IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 3RD SEPTEMBER 2010 / 12TH BHADRA 1932 AS.No. 411 of 1996() ------------------------------ OS.172/1993 of SUB COURT, MUVATTUPUZHA .................... APPELLANT(S): PLAINTIFF ------------------------------------- SASIDHARAN ALIKAS SASIKUMAR, SON OF KUMARAN, THOTTAKATHU, VENDUVAZHI KARA, KOTHAMANGALAM VILLAGE, FROM MUPPANIYIL HOUSE, PUNNATHARA KARA, ETTUMANOOR VILLAGE. BY ADVS. SRI.B.JAYASANKAR, SRI.T.K.VENUGOPALAN SRI.S.VIDYASAGAR SRI.DINESH R.SHENOI SRI.V.P.K.PANICKER RESPONDENT(S): (DEFENDANT) ---------------------------------------------- ABRAHAM K.ISSAC ALIAS RAJAN, SON OF K.A.ISSAC, KANNETHU HOUSE, PIDAVOOR KARA, VARAPETTY VILLAGE, KOTHAMANGALAM TALUK. BY ADV. PEEYUS A.KOTTAM THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 03/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT There is not representation for the appellant. Counsel for the respondent represented. Appellant absent. Counsel absent. Appeal is dismissed for default. 03/09/2010 SD/- M.N.KRISHNAN, JUDGE ORDER ON CMP. NO.2706/1996 IN AS. NO.411/1996 DISMISSED 03/09/2010 SD/- M.N.KRISHNAN , JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. ........................................... A.S.NO.411 OF 1996 ............................................. Dated this the 1st day of November, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Muvattupuzha in O.S.No.172/1993. The suit is one for setting aside document No.3475/1993 on the ground of fraud or coercion for want of consideration as it has not come into effect and for consequential injunction. The trial court dismissed the suit and it is against that decision, the plaintiff has come up in appeal. 2. Heard. The brief facts necessary for the disposal of the appeal are stated as follows:. The plaintiff and defendant became partners in the sense that they were jointly dealing with the business of procuring visa for the interested persons. The plaintiff was formerly employed in Gulf country as a carpenter and in 1992 he became back to India and thereafter had association with the defendant and they were doing the business with the connection at Bombay. They were unable to procure some visa due to : 2 : Bombay blast and rebellion. There was delay in the matter and so the plaintiff was informed on 21.4.1993 to come to Kerala with the passport as some processing has to be done for the purpose of visa. Accordingly on 25.4.1993 he landed at Angamaly, took a taxi and was proceeding to his residence. He was waylaid by the henchmen of the defendant and was forcibly taken to the office of the defendant and later to Matha Tourist Home where he had been threatened and manhandled and ultimately forced to sign a document which is the subject matter of the suit. It is submitted that the document is made to be executed against his will and it is vitiated by fraud, coercion and also lack of consideration. 3. On the other hand, the defendant would contend that he had entered into an agreement for sale with the plaintiff as early as on 1.6.1992 and had paid a sum of Rs.15,000/= as advance consideration and a document has been executed on receipt of the balance consideration and the allegations levelled against the defendant are false and therefore, it is liable to be dismissed. 4. In the trial court PWs 1 to 11 were examined, Exts.A1 to A7, B1, C1, C1(a) and X1 to X2(a) were marked. Let me first state about the principles to be followed in such : 3 : cases. Here is a case of document being vitiated by fraud or coercion. It is the settled principle of law that if a person pleads fraud or coercion, he has to prove the same unless one is coming within the exempted category of Section 111 of the Indian Evidence At. Here there is no case that the defendant was in possession to dominate the Will of the plaintiff or was under the control of the defendant so as to attract Section 111. So having admitted the execution of the document, it is incumbent upon the plaintiff to prove the vitiating circumstances to invalidate the document. 5. Ext.A2 is the disputed document. A reading of the said document would reveal that there was an oral agreement between the parties and that ultimately the document has been registered and so it is enforcible. But the case of the plaintiff is to the effect that as per the request of the defendant he had landed at Angamaly by a bus and while was proceeding in a taxi, he was waylaid and taken forcibly to the room of the defendant and thereafter to Matha Tourist Home where he was abused, assaulted, insulted and was forced to sign a document. 6. PW1 is the plaintiff to which I shall refer later. PW2 is a person examined to prove that when the plaintiff : 4 : purchased the property there was no building and it was constructed by the plaintiff after the purchase of the property. PW3 is a school teacher. He is examined to show that the plaintiff was in the car and it was a forcible taking away. A reading of the evidence of PW3 would show that he does not know whether there were any other persons in the car and he had only seen the plaintiff entering into the car and he had not seen anybody else entering into the car. So his evidence does not really fit on with the case of the plaintiff. PW4 is a Sub Inspector of Police. He would submit that a petition has been given by the wife of the plaintiff and that can be seen from the register. PW5 is the driver of a bus. He is examined to show that the plaintiff and defendant are having business in visa. PW6 is the Commissioner and he had submitted Ext.C1. According to him, there were no rubber trees and he had seen the household utensils inside the house. PW7 is the driver of a taxi which