Kerala High Court
Sebastian Mathew vs Abraham Thomas on 18 July, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:53261
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
FRIDAY, THE 18TH DAY OF JULY 2025 / 27TH ASHADHA, 1947
RFA NO. 103 OF 2018
AGAINST THE JUDGMENT DATED 15.12.2017 IN OS NO.30 OF 2016 OF
SUB COURT, PALA
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APPELLANTS/DEFENDANTS 1 & 2 IN OS:
1 P.V.GEORGE,
AGED 65, S/O.(LATE) VARKEY,
PLATHOTTATHIL HOUSE,ARUVITHURA P.O., KONDOOR KARA,
KONDOOR VILLAGE, MEENACHIL TALUK,
KOTTAYAM DISTRICT-686 122.
2 SILVY GEORGE,
AGED 60,W/O.P.V.GEORGE,PLATHOTTATHIL HOUSE,
ARUVITHURA P.O., KONDOOR KARA, KONDOOR VILLAGE,
MEENACHIL TALUK, KOTTAYAM DISTRICT-686 122.
BY ADVS.
SHRI.P.B.KRISHNAN (SR.)
SRI.P.M.NEELAKANDAN
SRI.SABU GEORGE
SRI.P.B.SUBRAMANYAN
RESPONDENTS/PLAINTIFF & DEFENDANT NO.3:
1 ABRAHAM THOMAS,
AGED 60, S/O.THOMAS, THADATHIL HOUSE,
PLAYAMPALLAM KARA, MALAMPUZHA VILLAGE, PALAKKAD TALUK,
PALAKKAD DISTRICT-678 651.
2025:KER:53261
RFA NO. 103 OF 2018 -2-
2 SEBASTIN MATHEW,
AGED ABOUT 56 YEARS, S/O.(LATE) MATHEW, PUTHENPURAYIL,
NEETHULPURAM KARA, KIZHAKKENCHERRY VILLAGE,ALATHUR
TALUK, PALAKKAD DISTRICT-678 706.
BY ADV SRI.BABY MATHEW
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
18.07.2025, ALONG WITH RFA.339/2019, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2025:KER:53261
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
FRIDAY, THE 18TH DAY OF JULY 2025 / 27TH ASHADHA, 1947
RFA NO. 339 OF 2019
AGAINST THE JUDGMENT DATED 15.12.2017 IN OS NO.30 OF 2016 OF
SUB COURT, PALA
-----
APPELLANT/3RD DEFENDANT:
SEBASTIAN MATHEW,
AGED 58 YEARS,
S/O. LATE MATHEW, PUTHENPURAYIL, NEETHIPURAM KARA,
KIZHAKKANCHERRY VILLAGE, ALATHUR TALUK,
PALAKKAD DISTRICT.
BY ADV SRI.BABY MATHEW
RESPONDENTS/PLAINTIFF AND DEFENDANTS 1 AND 2:
1 ABRAHAM THOMAS,
AGED 63 YEARS,
S/O. THOMAS, THADATHIL HOUSE, PLAYAMPILLAM KARA,
MALAMPUZHA VILLAGE, PALAKKAD TALUK, PALAKKAD DISTRICT.
2 P.V. GEORGE,
S/O. LATE VARKEY, 68 YEARS, PLATHOTTATHIL HOUSE,
ARUVITHARA P.O, KONDOOR KARA, KONDOOR VILLAGE,
MEENACHIL TALUK, KOTTAYAM DISTRICT.
3 SILVY GEORGE,
W/O. P.V. GEORGE, AGED 63 YEARS, PLATHOTTATHIL HOUSE,
ARUVITHARA P.O, KONDOOR KARA, KONDOOR VILLAGE,
MEENACHIL TALUK, KOTTAYAM DISTRICT.
2025:KER:53261
RFA NO. 339 OF 2019 -2-
BY ADVS.
SHRI.VARGHESE C.KURIAKOSE
SHRI.P.B.KRISHNAN (SR.)
SRI.P.B.SUBRAMANYAN
SRI.SABU GEORGE
SMT.B.ANUSREE
SRI.MANU VYASAN PETER
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
18.07.2025, ALONG WITH RFA.103/2018, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2025:KER:53261
SATHISH NINAN &
P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
R.F.A. Nos.103 of 2018 & 339 of 2019
= = = = = = = = = = = = = = = = = =
Dated this the 18th day of July, 2025
J U D G M E N T
Sathish Ninan, J.
The suit for money was decreed by the trial court. Defendants 1 and 2, and the 3rd defendant are in appeal in the respective appeals.
