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2005 DIGILAW 548 (KER)

T. v. Thampy VS Varkey Emmanuel

2005-08-16

K.P.BALACHANDRAN, R.BHASKARAN

body2005
Judgment :- K.P. Balachandran, J. The defendant in O.S.699 of 1994 on the file of the Sub Court, North Parur is the appellant. The respondent instituted the said suit against him for recovery of advance amount paid and that was decreed by the Subordinate Judge. Hence this appeal. 2. The respondent alleged in the plaint inter alia that he entered into an agreement with the defendant on 15.3.1986 for purchase from him of 1984 model stage carriage bus bearing Registration No. KBE 1153 for a consideration of Rs.4,50,000/- paying advance of Rs.1,50,000/-. Under the agreement he was put in possession of the vehicle and he was permitted to operate service. Out of the balance consideration the plaintiff was to deposit an amount of Rs.2,10,000/- at the Ernakulam Branch of the Canara Bank at the monthly rate of Rs.3,500/- and the balance of Rs.90,000/- was to be paid to the defendant before 15.6.1986. The agreement was that at that time the sale letter and other relevant documents would be handed over to him. The plaintiff operated service of the bus for a period of three months. On 16.6.1986 the defendant forcibly took possession of the bus. Despite intervention of mediators no settlement was arrived at. The defendant is retaining possession of the bus. The defendant was not amenable to perform his obligations under the agreement. The plaintiff is therefore entitled to get back the advance amount paid under the agreement. It is further alleged that the defendant had not handed over any sale letter or any other document and that therefore the defendant is still the owner of the bus. 3. The appellant/defendant resisted the suit. According to him there was no agreement as alleged and no advance as alleged had been paid to him. The plaintiff had not been entrusted to remit amounts to sell the bus to the plaintiff. It is false to say that the defendant took possession of the bus from the plaintiff forcibly. He never agreed to repay any amount to the plaintiff. The plaintiff has no cause of action. The suit is not maintainable. The claim is barred by limitation. The plaintiff is not entitled either to any amount of the injunction prayed for. The alleged agreement is a forged one. The plaintiff and defendant had property transaction and the plaintiff is acquainted with the signature of the defendant. The plaintiff has no cause of action. The suit is not maintainable. The claim is barred by limitation. The plaintiff is not entitled either to any amount of the injunction prayed for. The alleged agreement is a forged one. The plaintiff and defendant had property transaction and the plaintiff is acquainted with the signature of the defendant. There was dispute between the plaintiff and the defendant regarding the transaction. The suit is ill conceived and has to be dismissed with costs. 4. The court below raised necessary issues for trial and considering the case of the parties on the pleadings and the evidence adduced at trial which consisted of oral evidence of PWs 1 to 3 and documentary evidence Exts. A1 to A5 decreed the suit. Hence the appeal by the aggrieved defendant. 5. It is vehemently contended by the counsel for the appellant that the suit agreement is not genuine; that however on the allegations in the plaint a suit for return of advance amount is not maintainable and that the suit should have been dismissed with costs considering the false nature of the claim advanced. 6. The point that arises for consideration is as to whether the trial court was correct in decreeing the suit for return of advance amount on the strength of Ext.A1 agreement. 7. The Point. The plaintiff as PW1 has given evidence in terms of the plaint averments. The suit agreement which is a Photostat copy of the alleged agreement was being marked as Ext.A1 subject to objection. What the plaintiff deposed in relation to Ext.A1 is that the original of the agreement executed on 15.3.1986 had not been given to him and that he is having a Photostat copy thereof. Apart from that he has no explanation as to how he came into possession of such a Photostat copy. All the same it is his case that the stamp paper for execution of the original of Ext.A1 was purchased by him from vendor K.K. Divakaran. He has also admitted in cross examination that in the normal course, original of Ext.A1 ought to be in his possession as the Vehicle was being handed over to him as per the agreement. But he has no explanation as to why in the instant case it so happened that the original of Ext.A1 agreement is not with him. He has also admitted in cross examination that in the normal course, original of Ext.A1 ought to be in his possession as the Vehicle was being handed over to him as per the agreement. But he has no explanation as to why in the instant case it so happened that the original of Ext.A1 agreement is not with him. It is Vehemently contended on behalf of the counsel for the appellant-defendant that Ext.A1 should not have been accepted in evidence as secondary evidence in the absence of explanation as to where the original is and under what circumstances the plaintiff happened to be not in possession of the original of Ext.A1. 