Kerala High Court
Annie vs Fouja Jamal on 6 January, 2025
RFA (Indigent) NO.665 OF 2010 1 2025:KER:333
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 6TH DAY OF JANUARY 2025 / 16TH POUSHA, 1946
RFA (Indigent) NO. 665 OF 2010
AGAINST THE JUDGMENT AND DECREE IN O.S.NO.442/2005 DATED
10/12/2008 ON THE FILE OF THE ADDITIONAL SUB COURT, NORTH
PARAVUR
APPELLANT/PLAINTIFF:
ANNIE, W/O.THOMAS,
MALLUSSERY, NEDUMBASSERY VILLAGE, NOW RESIDING AT
PADINJARE KUMBALATH HOUSE,
ONNACKAMALY P.O., MURIKASSERY VIS, IDUKKI-685 604
BY ADVS.
SRI.G.SREEKUMAR (CHELUR)
SMT.PREETHY KARUNAKARAN
SRI.K.RAVI PARIYARATH
RESPONDENTS/DEFENDANTS:
1 FOUJA JAMAL, W/O.JAMAL, MACHAMTHURUTHU,
THANDANAPARAMBIL, VADAKKEKARA, NORTH PARAVUR.
2 GEORGE SEBASTIAN, S/O.DEVASSY,
THEKKANVAZHAKALA HOUSE,
VATTAPARAMBU, MALLUSSERY KARA, NEDUMBASSERY
VILLAGE, ALUVA TALUK
3 M.K.THOMAN, S/O.LONAPPAN, MANJALY HOUSE, MALLUSSERY
KARA, NEDUMBASSERY VILLAGE, ALUVA TALUK
4 SR.JEROSSA DSS, MARIYA NILAYAM CONVENT,
GARGEYAPURAM P.O., KARNOOR DISTRICT, ANDHRA
PRADESH,
PIN-518452
R1 & R2 BY ADV.SRI.PAUL K.VARGHESE
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
06.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
RFA (Indigent) NO.665 OF 2010 2 2025:KER:333
CR
JUDGMENT
Dated this the 6th day of January, 2025
This Regular First Appeal is at the instance of the plaintiff
in O.S.No.442/2005 on the files of the Additional Sub Court,
North Paravur. The appellant assails decree and judgment in the
above case, dated 10.12.2008.
2. Heard the learned counsel for the
appellant/plaintiff as well as the learned counsel appearing for the
respondent Nos.1 and 2/defendant Nos.1 and 2, in detail. Perused
the verdict under challenge and the records of the trial court.
3. The parties in this appeal shall be referred as
'plaintiff' and 'defendants' for brevity and convenience, hereafter.
4. The plaintiff filed the present suit to declare sale
deed No.3423/2005 as null and void and also sought performance
of contract, dated 27.9.2001, alleged to be executed by the 1 st
defendant in favour of the plaintiff to sell the plaint schedule
property for a total consideration of Rs.3 Lakh on accepting
Rs.25,000/- (Rupees Twenty Five Thousand only) as advance sale
RFA (Indigent) NO.665 OF 2010 3 2025:KER:333
consideration. According to the plaintiff, the original agreement
was lost and a copy of the same was let in evidence.