2. Defendants 1 and 2 are the owners of a rubber plantation in Survey No.64/3 in Block number 50 of Elikulam village, Meenachil Taluk. On 24.09.2011, the plaintiff and the third respondent entered into an agreement with defendants 1 and 2 for slaughter tapping of the rubber trees in the property and to cut and remove the timber after slaughter tapping. The total consideration payable was ₹ 1,43,00,000/-. On the date of agreement ₹ 50 lakhs was paid towards consideration. The period fixed was till 30.03.2014. According to the plaintiff, a further amount of ₹ 25 lakhs was paid to R.F.A. Nos.103 of 2018 & 339 of 2019 2025:KER:53261 -: 2 :- defendants 1 and 2 subsequently. It is his further case that it was agreed to between the parties that the full consideration need to be paid only before the trees were actually cut and removed. He alleges that, even before slaughter tapping commenced, defendants 1 and 2 obstructed him by demanding payment of the entire consideration. Accordingly the suit was filed for return of ₹ 75 lakhs.
3. Defendants 1 and 2 admitted that an agreement was entered into between the parties on 24.09.2011. They further admitted the receipt of ₹ 50 lakhs on the date of agreement. That the period was up to 30.03.2014 was also admitted. However, they denied the contention that it was agreed that the entire consideration need be paid only after the trees were cut and removed. It was contended that, after entering into the agreement, the plaintiff and the third defendant were doing slaughter tapping till 30.12.2012. The alleged subsequent payment of ₹ 25 lakhs was denied. It was contended that as per R.F.A. Nos.103 of 2018 & 339 of 2019 2025:KER:53261 -: 3 :- the agreement, out of the balance consideration an amount of ₹ 25 lakhs was to be paid on or before 24.03.2012, a further amount of ₹ 20 lakhs on or before 30.12.2013 and the remaining ₹ 14 lakhs to be paid on or before 30.03.2014. The payment of ₹ 25 lakhs within 24.03.2012 was defaulted. When the payment was insisted upon, the plaintiff and the 3 rd defendant left the property by 30.12.2012. They further contended that the plaintiff and the 3rd defendant had removed 400 rubber trees from the property and that they had suffered damages to the tune of ₹ 36 lakhs. Accordingly they prayed for dismissal of the suit.
4. The 3rd defendant supported the plaintiff.
5. The trial court found that there is no evidence to show the payment of ₹ 25 lakhs claimed by the plaintiff. Finding that the contract has been breached, defendants 1 and 2 were directed to return the ₹ 50 lakhs which was admittedly received by them. The suit was filed as an indigent. As per the decree, the 3 rd R.F.A. Nos.103 of 2018 & 339 of 2019 2025:KER:53261 -: 4 :- defendant was made liable for one-half of the court fee payable.
6. Challenging the decree for return of money, defendants 1 and 2 are in appeal in RFA 103 of 2018. Challenging the direction in the decree to recover one- half court fee from the 3 rd defendant he is in appeal in RFA 339 of 2019. There is no appeal by the plaintiff against the refusal of decree for ₹ 25 lakhs.
7. We have heard Sri.P.B.Krishnan, the learned senior counsel for defendants 1 and 2, Sri.Varghese Kuriakose, the learned counsel for the plaintiff and Sri.Baby Mathew, the learned counsel for the third defendant.
8. The points that arise for determination are :-
(i) Was the plaintiff entitled to sue as an indigent when admittedly the suit is filed on behalf of the third defendant also and sharing interest with him?
(ii) The suit being one filed upon the agreement entered into between the parties, could the suit be maintained without marking the agreement in evidence?
(iii) Do the materials on record establish that the plaintiff and the third defendant had done slaughter tapping in the property from 24.09.2011 till 30.12.2012?
(iv) Could the 3rd defendant be made liable for the court fee payable? R.F.A. Nos.103 of 2018 & 339 of 2019 2025:KER:53261 -: 5 :-
(iv) Does the decree and judgment of the trial court warrant any interference?
9. The learned senior counsel for the appellant would contend that the trial court ought not have permitted the plaintiff to sue as an indigent since admittedly the contract in question was entered into by him along with the 3 rd defendant and for their joint benefit. Even the suit is claimed to have been instituted for and on behalf of the third defendant also under an agreement between them. Order XXXIII Rule 5(e) of the Code of Civil Procedure provides for rejection of the indigent application where the applicant has entered into any agreement with reference to the subject matter of the suit with any other person who has interest in such subject matter. Such a course should have been resorted to by the trial court, it is argued.
