Simi Salim Aged 41 Years vs M/S. Tip Top Furniture Industries on 15 January, 2010

[Cites 51, Cited by 0]

Kerala High Court

Simi Salim Aged 41 Years vs M/S. Tip Top Furniture Industries on 15 January, 2010

The appellants in R.F.A. No.699/2012 are the defendants 1 and 2 and the appellant in R.F.A. No.859/2012 is the third defendant in O.S.No.22/2008 of the Subordinate Judge's Court, Attingal and the respondents 1 to 3 in both the appeals are the plaintiffs.

2. In the suit as originally filed the plaintiffs sought for a decree for mandatory injunction in relation to two alleged agreements with defendants 1 and 2 dated 1.1.2006 and 1.7.2007. They sought for a permanent prohibitory injunction also. It was later amended as one for specific performance of the agreement entered into between the plaintiffs and defendants. The first plaintiff is a partnership firm engaged in the manufacture and marketing of high value wooden furniture. The schedule property is a commercial building complex having three floors situated in Pallippuram Village in Thiruvananthapuram Taluk and Thiruvananthapuram District of which the first and second defendants are the owners. The main RFA Nos.699 & 859 of 2012 -2- dispute raised by the plaintiffs appears to be that the defendant had initially agreed to rent out the same to them but retracted their steps later. The third defendant was subsequently impleaded in the suit when defendants 1 and 2 inducted him as a tenant in the said building.

3. The detailed averments in the plaint give the background of the grievance of the plaintiffs thus: The defendants started construction of a three storied building after obtaining permit from the local Panchayat. Later due to financial constraints they approached the plaintiffs for assistance. The Managing Partner of the first plaintiff firm and the second defendant met on 29.12.1995 to negotiate the chance for a contractual relationship for completion of construction and to allocate the space for business. According to the plaintiffs, the second defendant agreed to complete the construction by 30th April, 2006 and to hand over 17500 sq. ft. carpet area on certain terms.(5500 sq. in the ground floor at Rs.5/- per sq. ft., 6000 sq. ft. in the first floor at Rs.4/- per sq. ft. and 6000 sq. ft. in the second floor at Rs.3/- per sq. ft.).

4. As far as the works to be executed for the interior parts of the building are concerned, it is pleaded that the plaintiffs agreed to do the RFA Nos.699 & 859 of 2012 -3- furnishing work as well as light fittings. The defendants had to provide electrification work, shutter work and also the necessary facilities for installing lift for loading and unloading the furniture products on the back side of the building. An agreement was entered into on 1.1.2006 incorporating the decisions taken on 29.12.2005 and the original is kept by the defendants and only copy is retained by the plaintiffs. When delay occurred in the matter, the plaintiffs used to contact the defendants and it was informed that the financing bank, viz. Housing Development Finance Corporation (for short "H.D.F.C.") is reluctant to give advance money by way of a loan as they were doubtful about the repaying capacity of the defendants. It is averred that as required by the defendants, the plaintiffs issued six signed cheques for Rs.60,000/- each to the HDFC, Vazhuthakkad, Trivandrum against the rent payable and gave a letter of undertaking willing to be surety for the loan transaction. They also obtained another Demand Draft for Rs.4 lakhs from the plaintiffs on 22.11.2006 agreeing to adjust it to the rent payable by the plaintiffs on occupation of the premises. This was followed by an agreement entered into by the plaintiffs and the defendants with the HDFC Bank, Trivandrum and it is stated that additional loan RFA Nos.699 & 859 of 2012 -4- amounts were sanctioned by the Bank thereafter. The completion of construction of the building even though was delayed, later an agreement was entered into on 1.7.2007 whereby the defendants agreed to lease out the building for a period of fifteen years with effect from the date of completion of the interior work and finally it was agreed that the building would be handed over to the plaintiffs on or before 31.8.2007 after finishing the entire structural work for the purpose of making interior work. The plaintiffs had agreed to do all necessary interior decorations within four months. Certain other conditions are also specified in the said agreement. On 21.7.2007 the second defendant requested the plaintiffs to issue a cheque for Rs.1 Lakh to M/s. H.R. Thomson India Limited which was also made. It is the case of the plaintiffs that with the support of the plaintiffs, the financing bank advanced money by which the construction was completed by the defendants. It is also stated that they entered into another agreement with one Mr. Yakoob for making necessary interior fabrication, glass fixing, etc. in the show room of the plaintiffs who started the work also and the total quoted amount for the work was Rs.23,22,000/-. They also in turn purchased the aluminium panel and other materials necessary RFA Nos.699 & 859 of 2012 -5- for effecting the interior decoration by various invoices. It is at that stage the plaintiffs got information that the defendants 1 and 2 are trying to wriggle out of the agreements and to induct another tenant which led to the filing of the suit, after the second defendant informed the plaintiffs that the rent fixed is lower than the prevailing rate for commercial space in the locality.

5. The suit was filed apparently during the Christmas vacation and the plaint was presented before the vacation court (District Court), Thiruvananthapuram. It is the case of defendants 1 and 2 that it was filed on 24.12.2007 with the caption "to be filed before the Sub Court, Thiruvananthapuram" but the word "Thiruvananthapuram" was seen struck off by ink and the word "Attingal" stood incorporated therein.

6. Defendants 1 and 2 filed written statement in I.A.No.3636/2007 wherein, want of territorial jurisdiction and pecuniary jurisdiction were also raised and it was contended that as the property is situated in Pallippuram Village which is coming within the area of jurisdiction of Attingal Sub Court, it cannot be proposed to be filed in Sub Court, Thiruvananthapuram. Going by the endorsement in the plaint dated 9.1.2008, it was returned for RFA Nos.699 & 859 of 2012 -6- "want of jurisdiction". It appears that the plaintiffs presented the plaint before the Sub Court, Attingal on 23.1.2008 and the court accepted the same and summons was ordered.

