Dismissed

Pushkaran v. Muhammed

Kerala HC23 May 2012RSA/355/2012

Case brief

AI extract

What is this about?

The Kerala High Court dismissed a regular second appeal challenging a decree for recovery of advance money. The single judge upheld the first appellate court's finding that the plaintiff proved due execution of the sale agreement, rejecting the appellant's denial based on signature discrepancies and lack of evidence regarding alleged forgery or substitution of pages.

What did the court decide?

Second Appeal dismissed; all pending interlocutory applications dismissed.

Pushkaran Vs Muhammed — Contract and Commercial Disputes | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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WEDNESDAY, THE 23RD DAY OF MAY 2012/2ND JYAISHTA 1934

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RSA.No. 355 of 2012 ()

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AS.12/2008 of SUB COURT, CHERTHALA

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OS.738/2005 of ADDITIONAL MUNSIFF COURT, CHERTHALA

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APPELLANT(S)/RESPONDENT/DEFENDANT:

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PUSHKARAN,

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S/O.KRISHNAN,KANDIPPARAMBIL, CHANDIROOR MURI OF AROOR VILLAGE,CHANDIROOR.P.O CHERTHALA.

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BY ADVS.SRI.T.JAYAKRISHNAN

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SRI.NIDHI BALACHANDRAN

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RESPONDENT(S)/APPELLANT/PLAINTIFF:

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MUHAMMED,

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S/O.PAREED,SHAMEER MANZIL,CHANDIROOR MURI, AROOR VILLAGE AND P.O,CHERTHALA-688547.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23-05-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P. JOSEPH, J.

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R.S.A. No.355 of 2012

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Dated this the 23^rd day of May, 2012.

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JUDGMENT

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Defendant in O.S.No.738 of 2005 of the court of learned Additional Munsiff, Cherthala which is a suit for recovery of advance money as per Ext.A1, agreement allegedly executed by him, is the appellant before me.

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Respondent claimed that appellant executed Ext.A1, agreement dated 04.04.2005 undertaking to sell the ten cents and building belonging to him to the respondent for 6,25,000/- and that he paid 50,000/- to the appellant by way of advance. But, even before the expiry of the time specified in the agreement, appellant attempted to sell the property to others. Thereon respondent filed O.S.No.559 of 2005 for a decree for prohibitory injunction. Appellant contended in that suit that he is ready and willing to sell the property. Respondent approached the appellant. But, then he learnt that the original title deed of the appellant is pledged with a bank. Appellant also made a claim that he should be allowed to stay in the building in the suit property on rental basis. Respondent was not agreeable for that. In the meantime, on the expiry of the period stated in Ext.A1, agreement, O.S.No.559 of 2005 was dismissed. Later, respondent filed the present suit for recovery of advance money with interest.

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RSA No.355/2012

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Appellant denied that he had executed any such agreement in favour of the respondent but, pleaded that he had an agreement with one Haneefa Haji and in that transaction, respondent was only a mediator. He also denied that he received any amount from the respondent.

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In the trial court, respondent gave evidence as PW1 and examined

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PWs 2 and 3, a witness and scribe of Ext.A1, agreement. Appellant did not adduce any evidence, oral or documentary.

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Trial court found that there is some difference in the handwriting (of the vendor of the stamp papers) appearing on the reverse side of the first and second stamp papers of Ext.A1, agreement. Trial court was of the view that there was difference in the signatures of appellant on the different pages of Ext.A1. A further drawback which the trial court noticed was that PWs 2 and 3 did not say in so many words that they saw the appellant signing Ext.A1, agreement. On the above grounds trial court was pleased to dismiss the suit.

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Respondent took up the matter in appeal. First appellate court on a re-appreciation of the evidence took a different view, found

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that due execution of Ext.A1, agreement

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is proved and granted a decree in favour of the respondent as prayed for. That judgment and decree of the first appellate court are under challenge on the substantial questions of law urged in the memorandum of second appeal.

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RSA No.355/2012

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Learned counsel contends that the finding of first appellate court regarding due execution of Ext.A1, agreement in reversal of the finding entered by the trial court is without proper reasoning. It is argued by the learned counsel that first appellate court was carried away by the non-appearance of appellant in the box and non-production of the photocopy of Ext.A1, agreement allegedly handed over to the appellant at the time of execution of the said agreement. It is the further contention of the learned counsel that the first appellate court has not referred to other points discussed by the trial court in it judgment.

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The issue concerned is whether respondent has proved the due execution of Ext.A1?0 I must notice that even as per the version of the appellant, he is not disputing execution of an agreement as such on the date of Ext.A1 though according to him, it was with Haneefa Haji. Appellant does not dispute his signatures in pages 2 to 4 of Ext.A1, agreement , his contention being that the first page of Ext.A1, agreement which was executed in favour of the Haneefa Haji was replaced with another sheet and his signature was forged. In otherwords, the dispute is only regarding the signature (allegedly) of the appellant in the first page of Ext.A1. The first appellate court has stated and, it is not disputed before me also that the admitted pages of Ext.A1 contained a recital that a photocopy of the agreement was handed over to the appellant. The first appellate court noticed that appellant could have produced that photocopy to show that the agreement was one (with the first page as he claims) executed in favour of Haneefa Haji and not to the respondent. Appellant did not produce that photocopy.

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RSA No.355/2012

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Learned counsel contends that it is the normal practice to state in the agreement that a photocopy of it is given to the executant but normally it is not done. No such photocopy was given to the appellant. I must say that, that argument is not based on any factual matrix, appellant having failed to go to the box and speak so. Therefore, the recital in Ext.A1 that a photocopy of that agreement was given to the appellant stands. Appellant could have produced that photocopy to show that the first page of the agreement he executed was replaced as contended by him.

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So far as dissimilarity in the signatures is concerned, trial court found so. The first appellate court even though accepted the above finding of the trial court held that minor variations are not sufficient to find against due execution of the agreement. Even the admitted signatures of appellant in pages 2 to 4 of Ext.A1 bore some dissimilarity. First appellate court referred to the evidence of PWs 2 and 3, the witness and scribe of Ext.A1 and stated that they have no axe to grind against the appellant. The first appellate court also noticed that though it is the case of appellant that the agreement was executed in favour of Haneefa Haji, no such question was put to PW3, the scribe. It is relevant to note that appellant did not examine Haneefa Haji to prove that case. It is in these circumstances that the first appellate court reversed the finding of the trial court to hold in favour of the respondent. A further fact which I must notice is that based on the very same agreement, respondent had filed

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RSA No.355/2012

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O.S.No.559 of 2005 for a decree for prohibitory injunction and after the expiry of the time provided in Ext.A1, that suit was dismissed following which respondent filed the present suit for recovery of the advance money.

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Having heard learned counsel and gone through the judgments under challenge I find that judgment of the first appellate court is based on proper appreciation of evidence and no substantial question of law is involved in this appeal requiring its admission.

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Second Appeal is dismissed.

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All pending interlocutory applications will stand dismissed.

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THOMAS P.JOSEPH, Judge.

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cks

Pushkaran v. Muhammed

Case brief

What is this about?

What did the court decide?

Pushkaran v. Muhammed

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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