IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 RSA.No. 1086 of 2008() ---------------------- AS.8/2003 of ADDL. DISTRICT & SESSIONS COURT (ADHOC)III, PATHANAMTHITTA OS.9/2008 of MUNSIFF'S COURT, PATHANAMTHITTA .................... APPELLANT/APPELLANT/DEFENDANT ------------------------------------------------- DEVAKIAMMA VIJAYAMMA, VARAVUKALAYIL VEEDU, PEZHUMPARA P.O., KUMARAMPEROOR VADAKKEKARA MURI, VADASSERIKKARA VILLAGE, RANNI TALUK. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT/ RESPONDENT/PLAINTIFF ----------------------------------- K.K.MOHANAN, S/O.KUNJUKRISHNAN, KUTTYMURUPPEL HOUSE, KUMPLAMPOIKA, KUMARAMPEROOR, VADAKKEKKARA MURI, VADASSERIKKARA VILLAGE, RANNI TALUK. PATHANAMTHTTIA DT. REP. BY POWER OF ATTORNY HOLDER, K.K.KARUNAKARAN, PALAVILAYIL VEEDU,MANIYAR KUMARAMPEROOR VADAKKEKKARA MURI, VADASSERIKKARA. ADV. SRI.SIBY MATHEW THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- R.S.A.NO.1086 OF 2008 --------------------------- DATED THIS THE 3RD DAY OF JULY, 2009 JUDGMENT Appellant is the defendant in O.S.No.9/98 on the file of the Munsiff's Court, Ranny. The appeal is directed against the judgment and decree in A.S.No.8/2003 on the file of the Additional District & Sessions Court, Pathanamthitta. The suit was filed for return of advance sale consideration and compensatory damages. The trial court held that the plaintiff is entitled to return of advance sale consideration. The amount paid by the plaintiff is Rs.25,000/-. The trial court also awarded a sum of Rs.5,000/- as a token amount by way of damage. The Appellate Court confirmed the decree and judgment of the trial court. Hence, this second appeal. 2. The parties entered into Ext.A1 agreement whereby the defendant has agreed to sell the plaint schedule property to -2- R.S.A.No.1086/2008 the plaintiff for a sale consideration of Rs.2,31,250/- and received an advance amount of Rs.25,000/-. Ext.A1 is dated 5/8/1997. On 21/10/1997 the plaintiff was served with summons and notice of Ext.A2 case on the file of the same court in which the plaintiff, defendant and the mother of the defendant were arrayed respectively as defendants 7, 2 and 1 along with 4 other defendants. Ext.A2 suit was filed by one Karunakaran, brother of the defendant claiming partition and separate possession of his 1/6 share in the attachment schedule property and also for perpetual prohibitory injunction restraining the plaintiff, defendant and the mother of the defendant and other brothers from creating any document with respect to the attachment schedule property. Defendant opposed the prayer of the plaintiff and contended that there is no impediment for executing the terms of Ext.A1 agreement and therefore the plaintiff is not entitled to any relief. The evidence consists of oral testimony of PW-1, DWs.1 and 2 and Exts.A1 to A3. The trial court noted -3- R.S.A.No.1086/2008 that the property covered by Ext.A1 agreement is admittedly the subject matter of Ext.A2 litigation. The plaintiff also expressed the apprehension that Ext.A2 case may be one brought into existence by the brother of the defendant to find out a way to resile from Ext.A1agreement for reasons best known to him alone. Accepting the case of the plaintiff that the defendant has not got every right to execute the sale deed the trial court held that the performance of Ext.A1 contract has become burdensome and impossible due to fault of the defendant and as such it is a case of self-induced frustration. On the basis of the finding, the trial court permitted the plaintiff to realise the plaint amount with interest at 12% per annum. The questions have been re-agitated by the appellant/defendant in A.S.No.8/2003. The Appellate Court also agreed with the findings of the trial court. The Appellate Court held that Exts.A2 and A3 with the oral testimony of PW-1 would show that either the appellant was in a position to execute any sale deed in favour of the respondent as -4- R.S.A.No.1086/2008 per Ext.A1 agreement or the respondent was able to get executed any sale deed in respect of the schedule property due to the pendency of Ext.A2 suit. The Appellate Court also agreed with the observations made by the trial court that Ext.A1 agreement had become burdensome and impossible of performance due to Exts.A2 and A3 litigation and as such it is a case of self-induced frustration. 3. The contention of the learned counsel for the appellant was examined by this Court. This Court finds that the issues are answered and findings are entered on the basis of the oral and documentary evidence. The conclusions arrived at by the trial court and confirmed in appeal are the logical conclusions. 4. I do not find any reason to take a different view on the basis of the facts and evidence recorded in the case. The findings are purely based on facts. I have no jurisdiction to interfere with the matter by invoking under Section 100 of the C.P.C. No question of law much less any substantial question of law arises -5- R.S.A.No.1086/2008 for consideration in this appeal. In the result, the appeal fails and it is accordingly dismissed in limine. HARUN-UL-RASHID, Judge. kcv.