Kerala High Court

Sasikala vs Anzil on 16 June, 2025

RFA 519/2017


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                                                     2025:KER:42290

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

               THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR

     MONDAY, THE 16TH DAY OF JUNE 2025 / 26TH JYAISHTA, 1947

                           RFA NO. 519 OF 2017

                   OS NO.21 OF 2015 OF SUB COURT, ALAPPUZHA

APPELLANTS :

      1        SASIKALA, AGED 53 YEARS, W/O. LATE VASANTHA KUMAR
               (FROM THYPARAMPU MADOM, MULLACKAL WARD, MULLACKAL
               (P.O.), NOW RESIDING AT POONIYIL HOUSE, PUNNAMADA,
               THATHAMPALLY P.O., ALAPPUZHA - 688 013.

      2        GAYATHRI, AGED 34 YEARS, D/O. LATE VASANTHA KUMAR,
               (FROM THYPARAMPU MADOM, MULLACKAL WARD, MULLACKAL
               (P.O.), NOW RESIDING AT POONIYIL HOUSE, PUNNAMADA,
               THATHAMPALLY P.O., ALAPPUZHA - 688 013

               BY ADVS.
               SRI.P.G.JAYASHANKAR
               KUM.AMMU MANOHARAN NARAYANAN
               SMT.K.J.KARTHIKA
               SMT.P.SREELAKSHMI


RESPONDENT :

               ANZIL, S/O. IBRAHIMKUTTY, KOCHITHIL, PURAYIDATHIL,
               CHATHANADU WARD, ALAPPUZHA - 688 001.


               BY ADV SRI.R.AZAD BABU

    THIS REGULAR FIRST APPEAL HAVING COME UP FOR
ADMISSION ON 16.06.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 RFA 519/2017


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                                                                              C.R.
                                   JUDGMENT

Dated : 16th June, 2025

The defendants 1 and 2 in O.S.21/2015 on the file of the Sub Judge,

Alapuzha are the appellants. For the purpose of convenience, the parties are

hereafter referred to as per their rank before the trial court.

2. The plaintiff filed the above Suit for return of advance amount. On

25.6.2012 a sale agreement was entered into between the plaintiff and

defendants and thereby the defendants 1 and 2 agreed to sell the scheduled

property to the plaintiff for a total sale consideration of Rs.66,00,000/-. On the

date of agreement itself, the plaintiff advanced a sum of Rs.15,00,000/- to the

defendant. According to the plaintiff, though he approached the defendants

expressing his readiness and willingness to get the sale deed executed, the

defendants were protracting the same. A Suit as O.S.No.569/2012 was also

pending in respect of the above property. Though the defendants agreed to

measure out the property and to evict the tenants in the shop rooms before the

execution of the sale deed, they failed to do so. The Suit was originally filed for

specific performance and for injunction against alienation of the schedule

property. Subsequently, the prayer was limited to return of the advance amount

of Rs.15,00,000/- along with interest at the rate of 18% per annum.

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3. The defendants filed written statement admitting the execution of

the sale agreement and also receipt of Rs.15,00,000/- as advance amount. They

further contended that, on the date of sale agreement itself the plaintiff received

Rs.2,00,000/- from them on the ground that it is required for rectification of

mistakes and defects in the property. Thereafter on 28.6.2012 the plaintiff

approached the defendants and informed that he is not interested in continuing

with the contract and demanded return of the advance money. Accordingly, the

defendants agreed to return the balance advance amount and Rs.1,00,000/- was

paid on 28.6.2012. A further sum of Rs.2,00,000/- was paid on 5.7.2012,

Rs.2,00,000/- on 8.10.2012, Rs.6,00,000/- on 25.10.2012 and Rs.2,00,000/- on

31.12.2012. It is further contended that though the defendants requested the

plaintiff to give receipt for the amount paid, the plaintiff did not do so.

Therefore, they prayed for dismissing the Suit.

