Kerala High Court
M. Krishnankutty vs Satheeshkumar on 26 May, 2025
2025:KER:36723
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
MONDAY, THE 26TH DAY OF MAY 2025 / 5TH JYAISHTA, 1947
RSA NO. 441 OF 2024
AGAINST THE JUDGMENT AND DECREE DATED 24.08.2023 IN
AS NO.203 OF 2015 OF DISTRICT COURT & SESSIONS COURT,
PALAKKAD ARISING OUT OF THE JUDGMENT AND DECREE DATED
31.07.2015 IN OS NO.286 OF 2014 OF PRINCIPAL MUNSIFF COURT,
PALAKKAD
APPELLANT/APPELLANT/PLAINTIFF:
M. KRISHNANKUTTY
AGED 68 YEARS
S/O. LATE. MALLI, MAMPLLIVEDU, ELAPPULLY AMSOM
DESOM, PALAKKAD TALUK., PIN - 678001
BY ADVS.
KALEESWARAM RAJ
APARNA NARAYAN MENON
THULASI K. RAJ
RESPONDENT/RESPONDENT/DEFENDANT:
SATHEESHKUMAR
AGED 53 YEARS
S/O. LATE. VASU , FRUIT STALL PROPRIETOR, PARA ,
ELAPPULLY, PALAKKAD TALUK, PIN - 678001
BY ADVS.
ABDUL JAWAD.K
U.MUHAMMED MUSTHAFA(K/1264/1999)
A.GRANCY JOSE(K/1204-M/2010)
AYSHA A.A.(K/000878/2024)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
26.05.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
RSA No.441/2024
2
2025:KER:36723
EASWARAN S., J.
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R.S.A No.441 of 2024
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Dated this the 26th day of May, 2025
JUDGMENT
This appeal arises from the judgment and decree in
O.S.No.286/2014 of the Principal Munsiff Court, Palakkad, as
confirmed by the District Court, Palakkad in A.S.No.203/2015.
2. The appellant is the plaintiff who filed a suit for specific
performance on the basis of an agreement dated 10.08.2009. The
appellant/plaintiff advanced a sum of Rs.20,000/- for the purchase of
the plaint schedule property. The period fixed as per the agreement
was six months. However, even after the expiry of two years, the
defendant did not execute the sale deed. Therefore on 02.10.2011, it
is stated that the plaintiff and the defendant signed the endorsement
on the back side of the agreement and the plaintiff paid a sum of
Rs.22,500/- to the defendant and extended the time till 02.04.2012.
3. The suit for specific performance was filed on 21.10.2014.
The defendant appeared and contested the suit by contending that he
was not aware of the endorsement made in the agreement. According
to the defendant, a copy of the agreement was handed over to the
defendant and that the duplicate copy of the agreement did not
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contain an endorsement. Since the defendant denied the signature in
the endorsement contained in Ext.A1 agreement, the plaintiff did not
take any steps to prove the signature of the defendant in Ext.A1. The
Trial Court, on appreciation of facts and evidence, found that the suit
was barred by limitation. On appeal, the plaintiff carried forward the
challenge before the District Court, Palakkad. During the pendency of
the appeal, the plaintiff moved the Appellate Court with an application
to refer the disputed signature of the defendant for an expert opinion,
which was dismissed. However, there was no further challenge to the
dismissal of the interlocutory application. The Appellate Court also
concurred with the findings of the Trial Court and found that the suit
was barred by limitation and filed beyond a period of three years.
Hence, the present appeal.
4. Heard, Smt.Aparna Narayan Menon - learned counsel
appearing for the appellant and Smt.A.Gracy Jose - learned counsel
appearing for the respondent
5. The learned counsel for the appellant submitted that the
First Appellate Court did not appreciate the scope and ambit of Section
73 of the Indian Evidence Act, 1872. Even if the application preferred
by the plaintiff for referring the document to expert opinion was
dismissed, the Court was well within its domain to compare the
signature in terms of the powers conferred under Section 73 of the
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Indian Evidence Act, 1872.
6. On the other hand, the learned counsel for the defendant
submits that inasmuch as the defendant had disputed the signature in
the original agreement of sale, it was incumbent upon the plaintiff to
have proved the signature of the defendant in the endorsement made
in the original agreement of sale, wherein the period of performance
of the contract was extended.
7. I have considered the rival submissions raised across the
Bar.
8. On a consideration of the rival submissions, I find that
both the Trial Court as well as the Appellate Court had rightly found
that suit was barred by limitation. Admittedly, as per Ext.A1, the
period of performance of the agreement was fixed at six months.
Therefore, the plaintiff was aware that on expiry of six months, if the
defendant did not execute the document of sale, the remedy was to
file a suit for specific performance and get the document executed.
The extension of period of limitation is supported by the plaintiff on
the pretext that there contains an endorsement in the agreement
wherein the parties have decided to agree to extent the period of
performance of the contract. However, it is pertinent to note that
once the defendant had denied the endorsement and inasmuch as the
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duplicate copy of the agreement of sale did not contain such
endorsement, it was the bounden duty of the plaintiff to have
discharged the burden of proving the endorsement was made by the
defendant.
9. It is also pertinent to mention that the interlocutory
application preferred by the plaintiff in the appellate stage to refer the
disputed signature to the expert opinion was also dismissed and the
challenge was not carried forward further. Therefore, it is a clear case
where the plaintiff has slept over his rights and therefore, at this
stage, this Court cannot entertain the submission of the learned
counsel for the appellant that the disputed signature in Ext.A1, as well
as the admitted signature of the defendant, should be compared by
this Court in exercise of its powers under Section 73 of the Indian
Evidence Act, 1872.
Resultantly, this Court finds that there is no substantial question
of law arising in the appeal for consideration. Accordingly, the appeal
fails and the same is dismissed.
Sd/-
EASWARAN S.
JUDGE
ACR
