Kerala High Court
Aliyar vs Raju J. Vayalat on 23 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
Tuesday, the 23rd day of November 2021 / 2nd Agrahayana, 1943
IA.NO.1/2021 IN RFA NO. 185 OF 2021
OS 118/2013 OF SUB COURT, PERUMBAVOOR, ERNAKULAM
PETITIONER/APPELLANT:
ALIYAR, AGED 70 YEARS, S/O. VADAKKEKUDY MEERAN, VADAKKEKUDY HOUSE,
VALLAM KARA,RAYONPURAM P.O., CHELAMATTOM VILLAGE, KUNNATHUNADU
TALUK, ERNAKULAM 683 543.
RESPONDENT/RESPONDENT:
RAJU J. VAYALAT, AGED 28 YEARS, S/O. V T JOSEPH, VAYALAT HOUSE, FORT
KOCHI VILLAGE,KOCHI TALUK -682 001.
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to stay the execution
of judgment and decree dated 6th February 2021 in O.S.No.118/2013 on the
files of Subordinate Judge's Court, Perumbavoor till the disposal of the
above Appeal.
This Application coming on for orders upon perusing the application
and the affidavit filed in support thereof AND THIS COURTS ORDER DATED
2/11/2021, and upon hearing the arguments of M/S.P.THOMAS GEEVERGHESE,
TONY THOMAS INCHIPARAMBIL, E.S.FIROS, AMRUTHA K.P., Advocates for the
petitioner and of SMT.AYSHA ABRAHAM, Advocate for the respondent, the
court passed the following:
p.t.o
ANIL K. NARENDRAN & P.G. AJITHKUMAR, JJ.
-----------------------------------------------------
R.F.A.No.185 of 2021
------------------------------------------------------
Dated this the 23rd day of November, 2021
ORDER
Ajithkumar, J.
This is an appeal filed under Section 96 and Order 41
Rule 1 and 2 of the Code of Civil Procedure, 1908. Judgment
and decree in O.S.118 of 2013 on the files of the Sub Court,
Perumbavoor are under challenge.
2. The defendant is the appellant. The respondent-
plaintiff filed a caveat. When this matter came up for
admission on 28.09.2021, the learned counsel of the appellant
submitted that a copy of the memorandum of appeal was
already served on the counsel of the caveator-respondent.
Matter was therefore adjourned to 02.11.2021. The learned
counsel for the respondent entered appearance and filed a
counter affidavit in I.A.No.1 of 2021 which was one filed for
stay of execution of the decree. The respondent also filed
I.A.No.2 of 2021 under Section 340 of the Code of Criminal
Procedure, 1973 seeking to initiate criminal prosecution of the
R.F.A.No.185 of 2021
appellant based on his allegations that the appellant gave
false statements and suppressed material facts in the
pleadings submitted before the trial court as well as in the
affidavit filed before this Court, and also let in false evidence
in the suit. The appellant filed two applications, I.A. Nos.3 of
2021 and 4 of 2021 for amendment of the written statement
and to admit under Order XLI, Rule 27 of the CPC as
additional evidence.
3. Heard the learned counsel appearing for the
appellant and learned counsel appearing for the respondent
on admission. A written note of arguments was submitted by
the learned counsel for the respondent.
4. The learned counsel for the appellant would
contend that the plaint was amended, to his knowledge, five
times resulting in total confusion of the plaint averments as
well as the schedule of property in the plaint. That resulted in
total confusion for the appellant-defendant as to what
evidence should be adduced for meeting the case of the
respondent-plaintiff. It is his contention that the plaint
schedule property was totally changed by such amendments.
R.F.A.No.185 of 2021
The claim of the respondent undisputedly is as per Ext. A1.
