Dismissed

Kuriyath Joy v. Kalappurakal Sosamma (Died)

Kerala HC25 Feb 2016RP/972/2015

Case brief

AI extract

What is this about?

In a review petition, the High Court dismissed the challenge to a second appeal judgment. The bench held that questions of law framed at the admission stage were substantively answered against the appellants and that readiness and willingness for compromise enforcement was not required. The petition to quash the order was rejected.

What did the court decide?

The review petition was dismissed as there was no merit or error apparent on the face of the records.

Kuriyath Joy Vs Kalappurakal Sosamma (Died) — Specific Performance | Kerala HC (2016)

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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 P.B.SURESH KUMAR

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THURSDAY, THE 25TH DAY OF FEBRUARY 2016/6TH PHALGUNA, 1937

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RP.No. 972 of 2015 ()

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AGAINST THE JUDGMENT IN RSA 371/2003 DATED 25-05-2015

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REVIEW PETITIONERS/APPELLANTS :

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1. KURIYATH JOY

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S/O.THOMAS, AGED 43 YEARS AGRICULTURIST, VELLARVALLY AMSOM THIRUVONAPRAM DESOM, P.O. PERAVOOR, THALASSERY TALUK, KERALA STATE.

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2. MANIKKATHAZAHA ALFONZA R/A. VELLARVALLY AMSOM, DESOM, KERALA STATE.

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3. KUNNUMBRATH PUTHIYA PURAYIL ABDUL RAZAK AGED 39 YEARS, S/O.MAMMU HAJI, P.O. KAKKAYANGAD, MUZHAKKUNNU AMSOM, PALA DESOM, KANNUR DISTRICT, PIN-670 673.

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BY ADVS.SRI.KALEESWARAM RAJ

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SRI.P.U.SHAILAJAN

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RESPONDENTS/RESPONDENTS :

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LATE KALAPPURAKKAL SOSAMMA (DIED) D/O. YOHANNAN

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1. ABHI K.JACOB,

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S/O.CHACKO, AGED 37 YEARS KALAPPURATH HOUSE, P.O. KAKKAYANGAD,

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MUZHAKKUNNU AMSOM, PALA DESOM, THALASSERI TALUK, KANNUR DISTRICT KERALA STATE.

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2. SHIBI K.JACOB,

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S/O.CHACKO, AGED 37 YEARS KALAPPURATH HOUSE, P.O. KAKKAYANGAD MUZHAKKUNNU AMSOM, PALA DESOM, THALASSERI TALUK, KANNUR DISTRICT, KERALA STATE.

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...2/-

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RP.No. 972 of 2015 () -2-

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3. K.A.CHACKO, AGED 76 YEARS, S/O.ABRAHAM, KALAPPURATH HOUSE, P.O. KAKKAYANGAD MUZHAKKUNNU AMSOM, PALA DESOM, THALASSERI TALUK, KANNUR DISTRICT, KERALA STATE.

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BY ADVS. SRI.K.R.AVINASH (KUNNATH) SRI. ABDUL RAOOF PALLIPATH SMT. GRACY PAULOSE

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THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 29-01-2016, THE COURT ON 25-02-2016 PASSED THE FOLLOWING:

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P.B.SURESH KUMAR, J.

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Review Petition No.972 of 2015

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R.S.A.No.371 of 2003

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Dated 25^th February, 2016

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O R D E R

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The appellants in the second appeal seek review of the judgment in the appeal after the dismissal of the Special Leave Petition Preferred by them before the Apex Court challenging the same.

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Heard the learned counsel for the review petitioners as also the learned counsel for the respondents.

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The appellants were the defendants in the suit.

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The suit was one for specific performance of an agreement to convey a property as per the terms of the compromise entered into in an earlier suit between the parties. Though the trial court dismissed the suit, the appellate court reversed the decision of the trial court and decreed the suit directing the first defendant to convey the suit property to the plaintiff on deposit of

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R.P.No.972 of 2015

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Rs.90,000/- agreed to be paid by the plaintiff to the first defendant as per the terms of the compromise. It is seen that notice was ordered on the second appeal challenging the decision of the appellate court on the following questions of law :

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Whether the finding of the first appellate court that the plaintiff was ready and willing to perform the part of the agreement can be supported by any evidence?