8. The suit is one instituted by the plaintiff as an indigent person on 27.9.1986. As per Order VI Rule 15 of the Code of Civil Procedure as it stood then, when the plaintiff is not in possession of the suit document it was up to him to state in the plaint as to in whose possession or power is the said document. Even after the amendment of the Code of Civil Procedure the position remains to be the same as the said Rule has been incorporated as sub-rule 2 of Rule 14 under Order VII. There is no whisper in the plaint as to where the original of Ext.A1 is and in whose possession it is. Nor is there any pleading or evidence that the thing that was photographed was the original or that it was compared with the original. Ext.A1 being also an unauthenticated Photostat copy of the document cannot be presumed to be genuine nor can it pass on as secondary evidence under Section 63 of the Evidence Act. As per the provisions of section 65 of the Evidence Act, secondary evidence on the facts of this case is admissible also only if the original is shown to be in the custody of the defendant. The plaintiff has no such case in the plaint. What happened to the original is also not properly explained in the plaint or in the deposition so as to enable Ext.A1 being marked in secondary evidence. The plaintiff has no such case in the plaint. What happened to the original is also not properly explained in the plaint or in the deposition so as to enable Ext.A1 being marked in secondary evidence. The Apex Court in Ashok Dulichand v. Madhavlal Dude and another (AIR 1975 SC 1748) held in paragraph 7 of the judgment:- “According to clause (a) of section 65 of the Indian Evidence Act, secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it”. As in that case, in order to bring his case within the purview of clause (a) of Section 65 the appellant filed I.A.1831 of 1997 before the trail court on 3.7.1997 for a direction being given to the defendant to produce the original of Ext.A1 on the allegation that the original of Ext.A1 is in the possession of the defendant. Copy of the said petition was served on the counsel for the defendant on 3.7.1997. On 5.7.1997 itself the defendant filed an affidavit swearing that he had not entered into any agreement with the plaintiff as alleged; that the suit karar (Ext.A1) is fraudulently brought into existence and that he is not in possession of the original of the alleged agreement and that he is therefore not in a position to produce the said document. It is worthy to note that this was the very same contention that has been raised by the defendant in the written statement itself and hence there was no scope to call upon the defendant to produce the original of the agreement. However on the very next day of filing of the said application before court, the learned Sub Judge passed an order on I.A.1831 of 1997 on 4.7.1997 to the following effect:- “The respondent is directed to file original document – 8.7.1997”. The said order was passed without any application of mind and without even directing the defendant to file affidavit in case he is not in possession of the original. The said order was passed without any application of mind and without even directing the defendant to file affidavit in case he is not in possession of the original. It is worthy to note that it was on 8.7.1997 that the plaintiff was examined and Ext.A1 Photostat copy of the agreement was marked as Ext.A1 subject to objection. Allowing of marking of the said document in secondary evidence was highly improper as the plaintiff miserably failed to explain as to what were the circumstance under which the Photostat copy was prepared and that happened to be in his possession when the original ought to be in his possession and as to what happened to the original. Marking was allowed without recording any finding that the plaintiff made out a case for acceptance of secondary evidence. The question as to acceptability of a photostat copy of an original document as secondary evidence when the copy was admitted and marked in evidence on the counsel for the opposite party making endorsement on the document “may be marked in evidence” came up for consideration of this court in British India Steam Navigation Co. Ltd. v. M/s. Shanmughavilas Cashew Industries, Quilon (ILR 1974 (2) Ker. 150). In that case, a Division Bench of this court held that the endorsement by the counsel means only that the requirement of formal proof of the document is waived but even then the document was only a Photostat copy of the original, which could pass only as secondary evidence; that the endorsement cannot be read as waving the conditions for admission of secondary evidence and that sufficient foundation has not been laid in the evidence for the reception of secondary evidence and hence the photostat copy marked Ext.D1 could not pass as secondary evidence. 