7. Detailed arguments have been addressed by both sides with regard to the disputes over the procedures followed by the Sub Court, Attingal and with regard to the maintainability of the suit in the Sub Court itself. We will advert to the same later.

8. Defendants 1 and 2 had appeared through counsel and filed vakalath. The court had proceeded to hear certain interlocutory applications and it appears that the plaintiffs had also approached this Court in an original petition filed as W.P.(C) No.24352/2008 for a speedy disposal of the interlocutory applications. The matter was finally posted to 5.1.2010 for enquiry on which date defendants 1 and 2 did not appear through counsel and they were made ex-parte. The plaintiffs filed an affidavit and Exts.A1 to A65 documents were marked. Learned counsel for the third defendant cross examined the plaintiff. Exts.C1 and C2 were also marked. Arguments were heard on 7.1.2010 and the suit was decreed on 15.1.2010.

9. Between the parties, there were other proceedings also in the RFA Nos.699 & 859 of 2012 -7- meanwhile. C.M.A. No.16/2009 filed against the order in I.A.No.1035/2008 was disposed of by the Addl. District Court-II, Thiruvananthapuram on 10.7.2009 wherein, after dismissing the appeal, a direction was given for expeditious disposal of the suit within a period of six months from the date of the judgment. I.A. No.1035/2009 was an application filed by the plaintiffs seeking for a temporary injunction restraining the defendants from transferring possession of the plaint schedule building and from inducting any other person therein, etc.

10. Against the refusal of the court to set aside the order making defendants 1 and 2 ex-parte, they approached this Court by filing F.A.O.No.4/2012 which was dismissed by a Division Bench of this Court. It was filed with a petition to condone delay also. Even though the matter was taken up before the Apex Court, S.L.P.No.15380/2012 was also dismissed.

11. R.F.A. No.699/2012 is filed by the defendants 1 and 2 with a petition for condoning delay as C.M.Appl. No.608/2012, wherein the prayer is to condone the delay of 856 days in filing the appeal. They have contended that they knew about the decree only after the notice in the RFA Nos.699 & 859 of 2012 -8- execution petition was received and a petition to set aside the ex-parte decree was filed as I.A. No.1362/2010 which was dismissed by the trial court on 4.8.2011. F.A.O.No.4/2012 filed before this Court was also dismissed which was challenged in S.L.P.No.15380/2012 and the same was also dismissed on 27.7.2012. The contention raised is that they were bonafide prosecuting legal proceedings during these periods. When the appeal came up before a Division Bench, notice was ordered by special messenger on the application for condoning delay and an order was passed on 3.9.2012 condoning the delay. After noticing that none appeared for the respondents, the Division Bench in the order stated that sufficient cause has been shown. The appeal was admitted and balance court fee was directed to be paid within two weeks. Execution of the decree was also stayed by this Court by a separate order dated 10.9.2012. Later, the plaintiffs filed R.P.No.909/2012 in C.M.Appl. No.608/2012 seeking review of the order condoning the delay. The Division Bench was of the view that since the plaintiffs had appeared on the next day, even though the date of appearance was on 3.9.2012, for defending the application for condoning the delay, they did not get an effective opportunity and accordingly the review petition was RFA Nos.699 & 859 of 2012 -9- allowed and the order dated 3.9.2012 was recalled. However, preserving in tact the order admitting the appeal and the interim orders in that appeal, C.M.Appl. No.608/2012 was posted for further consideration on 18.10.2012. This order was passed on 15.10.2012 in R.P.No.909/2012. In R.F.A. No.859/2012 also there is a delay in filing the appeal. The application for condoning delay pending in both appeals have been heard along with the appeals.

12. We heard learned counsel for the appellants in R.F.A.No.699/2012, Shri G.S. Reghunath, Shri Pradeep, learned counsel for the appellant in R.F.A. No.859/2012 and learned Senior Counsel for the plaintiffs/respondents in both the appeals, Shri S. Sreekumar.

13. At the outset, Shri G.S.Reghunath submitted that mainly on four grounds the judgment and decree will have to go. (a) The decree was obtained by practicing fraud on the court; (b) It is passed without jurisdiction; (c) The settled principles under Section 20 of the Specific Relief Act have not been adhered to; and (d) It is a void decree.

14. With regard to the allegation of fraud, learned counsel elaborated his arguments thus: It is submitted that the suit was filed before the RFA Nos.699 & 859 of 2012 -10- vacation court at Thiruvananthapuram with the caption "to be filed before the Sub Court, Thiruvananthapuram". Subsequently, the word "Thiruvananthapuram" was scored off and changed as "Attingal". It was filed as I.A.No.3636/2007 and the valuation shown was Rs.25,000/- towards relief No.(i) and Rs.500/- towards relief No.(ii). The reliefs sought were for mandatory as well as prohibitory injunction. By relying upon Section 11 of the Civil Courts Act, it is submitted that going by the provisions therein, the suit will have to be filed before the Munsiff's Court, as the same is valued only at Rs.25,000/-. It is therefore submitted that the Sub Court could not have issued summons but should have returned the plaint for presenting before the Munsiff's Court, which was not done apparently due to the pressure exerted by the plaintiffs. It is submitted that the defendants, in paragraph 9 of the written statement filed in I.A. No.3636/2007 before the vacation court itself, had contended that the Sub Court at Thiruvananthapuram has no jurisdiction. It is submitted that in the light of Section 15 of the Code of Civil Procedure, 1908, the Sub Court had no jurisdiction to accept the plaint and therefore acceptance of the plaint and issuance of summons are really bad for want of jurisdiction. RFA Nos.699 & 859 of 2012 -11-