Originally the claim of the appellant was in respect of property
covered by A6, stating it to be the prior title deed. By
changing the schedule of the property, the suit was come to
be decreed in respect of the property covered by Ext.A7,
another document of title which stands in the name of the
appellant. Accordingly, under the guise of a suit for
rectification of a document, a decree for recovery of a totally
different property has been obtained. The appellant now has
come forward with a petition for amendment of the written
statement and another application for receiving few more
documents in evidence. On the basis of those facts, learned
counsel would submit that the appeal requires detailed
consideration both on the question of law and facts.
5. The learned counsel for the respondent would
contend that this appeal is an abuse of process of the court.
The litigation started in the year 2007 and on account of the
differential stand taken by the appellant and the fraud
perpetrated during execution of Ext.A1 and subsequently in
his averments in courts, the plaint has to be amended many
R.F.A.No.185 of 2021
times. Matter was once reached upto the Apex Court and this
is the second round of litigation. In view of submission in
court, both in pleadings and affidavits as also while adducing
evidence, the respondent was forced to file an application
under Section 340 of the Cr.P.C. to initiate criminal
prosecution against him. For those reasons the learned
Counsel wanted the appeal to be dismissed at the threshold
itself.
6. The suit originally filed in the Munsiff Court for
injunction, both mandatory and directory, was converted into
one for rectification of document, declaration of title and
consequential reliefs. On account of increase in the valuation,
the suit was later re-presented before the Sub Court,
Perumbavoor. Initially, the suit was decreed, but in the
appeal, R.F.A.No.11 of 2015, this Court set aside the trial
court judgment and decree. In the civil appeal filed before
the Apex Court, the decision of this Court was reversed and
the suit was remanded for fresh disposal after affording a
chance to the plaintiff to amend the pleadings. Accordingly,
the suit was tried again and the impugned judgment was
R.F.A.No.185 of 2021
passed by the Sub Court, Perumbavoor.
7. Initially, the case of the plaintiff-respondent was
that the property he purchased as per Ext.A1 was the
property covered by Ext.A6, sale deed dated 18.02.1985 in
the name of the appellant. Of course, the respondent had a
case from the inception that a building was in existence in
that property. After the amendment, which occurred several
times, the property covered by Ext.A7, an another sale deed
dated 04.08.1992 in the name of the appellant has become
the plaint schedule property. The defendant contended that
he sold the property covered by A6 alone. The plea of the
respondent that a description of the property in Ext.A1 was
fraudulently included by the appellant is denied by him. The
said disputed facts were considered in the trial court in a full
fledged trial and after considering the whole evidence in
detail, the impugned judgment was passed.
8. The Apex court in Anjayya Gupta R. S. v.
Thippaiah Setty and Others [(2019) 7 SCC 300] held
that, in the first appeal the parties have the right to be heard
both on the questions of facts as well as on law and the first
R.F.A.No.185 of 2021
appellate court is required to address itself to all the aspects
and decide the case by ascribing reasons.
9. When the trial court considered such a complex
factual matrix at trial and delivered a detailed judgment, it is
the duty of this court, being the first Appellate Court to re-
appreciate the evidence and decide the appeal on its merits.
A first appeal can be dismissed under Order XLI, Rule 11 of
the Code only if it is totally merit less or vexatious.
10. In U.P.Avas Evam Vikas Parishad v.Sheo
Narayan Kushwaha and others [(2011) 6 SCC 456] the
Apex Court held that High Court under Order XLI, Rule 11 of
the Code may resort to dismiss an appeal in limine if it finds
the appeal either to be vexatious or wholly without merit.
11. The contentions raised by the learned counsel
appearing for either side, which are mentioned in paragraph
numbers 4 and 5 above are enough to find that this appeal
involved serious questions of facts and law and required
decision on its merits after re-appreciation of evidence on
record. The contention of the learned counsel for the
respondent that the case put forth by the appellant and all
R.F.A.No.185 of 2021
evidence adduced by him are false and vexatious cannot be
accepted at this stage.
12. We accordingly, hold that the appeal is liable to be
admitted and heard on its merits.
Hence the appeal is admitted.