10. We do not think that the argument of the learned counsel needs any attention at this appellate stage. It was open for defendants 1 and 2 to urge the R.F.A. Nos.103 of 2018 & 339 of 2019 2025:KER:53261 -: 6 :- contention and move under Order XXXIII Rule 9 CPC for withdrawal of permission to sue as an indigent on the said ground. However, such a course was not resorted. If such objection was raised and the court had upheld the same, the plaintiff had a remedy to pay court fee and prosecute the suit. Such objection having not been raised at the appropriate time, urging such contention at this stage is of no avail.
11. Now we proceed to discuss on the contention of the appellant-defendant with regard to non- maintainability of the suit for the failure of the plaintiff to have the agreement marked in evidence. The rights and liabilities inter-se stems out of the agreement executed between the parties on 24.09.2011. It is not in dispute that there is a written agreement. The cause of action for the suit is the breach of the agreement. The terms of the agreement could be proved only by production of the agreement(S.92 Evidence Act). The plaint does not set out the entire terms of the R.F.A. Nos.103 of 2018 & 339 of 2019 2025:KER:53261 -: 7 :- agreement including the instalments payable, the dates etc. The defendant on the other-hand has pleaded certain dates with the instalments payable. Therefore, to prove the agreement, the document should have been produced in evidence. However it is not done.
12. The learned counsel for the respondent- plaintiff would argue that, the suit is only for return of the advance amounts paid under an agreement which did not go through and therefore the non-production of the agreement is not of any relevance. Further, unless the defendants prove that they sustained any damages, they are bound to return the amounts; decisions are legion on the point, under Section 74 of the Contract Act, it is argued.
13. We are unable to agree with the learned counsel for the respondent-plaintiff. What were the terms of the contract, at which stage of the contract the breach occurred, what are the consequences to follow, etc. are all relevant factors for consideration. Without R.F.A. Nos.103 of 2018 & 339 of 2019 2025:KER:53261 -: 8 :- production of the agreement, the above aspects could not be found out. In paragraph 8 of the chief affidavit of DW1 it is sworn to thus, "വവാദദി അനനവായതദിൽ പറയയുന്നതയുപപവാലലെപയവാ വവാദദി ഈ പകവാടതദിയദിൽ ലകവാടയുതത്ത് ലമവാഴദി നൽകദിയതയുപപവാലലെപയവാ അല വവാദദിപപതദികൾ തമദിൽ 24.09.2011 ൽ എഴയുതദിയ റബ്ബർ മരങ്ങളളുലട വദിൽപ്പന പരഖയദിൽ പപതദിപവാദദിചദിടളുള്ളതത്ത്. അകവാരണതവാലെവാണത്ത് റബ്ബർ മരങ്ങളളുലട വദിൽപ്പന ഉടമ്പടദിയദിലലെ വനവസ്ഥകൾ പകവാടതദി മയുമ്പവാലക ലതളദിവദിൽ വരവാതദിരദികയുന്നതദിനയുപവണദി മനനഃപപൂർവവ്വം ടദി പരഖ അകമദിടത്ത് വവാദദി ലതളദിവദിൽ ലകവാണയുവരവാതതത്ത്. ഇകവാരണതവാൽ വവാദദിയയുലട തർകങ്ങൾകത്ത് യവാലതവാരയു അടദിസ്ഥവാനവയുവ്വം പദിൻബലെവയുവ്വം ഇലവാ എന്നത്ത് കവാണവാവയുന്നതവാണത്ത്. എനത്ത് കവാരണതവാലെവാണത്ത് വവാദദിപപതദികൾ തമദിലെയുള്ള റബ്ബർ മരങ്ങളളുലട വദിൽപ്പന ഉടമ്പടദി പകവാടതദിയദിൽ ലതളദിവദിൽ വരയുതവാതതത്ത് എന്നയുള്ളതദിനത്ത് യവാലതവാരയു വദിശദദീകരണവയുവ്വം വവാദദി നൽകദിയദിടളുമദില."
The suit being founded on the agreement and alleging breach of the agreement, the failure to produce the agreement in evidence is fatal.
14. It is the plaintiff's case that he was unable to do slaughter tapping in pursuance of the agreement. R.F.A. Nos.103 of 2018 & 339 of 2019 2025:KER:53261 -: 9 :- Therefore, he claims return of the ₹ 75 lakhs allegedly paid by him (₹ 50 lakhs paid on 24.09.2011 and the amount at ₹ 25 lakhs paid later). According to defendants 1 and 2, after the payment of ₹ 50 lakhs on 24.09.2011 no further payments were made. Though as per the agreement the next installment of ₹ 25 lakhs was payable on 24.03.2012, without paying the same the plaintiff continued slaughter tapping till 30.12.2012. It is claimed that finally, on the insistence of the defendants to pay the amount, the plaintiff and third defendant left the property on 30.12.2012. They had done slaughter tapping from 24.09.2011 till 30.12.2012.