4. The trial court framed seven issues.

5. The evidence in the case consists of the oral testimonies of PW1

and DW1 and Exts.A1 to A4 series and B1 to B3. After appreciating the

evidence on record, the trial court decreed the Suit and directed the defendants

to pay a sum of Rs.15,00,000/- along with interest at the rate of 6% per annum.

Being aggrieved by the above judgment and decree, the defendants preferred

this appeal.

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6. Now the points that arise for consideration are the following :

(i) Whether failure to file replication against the plea of discharge

amounts to admission of the plea of discharge ?

(ii)Whether the impugned judgment and decree of the trial court calls

for any interference, in the light of the grounds raised in the appeal ?

7. Heard Sri.P.G.Jayashankar, the learned counsel for the

appellants/defendants and Sri.R.Azad Babu, the learned counsel for the

respondent/plaintiff.

8. The points :- The fact that on 25.6.2012, the plaintiff and

defendants 1 and 2 entered into Ext.A1 agreement is not in dispute. It is also

admitted that on the date of Ext.A1 itself, the defendants received a sum of

Rs.15,00,000/- from the plaintiff towards part of the sale consideration. Due to

one reason or another, Ext.A1 agreement for sale could not be performed.

Though the Suit was originally filed for specific performance and permanent

prohibitory injunction against alienation of the scheduled property,

subsequently the prayer was limited to return of the advance amount of

Rs.15,00,000/-. The contention taken by the defendants in the written statement

is that they agreed to repay the entire advance amount of Rs.15,00,000/- and it

was repaid to the plaintiff in instalments. According to them, Rs.2,00,000/- was

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repaid on the date of Ext.A1 itself and another Rs.1,00,000/- was paid on

28.6.2012, Rs.2,00,000/- on 5.7.2012, Rs.2,00,000/- on 8.10.2012,

Rs.6,00,000/- on 25.10.2012 and the remaining Rs.2,00,000/- was paid on

31.12.2012. However, the plaintiff vehemently denied receipt of any such

amount from the defendants. The defendants could not produce even a scrap of

paper to substantiate the plea of discharge. It was in the above context, the trial

court found that the defendants failed to prove the plea of discharge and

consequently the Suit was decreed in favour of the plaintiff.

9. One of the arguments advanced by the learned counsel for the

appellants/defendants is that though in the written statement the defendants

have taken a specific contention that they have repaid the entire advance

amount of Rs.15,00,000/- to the plaintiff, no replication was filed by the

plaintiff denying the above plea in the written statement and as such, the above

plea in the written statement stands unchallenged and admitted. The learned

counsel has relied upon two decisions in support of his argument namely,

Mohan Madan v. Sheel Gulati, MANU/DE/2429/2015 of the Delhi High

Court and C.M.Sobhana and Ors. v. Janaki Amma and Ors.,

MANU/KE/1843/2010 of this court.

10. It is true that the Delhi High Court in the decision in Mohan

Madan (supra) held that failure to file replication denying the amount allegedly

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repaid to the plaintiff as stated in the written statement amounts to admission.

In paragraph 9 the Court held as follows :-

9(i). Before discussing in detail the aforesaid deposition and pleading of the plaintiff in para 5 of the plaint, it needs to be noted ( and I have already stated this in the earlier part of this judgment) that plaintiff has for some strange reason chosen not to file any replication to the written statement filed by the defendant. In the written statement, the defendant has pleaded the categorical case that plaintiff out of the sum of Rs.25 lacs paid an amount of Rs.10 lacs by a cheque of Sh.Dharampal Malik and this cheque bounced on presentation.