I.A.No.1 of 2021 in R.F.A.No.185 of 2021
13. This is an application filed under Order XLI, Rule 5
read with Section 151 of Code of Civil procedure, 1908.
14. When this application came up for hearing on
02.11.2021, the learned Counsel for the respondent
submitted that the decree holder would not press for delivery
before the execution court for a period of 10 days and the
same was recorded by this Court.
15. The decree impugned in this appeal directs, apart
from execution of a rectification deed, that the appellant-
defendant should handover vacant possession of the decree
schedule property to the respondent-plaintiff, within a period
of three months from the date of the decree. Execution of the
said decree is sought to be stayed till the disposal of this
appeal.
R.F.A.No.185 of 2021
16. The respondent filed a counter affidavit setting out
detailed objections. His contentions are that on account of the
suppression of material facts and setting out false pleadings,
that too by changing his stand each stage of the proceedings,
the respondent suffered much financial loss and
inconvenience. The appellant in converse, has been making
financial benefits and advantages by protracting the
proceedings. The respondent accordingly seeks to dismiss the
petition.
17. The appeal is admitted today. The appeal has to be
heard and decided on merits as provided in Order XLI, Rule
22 of the Code. If in the meantime, the decree is executed,
the appeal will become infructuous.
18. In Rajaram Prasad Gupta and Another v.
Ramchandra Prasad and Others [(2008) 10 SCC 796], it
was held, it is well settled that in cases where the subject of
suit is residential premises and the judgment-debtor is
residing in it, prayer for stay is ordinarily granted. Of course,
for special reasons, it may be refused.
19. The respondent pointing out the delay and the
R.F.A.No.185 of 2021
comparative loss and profits in terms of economics and,
alleging dishonesty and malafides on the part of the appellant
resisted this application. In our view, those are not sufficient
reasons to refuse a stay of execution of the decree in this
case, especially when the appellant-judgment-debtor along
with his family is residing in the building on the property in
dispute.
20. Hence, we allow this petition. Execution of the
decree in O.S.118 of 2013 on the file of the Sub-Court,
Perumbavoor is stayed till the disposal of this appeal. The
appellant-judgment debtor is, however, prohibited from
creating any document in relation to the decree schedule
property and, he is directed to maintain status quo of the
property till the disposal of this appeal.
I.A.No.2 of 2021 in R.F.A.No.185 of 2021
21. This is an application filed under 340 and Chapter
XXVI of the Code of Civil Procedure, 1973.
22. The respondent in the appeal has filed this
application. He alleges that the appellant, who is the
defendant in the suit, O.S.No.118 of 2013 before the Sub
R.F.A.No.185 of 2021
Court Perumbavoor committed offences of creating and
adducing false evidence in court. Various statements made in
the pleadings and applications and, the averments in the
affidavits are said to be falsely made. It is also alleged that
the appellant suppressed material facts thereby mislead the
courts which also amounts to giving of false evidence.
Therefore, the appellant is liable to be prosecuted for
committing an offence punishable under Section 193 of the
Indian Penal Code, 1860.
23. In order to prosecute a person for giving false
evidence in a court of law, a complaint by the court concerned
or its authorised representative as provided in Section 195(1)
(b) of the Code is mandatory. If the Court or its authorised
officer has to file a complaint, it shall be on the basis of a
finding entered into by the court under Section 340(1)(a) of
the Code. The court can enter into a finding in that regard,
advisedly, after conducting an inquiry alone. As far as such
an inquiry is concerned, the essential factors to be taken into
account are truth or falsity of the statements, averments, etc.
allegedly made by the appellant knowing them to be false.
R.F.A.No.185 of 2021
Unless the main proceedings, i.e., R.F.A No.185 of 2021 is
first considered and reached a logical conclusion in it, the
inquiry on the application will be totally directionless. The
inquiry is therefore premature.
Hence, we postpone this petition to be considered at the
time of or after disposal of the appeal.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
PV/dkr
23-11-2021 /True Copy/ Assistant Registrar