15. With regard to the amendment of the plaint later which was allowed by the Sub Court, adding more reliefs as well as the increase of valuation showing it as Rs.8,34,000/- as annual rental value and on the alternative prayer seeking damages at Rs.36,48,545/- learned counsel for the appellants submitted that if the suit had been really filed before the Munsiff's Court and when such an amendment application is filed, the said court would have returned the plaint as the plaint had to be presented before the Sub Court. Since the Sub Court had no jurisdiction initially to entertain the suit, the order passed in I.A. No.1814/2008 allowing amendment is also without jurisdiction. According to the learned counsel, in the written statement filed before the vacation court, the defendants had undertaken to rent out the building to the plaintiffs, provided rent as per prevailing rate and enhancement per year is approved, but contended that the agreement is void as a lease deed beyond one year is compulsorily registrable. It is submitted that by taking advantage of this undertaking, the plaintiffs filed the suit before the Sub Court, Attingal. Thus, it is submitted that the court was misled by the plaintiffs which itself amounts to fraud. Therefore, learned counsel submitted that in respect of all matters, fraud has RFA Nos.699 & 859 of 2012 -12- been committed by the plaintiffs and therefore on that ground itself the decree will have to be declared as void. Learned counsel relied on the following decisions: Sree Ramaiah Venkiteshiah and Co. v. Sundareswaran and others (1967 KLJ 237), S.P. Chengalvaraya Naidu (dead) by Lrs. v. Jagannath (dead) by L.Rs. (AIR 1994 SC 853), Indian Bank v. Satyam Fibres (India) Pvt. Ltd. {(1996) 5 SCC 550} and A.V. Papayya Sastry and others v. Govt. of A.P. and others {(2007) 4 SCC 221} to drive home the effect of fraud in legal proceedings.

16. With regard to the challenge against the decree and judgment on the merits, learned counsel further submitted that the decree as now granted is one directing defendants 1 and 2 to perform their part of the agreements dated 1.1.2006 and 1.7.2007 (Exts.A65 and A5) and execute a registered lease deed leasing out the plaint schedule building to the plaintiffs as agreed in the agreement dated 1.7.2007 (Ext.A5) for accommodating the show room of the plaintiffs therein. It is submitted that Ext.A65 is only a photo copy. Ext.A5 is only signed by the plaintiffs and the second defendant, and first defendant has not signed it at all and its last page is incomplete, witness schedule is absent and the schedule of property is not RFA Nos.699 & 859 of 2012 -13- there. There is no provision to execute a lease deed in Ext.A5. It is submitted that no suit will lie on the basis of an incomplete document. Apart from the same, it is submitted that when the term of the lease is shown as 15 years, the agreement is compulsorily registrable and Ext.A5 having not been registered, it cannot be used in evidence and made part of the decree.

17. Learned counsel relied upon a decision of the Apex Court in Anthony v. Ittoop (2000 (3) KLT 123 - SC) on that point. It is next submitted that both the defendants are co-owners and a document unsigned by one co-owner even though signed by the other co-owner cannot bind the other. He relied upon a decision of this Court in Rahelamma Koshy v. Yohannan and others (1986 KLT 1130) in that regard. Regarding the non acceptability of the photo copies also, he relied upon a decision of this Court in Thampy T.V. v. Varkey Emmanuel (2005 (3) KLJ 144) and Section 65 of the Evidence Act.

18. Learned counsel submitted that the plaintiffs' case is that the defendants are in possession of the originals of the documents, but they failed to file a petition calling upon the defendants to produce them. That RFA Nos.699 & 859 of 2012 -14- was the only method by which they should have proceeded. But herein, learned counsel submitted that the defendants have denied the existence of the documents also. It is also pointed out that Exts.A62 and A63 are also photo copies alone.

19. With regard to the decree granted for specific performance of the agreements and to execute a registered lease deed, it is submitted by the learned counsel for the appellants that the same is also unsupportable for various reasons. It is submitted that it is a case where the plaintiffs have played fraud on the court and therefore going by the well settled principles that the party seeking specific performance should come to the court with clean hands, the suit can only be dismissed. He relied upon the principles stated by the Apex Court in various decisions relating to the interpretation of Section 20 of the Specific Relief Act. Learned counsel further submitted that even if there is no written statement, the Apex Court has held that an ex-parte decree cannot be granted automatically. It is submitted that a reading of the judgment will show that there is no discussion on any of the aspects either with regard to the terms of the alleged agreements between the parties or consideration for the same and there is no finding with regard RFA Nos.699 & 859 of 2012 -15- to the alleged rent fixed also. It is submitted that the written statements filed by the defendants were available among the records and there is no mention about the written statements in the judgment. It is therefore submitted that the same is vitiated and he relied upon the following decisions in that context: Thomas P. Abraham v. Aleyamma Abraham (2003 (3) KLT 864) and Ramappa Gowda C.N. v. C.C. Chandregowda (dead) by Lrs. and another (2012 KHC4235).

20. Importantly, learned counsel submitted that there is another vitiating aspect which calls for consideration, in that no issues have been mentioned in the judgment by the trial court even though in the B dairy it is stated that issues have been framed, going by the endorsement on 1.12.2009. It is submitted that when there is already a written statement it is incumbent on the court to frame issues but the same is absent going by the judgment. After amendment of the plaint was allowed, no chance was given to file additional written statement. The court below has not considered the question whether the plaintiffs are liable to be granted a decree for specific performance and the hardship of the defendants has not been evaluated at all. Even in the proof affidavit there is no averment that RFA Nos.699 & 859 of 2012 -16- the plaintiffs are ready and willing to execute the lease deed in question.

