Ajith Kumar vs N.K.Rohini (Died)
2022 Latest Caselaw 10858 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE P.SOMARAJAN
   THURSDAY, THE 3rd DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944
                        RFA NO. 545 OF 2006 (A)
AGAINST THE JUDGMENT & DECREE DATED 31.08.2006 IN OS No.56/2005 OF
                       PRINCIPAL SUB COURT, KOCHI
APPELLANT/PLAINTIFF:

           AJITH KUMAR, AGED 38 YEARS, S/o HAREENDRANATHAN,
           RESIDING AT SHANTHI NIVAS, RAMESWARAM PADINJARE MURI,
           THOPPUMPADY VILLAGE, COCHIN TALUK.

           BY ADVS. SRI.R.RAJASEKHARAN PILLAI
                    SRI.M.S.NISHAD
                    SMT.SABINA JAYAN


RESPONDENT/DEFENDANT:

    1      N.K.ROHINI                (DIED)
           AGED ABOUT 73 YEARS, W/o LATE P.M.RAMUNNI AND
           D/o LATE KAKKADAN KUNJIKANNA,
           RESIDING AT CCC.NO.12/251, CHERLAI MURI,
           THOPPUMPADY VILLAGE, COCHIN TALUK.

 ADDL.R2   RAJEEV, SON, RESIDING AT ROHINI NIVAS,
           CC 12/251, CHERAI, COCHIN 682002

 ADDL.R3   P.N.RAJESH, SON, RESIDING AT ROHINI NIVAS,
           CC 12/251, CHERAI, COCHIN

 ADDL.R4   P.N.RASITHA, DAUGHTER, RESIDING AT ROHINI NIVAS,
           CC 12/251, CHERAI, COCHIN.

 ADDL.R5   ASWATHY S (MINOR),
           REPRESENTED BY FATHER AND NATURAL GUARDIAN SUDHEESH OF
           CC 12/251, CHERAI, COCHIN.

 ADDL.R6   ABHIRAMI S (MINOR),
           D/o SUDHEESH OF CC 12/251, CHERAI, COCHIN

           (ADDITIONAL RESPONDENTS 2 TO 6 ARE IMPLEADED AS THE
           LEGAL REPRESENTATIVES OF THE DECEASED SOLE RESPONDENT
           VIDE ORDER DATED 24/10/2014 IN IA 2282/2014)
 RFA No.545 of 2006                      2



             BY ADVS. SUNIL SHANKAR A.
                      SRI.K.N.SIVASANKARAN
                      VIDYA GANGADHARAN(K/000424/2020)
                      SANDHRA.S(K/001610/2021)




      THIS   REGULAR   FIRST   APPEAL       HAVING   COME   UP   FOR   HEARING   ON
03.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 RFA No.545 of 2006               3



                            JUDGMENT

A portion of the impugned judgment is extracted below

for reference:

"Ext.A1 is according to the defendant a concocted one made using signed blank papers and stamp papers obtained by the plaintiff while she has availed the aforesaid loan of Rs.1,72,724/- on 29/8/2000. Certainly, the defendant has not entered into the box and deposed her own case on oath and offered herself to be cross-examined by the plaintiff and hence a presumption would arise that the case set up by her is not correct. Let, it be that, but it is pertinent to note that it does not mean that the onus of proof does not lie on the plaintiff to substantiate his case. The abstract doctrine of onus of proof is always on the plaintiff. If only he discharges the onus, the burden shifts to the defendant to depose her own case. It is significant to note that the plaintiff has not even dared to speak before court that the Ext.A1 is the agreement executed by the defendant as contended by him. It is also pertinent to note that mere admission of signature or mere putting of signature in a document will not amount to proof of its execution. Execution of a document means as I already stated above a document written out read over and understood by the executant. In Ext.A1 there are the signature of all the legal heirs of the defendant also. They are all shown therein as the witnesses to the execution. That is also a suspicious circumstance which indicates the probability of defendant's case. The plaintiff has also hesitated to examine the scribe who has written the Ext.A1. Admittedly, Ext.A2 lawyer notice was issued by the plaintiff demanding

specific performance as early as on 27.8.2001. But the suit for recovery of money was filed on 19.3.2005. Why the suit was filed after a lapse of about 3 ½ years. That is also a suspicious circumstance that indicates that the defendant's case is more probable. The delay may be probably as contended by the defendant in her written statement, since after Ex.A2 lawyer notice she has approached the plaintiff along with her son and requested for six months time for payment of the aforesaid amount of Rs.1,72,724/- availed by her as loan on 29.8.2000. The fact that after receipt of Ext.A2, the defendant approached the plaintiff for an amicable settlement is not disputed rather admitted by the plaintiff in his plaint. It is suggested by the defendant while the plaintiff was in the witness box that said amount and interest altogether Rs.1,92,000/- has been paid and that the last repayment was on 28.8.2001. Probably that may be the reason as contended by the defendant why the plaintiff has not filed the suit either for repayment of the advance amount or for specific performance in the year 2001 itself."