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Whether the first appellate court is justified in reversing the finding of the trial court without sufficient material?

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Later, when the second appeal came up for final hearing, this Court found on the basis of the materials on record that the plaintiff was ready and willing to perform her part of the obligation under the compromise and therefore the appellate court was justified in reversing the decision of the trial court.

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According to the learned counsel for the review

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R.P.No.972 of 2015

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petitioners, having issued notice to the respondents in the appeal on two questions of law, it was obligatory for this Court to answer those questions and when the said issue was raised in the Special Leave Petition preferred challenging the decision in the second appeal, the Apex Court observed that the said ground can be raised only in a review petition and the present review petition has been filed accordingly on that basis. In other words, the substance of the arguments of the learned counsel for the review petitioners is that the questions of law formulated for decision in the second appeal should have been answered by this Court while rendering the judgment in the second appeal.

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The essence of the questions framed by this Court at the time of admission of the second appeal is as to whether the finding rendered by the appellate court that the plaintiff was ready and willing to perform her part of the obligations under the compromise is supported by legal evidence. On an appraisal of the materials on record, this Court found that the plaintiff was ready and willing to perform her

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R.P.No.972 of 2015

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part of the obligations under the compromise. In the matter of arriving at the said finding, this Court took note of the fact that both the plaintiff as well as defendants admit that they were at the Sub Registry concerned on the day fixed for executing the conveyance deed. This Court also noticed from Ext.A8 note prepared by DW2, the scribe who was asked to prepare the conveyance deed that the plaintiff has paid to him the amount required for purchasing the stamp paper for the conveyance deed. This Court further noticed from the evidence of DW2 that the conveyance deed was not executed by the defendants in favour of the plaintiff as the plaintiff wanted the conveyance deed to be executed in the name of another and the first defendant was not willing to do so. In the circumstances, this Court also found that the contention raised by the defendants that the plaintiff was not ready and willing to perform her obligations under the compromise cannot be said to be correct. It is thus evident that though this Court had not stated in the judgment sought to be reviewed that the questions formulated for decision at the time of admission are answered against the

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R.P.No.972 of 2015

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appellants, according to me, the questions formulated for decision have been answered against the appellants. As such, there is absolutely no basis for the contention raised by the appellants that the questions formulated for decision in the second appeal have not been answered at all by this Court.

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That apart, as noted above, though the suit is styled as a suit for specific performance, in substance, the suit was one for enforcement of the terms of a compromise entered into between the parties in an earlier judicial proceedings. As such, the question of the readiness and willingness to perform the obligations under the compromise does not arise for consideration in a suit of this nature. In other words, the questions formulated for decision in the second appeal at the time of admission did not arise for consideration in the second appeal.

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The learned counsel for the review petitioners, relying on Section 20 of the Specific Relief Act, contended that it is a fit case where the court should have declined specific performance in exercise of the discretion vested in it. I am

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R.P.No.972 of 2015

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afraid, such a contention is not available to the defendants in a suit for enforcement of the terms of the compromise in an earlier judicial proceedings between the same parties. Further, a review of the judgment cannot also be sought on that ground as the said ground is seen raised in the second appeal and the same was answered against the appellants. The review petitioners are unable to point out any error apparent on the face of the records as regards the finding rendered by this Court on the said ground.

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In the aforesaid facts and circumstances, there is absolutely no merit in the review petition and the same is accordingly dismissed.

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Sd/-

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P.B.SURESH KUMAR, JUDGE.

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tgs

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(true copy)

Kuriyath Joy v. Kalappurakal Sosamma (Died)

Case brief

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Kuriyath Joy v. Kalappurakal Sosamma (Died)

Case brief

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