Kesavan Pilla Lekshmanan vs Nanu Nadar Chellakuttan
2021 Latest Caselaw 21621 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                   THE HONOURABLE MR.JUSTICE K. BABU
    TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943
                          RSA NO. 627 OF 2009
AGAINST THE JUDGMENT AND DECREE DATED 14.01.2009 IN AS 148/2001 OF
        III ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM
AGAINST THE JUDGMENT AND DECREE DATED 30.11.2000 IN OS 96/1998 OF
                       SUB COURT, NEYYATTINKARA


APPELLANTS/RESPONDENTS/DEFENDANTS:

    1     KESAVAN PILLA LEKSHMANAN,
          AGED 52 YEARS,
          BUSINESS, MAVILA PURAYIDOM, PUTHEN THERUVU,
          BALARAMAPURAM FROM AMARAVILA NARAYANAPURAM, THERUVU,
          NADUVOORKOLLA DESOM, KOLLAYIL VILLAGE.
    2     MOHANAN @ SUBRAMONIA PILLA MANO MOHANAN,
          S/O. RAJA, AGED 41 YEARS, BUSINESS, AKARATH VILAKAM
          PUTHAN VEEDU, AMARAVILA, KEEZHKOLLA DESOM, KOLLAYIL
          VILLAGE, NEYYATTINKARA, TRIVANDRUM DISTRICT.
          BY ADV
          SRI.R.S.KALKURA
          SRI.M.S.KALESH
          SRI.HARISH GOPINATH,
          SRI.VINAY MENON V.
          SRI.AJAY M.


RESPONDENT/APPELLANT/PLAINTIFF:

          NANU NADAR CHELLAKUTTAN,
          AGED 52 YEARS,
          AKARATH VILAKATH VEEDU, NADUVOORKOLLA DESOM, KOLLAYIL
          VILLAGE, NEYYATTINKARA,, TRIVANDRUM DISTRICT.
          BY ADV SRI.G.S.REGHUNATH

     THIS REGULAR SECOND APPEAL HAVING BEEN HEARD ON 02.11.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 RSA No.627 of 2009
                                               2


                                        K.BABU, J.
                          -------------------------------------------
                                R.S.A. No.627 of 2009
                         ---------------------------------------------
                      Dated this the 2nd day of November, 2021


                                       JUDGMENT

The defendants are the appellants. The plaintiff is the

respondent.

2. The plaintiff instituted the suit for specific

performance of a contract for the sale of 750 square links of

land. An agreement for sale was executed between the

plaintiff and defendant No.1 on 13.05.1998 in respect of the

aforesaid immovable property for a consideration of

Rs.1,35,000/-. A sum of Rs.35,000/- was paid as advance

consideration on 13.05.1998. The time fixed for the

performance of the contract was six months from the date of

its execution. The plaintiff issued a cheque for Rs.25,000/- in

favour of defendant No. 1 towards the balance consideration

on 30.05.1998. Defendant No.1 was not ready and willing to

perform his part of the contract. Subsequently, a lawyer's

notice was caused to be issued to defendant No.1 to appear

before the Sub-Registrar on 09.11.1998 for execution of the

sale deed. Defendant No.1 failed to appear before the Sub- RSA No.627 of 2009

Registrar's office to execute the necessary deed of

conveyance.

3. The defendants pleaded that it was due to the

failure on the part of the plaintiff to perform his part of the

contract within the stipulated time that defendant No.1 could

not execute the sale deed, as agreed. The defendants further

contended that time was the essence of the contract.

Defendant No.2 who was conducting business in a shop room

in the plaint schedule property was not at all bound by the

agreement and hence, the suit was bad for mis-joinder of

parties.

4. The Trial Court declined to grant specific

performance as prayed for and dismissed the suit. The

plaintiff challenged the judgment and decree dated

30.11.2000 passed by the Trial Court, before the District

Court, Thiruvananthapuram in A.S.No.148/2001. The First

Appellate Court reversed the decree and judgment of the Trial

Court and decreed specific performance in favour of the

plaintiff.

5. Aggrieved by the judgment and decree of the First

Appellate Court in A.S. No.148/2001, the defendants preferred

this Second Appeal.

RSA No.627 of 2009

6. After hearing both sides, this Court reformulated

the substantial questions of law as follows:-

(i) Has not the First Appellate Court erred in relying on the pleadings sought to be incorporated by way of I.A.No.1778/2001, an application filed under Order 6 Rule 17 CPC, before that Court without even allowing the interlocutory application?

(ii) Was not the First Appellate Court under obligation to give an opportunity to the defendants to lead additional evidence by way of rebuttal when the Court received Exts.A6 and A7 under Order 41 Rule 27 CPC?

