Kerala High Court
Nesamoni vs Beena on 9 February, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 9TH DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945
RFA NO. 234 OF 2004
AGAINST THE JUDGMENT DTD 20.12.2003 IN OS 187/2002 OF
SUBORDINATE JUDGES' COURT,NEYYATTINKARA
APPELLANT/DEFENDANT:
NESAMONI, S/O.DASAN,
RESIDING AT 'KARISHMA', THERUMMAL VILA, ARAYOOR DESOM,
CHENKAL VILLAGE.
BY ADVS.SRI.M.R.ANANDAKUTTAN
SRI.B.SATHIQ
SMT.SHIRMILA. C.S.
RESPONDENTS/PLAINTIFFS:
1 BEENA, D/O.KAMALAM, KARIKKAKOM PUTHEN VEEDU,
DHANUVACHAPURAM DESOM, KOLLAYIL VILLAGE.
2 MIDHIN ALIAS UNNI, AGED 8,
S/O. MANOHARAN (MINOR), RESIDING AT KARIKKAKOM PUTHEN
VEEDU, DHANUVACHAPURAM DESOM, KOLLAYIL VILLAGE.
3 NITHIN ALIAS MANU, AGED 6
S/O. MANOHARAN, RESIDING AT KARIKKAKOM PUTHEN VEEDU,
DHANUVACHAPURAM DESOM, KOLLAYIL VILLAGE.
(MINOR RESPONDENTS 2 AND 3 REPRESENTED BY THEIR
GUARDIAN AND MOTHER, THE 1ST RESPONDENT).
BY ADVS.SRI.B.KRISHNA MANI
SRI.RAHUL VENUGOPAL
THIS REGULAR FIRST APPEAL HAVING COME UP FOR FINAL HEARING ON
1.2.2024 AND THE COURT ON 09.02.2024 DELIVERED THE FOLLOWING:
2
R.F.A.No.234 of 2004
C.S.SUDHA, J.
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R.F.A.No.234 of 2004
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Dated this the 9th day of February, 2024
JUDGMENT
This appeal under Section 96 read with Order XLI Rule 1
C.P.C. has been filed by the defendant against the judgment and decree
dated 20/12/2003 in O.S.No.187/2002 on the file of the Subordinate Judge's
Court, Neyyattinkara. The respondents herein are the respondents in the
suit. The parties and the documents will be referred to as described in the
suit.
2. The plaintiffs are the wife and children of Manoharan,
S/o.Joseph, who passed away on 31/12/2000 while working at the Sultanate
of Oman. On 11/01/2000 the defendant borrowed an amount of ₹4 lakhs
and executed Ext.A1 promissory note in favour of Manoharan agreeing to
repay the amount on demand. The amount was not repaid during the life-
time of Manoharan. After the death of Manoharan, though the plaintiffs
requested return of the amount, the defendant has not repaid the amount.
Hence, on 11/10/2002 a lawyer notice was caused to be issued to the
defendant. The notice returned with an endorsement 'unclaimed'. Hence
the suit.
3. The defendant filed written statement denying execution of the
pro-note. The signature seen in Ext.A1 is not the signature of the
defendant. Manoharan, a friend of the defendant, had purchased land and
constructed a building therein, in respect of which he incurred huge
financial liabilities. Hence to clear the liabilities, Manoharan intended to
sell the property. But there were no buyers. Hence, as insisted by late
Manoharan, defendant purchased the property by Ext.B1 sale deed dated
10/01/2000, which was not to liking of the first plaintiff and hence the false
suit. Manoharan did not have the financial capacity to lend ₹4 lakhs. The
defendant was not in need of money and therefore there was no occasion for
him to borrow any amount from Manoharan.
4. On completion of pleadings, the parties went to trial. PW1 to
PW3 were examined and Exts.A1 to A5 were marked on the side of the
plaintiff. DW1 and DW2 were examined and Exts.B1 to B3 were marked
on the side of the defendant. The trial court on an appreciation of the oral
and documentary evidence and after hearing both sides, by the impugned
judgment decreed the suit. Aggrieved, the defendant has come up in appeal.
5. The point that arises for consideration in this appeal is whether
there is any infirmity in the findings of the trial court calling for an
interference by this Court.
6. Heard both sides.
7. It was argued by the learned counsel for the
defendant/appellant that the trial court grossly erred in decreeing the suit.