9. Clause 2 of Section 63 of the Evidence Act dealing with secondary evidence which is relevant for consideration in this case refers to copies from the original made by mechanical process which by itself ensure the accuracy of the copy, and copies compared with such copies. In the instant case there is no proof of the accuracy of the Photostat copy or of its having been compared with or being a true reproduction of the original. In the instant case there is no proof of the accuracy of the Photostat copy or of its having been compared with or being a true reproduction of the original. If at all the original had been passed on to the defendant the Photostat copy in the normal courts should have been certified by the other party to be a true copy. That also is absent in the instant case. Sufficient foundation has not been laid at all in the evidence in the case to prove Ext.A1 as being admissible in secondary evidence. Even PW1 has not deposed as to the accuracy of the copy or of its having been compared with the original. 10. The Apex Court has in Roman Catholic Mission v. State of Madras (AIR 1966 SC 1457) has held that when original is not produced at any time and no foundation is also laid for establishment of right to give secondary evidence, copies of original is not admissible in evidence. Thus in the instant case it has to be held that the reception of Ext.A1 in secondary evidence to prove the existence of alleged agreement between the plaintiff and the defendant was not proper and that it could not have been acted upon. In the circumstances discussed above, the Photostat copy of the alleged agreement marked “subject to objection” as Ext.A1 cannot pass as secondary evidence and does not help the plaintiff to establish his case. 11. It is contended by the learned counsel for the appellant relying on the decision of this court in Achuthan Pillai v. Marikar (Motors) Ltd., Trivandrum (AIR 1983 Ker.81) that proof of execution of a document is not proof of the truth of the contents of the document; that the truth of the facts stated in the document if denied is still to be proved by admissible evidence and that even in the event of primary evidence itself being made available, the court is not bound to accept the contents unless it is satisfied about the truth of the matter stated. The said decision is one following the decision of the Apex Court in Ramji Dayawala and Sons (P) Ltd. v. Invest Import (AIR 1981 SC 2085). In the instant case no effort at all is made by the plaintiff to establish the truth of the facts stated in Ext.A1. 12. The said decision is one following the decision of the Apex Court in Ramji Dayawala and Sons (P) Ltd. v. Invest Import (AIR 1981 SC 2085). In the instant case no effort at all is made by the plaintiff to establish the truth of the facts stated in Ext.A1. 12. On the basis of the decision of the Rajasthan High Court in Govind Ram v. Abdul Wahab (AIR 1963 Rajasthan 234) it is contended by the counsel for the appellant that the execution of a document is a question of fact and can be proved like any other fact by direct as well as circumstantial evidence provided the circumstantial evidence is of sufficient strength to carry conviction; that circumstantial evidence as a mode of proof of execution of document is not excluded as a legitimate method of proving a document and such evidence may consist of the internal evidence contained in the document itself about the execution of which there is dispute. According to the counsel recitals in Ext.A1 document along with the oral evidence of PW1 and the circumstances available will afford telling circumstances to disprove the genuineness of the agreement set up and enable finding to the effect that there had never been an agreement of the nature of Ext.A1 executed between the parties. The submission no doubt is with force in the circumstances of this case. 13. It is worthy to note that there are two witnesses to Ext.A1. They are no Thomman Thomas and one K.P. Mathaew. None of those witnesses are examined in the instant case to prove the existence of any such agreement between the parties despite admission by PW1 that both of them are alive. PW1 has no explanation as to why an unauthenticated Photostat copy alone was retained in his possession when even according to him it was the original that should have been in his possession and he was the one who effected purchase of the stamp papers for execution of the original of Ext.A1. Apart form Ext.A1 there is absolutely no evidence in proof of the plaintiff having advanced an amount of Rs.1,50,000/- to the defendant as alleged. The defendant has contended that the plaintiff is one who did never have the means to raise so much amount as to be paid as part of sale consideration under the alleged agreement. Apart form Ext.A1 there is absolutely no evidence in proof of the plaintiff having advanced an amount of Rs.1,50,000/- to the defendant as alleged. The defendant has contended that the plaintiff is one who did never