(ii). In my opinion, non-filing of replication in a case such as the present will amount to deemed admission of the facts of the written statement with respect to the amount of Rs.10 lacs being paid by cheque out of the amount of Rs.25 lacs paid on 5.10.2005. Deemed admission will arise in view of Order VIII Rule 9 read with Order VIII Rule 5 and Order VIII Rule 10 of the Code of Civil Procedure, 1908 (CPC) and which provides that on non-filing of replication (technically called as an additional written statement and not replication in Order VIII Rule 9 CPC), the same will amount to deemed admission of the contents of the written statement filed by a defendant."

11. Order VIII Rule 5, 9 and 10 referred to by the Delhi High Court

are extracted below for reference.

5.Specific denial - (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not

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admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability:

Provided that the Court may in it discretion require any fact so admitted to be proved otherwise than by such admission.

9. Subsequent pleading - No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same.

10. Procedure when party fails to present written statement called for by Court - Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.

12. On a perusal of the above provisions it can be seen that Rule 5

relates to allegations of fact in the plaint and Rule 9 relates to subsequent

pleading. As per the above Rule, additional pleadings except against set-off or

counter-claim can be filed only with the permission of the Court. Rule 10 deals

with consequence of failure to file written statement. A plea of discharge is

neither a set-off nor a counter-claim. Therefore, on a perusal of Order VIII Rule

5, 9 and 10, no conclusion can be arrived at to the effect that, if replication is

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not filed denying the plea of discharge raised by the defendant in the written

statement, the same amounts to admission. Therefore, with due respect, I

cannot agree with the above finding of the Delhi High Court, to the contrary.

13. In C.M.Sobhana (supra), the Suit was one for partition. In the

written statement the defendants put forward a Will. It was in that context the

Division Bench held that the plaintiff ought to have filed replication denying

the execution of the Will. Therefore, the decision in C.M.Sobhana (supra) does

not apply to the facts of this case. More over, in the decision in K. Laxmanan

v. Thekkayil Padmini and Ors. (2009) 1 SCC 354, the Hon'ble Supreme

Court made it clear that "mere non-filing of a replication does not and could not

mean that there has been admission of the facts pleaded in the written

statement".

14. In the instant case, since the Suit is one for return of advance

amount and the defendants only raised the plea of discharge, there is no scope

for filing any additional pleading and as such non-filing of replication cannot

be taken as admission of the plea of discharge.

15. In this case, during the cross-examination of the plaintiff as PW1,

not even a suggestion was put to the effect that the defendants repaid the

advance amount to the plaintiff. It is true that in the proof affidavit of DW1, she

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claimed that the defendants repaid the advance amount to the plaintiff as

claimed in the written statement. However, the said claim of DW1 was

challenged during the cross-examination.

16. At the time of arguments, the learned counsel for the appellant

attempted to show that PW1 was not a credible witness because, with regard to

the source of his income, he had no consistent case. However, it is to be noted

that the defendants admitted the receipt of Rs.15,00,000/- as advance sale

consideration and as such, the inconsistency in his evidence regarding his

source of income is of no consequence.

17. As per Section 103 of the Evidence Act, the burden of proof as to

any particular fact lies on that person who wishes the Court to believe in its

existence, unless it is provided by any law that the proof of that fact shall lie on

any particular person. If the defendant admits the plaintiff's claim and raises a

plea of discharge, it is the burden of the defendant to prove the same by

adducing evidence (Chandralatha v. Annamalai Finance Ltd., 1996 KHC

110).

18. In this case, with regard to the transaction, the parties have entered

into a written agreement, namely Ext.A1. In the above circumstances, the claim

of the defendants that they have repaid the amount without receiving any

receipt from the plaintiff is unbelievable. According to them, when receipt was

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demanded, the plaintiff agreed to give the same. According to the defendants,

Rs.15,00,000/- was paid in six instalments. Their case is that, when they

requested for receipt, on each occasion he promised that he would give receipt

for the same, but the receipts were not given. The case of the defendants that

they continued to make payments one after another without even receiving a

scrap of paper, is against the ordinary human conduct. On final payment, they

are entitled to get back the original agreement itself, or at least get it cancelled.