The trial court believed the witnesses of the plaintiffs but disbelieved the
defendant and his witness for no cogent reasons. There is no rule or law
that all who speak for the defendant are deposing falsehood and all who
depose for the plaintiff speak the gospel truth. The first plaintiff examined
as PW1 deposed that she is presently residing in a rented building which is
the address shown in Ext.B2 plaint in O.S.No.867/2002, a suit for
injunction filed by the defendant herein against the plaintiffs. But
according to PW2, the scribe, Ext.A1 was executed at the family house of
late Manoharan. Further, a perusal of Ext.A1 would show that it is a
fabricated document. The signature alleged to be that of the defendant, is
seen only in two revenue stamps whereas there are five revenue stamps in
Ext.A1. The contents have been written in and around the signature. There
is also a gap between the signature seen at the bottom of Ext.A1 and the
remaining writing. These aspects are sufficient to doubt the case of the
plaintiff, which should have resulted in a dismissal of the suit, argues the
learned counsel for the defendant/appellant.
8. In the plaint, the allegation is that the financial transaction took
place and Ext.A1 was executed by the defendant at the residence of the
plaintiff situated in Kollayil village. PW1 examined before the trial court
on 21/10/2003 deposed that she had been residing in the address shown in
Ext.B2 plaint for the past two to three years and that it was at the said
residence Ext.A1 was executed. The address of the defendant in Ext.B2
plaint reads - "Beena, aged 28 years, W/o.Deceased Manoharan, residing
at Meekinkara veedu, Pongummodu, Veliyamcode P.O., Kaivan village,
now temporarily residing at Kaivanvila veedu the house of one Rajendran,
Nadoorkolla, Kollayil village". Pointing to this, the argument is that there
is discrepancy in evidence relating to the place where Ext.A1 was executed,
which is yet another defect in the case set up by the plaintiff. PW1
admittedly has not seen the execution of Ext.A1. The plaintiffs have no
such case in the plaint or in the box. Here I refer to a suggestion put to
PW1 on behalf of the defendant while she was cross examined. It was
suggested to PW1 that Manoharan was heavily indebted and hence to clear
the liabilities, he sold his property as per Ext.B1 to the defendant and after
the death of Manoharan, in order to get more money from the defendant, a
promissory note was falsely got executed from the defendant which
suggestion was denied by PW1. (ഭര വനണ യരന കടങള വട ന ഭര വ
പതയക വട വറത ണ ന ഭര വണ മര ശ ഷ! പത യല നന കറച കട പ !
ക ട ന ശവണ കളവ യ promissory note എഴത വ ങ യത ണ ന പറഞ ല ര യല ).
If that be so, the defendant did execute Ext.A1 though according to him, as
pressurised by the plaintiff. In such circumstances there cannot be a dispute
regarding the signature seen in Ext.A1. Moreover the defendant never
entered the witness box to deny the case of the plaintiff. According to the
plaintiff when Ext.A2 notice was sent, the defendant though in station
deliberately did not accept the notice and hence the same was returned as
'unclaimed'. The defendant disputed this and contended that he was never
in station. If that be so, the defendant could have produced a copy of his
passport to establish the same. However for reasons best known to the
defendant, the same has not been produced. The defendant has also no case
that the address shown in the notice is wrong. Therefore in the absence of
evidence to the contrary, it appears that the plaintiff was infact in station
and deliberately avoided receipt of the notice.
8.1. PW2, the scribe, supports the case of the plaintiff regarding the
transaction. It is true that there is no rule that all witnesses of the plaintiff
speak the truth and the defendant and his witnesses falsehood. The evidence
has to be appreciated as a whole. The suggestion put in the cross
examination to PW1 to which I have already referred to goes against the
case of the defendant. It is true that the signature of the defendant is seen
only in two revenue stamps and there is also a gap between the signature of
the defendant seen at the bottom of Ext.A1 and the remaining contents. But
there is no case for the defendant that his signature had been obtained in a
blank paper and in the said paper, the pro-note had been fabricated. The
present suit is seen filed on 12/11/2002. Ext.B2 suit for injunction by the
defendant against the plaintiffs apprehending trespass into the property
covered by Ext.B1 is seen filed on 20/11/2002. The said suit has been filed
apparently after the filing of the present suit. Therefore the contention of
the defendant that it was because Ext.B2 suit had been filed, the present suit
has been filed in retaliation is also wrong. On going through the impugned
judgment, I find no ground for interference.
In the result, the appeal is dismissed.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA
JUDGE
ami/