21. Apart from the same, it is submitted that there is no evidence on the part of the plaintiffs to show anything with regard to the spending of amounts for interior works and furnishing. None of the invoices have been properly proved, as these have been marked enbloc, without examining anybody who had issued them. The third defendant had also denied the agreements pleaded. Even in the case of an unsustainable ground or want of any defence by the defendants it cannot be a ground to deny equitable consideration. In that context, he relied upon the decision of the Apex Court in Nirmala Anand v. Advent Corporation (P) Ltd. And others {(2002) 5 SCC 481} and that of this Court in Adimakutty Hydu Ali v. Ambujam ( 2003 (2) KLT 328 ). It is submitted that the dismissal of the application under Order IX Rule 13 C.P.C. will not preclude defendants 1 and 2 from challenging the decree passed on merits and in that context, he relied upon the decision of the Apex Court in Bhanu Kumar v. Archana Kumar (2005 (1) KLT 456) and that of this Court in Ajith Mathews v. Sheelamma Thomas (2011 (2) KHC 252). It is submitted that the learned counsel for the third defendant had cross examined the plaintiffs but not RFA Nos.699 & 859 of 2012 -17- even a discussion regarding the same is there in the judgment of the court below.

22. As far as the prayer regarding the condonation of delay occurred in the appeal filed by the defendants is concerned, even though they were made ex-parte earlier, the following decisions were relied upon: Apangshu Mohan Lodhi and others v. State of Tripura and others {(2004) 1 SCC 119}, State of Karnataka v. Moideen Kunhi (dead) by Lrs. and others (AIR 2009 SC 2577), Improvement Trust, Ludhiana v. Ujagar Singh and others {(2010) 6 SCC 786) and Ganesharaju S. (D) Thr.L.Rs. and another v. Narasamma (D) Thr. L.Rs. and others (2012 KHC 4227) and Adimakutty Hydu Ali v. Ambujam (2003 (2) KLT 328), to contend that a liberal view ought to be taken, especially the appellants have a very good case on merits.

23. Learned counsel for the appellants submitted that the appellants have explained in detail the reasons for the delay which has occurred in filing the appeal, in the affidavit filed in support of the application for condoning delay. Actually, according to the learned counsel, since the appeal has been admitted and the interim order was kept in tact, the RFA Nos.699 & 859 of 2012 -18- plaintiffs cannot contend for dismissing the application for condoning the delay. It is submitted that the appellants were bonafide prosecuting the application for setting aside the ex-parte decree and by filing appeal against it and further, in moving the Special Leave Petition before the Supreme Court. In that context, he relied upon a decision of the Apex Court in Naubat Ram Sharma v. Additional District Judge II, Moradabad and others (AIR 1987 SC 1352). According to the learned counsel, a liberal view will have to be taken on the application for condoning delay.

24. Learned counsel for the appellants in R.F.A. No.859/2012 supported the arguments of Shri G.S. Reghunath, learned counsel appearing for the appellants in R.F.A. No.699/2012. It is submitted by referring to the plaint and written statement, that no issue has been framed by the trial court and no sufficient opportunity was given to adduce evidence. Alternatively, it is contended that the court is empowered to fix a reasonable amount of compensation if the plaintiffs are actually entitled to succeed in the suit, as already the appellant in R.F.A. No.859/2012 has taken the premises for rent, invested huge amounts and is doing business.

25. Summing up his arguments, Shri G.S. Reghunath, learned RFA Nos.699 & 859 of 2012 -19- counsel submitted that the whole exercise done by the court below is also improper. The documents marked are not in serial order and the persons who issued the invoices, have not been examined and therefore there is no material to grant a decree. There is no evidence that the first agreement was supported by consideration and regarding part performance also, there is no evidence. Readiness and willingness have not been pleaded and not spoken to in evidence also. The acceptance of photo copies in evidence is also bad in law. It is submitted that being a question of law, it can be raised by the appellants at any time. According to the learned counsel, the judgment and decree will have to be set aside and the matter will have to be sent back for fresh consideration after affording opportunity to both sides to adduce evidence. The following decisions are also relied upon: Muhammed v. Chandrika and another (2010 (2) KLJ 740), Saradamani Kandappan and another v. S. Rajalakshmi and others (2011 KHC 4554) and Susheela (Died) & another v. T.M. Muhammedkunhi (2012 (1) KLJ 780).

26. In reply to the various points, learned Senior Counsel Shri S. Sreekumar appearing for the respondents at the outset, submitted that the allegation of fraud in presenting the plaint in the vacation court as well as RFA Nos.699 & 859 of 2012 -20- before the Sub Court, Attingal, is totally without any basis. It is submitted that the valuation of the suit is correct in the light of Section 50(iii) of the Court Fees Act. Even going by Section15 C.P.C., the suit has to be filed in a court lowest in grade, which herein is the Sub Court, going by the valuation. It is further submitted that in the light of Section 21 C.P.C. an objection as regards the pecuniary jurisdiction can be entertained in appeal only if it was raised at the earliest point of time and if it is shown that there is failure of justice, which are absent here. Going by Section 54 of the Court Fees Act, the appellants will have to prove prejudice which has been caused to them so as to pursue their objection with regard to pecuniary jurisdiction. The following decisions are relied upon in this context:

"Kiran Singh and others v. Chaman Paswan and others (AIR 1954 SC 340), Hira Lal Patni v. Kali Nath (AIR 1962 SC 199), Subhash Mahadevasa Habib v. Nemasa Ambasa Dharmadas (D) By Lrs. And others (AIR 2007 SC 1828) and Hubert Peyoli v.

Abusali (2007 (4) KLT 392).

