Kerala High Court
Sebastian Mathew vs Abraham Thomas on 18 July, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:53261
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
FRIDAY, THE 18TH DAY OF JULY 2025 / 27TH ASHADHA, 1947
RFA NO. 103 OF 2018
AGAINST THE JUDGMENT DATED 15.12.2017 IN OS NO.30 OF 2016 OF
SUB COURT, PALA
-----
APPELLANTS/DEFENDANTS 1 & 2 IN OS:
1 P.V.GEORGE,
AGED 65, S/O.(LATE) VARKEY,
PLATHOTTATHIL HOUSE,ARUVITHURA P.O., KONDOOR KARA,
KONDOOR VILLAGE, MEENACHIL TALUK,
KOTTAYAM DISTRICT-686 122.
2 SILVY GEORGE,
AGED 60,W/O.P.V.GEORGE,PLATHOTTATHIL HOUSE,
ARUVITHURA P.O., KONDOOR KARA, KONDOOR VILLAGE,
MEENACHIL TALUK, KOTTAYAM DISTRICT-686 122.
BY ADVS.
SHRI.P.B.KRISHNAN (SR.)
SRI.P.M.NEELAKANDAN
SRI.SABU GEORGE
SRI.P.B.SUBRAMANYAN
RESPONDENTS/PLAINTIFF & DEFENDANT NO.3:
1 ABRAHAM THOMAS,
AGED 60, S/O.THOMAS, THADATHIL HOUSE,
PLAYAMPALLAM KARA, MALAMPUZHA VILLAGE, PALAKKAD TALUK,
PALAKKAD DISTRICT-678 651.
2025:KER:53261
RFA NO. 103 OF 2018 -2-
2 SEBASTIN MATHEW,
AGED ABOUT 56 YEARS, S/O.(LATE) MATHEW, PUTHENPURAYIL,
NEETHULPURAM KARA, KIZHAKKENCHERRY VILLAGE,ALATHUR
TALUK, PALAKKAD DISTRICT-678 706.
BY ADV SRI.BABY MATHEW
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
18.07.2025, ALONG WITH RFA.339/2019, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2025:KER:53261
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
FRIDAY, THE 18TH DAY OF JULY 2025 / 27TH ASHADHA, 1947
RFA NO. 339 OF 2019
AGAINST THE JUDGMENT DATED 15.12.2017 IN OS NO.30 OF 2016 OF
SUB COURT, PALA
-----
APPELLANT/3RD DEFENDANT:
SEBASTIAN MATHEW,
AGED 58 YEARS,
S/O. LATE MATHEW, PUTHENPURAYIL, NEETHIPURAM KARA,
KIZHAKKANCHERRY VILLAGE, ALATHUR TALUK,
PALAKKAD DISTRICT.
BY ADV SRI.BABY MATHEW
RESPONDENTS/PLAINTIFF AND DEFENDANTS 1 AND 2:
1 ABRAHAM THOMAS,
AGED 63 YEARS,
S/O. THOMAS, THADATHIL HOUSE, PLAYAMPILLAM KARA,
MALAMPUZHA VILLAGE, PALAKKAD TALUK, PALAKKAD DISTRICT.
2 P.V. GEORGE,
S/O. LATE VARKEY, 68 YEARS, PLATHOTTATHIL HOUSE,
ARUVITHARA P.O, KONDOOR KARA, KONDOOR VILLAGE,
MEENACHIL TALUK, KOTTAYAM DISTRICT.
3 SILVY GEORGE,
W/O. P.V. GEORGE, AGED 63 YEARS, PLATHOTTATHIL HOUSE,
ARUVITHARA P.O, KONDOOR KARA, KONDOOR VILLAGE,
MEENACHIL TALUK, KOTTAYAM DISTRICT.
2025:KER:53261
RFA NO. 339 OF 2019 -2-
BY ADVS.
SHRI.VARGHESE C.KURIAKOSE
SHRI.P.B.KRISHNAN (SR.)
SRI.P.B.SUBRAMANYAN
SRI.SABU GEORGE
SMT.B.ANUSREE
SRI.MANU VYASAN PETER
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
18.07.2025, ALONG WITH RFA.103/2018, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2025:KER:53261
SATHISH NINAN &
P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
R.F.A. Nos.103 of 2018 & 339 of 2019
= = = = = = = = = = = = = = = = = =
Dated this the 18th day of July, 2025
J U D G M E N T
Sathish Ninan, J.
The suit for money was decreed by the trial court.
Defendants 1 and 2, and the 3rd defendant are in appeal
in the respective appeals.
