF 1998 & W.P(C) NO.15608 OF 2003 -: 17 :- contention regarding genuineness of Ext.A1 was raised before it. Therefore recital in Ext.A1 should bind the defendant. Defendant could not produce reliable evidence regarding his possession. He did not enter the witness box. D.W.1 who gave evidence on his behalf is residing about 10 kms away from the suit property and had gone there only once even as per his version. D.W1 was not able to give any information about the boundary properties of the suit property. Trial court therefore found against defendant's claim of possession. First appellate court found that as on the date of suit plaintiffs were in possession of the suit property even as admitted by the defendant as is evident from the fact that dismissal of O.S. No.493 of 1986 is not challenged by the defendant and that judgment and decree have become final. Hence it is evident that as on the date of suit defendant was not in possession of the suit property. It