Learned Senior Counsel further submitted that opportunity was granted to the defendants which is evident from the fact that they had also filed written statement initially before the vacation court as objections on 31.12.2007 and RFA Nos.699 & 859 of 2012 -21- a petition for amending the written statement was filed as I.A.No.1880/2008 which was rejected on 28.11.2008 and the fact is that there was appearance for the parties till the matter was posted for trial. It is submitted that in paragraph 13 of the written statement an undertaking has been made. But the defendants inducted the third defendant while the said undertaking was in force. It is submitted that the application for amendment filed by the plaintiffs to amend the plaint showing higher valuation also has been rightly allowed by the trial court which had the pecuniary jurisdiction and as regards the subject matter of the suit. There was a direction in C.M.A. No.16/2009 to dispose of the suit and the C.M.A.16/2009 was disposed of after hearing both sides. It is submitted that the petition to set aside the ex-parte decree was dismissed which was confirmed in F.A.O.No.4/2012 and he referred to the details of the said judgment to show that the appellants were aware of the pendency of the suit. It is therefore submitted that the plea that the counsel was absent cannot be raised now and the merits of the decree and judgment alone can be considered by this Court. Learned Senior Counsel submitted, by referring to the pleadings in the plaint as well as in the written statement, that the parties were not at RFA Nos.699 & 859 of 2012 -22- variance in respect of the main averments concerning advance of money and work executed and thus there was no dispute on the major pleas raised in the plaint. But violating the undertaking they tried to wriggle out of the agreement. It is submitted that in the light of the absence of a serious contest, going by Rule 1 Order 14 C.P.C. issues were not required to be framed. Learned Senior Counsel also referred to in detail the contents of Exts.A1, A2, A5 and A65. It is submitted that these will show that at the instance of the defendants the plaintiffs had signed the cheques and issued them to the HDFC Bank and had entered into various transactions.

27. It is further stated by the learned Senior Counsel that non framing of an issue is only an irregularity, and going by Section 99 C.P.C., it cannot result in a remand and he also referred to Order 14 Rule 1 and Order 15 Rule 1 C.P.C. and submitted that it is not an irregularity affecting the merits. He relied upon the following decisions in that context.

Mussumat Mitna v. Syud Fuzi Rub (13 M.I.A.573), Nedunuri Kameswaramma v. Sampati Subba Rao (AIR 1963 SC 884), Shri Radha Gobinda Jew and others v. Sm. Kewala Devi Jaiswal and others (AIR 1974 Cal. 283), Smt. Katya Bala Dasi RFA Nos.699 & 859 of 2012 -23- and another v. Nilmoni Pakhira and others (AIR 1987 Cal.

248), Khem chand v. Hari Saran and others (AIR 1988 H.P.10) and Abdul Qadir v. Rashidan (2012 All. L.R. 241)."

It is further submitted that defendants 1 and 2 are not entitled to get a fresh opportunity since the order rejecting the application to set aside the ex-parte decree has become final and therefore there is no purpose in remanding the matter at all.

28. It is submitted that the minutes of the meeting held on 29.12.2005 is supported by Ext.A63 and the agreement on 1.1.2006 is evident from Ext.A62 which provided a period upto 30.4.2006 to complete the construction of the structure. Since they did not complete and hand over the structure for doing interior decoration, Ext.A1 letter dated 16.6.2006 was issued. It is submitted that Exts.A62 and A63 have not been denied in the written statement. Further, Ext.A2 was issued by the plaintiffs forwarding cheques to the HDFC and A4 is the letter addressed to the second defendant by the plaintiffs. Ext.A5 is the agreement dated 1.7.2007. Further, the plaintiffs paid Rs.4 lakhs on 22.11.2006.

29. It is submitted by the learned Senior Counsel that the absence of RFA Nos.699 & 859 of 2012 -24- any schedule of property and the building complex in Ext.A5 is not material in the light of these items of evidence. It is also submitted that by Ext.A6 the plaintiffs paid Rs.1 lakh to the defendants which was not specifically denied. Exts.A7 to A10 will show that the plaintiffs have entered into an agreement with one Yakoob for doing the work of interior works and decoration, etc. and Exts.C1 and C2 will show the status of the building also.

30. It is submitted that no injustice can be pleaded by defendants 1 and 2 since the third defendant is enjoying the property and an amount of about Rs.36 lakhs is with the defendants as per the agreement and the plaintiffs are thus totally deprived of the use of the building,

31. Learned Senior Counsel further submitted that the application for condoning the delay filed in these appeals even though states about the attempts made by the appellants in R.F.A.No.699/2012 to set aside the ex parte order, the filing of appeal before this Court and S.L.P. before the Supreme Court, they cannot take recourse to Section 14 of the Limitation Act. It is submitted that defendants 1 and 2 have left it to the third defendant to defend the suit and only after the suit is decreed, they have RFA Nos.699 & 859 of 2012 -25- come up in appeal stating that they were not heard. He also relied upon the decisions of the Apex Court in D.P.Chadha v. Triyugi Narain Mishra and others {(2001) 2 SCC 221) and Balwant Singh (dead) v. Jagdish Singh and others {(2010) 8 SCC 685}, in this context.

32. In reply it is submitted by the learned counsel for the appellants, Shri Reghunath that initially the main prayer was only for a declaration and injunction and in that context, he referred to Section 41(h) of the Specific Relief Act. It is submitted that the plaintiffs wanted the suit to be kept in tact and misled the court which amounts to fraud.