2. Defendants 1 and 2 are the owners of a rubber
plantation in Survey No.64/3 in Block number 50 of
Elikulam village, Meenachil Taluk. On 24.09.2011, the
plaintiff and the third respondent entered into an
agreement with defendants 1 and 2 for slaughter tapping
of the rubber trees in the property and to cut and
remove the timber after slaughter tapping. The total
consideration payable was ₹ 1,43,00,000/-. On the date
of agreement ₹ 50 lakhs was paid towards consideration.
The period fixed was till 30.03.2014. According to the
plaintiff, a further amount of ₹ 25 lakhs was paid to
R.F.A. Nos.103 of 2018 &
339 of 2019
2025:KER:53261
defendants 1 and 2 subsequently. It is his further case
that it was agreed to between the parties that the full
consideration need to be paid only before the trees were
actually cut and removed. He alleges that, even before
slaughter tapping commenced, defendants 1 and 2
obstructed him by demanding payment of the entire
consideration. Accordingly the suit was filed for return
of ₹ 75 lakhs.
3. Defendants 1 and 2 admitted that an agreement
was entered into between the parties on 24.09.2011. They
further admitted the receipt of ₹ 50 lakhs on the date
of agreement. That the period was up to 30.03.2014 was
also admitted. However, they denied the contention that
it was agreed that the entire consideration need be paid
only after the trees were cut and removed. It was
contended that, after entering into the agreement, the
plaintiff and the third defendant were doing slaughter
tapping till 30.12.2012. The alleged subsequent payment
of ₹ 25 lakhs was denied. It was contended that as per
R.F.A. Nos.103 of 2018 &
339 of 2019
2025:KER:53261
the agreement, out of the balance consideration an
amount of ₹ 25 lakhs was to be paid on or before
24.03.2012, a further amount of ₹ 20 lakhs on or before
30.12.2013 and the remaining ₹ 14 lakhs to be paid on or
before 30.03.2014. The payment of ₹ 25 lakhs within
24.03.2012 was defaulted. When the payment was insisted
upon, the plaintiff and the 3 rd defendant left the
property by 30.12.2012. They further contended that the
plaintiff and the 3rd defendant had removed 400 rubber
trees from the property and that they had suffered
damages to the tune of ₹ 36 lakhs. Accordingly they
prayed for dismissal of the suit.
4. The 3rd defendant supported the plaintiff.
5. The trial court found that there is no evidence
to show the payment of ₹ 25 lakhs claimed by the
plaintiff. Finding that the contract has been breached,
defendants 1 and 2 were directed to return the ₹ 50
lakhs which was admittedly received by them. The suit
was filed as an indigent. As per the decree, the 3 rd
R.F.A. Nos.103 of 2018 &
339 of 2019
2025:KER:53261
defendant was made liable for one-half of the court fee
payable.
6. Challenging the decree for return of money,
defendants 1 and 2 are in appeal in RFA 103 of 2018.
Challenging the direction in the decree to recover one-
half court fee from the 3 rd defendant he is in appeal in
RFA 339 of 2019. There is no appeal by the plaintiff
against the refusal of decree for ₹ 25 lakhs.
7. We have heard Sri.P.B.Krishnan, the learned
senior counsel for defendants 1 and 2, Sri.Varghese
Kuriakose, the learned counsel for the plaintiff and
Sri.Baby Mathew, the learned counsel for the third
defendant.
8. The points that arise for determination are :-
(i) Was the plaintiff entitled to sue as an indigent when admittedly the
suit is filed on behalf of the third defendant also and sharing interest with him?
(ii) The suit being one filed upon the agreement entered into between the
parties, could the suit be maintained without marking the agreement in evidence?
(iii) Do the materials on record establish that the plaintiff and the third
defendant had done slaughter tapping in the property from 24.09.2011 till
30.12.2012?
(iv) Could the 3rd defendant be made liable for the court fee payable?
R.F.A. Nos.103 of 2018 &
339 of 2019
2025:KER:53261
(iv) Does the decree and judgment of the trial court warrant any
interference?
9. The learned senior counsel for the appellant
would contend that the trial court ought not have
permitted the plaintiff to sue as an indigent since
admittedly the contract in question was entered into by
him along with the 3 rd defendant and for their joint
benefit. Even the suit is claimed to have been
instituted for and on behalf of the third defendant also
under an agreement between them. Order XXXIII Rule 5(e)
of the Code of Civil Procedure provides for rejection of
the indigent application where the applicant has entered
into any agreement with reference to the subject matter
of the suit with any other person who has interest in
such subject matter. Such a course should have been
resorted to by the trial court, it is argued.
