Kunnummal Rameshan vs Keloth Haridasan
2021 Latest Caselaw 4810 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                         PRESENT

         THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021/21ST MAGHA,1942

                   RSA.No.498 OF 2020

 AGAINST THE JUDGMENT IN AS 86/2018 DATED 07-02-2020 OF
                   SUB COURT, KANNUR

 OS 505/2016 DATED 20-06-2018 OF PRINCIPAL MUNSIFF COURT,
                         KANNUR


APPELLANT/APPELLANT/DEFENDANT:

           KUNNUMMAL RAMESHAN,
           S/O.CHANDU NAIR,
           RESIDING AT KOODALI AMSOM,
           THATTIYODE DESOM,
           KANNUR DISTRICT, PIN-670 592.

           BY ADVS.
           SRI.P.U.SHAILAJAN
           SRI.V.SREEJITH
           SMT.VIDYA KURIAKOSE

RESPONDENT/RESPONDENT/PLAINTIFF:

           KELOTH HARIDASAN,
           S/O.T.V.RAMAN NAIR,
           RESIDING AT MAITAPRAVAN HOUSE,
           KOODALI AMSOM, DESOM,
           KANNUR DISTRICT, PIN-670 592.


     THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 28.01.2021, THE COURT ON 10.02.2021 DELIVERED THE
FOLLOWING:
 R.S.A.No.498 of 2020


                                  ..2..




                           JUDGMENT

This appeal is against the judgment and decree dated

07.02.2020 in A.S.No.86/2018 of Sub Court, Kannur

dismissing the first appeal filed by the appellant

confirming the judgment and decree dated 20.6.2018 in

O.S.No.505/2016 of the Munsiff's Court, Kannur. The first

appellate court held that the respondent being the plaintiff

in the suit for recovery of an amount of Rs.1,50,000/- is

entitled to recover the amount from the appellant. The

parties are hereinafter referred to as the plaintiff and

defendant according to their status in the trial court

unless otherwise stated.

2. According to the plaintiff, the defendant had

received an amount of Rs.1,50,000/- from the plaintiff

promising to supply 6000 pieces of laterite stone within a

span of six months and executed an agreement on

16.1.2014. The plaintiff further claims that the defendant R.S.A.No.498 of 2020

..3..

has failed to supply the laterite stones and also failed to

return the amount even after the issuance of an Advocate

notice on 23.2.2015.

3. The defendant filed written statement

contending that he did not receive Rs.1,50,000/- from the

plaintiff as alleged. According to him, he was running a

quarry adjacent to the property of the plaintiff. While so,

the defendant obtained consent from the plaintiff for

making a motorable road through the property of the

plaintiff to the quarry. The plaintiff thereafter obtained a

signed blank stamp paper as security for relinquishing his

right over the property through which the proposed road

was to be constructed. He would say that later he had

constructed a motorable road through the property of an

adjacent land owner and when he demanded the

plaintiff to return the blank signed stamp paper, the

plaintiff stated that the same was misplaced. He denied R.S.A.No.498 of 2020

..4..

the execution of the alleged agreement.

4. During the trial, the trial court examined the

validity of Ext.A1 agreement and held that Ext.A1 was

executed by the defendant. On a re-appreciation of the

entire evidence on record, the appellate court upheld the

judgment and decree of the trial court.

5. The defendant, who was examined as DW1

before the trial court, denied execution of Ext.A1 and

passing of consideration for an amount of Rs.1,50,000/-

thereunder. The defendant stated that he obtained

consent for making a motorable road through the property

of the plaintiff to the quarry of the defendant which

situates near the property of the plaintiff and as security

for relinquishing the right over the road, the plaintiff

received a signed blank stamp paper from the defendant.

It is a fact that the defendant was conducting a quarry.

When the defendant was examined as DW1 he had R.S.A.No.498 of 2020

..5..

admitted his signature in the first page of Ext.A1

agreement. According to him, the signature in the second

page is not that of him. Though he denied execution of

Ext.A1 agreement in the written statement, he admitted

his signature in the first page of Ext.A1 agreement. Ext.A1

is a certified copy of the agreement issued from the

Judicial First Class Magistrate Court, Mattannur wherein

the plaintiff initiated criminal prosecution against the

defendant and the original of Ext.A1 was produced before

that court. The execution of Ext.A1 agreement was done

in the presence of PW2 one of the attesting witnesses in

Ext.A1 agreement. He stated that the defendant and

plaintiff signed in his presence in the second page of

Ext.A1 and he had witnessed the act of signing Ext.A1 by

the plaintiff and defendant. The learned counsel for the

appellant would contend that PW2 had not witnessed the

actual passing of consideration pursuant to Ext.A1 R.S.A.No.498 of 2020

..6..