33. It is also submitted that much prejudice has been caused to the defendants since they have lost one forum to ventilate their remedy by way of appeal. If the suit was filed before the Munsiff's Court, appeal lies to the District Court and Second Appeal to this Court. This remedy has been lost. It is further submitted that the judgment is totally faulty since no separate findings have been made on any of the issues and Order 14 Rule (1) C.P.C. directs the court to frame issues also. It is not a case of an uncontested suit at all. In that context, he referred to the defence pleaded in the written statement originally filed by defendants 1 and 2 wherein they have taken a RFA Nos.699 & 859 of 2012 -26- stand that it is a case of breach of agreement by the plaintiffs and he referred to paragraphs 6 to 12 of the written statement. It is submitted that apart from the same, certain other contentions had also been raised by the defendants which required proper issues to be framed by the court. It is also submitted that the B dairy will show that there was a posting of the case on 26.9.2009 for framing issues and it was adjourned to 3.11.2009 and 16.11.2009 and finally the endorsement on 1.12.2009 states that "issues framed". But in the judgment there is no reference to the issues, if any, framed. There is no consideration of the contentions of defendants 1 and 2 as well as the third defendant who had participated in the evidence and hearing. It is submitted that in paragraph 5 of the written statement of the third defendant, it was specifically contended that there is no valid or legally enforceable agreement. Hence, it is submitted that prejudice has been caused to the defendants amounting to failure of justice.

34. With regard to the argument raised by the learned Senior Counsel for the plaintiffs that the third defendant has been inducted in violation of the undertaking, it is submitted by the learned counsel for the appellants Shri G.S. Reghunath that the undertaking no longer survives, when the RFA Nos.699 & 859 of 2012 -27- plaint was returned for want of jurisdiction. Therefore, the possession of the third defendant is not at all objectionable.

35. It is also submitted that the decision relied upon by the learned Senior Counsel for the respondents, viz. Nedunuri Kameswaramma's case (AIR 1963 SC 884) and in Katya Bala Dasi's case (AIR 1987 Calcutta

248) are distinguishable on facts. It is submitted that when Rule 2 of Order 14 was amended in 1976 by an important amendment, the court is obliged to pronounce judgment on all issues and therefore the court below should have framed issues based on the pleas raised in the written statement filed by defendants 1 and 2 including the question of pecuniary jurisdiction. It is also submitted that the objection of the third defendant also should have been discussed which has resulted in absolute prejudice to the defendants.

36. Finally, while concluding the arguments, learned counsel for the appellants submitted that going by paragraph 23 of the decision of the Apex Court in Indian Bank's case {(1996) 5 SCC 550}, misleading a court itself is commission of fraud, which causes prejudice. It is submitted further that the plaintiffs have only attempted dumping of various documents and they have not been proved in evidence. In respect of the invoices produced, RFA Nos.699 & 859 of 2012 -28- there is no confirmation as to who has issued the same and how they are relevant for deciding the matter. Even the averments regarding payment have not been established in evidence. While referring to the deposition of P.W.1, it was stated that the alleged loss caused has not been established and hence on the merits of the matter the court below has not considered any valid contentions.

37. While referring to the arguments of the learned Senior Counsel for the plaintiffs regarding rejection of the application for setting aside the ex- parte order, Shri G.S. Reghunath submitted that the considerations on an application under Order 9 Rule 13 and the appeal from the order thereon are totally different. Therein, the only aspect relevant is whether there is sufficient cause for non appearance. In that context, reference was made to the decisions of the Apex Court in Rabindra Singh v. Financial Commissioner, Cooperation, Punjab and others {2008)7 SCC 663} and Bhanu Kumar's case (2005 (1) KLT 456 - SC).

38. The points that arise for consideration are: (i) Whether the plaintiffs are entitled to get a decree as prayed for; (ii) Whether the judgment and decree of the court below are vitiated for want of pecuniary RFA Nos.699 & 859 of 2012 -29- jurisdiction and whether any fraud has been played by the plaintiffs in re- presenting the appeal before the Sub Court, Attingal; (iii) Whether the defendants have succeeded in proving that substantial prejudice has been caused because of the want of pecuniary jurisdiction; the non framing of issues; accepting photo copies in evidence of crucial documents and the alleged non consideration of contentions in detail by the trial court in the judgment; (iv) Whether the judgment and decree calls for an interference on the merits; and (v) Whether the matter will have to be remanded back to the trial court.

39. As far as the filing of the suit and the further steps taken thereon, the following facts are evident. The suit was filed before the vacation court at Thiruvananthapuram and the caption shown was "to be filed before the Sub Court, Thiruvananthapuram". The name of the court is seen struck off by pen and it is substituted as "Sub Court, Attingal.". It is filed as I.A. No.3636/2007. The defendants have filed a written statement in I.A. No.3636/2007. The endorsement in the original plaint shows that on 9.1.2008 it was "returned for want of jurisdiction". It was filed on 23.1.2008 as O.S. NO.22/2008 before the Sub Court, Attingal. The court RFA Nos.699 & 859 of 2012 -30- ordered summons to be issued to the defendants for settlement of issues and for written statement and it was posted to 28.2.2008. The prayers in the suit were later amended as per order in I.A.Nos. 1814/2008 and 1809/2009 dated 28.8.2009 and 3.11.2009 respectively.

40. Initially, the first prayer was to grant a decree of mandatory injunction commanding the defendants to perform their part of the agreements dated 1.6.2006 and 1.7.2007 and cause to execute a registered lease deed leasing out the plaint schedule building to the plaintiff as agreed in the agreement dated 1.7.2007 for accommodating the show room of the plaintiff therein. After striking off the words "mandatory injunction commanding the defendants," the amendment made is to the effect of "allowing specific performance of the agreement entered into between the plaintiff and defendants and the defendants be directed". An alternative prayer is also sought to allow the plaintiffs to recover an amount of Rs.36,48,545/- with 18% interest. In the valuation portion the subject matter of relief No.1 was valued as "above Rs.25,000/-" initially and the court fee was paid under Section 50(iii) of the Kerala Court Fees and Suits Valuation Act, 1959. After the amendment the valuation for relief No.(1) is RFA Nos.699 & 859 of 2012 -31- Rs.8,40,000/-. Relief No.2 has been valued at Rs.36,48,545/- in substitution of Rs.500/- (under Section 27(c) of the Court Fees Act for a relief of injunction.)