5. Defendant Nos.1 and 2 filed written statements.
Others did not file written statement. The contention raised by
defendant Nos.1 and 2 as extracted in paragraph No.4 of the trial
court judgment reads as under:
4. The suit is not maintainable either in law
or on facts. Plaintiff and her father are
simultaneously prosecuting cases for specific
performance in two courts respect of the very same
schedule property. But O.S.No.65/2003 of Munsiff
Court, Aluva was dismissed. Secondly father sought
for the restoration of the same. The original of the
suit document is not produced. It is with the
plaintiff. After relinquishing all the rights arising
out of alleged agreement at the fag-end the plaintiff
has approached the court with unclean hands and it
is frivolous allegations. The alleged karar dated 27-
9-2001 was returned to the first defendant years
back and there is no subsisting karar between the
plaintiff and the first defendant in respect of plaint
schedule property which has been sold to the second
defendant years back. Plaintiff has come to the court
only with a photo copy of the agreement. This is
only to help the third defendant, her father who is
still prosecuting O.S.No.65/2003 before the
Munsiff's Court, plaintiff and her sister, 4th
RFA (Indigent) NO.665 OF 2010 4 2025:KER:333
defendant had already received back the advance
amount. Therefore there is no necessity for any
readiness and willingness in respect of the
agreement which is not existing. Defendant has
never requested on 5-9-2002 and 29-2-2002 or any
other subsequent dates to do any act of
measurement or any other things. Plaintiff was
unmarried on those days and she was residing with
her father. The third defendant who had another
litigation with another concocted karar. Such karar
was not in existence so as to be acted upon. Plaintiff
has married only recently and as such she is well
aware of the details of O.S.No.65/2003. The
contention that plaintiff gave the agreement on
undertaking that after taking photo copy it would be
returned is a false contention. The date of karar is
27-9-2001. It is quite unbelievable that the plaintiff
kept silence till now though the karar in original
was with the first defendant. The karar was never
sought to be returned to the plaintiff and all the
allegations in this para is wilfully made to create a
case. Such a karar is not inexistence. So it cannot be
complied with. Second defendant is not attempting
to sell it. The property is in the exclusive possession
and enjoyment of the second defendant and nobody
other than second defendant is having right, title
and possession in the schedule property. The sale
effected in between the first and second defendant is
genuine and it binds all. The sale deed is not liable to
RFA (Indigent) NO.665 OF 2010 5 2025:KER:333
be declared null and void. There is no cause of action
or right of action for the plaintiff. The reliefs sought
are only to be disallowed. So the suit may be
dismissed with costs of the defendant.
6. On the above pleadings, the trial court raised the
following issues:
1. Whether the document No.3423/2005 of S.R.O.
Chengamanad is null and void and not binding upon
the plaintiff?
2. Whether the plaintiff is entitled for a decree
of specific performance?
3. Whether the plaintiff is entitled for a decree
of prohibitory injunction?
4. Reliefs and costs.
7. The trial court recorded evidence. PW1 was
examined and Exts.A1 and A2 were marked on the side of the
plaintiff. No oral evidence let in by the defendants and documents
Exts.B1 to B10 were marked on the side of the defendants.
8. Finally, the trial court found that genuineness of
Ext.A1 agreement and the bona fides of the plaintiff's case are in
doubt and accordingly, the suit was dismissed.
9. On hearing both sides, the points that arise for
consideration are:
RFA (Indigent) NO.665 OF 2010 6 2025:KER:333
1) Whether the trial court went wrong in non-
suiting the plaintiff on the finding that Ext.A1 agreement was not
genuine?
2) What is the inference to be drawn when the
plaintiff in a suit for specific performance of contract sues as an
indigent person where his/her readiness and willingness to
perform the contract is clubbed with availability of balance sale
consideration to execute the sale deed?
3) Whether the decree and judgment of the trial
court would require interference in any manner?
4) Reliefs and costs.
10. In this matter, the suit was filed as on 5.10.2005
by the plaintiff, seeking performance of contract and according to
the plaintiff, the 1st defendant executed an agreement on 27.9.2001
to sell the plaint schedule property for a total consideration of Rs.3
Lakh, out of which, Rs.25,000/- (Rupees Twenty Five Thousand
only) was paid in advance by the plaintiff. The case of the plaintiff
was that, the 1st defendant agreed to execute the sale deed as and
when demanded. But, he failed in performing the terms of the
contract and accordingly, the present suit has been filed.