have the means to raise so much amount as to be paid as part of sale consideration under the alleged agreement. In cross examination he has stated that he is an agriculturist and that the amount paid under Ext.A1 was made up of Rs.1,25,000/- that was in his possession being sale proceeds of agricultural produce and amount procured by slaughter tapping of rubber and another Rs.25,000/- which he procured by sale of an extent of 5 acres of land the day prior to payment of the said amount of Rs.1,50,000/-. Apart from the said version of the plaintiff, there is absolutely no evidence in the case furnished by the plaintiff that he is one possessed of sufficient funds or did have Rs.1,50,000 with him to be paid under Ext.A1 on 15.3.1986. On the other hand what we find is that he has filed the present suit as an Indigent person on 29.9.1986 just after six months of the alleged agreement on the allegation that he is not having sufficient means to pay the court fee required to be paid on the plaint. 14. Though according to the plaintiff he was put in possession of the stage carriage bus authorizing him to conduct service with effect from the date of the agreement, he has admitted that he had not been put in possession of any record in relation to the vehicle. It is common knowledge that a stage carriage bus cannot be plied without the relevant records being kept in the vehicle as mandated by the Motor Vehicles Act and the Rules. It is strange that according to the plaintiff he was not even having Photostat copy of the Registration Certificate Book or document evidencing payment of tax to enable him to operate service with the said stage carriage bus. 15. Going by the terms of Ext.A1 the plaintiff was to discharge the liability under the loan, of the amount of Rs.2,10,000/- at the Ernakulam Panampilli Nagar Branch of the Canara Bank at the rate of Rs.3,500/- per month and pay the balance Rs.90,000/- to the defendant before 15.6.1986. 15. Going by the terms of Ext.A1 the plaintiff was to discharge the liability under the loan, of the amount of Rs.2,10,000/- at the Ernakulam Panampilli Nagar Branch of the Canara Bank at the rate of Rs.3,500/- per month and pay the balance Rs.90,000/- to the defendant before 15.6.1986. He has not made payment of even one installment at the bank and has no explanation at all in the plaint as to why such payments were not made. Further if at the plaintiff was operating service with effect from 15.6.1986 namely the date of the agreement, tax was due to be paid for the next quarter as the quarterly tax falls due on 1.4.1986. He has no case that he has paid any tax. 16. The plaintiff has got a new case when examined as PW1 that he was being made to enter into the agreement giving him to understand that the daily collection of the bus would be more than Rs.1,200/- but that the total collection never exceeded Rs.800 to Rs.850 per day and that service cannot be conducted of the stage carriage bus unless an average amount of Rs.1,000 is there as daily collection. His further case in evidence is that he made enquiries at the bank and came to understand that the amount due to the bank is not Rs.2,10,000/- but is more than Rs.3,00,000/-. According to him it was difficult for him to pay so much amount but that it was the defendant who wanted him to continue operating service of the stage carriage bus saying that the collection would improve after a few days. But according to him the defendant who thus persuaded him to continue in possession of the bus has forcibly taken possession of the bus for him on 16.6.1986 and that despite attempts at mediation effected through panchayat president Kunjachan no mediation could be effected as a the defendant wanted one year time to pay back the amount received to which he was not prepared and the defendant was also not prepared to give any record in that behalf. In cross examination he states that he made enquires at the bank after one month of taking possession of the bus and then he understood that the amount due to the bank is more than Rs.3 lakhs and he realized then that he was being deceived. In cross examination he states that he made enquires at the bank after one month of taking possession of the bus and then he understood that the amount due to the bank is more than Rs.3 lakhs and he realized then that he was being deceived. It is pertinent to note that the plaintiff has not issued any notice to the defendant when he realized that he has been deceived. He has also not issued any notice consequent on seizure of the bus by the defendant on 16.6.1986. He has also not given any complaint in the matter before police nor has he filed any criminal complaint before the court. In cross examination he has gone to the extent of denying the suggestion that he was not ready with the amount of Rs.90,000/- to be paid to the defendant before the last day fixed for payment of the amount as per the agreement but for which also however there is absolutely no evidence in the case. He has no case that notice was issued to the defendant demanding either to have the agreement performed by completing the sale of the bus or to have return of the amount already paid. There is no evidence adduced to show that any liability existed to the bank as stated in Ext.A1 or that the amount due to the bank was more than Rs.3,00,000/- as stated by PW1. 