41. Point Nos.II and III will be considered now. Section 11 of the Kerala Civil Courts Act, 1957 provides for jurisdiction of the civil courts which includes District Court and Subordinate Judge's Court in original suits. Wereproduce the said section hereinbelow:

"11. Jurisdiction of District Court and Subordinate Judge's Court in original suits.-- (1) The jurisdiction of a District Court or a Subordinate Judge's Court extends, subject to the provisions of the Code of Civil Procedure, 1908 (5 of 1908), to all original suits and proceedings of a civil nature.

(2) The jurisdiction of a Munsiff's Court extends to all like suits and proceedings not otherwise exempted from its cognizance of which the amount or value of the subject-matter does not exceed ten lakh rupees."

As of now the pecuniary jurisdiction of the Sub Court is in respect of cases where the valuation exceeds Rs.10 lakhs going by the Amendment Act 26 of 2013 and below it, the jurisdiction is with Munsiff's Court. Prior to that it was Rs.1 lakh from the year 1986, before which it was Rs.15,000/-. RFA Nos.699 & 859 of 2012 -32- Going by Section 15 of the C.P.C., the suit shall be presented before the lowest court competent to try it.

42. The controversy is whether the valuation of the suit as contained in the original plaint is justified. In this context, Section 50 of the Kerala Court Fees and Suits Valuation Act comes up for consideration which we extract hereinbelow:

"50. Suits not otherwise provided for.-- In suits not otherwise provided for, fee shall be payable at the following rates:-

         (i) In a Revenue Court      Rupees twenty-five

         (ii) In a Munsiff's Court    Rupees fifty

         (iii) In a Sub-Court or a    Rupees two hundred if the value of the
              District Court          subject matter is Rs.25,000 or less; and
                                      rupees four hundred if the value of the
                                      subject matter is above Rs.25,000."

Going by the above section, where the subject matter is valued above Rs.25,000/-, it can be filed before the Sub Court or the District Court. As far as the relief of injunction is concerned, the relevant provision is Section

27. Relief No.2 was valued under Section 27(c) whereas relief No.1 was valued under Section 50(iii).

43. Learned Senior Counsel Shri S. Sreekumar submitted that in the RFA Nos.699 & 859 of 2012 -33- light of the valuation shown, the filing of the suit before the Sub Court, Attingal is well justified.

44. As of now, we find that the suit has been amended and the valuation comes above the pecuniary limits of the Munsiff's Court, as on the date of its filing, i.e. above Rs.1 lakh. When we come to the question of want of pecuniary jurisdiction, apart from Section 15 of the C.P.C., Section 21 of the C.P.C. and Section 54 of the Court Fees Act are relevant. Going by Section 21 of the C.P.C., objection as regards jurisdiction should be raised at the earliest opportunity and there should be consequent failure of justice and going by Section 54 of the Court Fees Act, the court will have to satisfy that over-valuation or under-valuation has prejudicially affected the disposal of the suit.

45. The important decision relied upon by learned Senior Counsel appearing for the plaintiffs is Kiran Singh and others v. Chaman Paswan and others (AIR 1954 SC 340) by a three Judge Bench of the Apex Court. Therein, the suit was filed before the Subordinate Judge's Court which was dismissed and the plaintiff filed an appeal before the District Court. After dismissal of the appeal a Second Appeal was filed before the High Court of RFA Nos.699 & 859 of 2012 -34- Patna. While the matter was pending before the High Court, the correctness of the valuation of the suit was subjected to an enquiry and additional court fee was paid by the plaintiff. The plaintiff then raised a contention that in view of the revised valuation, the appeal from the decree of the Subordinate Judge would not lie to the District Court but to the High Court and therefore the Second Appeal will have to be heard as a first appeal ignoring the judgment of the District Court. The High Court held that the appellants could not establish prejudice on the merits and dismissed the appeal. The Apex Court, in paragraph 6 of the judgment, considered Section 11 of the Court Fees and Suits Valuation Act. It was held that "a defect of jurisdiction, whether it is pecuniary or territorial or whether, it is in respect of the subject matter of the action, strikes at the very authority of the court to pass any decree and such a defect cannot be cured even by consent of parties." After referring to Section 11 of the Court Fees and Suits Valuation Act and Sections 21 and 99 C.P.C., it was held in paragraph 7 thus:

"It is with a view to avoid this result that Section 11 was enacted. It provides that objections to the jurisdiction of a Court based on RFA Nos.699 & 859 of 2012 -35- over-valuation or under-valuation shall not be entertained by an appellate Court except in the manner and to the extent mentioned in the Section. It is a self-contained provision complete in itself, and no objection to jurisdiction based on over-valuation or under- valuation can be raised otherwise than in accordance with it. With reference to objections relating to territorial jurisdiction, Section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or revisional court, unless there was a consequent failure of justice. It is the same principle that has been adopted in Section 11 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying Sections 21 and 99, C. P. C. and Section 11 of the Suits Valuation Act is the same namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate court, unless there has been a prejudice on the merits. The contention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under Section 11 of the Suits Valuation Act."

It was thus held that the objecting party should show that there has been RFA Nos.699 & 859 of 2012 -36- prejudice on the merits. Again, in paragraph 12, while interpreting the scope of the expression "prejudice", the Apex Court held that "the prejudice contemplated by the Section, is something different from the fact of the appeal having been heard in a forum which would not have been competent to hear it on a correct valuation of the suit as ultimately determined" and in paragraph 14 still further, it was held that "the prejudice on the merits must be directly attributable to over valuation or under valuation."The above dictum was heavily relied upon by the learned Senior Counsel for the plaintiffs, Shri S. Sreekumar.

