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2025 DIGILAW 10 (KER)

Annie, W/o. Thomas v. Fouja Jamal, W/o. Jamal

2025-01-06

A.BADHARUDEEN

body2025
JUDGMENT : (A. Badharudeen, J.) This Regular First Appeal is at the instance of the plaintiff in O.S.No.442/2005 on the files of the Additional Sub Court, North Paravur. The appellant assails decree and judgment in the above case, dated 10.12.2008. 2. Heard the learned counsel for the appellant/plaintiff as well as the learned counsel appearing for the respondent Nos.1 and 2/defendant Nos.1 and 2, in detail. Perused the verdict under challenge and the records of the trial court. 3. The parties in this appeal shall be referred as 'plaintiff' and 'defendants' for brevity and convenience, hereafter. 4. The plaintiff filed the present suit to declare sale deed No.3423/2005 as null and void and also sought performance of contract, dated 27.9.2001, alleged to be executed by the 1st defendant in favour of the plaintiff to sell the plaint schedule property for a total consideration of Rs.3 Lakh on accepting Rs.25,000/-(Rupees Twenty Five Thousand only) as advance sale consideration. According to the plaintiff, the original agreement was lost and a copy of the same was let in evidence. 5. Defendant Nos.1 and 2 filed written statements. Others did not file written statement. The contention raised by defendant Nos.1 and 2 as extracted in paragraph No.4 of the trial court judgment reads as under: 4. The suit is not maintainable either in law or on facts. Plaintiff and her father are simultaneously prosecuting cases for specific performance in two courts respect of the very same schedule property. But O.S.No.65/2003 of Munsiff Court, Aluva was dismissed. Secondly father sought for the restoration of the same. The original of the suit document is not produced. It is with the plaintiff. After relinquishing all the rights arising out of alleged agreement at the fag-end the plaintiff has approached the court with unclean hands and it is frivolous allegations. The alleged karar dated 27-9-2001 was returned to the first defendant years back and there is no subsisting karar between the plaintiff and the first defendant in respect of plaint schedule property which has been sold to the second defendant years back. Plaintiff has come to the court only with a photo copy of the agreement. This is only to help the third defendant, her father who is still prosecuting O.S.No.65/2003 before the Munsiff's Court, plaintiff and her sister, 4th defendant had already received back the advance amount. Plaintiff has come to the court only with a photo copy of the agreement. This is only to help the third defendant, her father who is still prosecuting O.S.No.65/2003 before the Munsiff's Court, plaintiff and her sister, 4th defendant had already received back the advance amount. Therefore there is no necessity for any readiness and willingness in respect of the agreement which is not existing. Defendant has never requested on 5-9-2002 and 29-2-2002 or any other subsequent dates to do any act of measurement or any other things. Plaintiff was unmarried on those days and she was residing with her father. The third defendant who had another litigation with another concocted karar. Such karar was not in existence so as to be acted upon. Plaintiff has married only recently and as such she is well aware of the details of O.S.No.65/2003. The contention that plaintiff gave the agreement on undertaking that after taking photo copy it would be returned is a false contention. The date of karar is 27-9-2001. It is quite unbelievable that the plaintiff kept silence till now though the karar in original was with the first defendant. The karar was never sought to be returned to the plaintiff and all the allegations in this para is wilfully made to create a case. Such a karar is not inexistence. So it cannot be complied with. Second defendant is not attempting to sell it. The property is in the exclusive possession and enjoyment of the second defendant and nobody other than second defendant is having right, title and possession in the schedule property. The sale effected in between the first and second defendant is genuine and it binds all. The sale deed is not liable to be declared null and void. There is no cause of action or right of action for the plaintiff. The reliefs sought are only to be disallowed. So the suit may be dismissed with costs of the defendant. 6. On the above pleadings, the trial court raised the following issues: 1. Whether the document No.3423/2005 of S.R.O. Chengamanad is null and void and not binding upon the plaintiff? 2. Whether the plaintiff is entitled for a decree of specific performance? 3. Whether the plaintiff is entitled for a decree of prohibitory injunction? 4. Reliefs and costs. 7. The trial court recorded evidence. Whether the document No.3423/2005 of S.R.O. Chengamanad is null and void and not binding upon the plaintiff? 2. Whether the plaintiff is entitled for a decree of specific performance? 3. Whether the plaintiff is entitled for a decree of prohibitory injunction? 4. Reliefs and costs. 7. The trial court recorded evidence. PW1 was examined and Exts.A1 and A2 were marked on the side of the plaintiff. No oral evidence let in by the defendants and documents Exts.B1 to B10 were marked on the side of the defendants. 8. Finally, the trial court found that genuineness of Ext.A1 agreement and the bona fides of the plaintiff's case are in doubt and accordingly, the suit was dismissed. 9. On hearing both sides, the points that arise for consideration are: 1) Whether the trial court went wrong in non-suiting the plaintiff on the finding that Ext.A1 agreement was not genuine? 