is alleged to have taken the plaintiff from Angamaly. He would depose that he had gone 5 kms further of Kothamangalam and at that time he had seen an auto rickshaw. When horn was sounded four people who were sleeping in the veranda of a shop room came out, forcibly got into the car and abused the : 5 : plaintiff. The plaintiff wanted to go to his house but they did not agree. According to him, the plaintiff was taken to a room and his luggage was taken by one of the persons and when he had gone to ask the taxi charge, he had seen the plaintiff surrounded by 8 or 10 persons and when he asked for money some of them took money from the plaintiff's bag and handed over to him. It is true that in the cross examination he had deposed about the trip sheet but unfortunately it is not produced in this case. He also says that he does not know who have all got into the vehicle. PW8 is the Manager of Matha Tourist Home from 1995. His evidence would show that one K.I. Rajan had taken a room at 7.40 a.m and had vacated the room at 6 p.m on the same day. PW9 is one Roy Kurian and he claims to know the plaintiff after the receipt of summons. He speaks about visa etc. PW10 is the wife of the plaintiff. She would depose that they were residing in the house. There has been no agreement to sell and the document was handed over to one Sasi and as the husband was missing from 24.6.1993 midnight, she had given a complaint. She would also depose in the cross examination that the document was handed over to Sasi and it was informed to the husband. She : 6 : speaks about filing of the complaint. PW11 is the Deputy Superintendent of Police. He had stated about receipt of complaint filed by the plaintiff on 29.6.1993 and on enquiry it has been revealed that there was some transaction between the plaintiff and the defendant and there was a mediation as per which the plaintiff had executed a document in favour of the defendant and the understanding was that when the amount due from the plaintiff is repaid to the defendant, the defendant will re-convey the land. Regarding the wife's complaint, the husband appeared and there was no complaint for him at all. In the cross examination he would depose that through enquiry it was realised that the plaintiff had executed the document of his own. PW1's evidence is tune with the plaint. 7. One has to take into consideration the following important aspects to decide the case. A person had been taken unauthorisedly and forcibly made to register a document before a public officer does not complain about the same to anybody for a period of 5 days. His conduct is that he goes to the house and explains the situation to the wife and leaves without the knowledge of the wife to his sister's house and thereafter reappears and makes a complaint of this : 7 : nature. The plaintiff had deposed before the court that the wife had received the letter given by him to one Sasi to hand over the document. It should have been really a piece of evidence, if it is there, but it does not come to the light of the day. 8. Coming to the next point. The wife filed a complaint before the police and the plaintiff himself appeared before the police and told them that he has no grievance and had executed a document just to get rid of the ill developments and that he has no grievance. So this is also a telling circumstance which would show that all is not well with the plaintiff. The alleged conduct of the driver of the car is really strange. What the plaintiff does is he remains somewhere else, comes back and files a suit and then files a police complaint. Under ordinary circumstances if a person is assaulted or manhandled and there is threat to his life, he would not have left the home and reappear after 6 days. So the case spoken to by the plaintiff is not true. Being a civil court, the court can only find out the circumstances and whether there are sufficient grounds as alleged in the plaint to set aside the document. The document is requested to be set aside on the ground of fraud : 8 : and coercion. Materials are lacking to prove the same. The plaintiff should have established that he had landed from Bombay only on that day. He has not done the same and fraud and coercion are matters that cannot be decided by way of conjectures and surmises. It is true that there cannot be any direct evidence on the question of fraud because it is always done a secretive manner. It can be only inferred from the surrounding circumstances, but the surrounding circumstances so placed should be convincing and satisfactory to the conscience of the court. The plaintiff does not admit anywhere that he owes money and that he was forced to write a document for that purpose with the understanding that the property will be re-conveyed, if the amount is not paid. 9. This Court cannot go beyond the pleadings in the case. So the materials available to prove fraud and coercion are not sufficient and therefore the document cannot be set aside on that ground. Normally when a document is executed and recitals are there in the document, it proves the consideration and the whole drama has stared only after 2-3 days of the execution of the document. Therefore, I hold that the circumstances are not : 9 : sufficient and I concur with the finding of the trial court and hold that the appeal is devoid of any merit and it is liable to be dismissed. But I make it clear that this judgment shall not stand in the way of any settlement, if arrived between the parties. M.N. KRISHNAN, JUDGE. cl : 10 : M.N. KRISHNAN, J. ........................................... A.S.NO.411 OF 1996 ............................................. 1st day of November, 2010. J U D G M E N T