Kerala High Court
Thresia vs Johny on 17 October, 2002
Equivalent citations: AIR 2003 KERALA 97, (2003) 1 CIVILCOURTC 14, (2002) 2 KER LJ 903, (2002) 3 KER LT 722, (2003) 3 RECCIVR 157, (2003) 1 CURCC 154, (2003) 4 ICC 297
JUDGMENT R. Bhaskaran, J.
1. Defendants 1 to 3 in O.S. No. 273 of 1986 on the file of the Munsiff's Court, Thodupuzha, have filed S.A. No. 579 of 1991. Appellants 1 and 2 in that second appeal have also filed S.A. No. 464 of 1991 against the dismissal of their suit filed as O.S. No. 359 of 1986. They are the revision petitioners in C.R.P. No. 1502 of 1991 which is filed against the appellate court's judgment finding that there was no violation of the order of status quo passed by the trial court pending suit.
2. The controversy in all the suits relate to the enforcement of Ext. A6 agreement for formation of a road having a width of 14 feet over the northern boundary (after leaving six feet) of the defendants' property. The case of the appellants is that they had cut large number of trees from their property for sale with the previous permission of the respondents to the effect that the respondents will permit them to take the timber through their property. It is their further case that after the cutting of the trees the respondents changed their attitude and insisted that unless the defendants enter into an agreement to cut a road over the northern boundary of their property towards east they will not permit the defendants to take the lorries through their property. Therefore, they were compelled to execute the agreement. According to them, the agreement is unenforceable as it was vitiated by coercion and threat. The case of the respondents on the other hand is that a road was already constructed on the northern boundary of the defendants' property and when they tried to close it, O.S. No. 297 of 1986 was filed to prevent it.
3. All the three suits were tried together. The trial court by a common judgment decreed the suit filed by the appellants and dismissed the other two suits. That decision was upset by the lower appellate court.
4. Since execution of Ext. A6 agreement is not in dispute the burden is heavy on the appellants to establish that it was vitiated by coercion. The lower appellate court rightly noted the evidence given by the 1st appellant to the effect that after Ext. A6 agreement, the road work was started. But she did not do anything because she was more interested in transporting her timber and also objected only after the timber was transported.
5. Notwithstanding the finding of fact that Ext. A6 was not vitiated by any coercion, the learned counsel for the appellants vehemently argued that the attitude of the respondents clearly showed that the appellants were compelled to sign the agreement on account of the withdrawal of the permission which was orally given by the respondents to carry the lorry loads of cut timber through their property. The learned counsel submits that after the timber Was already cut, unless the appellants signed the agreement, they would not have been permitted to carry the logs and therefore they were compelled to sign the agreement. In other words, the contention is that the agreement was not the result of a free will by the appellants but it was the result of a fraud played by the respondents in withdrawing the permission after the trees were cut and unless the agreement was signed she would have lost the value of the entire timber by not being able to transport them to the main road.
6. The lower appellate court analysed the evidence of DW.2 and came to the conclusion that even according to her, her intention was to permit the construction of the road after the agreement but block it after her timber was transported. Therefore, it was not a case where she was coerced but she wanted to flout the agreement after her purpose was over. The Commissioner has reported the existence of the road on the northern side of the appellants' property.
7. The trial court has held that after agreeing to allow the defendants to take their timber through the property of the plaintiff, it was not proper for them to insist on executing an agreement after the trees were cut and before it was so taken. Even assuming that these allegations are correct it is to be considered whether it will amount to coercion under Section 15 of the Contract Act. The defendants have no case that the plaintiffs agreed for removal of the timber through their property for any consideration. It was an oral agreement. Such an agreement without consideration is void under Section 25 of the Indian Contract Act unless it is in writing and registered and is made on account of natural love and affection or is a promise to compensate for something done or is a promise to pay a time barred debt.
8. Taking one's timber through somebody else's property is not a matter of right. Therefore, if the owner of the land objects to such taking it cannot be termed as unlawful detaining or threat to detain any property. It is in this context that the enforceability of the earlier permission set up by the defendants becomes relevant. If that permission was not one enforceable in law can it be said that there was unlawful detention or threat to detain the timber of the defendants. For Section 15 of the Contract Act to be attracted the act complained of and which was the reason for the entering into of the agreement must have been unlawful in the sense that it was an offence punishable under the Penal Code or any other illegal activity. The word "unlawful" in Section 15 preceding to the word "detaining" is intended for the words "threatening to detain" also. Therefore, it is difficult to accept the argument of the learned counsel for the appellants that the withdrawal of permission which was without any condition would amount to an unlawful threat to detain the timber of the defendants. The learned counsel for the appellants relied on the decision of the Madras High Court in Muthiah v. Karuppan, AIR 1927 Madras 852. In that case, the agent who was dismissed from service refused to handover the account book to his successor unless the principal executed a release deed. It was held that the release deed was invalid as it was obtained under coercion. Undoubtedly the withholding of the account book by the agent was illegal as it was the property of the principal. Therefore, that decision has no application in the present case.
9. C.R.P. No. 1502 of 1991 is filed against the allowing of C.M.A. No. 33 of 1989 by which the appellate Court set aside the punishment imposed upon the plaintiffs for the alleged violation of the order of status quo. It was found by the appellate court that there was no evidence acceptable to punish them as the main witness was in court when the alleged violation took place. Even if the evidence available is accepted, it only went to the extent of stating that the plaintiffs were mere onlookers for the violation. Therefore, on any account they were not liable to be punished. Violation of order of status quo is a serious matter and unless there is clear evidence, the person cannot be punished on mere surmises.
In view of the above discussion, the second appeals and the revision are dismissed.