17. The plaintiff has examined three witnesses in his attempt to prove the case alleged. PW2 is one Thomas who claims to have been the conductor of the bus while the plaintiff operated service of the bus for three months. Though Exts.A2 to A5 documents were marked in evidence through PW1 as being records evidencing his having conducted service of the bus for three months, none of those documents are attempted to be got proved through PW2 who is stated to have been the conductor of the bus. His evidence is neither convincing nor reliable. PW3 is stated to be the Kunjachan who has attempted to effect a mediation consequent on forcible taking possession of the bus by the defendant. According to him some transaction for sale of bus was being had between the plaintiff and Mathai a brother-in-law of the defendant and not the defendant. His evidence is neither convincing nor reliable. PW3 is stated to be the Kunjachan who has attempted to effect a mediation consequent on forcible taking possession of the bus by the defendant. According to him some transaction for sale of bus was being had between the plaintiff and Mathai a brother-in-law of the defendant and not the defendant. However he is not aware as to what exactly was the dispute; what was the amount in dispute or which was the bus that was involved in the transaction. He is also not aware as to the year, month or date when the parties approached him to effect a mediation. His evidence is also not of any help to the plaintiff to establish his case PW4 is a document writer. According to him stamp paper for execution of Ext.A1 was being purchased by the plaintiff from him. It is worthy to note that Ext.A1 which is a Photostat copy does not contain any endorsement on its reverse as regards sale of stamp paper and it is not know how he is able to depose that the stamp paper for execution of the original of Ext.A1 was being purchased by the plaintiff from him. The agreement is not in his handwriting and he is not a witness either to Ext.A1. We have no doubt that PW4 also is a hired witness. The evidence of PWs 2 to 4 is of no help to the plaintiff in support of his case alleged. 18. It is vehemently contended by the learned counsel for the respondent-plaintiff that whatever be the lacuna in the evidence of the plaintiff, the fact remains that the defendant has not entered into the witness box to stand the test of cross examination and therefore adverse inference has to be drawn against the case of denial of execution of Ext.A1 by the defendant. It is worthy to note that the burden to prove the case alleged is on the plaintiff. Failure of the defendant in appearing before court to swear to his contention which is one of total denial of the case alleged in the plaint does not amount to admission of the case alleged in the plaint. Learned counsel for the appellant-defendant has relied on the decision of the Apex Court in Subhra Mukherjee and another v. Bharat Coking Coal Ltd. and others ((2000) 3 SCC 312). Learned counsel for the appellant-defendant has relied on the decision of the Apex Court in Subhra Mukherjee and another v. Bharat Coking Coal Ltd. and others ((2000) 3 SCC 312). The Apex Court in the said decision while dealing with burden of proof under Section 101 of the Evidence Act has held that the party relying on the transaction has to prove its genuineness first and that only thereafter would the defendant be required to dislodge such proof. In the instant case the plaintiff has miserably failed to establish that there was any agreement between himself and the defendant as alleged; that he had been put in possession of the bus under the alleged Ext.A1 agreement or that he conducted service thereof as a stage carriage bus for a period of three months or that forcible possession of the said bus was taken by the defendant on the expiry of three months; and that there was mediation attempted thereafter. In fact there is no evidence at all that anything was done by the plaintiff pursuant to Ext.A1 agreement. This highly improbabilises the existence of any such agreement as alleged and the defendant in the circumstances had no duty to enter the witness box and hence no adverse inference is liable to be drawn for that reason. 19. The plaintiff has miserably failed to establish his case alleged and hence he is not entitled to get a decree as prayed for. The plaintiff was being given a decree by the court below basing on inadmissible evidence; on mis-appreciation of the evidence and wrongly applying the rule of burden of proof. The decree granted to the plaintiff in the circumstances deserves to be reversed. In the result, allowing this appeal, we set aside the impugned decree and judgment and dismiss O.S.699 or 1994 on the file of the Sub Court, Parur with costs.