11. The specific case of the plaintiff further is that, on
RFA (Indigent) NO.665 OF 2010 7 2025:KER:333
st
the date of execution of the agreement itself, the 1 defendant had
taken back the agreement in original from the plaintiff on
promising to return the same after taking a photocopy. But the 1 st
defendant did not return the same and therefore, the plaintiff was
not in possession of the original of sale deed. Accordingly, copy of
the same was let in evidence as Ext.A1.
12. The defendants raised a specific contention
alleging that in a sale agreement of similar nature, the father of the
plaintiff had filed a suit as O.S.No.65/2003 and on merits, that
suit was dismissed and the present suit was one filed ignoring the
said decree and judgment.
13. Here, admittedly, the plaintiff is not in possession
of the original sale agreement. That apart, during cross
examination, the plaintiff failed to substantiate the fact that she
was having balance consideration or capacity to pay the balance
consideration, as agreed. It is relevant to note that the plaintiff
filed the suit itself as an indigent person and filed this appeal also
as an indigent person. It is the well settled law that in order to get
decree of specific performance, a discretionary relief, the plaintiff
shall be always ready and willing to perform his part of contract
and one among the most essential ingredients in this regard is the
RFA (Indigent) NO.665 OF 2010 8 2025:KER:333
capacity of the plaintiff to pay the balance consideration. Here,
admittedly, the balance consideration would come to
Rs.2,75,000/- (Rupees Two Lakh Seventy Five Thousand only).
Even though the plaintiff sought execution of the sale deed on the
assertion that she had the balance sale consideration, filing of the
suit as an indigent person and proceeding with the same as an
indigent person without having capacity to pay Rs.28,600/-
(Rupees Twenty Eight Thousasnd Six Hundred only) as court fee
would lead to an inference that the plaintiff did not have the
balance sale consideration to execute the sale deed as part of her
readiness and willingness to perform Ext.A1 contract of sale.
Reading the evidence of PW1 and the manner, in which, the
plaintiff proceeded with the suit and appeal would show that she
did not have any capacity to pay the balance consideration.
Failure on the part of the plaintiff to produce the original sale
agreement also would cast shadow of doubt on the genuineness of
the case and thereby, the trial court rightly found that the
genuineness and bona fides of Ext.A1 are not established.
14. In view of the above discussion, it has to be held
that Ext.A1 is not proved by the plaintiff so as to get the reliefs
sought for. As a sequel thereof, the relief sought for to declare a
RFA (Indigent) NO.665 OF 2010 9 2025:KER:333
valid sale deed executed by the 1 defendant in favour of the 2 nd
st
defendant as null and void, and the other reliefs must fail. On re-
appreciation of evidence, nothing is available in this matter to
interfere with the finding of the trial court and therefore, the trial
court verdict is only to be confirmed. Thus, this appeal is liable to
fail.
15. In the result, this appeal is dismissed.
Considering the facts of this particular case, there is no reason to
disallow cost of the defendants to be paid by the plaintiff.
Accordingly, cost of the defendants in this appeal also is allowed.
All interlocutory orders stand vacated and all interlocutory
applications pending in this appeal, stand dismissed.
16. Since this appeal has been filed as C.M.C.P. and
this Court allowed the appellant/plaintiff to proceed with the
appeal without paying court fee, as an indigent person, she is
bound to pay court fee.
The appellant/plaintiff is directed to pay court fee of
Rs.28,600/- (Rupees Twenty Eight Thousand Six Hundred only)
within a period of one month from today and on failure, Registry is
directed to forward a copy of the decree to the District Collector
concerned to realise the same from the appellant/plaintiff, as per
RFA (Indigent) NO.665 OF 2010 10 2025:KER:333
law, without fail, at any rate within a period of two weeks, on
completion of one month passed to pay the court fee, with specific
direction to the District Collector to realise the court fee, within
three months from the date of receipt of a copy of the decree.
Registry is also directed to forward a copy of this
judgment to the trial court, forthwith.
Sd/-
A. BADHARUDEEN
JUDGE
Bb