15. Ext.A1 is the suit notice. It is dated 17.01.2014. It is very important to note that, till then, ie. for a period of more than 2½ years after the agreement, the plaintiff had no complaint/grievance that he was not permitted to carry out slaughter tapping in the property. While examined as PW1, he would in his cross-examination depose that the property was not given R.F.A. Nos.103 of 2018 & 339 of 2019 2025:KER:53261 -: 10 :- possession of and they were not permitted even to enter the property. Noticeably, there is no such averment in the plaint. In his further cross-examination it is affirmed that there arose disputes with the defendants and on 25.09.2011 the plaintiff and the third defendant were told not to enter the property. The deposition reads thus: -
"നദിങ്ങളളുവ്വം ഒന്നയുവ്വം രണയുവ്വം പപതദിയയുമവായദി തർകങ്ങൾ ഉണവായതവായദി പറയയുന്നതത്ത് എന്നവാണത്ത് (Q). 25/09/2011 ൽ പതവാടതദിൽ കയറണവാ എന്നത്ത് പറഞ്ഞപപ്പവാൾ തലന്നയവാണത്ത് (A). "
It is to be noticed that 25.09.2011 is the very next day of the agreement(24.09.2011). If after payment of ₹ 50 lakhs on 24.09.2011 they were obstructed on the very next day from even entering into the property, it is difficult to accept that they remained idle and did not take any action for a period of 2 ½ years.
16. Further, according to the plaint averments, the plaintiff had, subsequent to the agreement, paid a further amount of ₹ 25 lakhs. The plaintiff has in his proof affidavit sworn to that on 24.03.2012 an amount of R.F.A. Nos.103 of 2018 & 339 of 2019 2025:KER:53261 -: 11 :- ₹ 25 lakhs was paid to defendants 1 and 2. It cannot be believed that, even though they were prevented from even entering the property after having paid ₹ 50 lakhs, still they paid a further amount of ₹ 25 lakhs on 24.03.2012 ie. after a period of six months. The defendant has produced Ext.B3 cheque of the 3 rd defendant dated 24.03.2012, stated to have been handed over by the plaintiff and the 3 rd defendant at the time of entering into the agreement. It represents the second instalment under the agreement. It is claimed that the handing over of the same towards security has been acknowledged in the agreement entered into between the parties. On the evidence and circumstances, it is quite probable that the plaintiff continued slaughter tapping in the property till 30.12.2012 as claimed by defendants 1 and 2. The terms of the contract are not before the court. Facts being so, the argument of the plaintiff based on Sections 73 and 74 of the Contract Act is also only to be repelled.
R.F.A. Nos.103 of 2018 & 339 of 2019 2025:KER:53261 -: 12 :-
17. The above aspects had not gone into the zone of consideration of the trial court. On appreciation of the rival pleadings and evidence, we find the case of the defendants 1 and 2 to be probable and is liable to be upheld. We do so.
18. The third defendant challenges the decree against him directing realisation of one-half court fee from him. To grant such a decree, the trial court was of the view that, going by the stand of the plaintiff and the third defendant, they are to share the benefits of the decree, and thus cast the liability.
19. The reasoning of the trial court is flawed. The liability to pay court fee is on the plaintiff. Merely because the 3rd defendant sailed along with the plaintiff does not enable the court to direct him to share the court fee payable. He did not choose to institute the suit for his cause. He cannot be made liable for the court fee. Hence the decree against the third defendant is liable to be set aside and we do so. R.F.A. Nos.103 of 2018 & 339 of 2019 2025:KER:53261 -: 13 :-
20. As per this judgment we are proposing to dismiss the suit. In terms of Order XXXIII Rule 11 of the Code of Civil Procedure when an indigent suit is dismissed, the liability to pay the court fee is on the plaintiff. The defendant who supports the claim of the plaintiff, cannot be made liable for the same.
Resultantly, the appeals are allowed. The decree and judgment of the trial court will stand set aside. The suit will stand dismissed. No costs.
Sd/-
SATHISH NINAN JUDGE Sd/-
P. KRISHNA KUMAR JUDGE kns/-
//True Copy// P.S. To Judge