10. We do not think that the argument of the
learned counsel needs any attention at this appellate
stage. It was open for defendants 1 and 2 to urge the
R.F.A. Nos.103 of 2018 &
339 of 2019
2025:KER:53261
contention and move under Order XXXIII Rule 9 CPC for
withdrawal of permission to sue as an indigent on the
said ground. However, such a course was not resorted. If
such objection was raised and the court had upheld the
same, the plaintiff had a remedy to pay court fee and
prosecute the suit. Such objection having not been
raised at the appropriate time, urging such contention
at this stage is of no avail.
11. Now we proceed to discuss on the contention of
the appellant-defendant with regard to non-
maintainability of the suit for the failure of the
plaintiff to have the agreement marked in evidence. The
rights and liabilities inter-se stems out of the
agreement executed between the parties on 24.09.2011.
It is not in dispute that there is a written agreement.
The cause of action for the suit is the breach of the
agreement. The terms of the agreement could be proved
only by production of the agreement(S.92 Evidence Act).
The plaint does not set out the entire terms of the
R.F.A. Nos.103 of 2018 &
339 of 2019
2025:KER:53261
agreement including the instalments payable, the dates
etc. The defendant on the other-hand has pleaded certain
dates with the instalments payable. Therefore, to prove
the agreement, the document should have been produced in
evidence. However it is not done.
12. The learned counsel for the respondent-
plaintiff would argue that, the suit is only for return
of the advance amounts paid under an agreement which did
not go through and therefore the non-production of the
agreement is not of any relevance. Further, unless the
defendants prove that they sustained any damages, they
are bound to return the amounts; decisions are legion on
the point, under Section 74 of the Contract Act, it is
argued.
13. We are unable to agree with the learned counsel
for the respondent-plaintiff. What were the terms of the
contract, at which stage of the contract the breach
occurred, what are the consequences to follow, etc. are
all relevant factors for consideration. Without
R.F.A. Nos.103 of 2018 &
339 of 2019
2025:KER:53261
production of the agreement, the above aspects could not
be found out. In paragraph 8 of the chief affidavit of
DW1 it is sworn to thus,
"വവാദദി അനനവായതദിൽ പറയയുന്നതയുപപവാലലെപയവാ വവാദദി ഈ
പകവാടതദിയദിൽ ലകവാടയുതത്ത് ലമവാഴദി നൽകദിയതയുപപവാലലെപയവാ അല
വവാദദിപപതദികൾ തമദിൽ 24.09.2011 ൽ എഴയുതദിയ റബ്ബർ
മരങ്ങളളുലട വദിൽപ്പന പരഖയദിൽ പപതദിപവാദദിചദിടളുള്ളതത്ത്.
അകവാരണതവാലെവാണത്ത് റബ്ബർ മരങ്ങളളുലട വദിൽപ്പന
ഉടമ്പടദിയദിലലെ വനവസ്ഥകൾ പകവാടതദി മയുമ്പവാലക ലതളദിവദിൽ
വരവാതദിരദികയുന്നതദിനയുപവണദി മനനഃപപൂർവവ്വം ടദി പരഖ അകമദിടത്ത്
വവാദദി ലതളദിവദിൽ ലകവാണയുവരവാതതത്ത്. ഇകവാരണതവാൽ
വവാദദിയയുലട തർകങ്ങൾകത്ത് യവാലതവാരയു അടദിസ്ഥവാനവയുവ്വം
പദിൻബലെവയുവ്വം ഇലവാ എന്നത്ത് കവാണവാവയുന്നതവാണത്ത്. എനത്ത്
കവാരണതവാലെവാണത്ത് വവാദദിപപതദികൾ തമദിലെയുള്ള റബ്ബർ
മരങ്ങളളുലട വദിൽപ്പന ഉടമ്പടദി പകവാടതദിയദിൽ ലതളദിവദിൽ
വരയുതവാതതത്ത് എന്നയുള്ളതദിനത്ത് യവാലതവാരയു വദിശദദീകരണവയുവ്വം
വവാദദി നൽകദിയദിടളുമദില."
The suit being founded on the agreement and alleging
breach of the agreement, the failure to produce the
agreement in evidence is fatal.
14. It is the plaintiff's case that he was unable
to do slaughter tapping in pursuance of the agreement.
R.F.A. Nos.103 of 2018 &
339 of 2019
2025:KER:53261
Therefore, he claims return of the ₹ 75 lakhs allegedly
paid by him (₹ 50 lakhs paid on 24.09.2011 and the
amount at ₹ 25 lakhs paid later). According to
defendants 1 and 2, after the payment of ₹ 50 lakhs on
24.09.2011 no further payments were made. Though as per
the agreement the next installment of ₹ 25 lakhs was
payable on 24.03.2012, without paying the same the
plaintiff continued slaughter tapping till 30.12.2012.
