Rajagopalan Nair vs Manikandan P.R
2021 Latest Caselaw 18705 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                  THE HONOURABLE MR.JUSTICE V.G.ARUN
    THURSDAY, THE 9TH DAY OF SEPTEMBER 2021 / 18TH BHADRA, 1943
                        OP(C) NO. 2683 OF 2017
        AGAINST THE ORDER/JUDGMENT IN OS 248/2013 OF SUB COURT,
                         OTTAPPALAM, PALAKKAD
PETITIONERS:

    1       RAJAGOPALAN NAIR
            AGED 54 YEARS
            S/O.BALAKRISHNAN NAIR,SIVA PRIYA,VETTAKKARA AMSOM,
            KATAMPAZHIPURAM VILLAGE,OTTAPALAM TALUK,
            PALAKKAD DISTRICT.

    2       DEVIKA NAIR
            AGED 52 YEARS,W/O.RAJAGOPALAN NAIR,
            SIVA PRIYA,VETTAKKARA AMSOM,KATAMPAZHIPURAM VILLAGE,
            OTTAPALAM TALUK,PALAKKAD DISTRICT.

            BY ADV SRI.P.JAYARAM



RESPONDENTS:

            MANIKANDAN P.R
            AGED 40 YEARS,S/O.RAJAGOPALAN NAIR,
            RAJA VIHAR,NADAMALIKA ROAD,ARAKURUSI.P.O-678582.
            MANNARKAD TALUK,PALAKKAD DISTRICT.

            BY ADV SRI.K.RAVI (PARIYARATH)




     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09.09.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) NO. 2683 OF 2017
                              2


                         JUDGMENT

Petitioners are the defendants in O.S.No248 of 2013

on the files of the Sub Court, Ottappalam. The suit is filed

by the respondent seeking specific performance of an

agreement dated 17.09.2012. In the written statement the

petitioners had denied the execution of the agreement and

alleged that the agreement produced by the plaintiff is a

concocted document. Various circumstances in support of

the contention were also pleaded in the written statement.

Based on the pleadings issues were raised and the trial

commenced. In the affidavit submitted by the 1 st defendant

(DW1), in lieu of chief examination, it was averred that item

No.1 in the plaint schedule was sold by him on 21.01.2012,

much prior to the agreement. During cross-examination of

DW1, specific questions were put to him regarding the sale

of item No.1 property. After examination, DW1 filed

interlocutory applications seeking permission to produce

the sale deed under which item No.1 was sold and to recall

and re-examine him to prove that document. By the OP(C) NO. 2683 OF 2017

impugned order the prayer seeking permission to produce

the document was dismissed. Consequently, the application

for re-opening the evidence of DW1 was also dismissed.

Aggrieved, this Original Petition is filed.

2. Sri.P.Jayaram, learned counsel for the petitioners

assailed the impugned oder by which the application

seeking production of document was dismissed. It is

contended that execution of the sale agreement having

been denied in the written statement itself, the court below

had no justification in shutting out the best evidence.

Referring to paragraphs 7 and 8 of the written statement it

is contended that execution of the document had been

specifically denied and production of the prior sale deed

would lend support to the pleadings. Further, the 1st

defendant having been cross-examined with regard to the

sale of item No.1, he was legally entitled to produce the

document to substantiate his oral testimony. Reliance is

placed on the decision of Hon'ble Supreme Court in

Bhagwati Prasad v. Chandramaul [AIR 1966 S.C.735] to

contend that absence of a specific plea in the pleadings will OP(C) NO. 2683 OF 2017

not dis-entitle a party from relying upon such plea, if it is

satisfactorily proved in evidence. It is hence contended that

mere absence of a specific averment regarding sale of

plaint item No.1 in the written statemen will not dis-entitle

the defendants from leading evidence in support of their

contention that no agreement of sale was ever executed.

According to the learned counsel, the production of the

document will only further the defence already set up.

Finally, it is contended that the evidence sought to be let in

is not contradictory to the pleadings on record and as such,

there is no prohibition.

