IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 7TH NOVEMBER 2008 / 16TH KARTHIKA 1930 SA.No. 59 of 2002() ------------------- AS.23/1999 of DISTRICT COURT, MANJERI OS.105/1996 of SUB COURT, TIRUR .................... APPELLANT(S)/DEFENDANT --------------------------------- HAJIRA MOL,AGED 38,D/O.ABOOBACKER, CHATTACHINTE PURAKKAL, RAYIRIMANGALAM,TIRUR, MALAPPURAM DISTRICT. BY ADVS. SRI.K.RAMACHANDRAN SMT.P.K. BEENA RESPONDENT(S)/PLAINTIFF ----------------------------------- T.AHAMMED, AGED 42 YEARS, S/O.AALASSAN THELATH HOUSE, RAYIRIMANGALAM, TIRUR TALUK, MALAPPURAM DISTRICT. ADVS. SRI.T.KRISHNAN UNNI (SR.) SRIC.M.MOHAMMED IQUABAL THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN C.M.P. NO. 147 OF 2002 IN S.A. NO. 59 OF 2002. DISMISSED 7.11.2008 Sd/-(HARUN-UL-RASHID, JUDGE) HARUN-UL-RASHID, J. -------------------------------------------- S.A. NO. 59 OF 2002 -------------------------------------------- Dated this the 7th day of November, 2008 JUDGMENT The defendant in O.S. No.105 of 1996 on the file of the Sub Court, Tirur is the appellant. The appeal is directed against the decree and judgment dated 16.11.2001 in A.S. No.23 of 1999 of the District Court, Manjeri. The suit for specific performance filed by the respondent/plaintiff was decreed by the trial court and later confirmed by the lower appellate court. Hence, this appeal. The parties herein are referred to as the plaintiff and defendant as in the suit. 2. The plaint schedule property belongs to the defendant. According to the plaintiff, on 6.1.1996, agreement of sale of the said property was executed by the defendant and sale consideration was fixed at Rs.1,86,000/-. On the date of execution of Ext.A2 agreement. Rs.50,000/- was received by the defendant as advance amount. The plaintiff, however, alleged that the defendant was not willing to receive the balance consideration and execute the sale deed inspite of repeated requests and S.A. NO. 59/2002 2 ultimately on 23.3.1996, the plaintiff sent a registered lawyer notice to the defendant calling upon her to receive the balance sale consideration and execute the sale deed to which the defendant sent a reply notice raising false contentions. 3. In the written statement filed by the defendant, it is inter alia pleaded that the agreement alleged to have been executed on 6.1.1996 is not true, that she had never agreed to convey any property for a sum of Rs.1,86,000/- as stated by the plaintiff, that the execution of the agreement for sale and receipt of advance amount happened in a different context, that the defendant was in need of money for conducting the marriage of her daughter and the sister of her husband and for raising the money for the marriage, she had entrusted her neighbour to undertake sale of the property. According to the defendant, in the presence of the said person and witness to Ext.A2 document, Rs.50,000/- was received by her father fixing the sale consideration at Rs.2,86,000/-, that at the time of receiving the advance amount, she was made to sign three blank papers and that the sale consideration shown in Ext.A2 as Rs.1,86,000/- is a manipulation. The defendant further contended that she would not have agreed for such a transaction. It is also contended that Ext.A2 agreement for sale is a concocted document by misusing the signed blank papers and, therefore, it S.A. NO. 59/2002 3 is not binding on her. 4. The trial court considered the questions raised by the parties elaborately. The trial court also considered whether the agreement dated 9.1.1996 is validly executed, whether it is vitiated by fraud, the correct market value of the property and all other questions regarding the transaction. In support of the case put forward by the plaintiff, the plaintiff himself and another witness were examined as PWs.1 and 2 and Exts.A1 to A4 were marked. The defendant and another witness were examined as DWs.1 and 2 and Exts.B1 to B4(g) were marked on her side. 5. The trial court appreciated the oral evidence of the parties, perused Ext.A2 and, according to me, interpreted rightly and held that the transaction which took place between the parties is proved as stated by the plaintiff. All the attending circumstances leading to the execution of Ext.A2 agreement for sale is seen examined and discussed. The trial court also examined the contention of the defendant that her signatures were obtained in three blank papers by practicing fraud and observed that the defendant had not made any attempt to prove the fraud alleged to have been committed by the plaintiff and others. S.A. NO. 59/2002 4 6. The lower appellate court reappreciated the evidence and came to the same conclusion on facts. The lower appellate court accepted the evidence of PW.2 who, according to both sides, is admittedly a person well accepted in the locality, that Ext.A2 agreement was executed by the defendant and the sale consideration fixed was Rs.1,86,000/- and not Rs.2,86,000/- as contended by the defendant. The court also specifically held that the plaintiff had no occasion to practice fraud. 7. This Court issued notice on all substantial questions of law formulated in the Second Appeal. Again the matter was heard in detail. The oral evidence of the parties was read out to me which I appreciated for the purpose of deciding whether any substantial question of law is involved in the case. After going through the records, I find that the fact finding courts very elaborately and rightly discussed the facts, circumstances and materials on record and rightly concluded that the plaintiff is entitled to the relief prayed for. 8. The learned counsel appearing for the appellant contended that this is a fit case where the courts below should have exercised the discretion not to decree the suit for specific performance, but to return the amount paid by the plaintiff. This Court summoned the parties in order to S.A. NO. 59/2002 5 ascertain whether any injustice will be caused to them if the suit is decreed as prayed for. The parties appeared before me today. I have ascertained the position as on the date of filing of the suit and the present situation. The husband of the defendant was employed in a Gulf country for a long time and at present her son is employed in the Gulf countries. The plaintiff submitted that he has been living in a rented house for the last 18 years and that he genuinely requires a house for permanent settlement. After discussing the matter with the parties, I find that both sides are not financially sound. Hence, I do not find that this is a fit case where this Court should exercise such discretion. There will be no positive advantage or unreasonable gain for the plaintiff if the suit is decreed. On the facts of the case, no substantial question of law arises for consideration in this Second Appeal. The Second Appeal fails and it is accordingly dismissed. There will be no order as to costs. (HARUN-UL-RASHID, JUDGE) sp/ S.A. NO. 59/2002 6 HAURN-UL-RASHID, J. S.A. NO. 59/2002 JUDGMENT 7th November, 2008