2) What is the inference to be drawn when the plaintiff in a suit for specific performance of contract sues as an indigent person where his/her readiness and willingness to perform the contract is clubbed with availability of balance sale consideration to execute the sale deed? 3) Whether the decree and judgment of the trial court would require interference in any manner? 4) Reliefs and costs. 10. In this matter, the suit was filed as on 5.10.2005 by the plaintiff, seeking performance of contract and according to the plaintiff, the 1st defendant executed an agreement on 27.9.2001 to sell the plaint schedule property for a total consideration of Rs.3 Lakh, out of which, Rs.25,000/-(Rupees Twenty Five Thousand only) was paid in advance by the plaintiff. The case of the plaintiff was that, the 1st defendant agreed to execute the sale deed as and when demanded. But, he failed in performing the terms of the contract and accordingly, the present suit has been filed. 11. The specific case of the plaintiff further is that, on the date of execution of the agreement itself, the 1st defendant had taken back the agreement in original from the plaintiff on promising to return the same after taking a photocopy. But the 1st defendant did not return the same and therefore, the plaintiff was not in possession of the original of sale deed. Accordingly, copy of the same was let in evidence as Ext.A1. 12. But the 1st defendant did not return the same and therefore, the plaintiff was not in possession of the original of sale deed. Accordingly, copy of the same was let in evidence as Ext.A1. 12. The defendants raised a specific contention alleging that in a sale agreement of similar nature, the father of the plaintiff had filed a suit as O.S.No.65/2003 and on merits, that suit was dismissed and the present suit was one filed ignoring the said decree and judgment. 13. Here, admittedly, the plaintiff is not in possession of the original sale agreement. That apart, during cross examination, the plaintiff failed to substantiate the fact that she was having balance consideration or capacity to pay the balance consideration, as agreed. It is relevant to note that the plaintiff filed the suit itself as an indigent person and filed this appeal also as an indigent person. It is the well settled law that in order to get decree of specific performance, a discretionary relief, the plaintiff shall be always ready and willing to perform his part of contract and one among the most essential ingredients in this regard is the capacity of the plaintiff to pay the balance consideration. Here, admittedly, the balance consideration would come to Rs.2,75,000/-(Rupees Two Lakh Seventy Five Thousand only). Even though the plaintiff sought execution of the sale deed on the assertion that she had the balance sale consideration, filing of the suit as an indigent person and proceeding with the same as an indigent person without having capacity to pay Rs.28,600/-(Rupees Twenty Eight Thousasnd Six Hundred only) as court fee would lead to an inference that the plaintiff did not have the balance sale consideration to execute the sale deed as part of her readiness and willingness to perform Ext.A1 contract of sale. Reading the evidence of PW1 and the manner, in which, the plaintiff proceeded with the suit and appeal would show that she did not have any capacity to pay the balance consideration. Failure on the part of the plaintiff to produce the original sale agreement also would cast shadow of doubt on the genuineness of the case and thereby, the trial court rightly found that the genuineness and bona fides of Ext.A1 are not established. 14. Failure on the part of the plaintiff to produce the original sale agreement also would cast shadow of doubt on the genuineness of the case and thereby, the trial court rightly found that the genuineness and bona fides of Ext.A1 are not established. 14. In view of the above discussion, it has to be held that Ext.A1 is not proved by the plaintiff so as to get the reliefs sought for. As a sequel thereof, the relief sought for to declare a valid sale deed executed by the 1st defendant in favour of the 2nd defendant as null and void, and the other reliefs must fail. On re-appreciation of evidence, nothing is available in this matter to interfere with the finding of the trial court and therefore, the trial court verdict is only to be confirmed. Thus, this appeal is liable to fail. 15. In the result, this appeal is dismissed. Considering the facts of this particular case, there is no reason to disallow cost of the defendants to be paid by the plaintiff. Accordingly, cost of the defendants in this appeal also is allowed. All interlocutory orders stand vacated and all interlocutory applications pending in this appeal, stand dismissed. 16. Since this appeal has been filed as C.M.C.P. and this Court allowed the appellant/plaintiff to proceed with the appeal without paying court fee, as an indigent person, she is bound to pay court fee. The appellant/plaintiff is directed to pay court fee of Rs.28,600/-(Rupees Twenty Eight Thousand Six Hundred only) within a period of one month from today and on failure, Registry is directed to forward a copy of the decree to the District Collector concerned to realise the same from the appellant/plaintiff, as per law, without fail, at any rate within a period of two weeks, on completion of one month passed to pay the court fee, with specific direction to the District Collector to realise the court fee, within three months from the date of receipt of a copy of the decree. Registry is also directed to forward a copy of this judgment to the trial court, forthwith.