3. Per contra, Sri.Ravi K.(Pariyarath), learned counsel

for the respondent contended that the sum and substance

of the defence set up by the petitioners is that the sale

agreement is a concocted document. To buttress this

contention, learned counsel drew attention to paragraphs 1

to 4 of the written statement. It is contended that no

mention is made in the written statement about sale of

plaint item No.1 property prior to execution of the

agreement. Being so, the evidence so sought to be let in OP(C) NO. 2683 OF 2017

has nothing to do with the defence set up. According to the

learned counsel, the decision in Bhagwati Prasad (supra)

will not aid the case of the petitioners since, the dictum

therein is to the effect that one party should not be allowed

to rely upon a matter on which the other party had no

opportunity to lead evidence. Reliance is also placed on the

decision of this Court, in Elizabeth v. Saramma [1984

KHC 286].

4. Having heard the learned counsel and having

perused the written statement, I am unable to agree with

the contention that basic pleadings being available in the

written statement, trial court should not have denied

permission to produce evidence in support of the pleadings.

A perusal of the written statement reveals that the

petitioners have denied the execution of the sale agreement

and have alleged that the agreement is a concocted

document. Of course, as contended by the learned counsel

for the petitioners, the sale of one item of property and

inclusion of that property in the subsequent sale agreement

may be a relevant circumstance. If so, the defendants OP(C) NO. 2683 OF 2017

were bound to plead that fact in the written statement and

to cross examine the plaintiff on this aspect. The factum

regarding the sale of item 1 was stated for the first time in

the affidavit in lieu of chief examination filed by the 1 st

defendant. Therefore, grant of permission to let in the

evidence will definitely be to the prejudice of the plaintiff.

Even in the decision in Bhagwati Prasad (supra) relied on

by the petitioner, the Apex court has held as under:

"What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was in volved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has no opportunity to lead evidence would introduce considerations or prejudice, and in doing justice to one party, the Court cannot do injustice to another."

The same view has been expressed by this Court in

Elizabeth v. Saramma [1984 KHC 286]. Hence, I find no

reason to interfere with the impugned order in exercise of

the supervisory jurisdiction under Article 227 of the

Constitution of India.

OP(C) NO. 2683 OF 2017

For the aforementioned reasons, the original petition

is dismissed.

Sd/-

V.G.ARUN JUDGE

scs OP(C) NO. 2683 OF 2017

APPENDIX OF OP(C) 2683/2017

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.248/2013 ON THE FILES OF SUB COURT,OTTAPALAM

EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT IN O.S.NO.248/2013 ON THE FILES OF SUB COURT,OTTAPALAM

EXHIBIT P3 TRUE COPY OF THE AFFIDAVIT IN I.A.1404/2017 IN O.S.NO.248/2013 ON THE FILES OF SUB COURT,OTTAPALAM

EXHIBIT P4 TRUE COPY OF THE APPLICATION IN I.A.NO.1405/2017 IN O.S.NO.248/2013 ON THE FILES OF SUB COURT,OTTAPALAM

EXHIBIT P5 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE NO.436/2017 DATED 25.01.2017 ISSUED FROM S.R.O,KATAMPAZHIPURAM

EXHIBIT P6 TRUE COPY OF THE ORDER DATED 25.O8.2017 IN I.A.NIO.1404/2017 IN O.S.NO.248/2013,ON THE FILES OF SUB COURT,OTTAPALAM.

EXHIBIT P7 TRUE COPY OF THE ORDER DATED 25.08.2017 IN I.A.NO.1405/2017 IN O.S.248/2013,ON THE FILES OF SUB COURT,OTTAPALAM.

EXHIBIT P8 TRUE COPY OF THE ISSUES FRAMED ON 09.03.2015 IN O.S.NO.248 OF 2013 BY SUB COURT, OTTAPALAM

EXHIBIT P9 COPY OF THE DEPOSITION OF THE PETITIONER DATED 19.08.2017 IN O.S. NO.248 OF 2013 ON THE FILES OF SUB COURT, OTTAPALAM