Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Ker) 656

IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. BADHARUDEEN, J.
M.N. Saji, S/o. Narayanan Nair - Appellant
Versus
K.R. Krishnakumar, S/o. Ramakrishnan Nair - Respondent
RSA No. 186 of 2022
Decided On : 20-09-2023

Advocates Appeared:
For the Appellant : P.B. Krishnan, P.B. Subramanyan, Sabu George, Manu Vyasan Peter.
For the Respondent: Luke J. Chirayil, M.G. Sreejith.

Point of Law : The burden of proof is fixed on the basis of contentions of aggrieved party.

Headnote:
Code of Civil Procedure, 1908 - Section 100 - Order XLII Rule 1 - Second appeal - Whether defendant/s in a suit can succeed case without support of pleadings in written statement - Concurrent verdicts entered into by trial court as well as appellate court do not require interference at hands of this Court. (Para 23)
Finding of the Court :
Same is a rule to be applied without exception when the claim is for realization of money, where payment of court fee and advocate fee etc. are matters of consideration - While passing money decree, grant of interest also must be considered - Court not inclined to reduce interest or costs ordered by trial court - Appellate court, not allowed cost to plaintiff - Court inclined to hold that parties in this appeal shall bear their respective costs in this appeal.
Result : Second Appeal dismissed.

JUDGMENT :

This second appeal has been filed under Section 100 and Order XLII Rule 1 of the Code of Civil Procedure (for short, ‘the C.P.C.’ hereinafter) and the appellant is the defendant in O.S.No.21/2014 on the files of the Principal Sub Judge, Kottayam and the appellant in A.S.No.32/2019 on the files of the Additional District Court-II, Kottayam. The appellant impugns decree and judgment in O.S.No.21/2014, dated 7.12.2017 and decree and judgment in A.S.No.32/2019, dated 19.11.2021.

2. Heard the learned counsel for the appellant as well as the learned counsel appearing for the respondent.

3. For convenience, I shall refer the parties as ‘plaintiff’ and ‘defendant’.

4. This appeal has been admitted, raising the following substantial question of law :

(1) Whether the defendant/s in a suit can succeed the case without support of pleadings in the written statement?

5. Facts of the case:

The specific case of the plaintiff before the trial court was that, on 23.1.2022, an agreement was entered into between the plaintiff and the defendant and accordingly, the defendant agreed to sell his half right in the property, having an extent of 3.55 Ares of property, for a total of Rs.14,50,000/-(Rupees Fourteen Lakh Fifty Thousand only). At the time of execution of the agreement, Rs.7,50,000/-(Rupees Seven Lakh Fifty Thousand only) was received by the defendant as advance and it was covenanted between the parties that on payment of the balance amount to the tune of Rs.7,00,000/-(Rupees Seven Lakh only), the sale deed in respect of the plaint schedule property (half right of the defendant) would be executed in the name of the plaintiff or his nominee, by the defendant. The further case of the plaintiff is that, apart from Rs.7,50,000/-(Rupees Seven Lakh Fifty Thousand only) borrowed as advance, on 25.1.2012, the plaintiff advanced Rs.2,50,000/-(Rupees Two Lakh Fifty Thousand only) and on 31.1.2022, he also advanced Rs.1,50,000/-(Rupees One Lakh Fifty Thousand only) and thereby, the amount of advance received by the defendant, would come to Rs.11,50,000/-(Rupees Eleven Lakh Fifty Thousand only). The plaintiff would contend that, since the defendant failed to execute the sale deed as agreed, the agreement was rescinded and accordingly, the defendant is bound to pay Rs.11,50,000/-(Rupees Eleven Lakh Fifty Thousand only) along with the interest at the rate of 12% per annum.

6. The defendant filed written statement and resisted the said claim. Paragraph Nos.3 and 4 of the written statement of the defendant, as such, are extracted hereunder :

3. The averments in paragraphs 2 and 3 of the plaint are admitted. The plaintiff is a real estate broker and the said agreement was not intended for purchase of the property by the plaintiff. The plaintiff had approached this defendant knowing that this defendant is intending to sell his undivided share in the property. Since the property was attractive plaintiff had demanded this defendant to execute an agreement for sale and he will dispose off the property to other prospective purchasers for a higher price and when such sale takes place, the plaintiff need to sign the sale deed in favour of such prospective purchasers. Thereafter the plaintiff was in search of prospective purchasers.

4. The averments in the paragraph 4 of the plaint are false and hence denied. The plaintiff was never ready and willing to purchase the property and the agreement was executed only ensuring sale of property to third persons found out by the plaintiff. After execution of the agreement, the defendant had met the plaintiff and informed that a mother and son intends to purchase the entire property, in which this defendant has undivided share, and if this defendant along with his co-owner Thankachan K.S. sell the entire property to the plaintiff's nominee, then the sale could be completed immediately. This defendant had contacted the other co-owner and upon getting his consent for sale of the entire property, the matter was informed to the