7. Heard Sri.R.S.Kalkura, the learned counsel for the

appellants/defendants and Sri.G.S.Reghunath, the learned

counsel for the respondent/plaintiff.

8. The learned counsel for the appellants contended

that prejudice had been caused to the appellants when the

First Appellate Court relied on the pleadings sought to be

incorporated by way of amendment without affording an

opportunity to the appellants to contest the same. The

learned counsel further contended that, reception of Exts.A6

and A7 as per Order 41 Rule 27 of the CPC without affording

opportunity to the appellants to challenge the contents of RSA No.627 of 2009

them has also caused prejudice to the appellants/defendants.

9. Per contra, the learned counsel for the respondent

Sri.G.S.Reghunath, argued that the plaintiff is entitled to

specific performance of the contract as he has satisfied all the

requirements for getting the relief.

10. The Trial Court refused to grant specific

performance of the contract mainly on the ground that the

plaintiff has not approached the Court with clean hands.

11. The First Appellate Court found that the defendants

were not ready and willing to perform their part of the

contract, and they colluded together in not performing the

contract.

12. In the appellate stage, the plaintiff filed IA

No.1778/2001 under Order 6 Rule 17, CPC seeking

amendments in the plaint. The plaintiff also filed I.A.

No.2400/2005 for admitting additional evidence.

13. In the amendment application (IA No.1778/2001),

the plaintiff sought to plead the circumstance under which a

sum of Rs.25,000/- was paid by way of cheque on 30.05.1998

and that there was collusion on the part of defendants 1 and 2

in the transactions.

RSA No.627 of 2009

14. The First Appellate Court in Paragraph 8 of the

impugned judgment observed the following:

"The amendments sought to be introduced are to incorporate details regarding the payment of Rs.25,000/- by cheque and to explain why the 2 nd defendant was impleaded. It is urged that subsequent to the dismissal of the suit the first defendant had executed sale deed dated 20.10.2001 in favour of the 2 nd defendant conveying the plaint schedule property for a meagre consideration of Rs.20,000/-. It is pointed out that this was done when the plaintiff had agreed to purchase the property for Rs.1,35,000/- and Rs.75,000/- was still due from the plaintiff to the appellant. This according to the learned counsel of the appellant clearly indicates that there was collusion between the defendants to some how cancel the agreement for sale in favour of the appellant. This also indicates lack of readiness and willingness on the part of the first defendant to execute the sale deed. The argument cannot be brushed aside."

15. This Court examined the records relating to the

proceeding in the First Appellate Court. It is seen that

I.A.No.1778/2001, an application seeking amendments in the

plaint, was not allowed.

16. However, going by the above - extracted portion of

the judgment of the First Appellate Court, it is evident that the

Court has relied on the pleadings sought to be incorporated in

the plaint through I.A.No.1778/2001 for recording findings

against the appellants. The First Appellate Court has violated

the principles of a fair trial by relying on those pleadings

without affording an opportunity to the appellants to defend RSA No.627 of 2009

them.

17. The First Appellate Court also received Exts.A6 and

A7 in the appellate stage invoking the provisions of Order 41

Rule 27, CPC. Ext.A7 is the certified copy of a sale deed

executed by defendant No.1 in favour of defendant No.2 after

the dismissal of the suit. The First Appellate Court has relied

on Ext.A7 to record a finding that defendant No.1 colluded

with defendant No.2.

18. Admittedly, the First Appellate Court had not given

an opportunity to the defendants to contest the contents of

Ext.A7.

19. In Union of India v. K.V.Lakshman and Others

[(2016) 13 SCC (124) Paragraph 36], the Apex Court held

that, once the additional evidence is allowed to be taken on

record, the Appellate Court is under obligation to give

opportunity to the other side to file additional evidence by

way of rebuttal.

20. The First Appellate Court should not have relied on

the pleadings sought to be incorporated in the plaint by way

of an application filed under Order 6 Rule 17, CPC in the

appellate stage without even allowing the application and

affording an opportunity to the defendants to file answer to RSA No.627 of 2009

them. The First Appellate Court has committed irregularity in

receiving Exts. A6 and A7 in the appellate stage without

giving an opportunity to the defendants to lead additional

evidence by way of rebuttal.

21. This Court is satisfied that there had not been

effectual adjudication of the proceedings in the First Appellate

Court and the appellants/defendants have suffered material

prejudice on that account.

For the above reasons, this Second Appeal is allowed,

and the judgment and decree of the First Appellate Court are

set aside, and the matter is remanded to the First Appellate

Court for fresh consideration in accordance with law. The

parties shall appear before the First Appellate Court on

01.12.2021. The Court below shall expeditiously dispose of

the appeal, at any rate, within three months from the date

scheduled for the appearance of the parties.

Sd/-

K.BABU JUDGE VPK