2. The abovesaid discussion in the impugned judgment

would reveal the way and the manner in which the learned

Principal Sub Judge had appreciated the dispute involved

in the suit overlooking all settled principles. First of

all, it is a case wherein the plaintiff claimed execution

of a contract for sale, Ext.A1 and payment of advance

amount by two instalments, Rs.2,20,000/- and

Rs.2,00,000/-. The suit was dismissed by the trial court

overlooking the oral evidence tendered by the plaintiff,

PW1 and production of the original agreement - Ext.A1 and

admission of signature found affixed therein. In fact,

the defendant had admitted receipt of some amount and

advanced a case of discharge. All these relevant factors

were overlooked by the learned Sub Judge while rendering

the abovesaid judgment. The portion of judgment extracted

above would reveal the way in which the trial court had

taken into consideration of the extraneous matters. In

fact, it has resulted in miscarriage of justice as the

suit was ended in dismissal. First of all, the trial

court did not understand the extent of admission made by

the defendant regarding the execution of Ext.A1. The fact

that the defendant did not mount on the box to give any

direct evidence regarding the question of execution of

Ext.A1 document after admitting his signature found

affixed in the document has not been taken into

consideration in its proper perspective based on the

settled principles. It is a case, wherein the original

agreement for sale was produced, by which the defendant

had admitted his signature found affixed as that of him,

but advanced a case of fabrication of an agreement by

using the signed paper, for which, the defendant did not

mount on the box to give any direct evidence. On the

other hand, the plaintiff had given oral evidence as PW1

in tune with the averments raised in the plaint. It was

not appreciated based on the admission made by the

defendant regarding the signature. The trial court went

wrong in observing that mere admission of signature will

not tantamount to proof of due execution of the document.

There may not be any dispute with respect to the legal

position settled. But what is involved in the present

case is not confined to mere admission of signature. But

the plaintiff had mounted on the box to give direct

evidence and was subjected to lengthy cross examination

and the original document was also produced and marked as

Ext.A1. There is also an admission with respect to money

transaction with the plaintiff by the defendant and it is

pleaded that the transaction is only with respect to an

amount of Rs.1,72,724/-. It is really the version given

by the defendant by way of pleading, admitting the

receipt of the amount. That admission was not taken into

consideration by the trial court in proof of due

execution of the document. As discussed earlier, in fact,

the amount admitted which comes to Rs.1,72,724/- is the

version given by the defendant, for which no evidence was

adduced by the defendant either directly or otherwise and

nothing was brought out during the cross-examination of

the plaintiff to discredit the version given by him. In

the absence of contra evidence or something which would

discredit the oral testimony of the plaintiff, especially

when there is admission of signature, payment of money

and discharge pleaded, the initial burden lies on the

plaintiff to prove the due execution would stand

discharged. That vital factor was foregone by the trial

court. Instead of considering the abovesaid factors, the

trial court had gone into extraneous matters. The

reasoning made by the trial court in not filing the suit

immediately after the alleged cause of action was found

to be so extraneous and cannot be sustained. Some flimsy

reasons alone were taken into consideration by the trial

court, that too, without touching on the admission and

the oral and documentary evidence tendered by the

plaintiff. Hence, the decree and judgment of the trial

court are liable to be set aside. I do so.

3. At the fag end of the argument, the learned

counsel for the appellant submitted that the original

defendant passed away during the pendency of the appeal

and he did not mount on the box due to lack of proper

advice and the legal heirs impleaded may be permitted to

rectify the default by adducing proper evidence and an

opportunity may also be given to explore the possibility

of a settlement between the parties.

In the result, the appeal is allowed. The decree and

judgment of the trial court are set aside. The matter is

remanded back to the trial court so as to afford an

opportunity to the legal heirs of the original defendant

to adduce evidence. The trial court shall also explore

the possibility of a settlement in the matter. The

parties are directed to appear before the trial court on

22/11/2022. No costs.

Sd/-

P.SOMARAJAN JUDGE DMR/-