It is claimed that finally, on the insistence of the
defendants to pay the amount, the plaintiff and third
defendant left the property on 30.12.2012. They had done
slaughter tapping from 24.09.2011 till 30.12.2012.
15. Ext.A1 is the suit notice. It is dated
17.01.2014. It is very important to note that, till
then, ie. for a period of more than 2½ years after the
agreement, the plaintiff had no complaint/grievance that
he was not permitted to carry out slaughter tapping in
the property. While examined as PW1, he would in his
cross-examination depose that the property was not given
R.F.A. Nos.103 of 2018 &
339 of 2019
2025:KER:53261
possession of and they were not permitted even to enter
the property. Noticeably, there is no such averment in
the plaint. In his further cross-examination it is
affirmed that there arose disputes with the defendants
and on 25.09.2011 the plaintiff and the third defendant
were told not to enter the property. The deposition
reads thus: -
"നദിങ്ങളളുവ്വം ഒന്നയുവ്വം രണയുവ്വം പപതദിയയുമവായദി തർകങ്ങൾ ഉണവായതവായദി
പറയയുന്നതത്ത് എന്നവാണത്ത് (Q). 25/09/2011 ൽ പതവാടതദിൽ കയറണവാ
എന്നത്ത് പറഞ്ഞപപ്പവാൾ തലന്നയവാണത്ത് (A). "
It is to be noticed that 25.09.2011 is the very next day
of the agreement(24.09.2011). If after payment of ₹ 50
lakhs on 24.09.2011 they were obstructed on the very
next day from even entering into the property, it is
difficult to accept that they remained idle and did not
take any action for a period of 2 ½ years.
16. Further, according to the plaint averments, the
plaintiff had, subsequent to the agreement, paid a
further amount of ₹ 25 lakhs. The plaintiff has in his
proof affidavit sworn to that on 24.03.2012 an amount of
R.F.A. Nos.103 of 2018 &
339 of 2019
2025:KER:53261
₹ 25 lakhs was paid to defendants 1 and 2. It cannot be
believed that, even though they were prevented from even
entering the property after having paid ₹ 50 lakhs,
still they paid a further amount of ₹ 25 lakhs on
24.03.2012 ie. after a period of six months. The
defendant has produced Ext.B3 cheque of the 3 rd
defendant dated 24.03.2012, stated to have been handed
over by the plaintiff and the 3 rd defendant at the time
of entering into the agreement. It represents the second
instalment under the agreement. It is claimed that the
handing over of the same towards security has been
acknowledged in the agreement entered into between the
parties. On the evidence and circumstances, it is quite
probable that the plaintiff continued slaughter tapping
in the property till 30.12.2012 as claimed by defendants
1 and 2. The terms of the contract are not before the
court. Facts being so, the argument of the plaintiff
based on Sections 73 and 74 of the Contract Act is also
only to be repelled.
R.F.A. Nos.103 of 2018 &
339 of 2019
2025:KER:53261
17. The above aspects had not gone into the zone of
consideration of the trial court. On appreciation of the
rival pleadings and evidence, we find the case of the
defendants 1 and 2 to be probable and is liable to be
upheld. We do so.
18. The third defendant challenges the decree
against him directing realisation of one-half court fee
from him. To grant such a decree, the trial court was of
the view that, going by the stand of the plaintiff and
the third defendant, they are to share the benefits of
the decree, and thus cast the liability.
19. The reasoning of the trial court is flawed. The
liability to pay court fee is on the plaintiff. Merely
because the 3rd defendant sailed along with the
plaintiff does not enable the court to direct him to
share the court fee payable. He did not choose to
institute the suit for his cause. He cannot be made
liable for the court fee. Hence the decree against the
third defendant is liable to be set aside and we do so.
R.F.A. Nos.103 of 2018 &
339 of 2019
2025:KER:53261
20. As per this judgment we are proposing to
dismiss the suit. In terms of Order XXXIII Rule 11 of
the Code of Civil Procedure when an indigent suit is
dismissed, the liability to pay the court fee is on the
plaintiff. The defendant who supports the claim of the
plaintiff, cannot be made liable for the same.
Resultantly, the appeals are allowed. The decree
and judgment of the trial court will stand set aside.
The suit will stand dismissed. No costs.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
kns/-
//True Copy//
P.S. To Judge