agreement between the parties. However, the copy of

PW2's deposition which was handed over at the time of

hearing would show that during cross-examination, PW2

clearly stated that he was present when the plaintiff

handed over the amount to the defendant. In other words,

the plaintiff requested him to be present when the amount

was handed over to the defendant. This is a clear

indication that PW2 was present when the amount was

handed over to the defendant. The trial court as well as

the first appellate court believed the version of PWs.1 and

2 and held that Ext.A1 agreement was executed between

the plaintiff and defendant. It was also concurrently held

that the terms of the agreement were prepared and given

to the defendant by the plaintiff on the previous day and

defendant wrote the agreement after preparing the same.

Hence both the trial court and the first appellate court

concurrently held that the purchase of the stamp paper on R.S.A.No.498 of 2020

..7..

16.1.2014 and getting the terms printed on it for

executing the same at 11 am. are not impossible events in

the absence of reliable evidence to prove that it is

impossible to reach Koodali within 2 hours from Irikkur. It

was also concurrently held that, if the argument of the

defendant is accepted as true, the plaintiff would have

prepared the entire terms in the first page itself to prove

the execution of Ext.A1 agreement. There are only two

sentences in the second page of Ext.A1 agreement which

can easily be incorporated in the first page itself. In

Ext.A3 reply notice and the written statement filed before

the court, the defendant denied execution of Ext.A1

agreement and maintained that Ext.A1 was fabricated by

the plaintiff. However, when he was examined before

court, he admitted his signature in the first page.

Regarding the second page, PW2 stated that the

defendant signed therein in his presence. R.S.A.No.498 of 2020

..8..

6. Both the trial court and the first appellate court

disbelieved the case of the defendant that he had handed

over a signed blank paper to the plaintiff for getting

permission for making a motorable road through the

property of the plaintiff to the quarry of the defendant. It

was also concurrently held that the plaintiff is a retired

Teacher and it would not have been difficult for him to

raise an amount of Rs.1,50,000/-.

7. The first appellate court and the trial court

analysed the oral evidence adduced on behalf of the

parties, scrutinized and examined the documentary

evidence on record including, in particular, the execution

of Ext.A1 agreement by which the defendant received an

amount of Rs.1,50,000/- from the plaintiff as

consideration and concluded that Ext.A1 was executed by

the defendant. The first appellate court concurred with the

finding of the trial court that the defendant failed to set up R.S.A.No.498 of 2020

..9..

a probable defence to non-suit the plaintiff and it is

invariably not necessary to send Ext.A1 document for

comparison by an expert when other evidence is available

in the case to prove execution of Ext.A1 particularly when

the original of Ext.A1 has been pending consideration

before a competent criminal court in connection with a

criminal case between the same parties.

8. The trial court as well as the first appellate court

concurrently held that the plaintiff is entitled to recover

the amount covered under Ext.A1 in accordance with law.

A second appeal, is not a matter of right. True, the right of

appeal is conferred by the statute. However, the right of

second appeal only lies on a substantial question of law. If

statute confers a limited right of appeal, this Court cannot

expand the scope of the appeal. Needless to say that it is

not open to the defendant to re-agitate facts or to call

upon the High Court to re-analyse or re-appreciate the R.S.A.No.498 of 2020

..10..

evidence in a second appeal. To be "substantial", a

question of law must be debatable, not previously settled

by the law of the land or any binding precedent, and must

have a material bearing on the rights of the parties before

the court, if answered either way. On behalf of the

appellant/defendant, it has strenuously been contended

with considerable force that execution of Ext.A1

agreement was not proved. In my view, this is not a

question of law involved in this second appeal, far less any

substantial question of law, to warrant interference of this

Court in second appeal. A concurrent finding of fact that

Ext.A1 agreement was executed by the defendant in

favour of the plaintiff is not open to challenge in second

appeal. Formulation of substantial question of law is

mandatory and the mere reference to the grounds

mentioned in the memorandum of second appeal cannot

satisfy the mandate of Section 100 of the C.P.C. R.S.A.No.498 of 2020

..11..

For the reasons discussed above, this R.S.A. is

dismissed. There will be no order as to costs. Pending

applications, if any, stand disposed of.

Sd/-

N.ANIL KUMAR, JUDGE skj