Dismissed

M.A. Philippose v. Pappy Madhavan and Others

Kerala HC1 Feb 2013CRP/533/2008

Case brief

AI extract

What is this about?

This Court dismissed a civil revision petition challenging a District Judge's decree in a debt suit. The Court upheld the admissibility under Section 32(3) of the Evidence Act of a deceased party's letter admitting partial payment of a debt, finding it against his pecuniary interest. The revision under Section 115 CPC failed due to lack of illegality.

What did the court decide?

Revision petition dismissed; impugned judgment of the District Judge affirmed.

M.A. Philippose Vs Pappy Madhavan and Others — Contract and Commercial Disputes | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI

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FRIDAY, THE 1ST DAY OF FEBRUARY 2013/12TH MAGHA 1934

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CRP.No. 533 of 2008 ( )

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AGAINST THE JUDGMENT IN AS.362/2006 of D.C. & SESSIONS COURT,KOTTAYAM DATED 10-08-2007

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AGAINST THE JUDGMENT IN OS.132/2004 of ADDL.MUNSIFF COURT,KOTTAYAM DATED 30-06-2006

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PETITIONER/RESPONDENT/PLAINTIFF :

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M.A.PHILIPPOSE, S/O.ABRAHAM, MANGALATHU HOUSE, MANARCADU P.O., MANARCADU KARA MANARCADU VILLAGE, KOTTAYAM TALUK

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BY ADVS.SRI.MOHAN IDICULLA ABRAHAM SRI.MARTIN D.ALUMKARA SMT.PUSHPY B.MURICKEN

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RESPONDENT(S):

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1. PAPPY MADHAVAN, W/O.LATE MADHAVAN EDAPPALLY HOUSE, MANARCADU PO., MANARCADU KARA MANARCADU VILLAGE, KOTTAYAM TALUK.

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2. ASWATHY SASI @ PONNANNA, W/O.LATE SASI EDAPPALY HOUSE, MANARCADU PO., MANARCADU KARA KANARCADU VILLAGE, KOTTAYAM TALUK.

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3. RANJITH, S/O.LATE SASI EDAPPALLY HOUSE, MANARCADU PO., MANARCADU KARA, DO.DO.

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4. SREEJITH, S/O.LATE SASI, EDAPPALLY HOUSE, MANARCADU PO., DO.DO.

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R2 BY ADV. SRI.ABRAHAM GEORGE

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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A.V.RAMAKRISHNA PILLAI, J.

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CRP No.533 of 2008

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Dated this the Ist day of February, 2013

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JUDGMENT

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Under challenge in this revision is the judgment passed by the District Court, Kottayam in A.S.No.362/2006 filed by the respondents against the judgment in O.S.No.132/2004 of the Additional Munsiff's Court, Kottayam. The said suit was filed by the petitioner for realisation of a sum of Rs.15,000/- from the respondents who are the mother, wife and children of one Sasi who is no more.

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The case of the petitioner was that deceased Sasi had borrowed an amount of Rs.15,000/- from him on 20.9.2002 after executing a promissory note and when the money was demanded back, he issued a cheque dated 20.11.2003 for the said amount drawn on the Vijayapuram Co-operative Bank Ltd. and the same was dishonoured when presented for payment. Being the legal heirs of Sasi, the respondents were intimated about the transaction and payment was demanded. But the same could not

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CRP No.533 of 2008 2

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evoke any positive response.

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In the written statement, the respondents contended that though Sasi had borrowed a sum of Rs.15,000/-, the petitioner had obtained a blank signed paper and cheque leaf from him which was made use of by the petitioner for converting them as piece of evidence in the suit.

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Their definite case was that Sasi had repaid an amount of Rs.9,000/-. It was further contended that Sasi committed suicide as he was indebted to several persons.

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The trial court permitted both sides to adduce evidence and considering the evidence consisting of the oral testimonies of PW1 and DW1 as well as Exts.A1 to A7 and X1 series decreed the suit. The respondents carried the matter in appeal where it was contended that having found Ext.X1(a) document admissible in evidence, the learned Munsiff ought not have adjusted the amount of Rs.9,000/- towards interest till 30.11.2003, since interest at the rate of 12% per annum from 20.9.2002 to 30.11.2003 would not come to more than Rs.2,000/- and that the said amount of Rs.9,000/- should be deducted from the principal amount of Rs.15,000/-.

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The petitioner/cross objector contended that Ext.X1(a)

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CRP No.533 of 2008 3

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was not admissible in evidence and that the court fee paid in the appeal was inadequate. The District Judge who heard the appeal by the impugned judgment allowed the appeal and cross objection was dismissed. Thus, he has come up in revision.

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Arguments have been heard and the impugned judgment was perused.

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The argument advanced by the learned counsel for the revision petitioner is that the appellate court went wrong in relying on the statement in Ext.X1(a) that the amount of Rs.9,000/- was paid towards interest. According to the learned counsel the court below went beyond the jurisdiction in reopening the appropriation of interest made by the deceased as stated in Ext.X1(a). The contention was that the appellate court ought to have held that Ext.X1(a) was inadmissible in evidence. The entire arguments centres around the admissibility of Ext.X1 (a) under Section 32(3) of the Evidence Act. Statements written or verbal of relevant facts made by a person who is dead are relevant when that statement is against the pecuniary or propriety interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or suit for damages.

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CRP No.533 of 2008 4

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The learned District Judge relied on the decision of the Apex Court in ( Ramrati Kuer v Dwarika Prasad Singh and others ) AIR 1967 SC 1134) where it was held that for a statement making admissible under Section 32(3) of the Evidence Act, it must be shown that the person making it knew that it was against the pecuniary or proprietary interest.

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As rightly held by the learned District Judge, the real test is whether it is in some way or other injuriously affects the interest of the person making it.

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Both the courts below found that there need not be any doubt regarding the genuineness of Ext.X1 and Ext.X1(a). Ext.X1(a) is a letter written by the deceased person to one Ponnamma. In Ext.X1(a), he has mentioned the names of the persons from whom who borrowed the amount and the amount due to those creditors. Therefore, it was found by the court below that the statements contained in Ext.X1 are not against the interest of persons who made the statements as contemplated under Section 32(3). The court below has also found that at the time of making Ext.X1(a), the deceased Sasi was fully aware of the facts stated therein and the same would go against his interest. Therefore, it was found by the court

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CRP No.533 of 2008 5

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below that Ext.X1(a) is admissible in evidence. If Ext.X1(a) is admissible in evidence, the logical consequence will follow. It was evident from Ext.X1(a) that an amount of Rs.15,000/- was due from Sasi to the plaintiff and that he paid Rs.9,000/- in that transaction to the plaintiff who is the petitioner. These are relevant facts and the same were found to be admitted in evidence under Section 32(3) of the Indian Evidence Act.

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There is no demonstrable reason for warranting an interference with the impugned judgment in exercise of the revisional powers of this Court under Section 115 of the Code of Civil Procedure as the same does not suffer from any illegality, irregularity, or impropriety.

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In the result, the revision fails and accordingly dismissed.

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Sd/-A.V.RAMAKRISHNA PILLAI JUDGE

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css/ true copy

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P.S.TO JUDGE

M.A. Philippose v. Pappy Madhavan and Others

Case brief

What is this about?

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M.A. Philippose v. Pappy Madhavan and Others

Case brief

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