46. In Hira Lal Patni's case (AIR 1962 SC 199), the Apex Court considered the difference between an objection regarding local jurisdiction of a court and an objection regarding competence of a court to try a suit. The Apex Court held that "it is well settled that the objection as to local jurisdiction of a court does not stand on the same footing as an objection to the competence of a court to try a case. Competence of a court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand an objection as to the local jurisdiction of a court can be waived and this principle has been given RFA Nos.699 & 859 of 2012 -37- a statutory recognition by enactments like Section 21 of the C.P.C."

47. In Subhash Mahadevasa Habib's case (AIR 2007 SC 1828) the Apex Court considered in detail the effect of Section 21 C.P.C. It was submitted by the learned Senior Counsel for the plaintiffs that it has been categorically laid down by the Apex Court that unless there is a failure of justice or prejudice is shown, the decree cannot be assailed successfully. In paragraph 25, the legal position has been explained thus:

"The Code of Civil Procedure has made a distinction between lack of inherent jurisdiction and objection to territorial jurisdiction and pecuniary jurisdiction. Whereas, an inherent lack of jurisdiction may make a decree passed by that court one without jurisdiction or void in law, a decree passed by a court lacking territorial jurisdiction or pecuniary jurisdiction does not automatically become void. At best it is voidable in the sense that it could be challenged in appeal therefrom provided the conditions of Section 21 of the Code of Civil Procedure are satisfied. It may be noted that Section 21 provided that no objection as to place the suing can be allowed by even an appellate or revisional court unless such objection was taken in the Court of first instance at the earliest possible opportunity and unless there has been a consequent failure of justice."

The twin elements are therefore important. First one that lack of territorial RFA Nos.699 & 859 of 2012 -38- or pecuniary jurisdiction does not make the decree void automatically. Secondly, there should be failure of justice.

48. Hubert Peyoli's case (2007 (4) KLT 392) is a decision by a learned Single Judge of this Court wherein the interpretation of Section 15 C.P.C. came up for consideration. The suit was filed before the Sub Court, Thiruvananthapuram. The Sub Court returned the plaint to the appellant for presenting it before the proper court for want of pecuniary jurisdiction and then it was re-presented before the Munsiff's Court, Thiruvananthapuram. But as a charge decree was sought and the plaint property is situated within the jurisdiction of Munsiff's Court, Nedumangad, the plaint was directed to be returned for presentation before the proper court. Incidentally, the question was whether the suit was barred by limitation when it was represented before the Munsiff's Court. In that context, the interpretation of Section 15 C.P.C. was also considered by this Court, as it was argued that Section 15 does not mean that the higher court has no jurisdiction. Finally, relying upon a Full Bench decision of Madras High Court in Ramamirtham v. Rama Film Service (AIR 1951 Mad. 93) this Court held in paragraph 10 as follows:

RFA Nos.699 & 859 of 2012 -39- "While S.15 enjoins the institution of a suit in the court of lowest grade competent to try it, it does not oust the jurisdiction of the court of higher grade and even if the court of a higher grade tries and disposes of a suit, which could have been instituted in a court of lowest grade, the decision is not without jurisdiction and it is not a nullity. A court of higher grade does not act without jurisdiction in trying a suit, which under S.15, might and ought by reason of its valuation, have been tried by an inferior Court."

It was concluded that "Section 15 only provides that every suit shall be instituted in a court of lowest grade and there is nothing in that court taking away the jurisdiction of the higher court from trying the suit."

49. In Ayyappan Pillai G. v. State of Kerala and another (2009 (2) KHC 664), again the very same point was considered by this court, viz. whether an objection regarding the territorial jurisdiction of the court should be raised at the earliest point of time. That was a case where the objection that the suit is not maintainable, was raised after the appellant adduced his evidence and part of the evidence of the respondent was recorded. This Court held that "proper course to be followed is that if objection as to the place of suing is taken before the Court of first instance"

RFA Nos.699 & 859 of 2012 -40- as required under Section 21, it is decided at the earliest point of time to avoid hardship to the parties. As to the next aspect of express of implied waiver of such an objection, it was held that "unlike in a case of lack of inherent jurisdiction, an objection as to territorial jurisdiction can be waived which can be express or implied". On facts it was further held that respondents can be deemed to have waived their objection. The above decision is relied upon to point out that at no point of time the appellants had raised an objection before the trial court and they have participated in the proceedings. Therefore, it is pointed out that the argument raised in this appeal cannot be accepted at all. We find much force in the same.

50. If the above aspects are considered in this case, what emerges is that the suit was initially presented before the vacation court. The caption was shown as "to be filed before the Sub Court, Thiruvananthapuram" and the place was struck off and it was shown as Sub Court, Attingal. The plaint was returned for want of jurisdiction on 9.1.2008. In the written statement filed by the defendants before the vacation court, it was pointed out that the property comes within the jurisdiction of Sub court, Attingal. After the summons was issued from Sub Court, Attingal, the defendants appeared. RFA Nos.699 & 859 of 2012 -41- During the period which defendants and 2 were appearing before the said court, no objections were seen raised in the matter, with regard to the pecuniary jurisdiction. Such an objection is raised only in this appeal, after the decree has been passed. Therefore, in the light of Section 21 C.P.C. and Section 54 of the Court Fees Act, there should be failure of justice or absolute prejudice as far as the issue is concerned.

51. Going by the decision of the Apex Court in Kiran Singh's case (AIR 1954 SC 340), prejudice to be shown is with regard to the merits of the matter and not with regard to the forum. What is contended by the learned counsel for the appellants is that if the suit was instituted before the Munsiff's Court, then an appeal ought to have been filed before the District Court and that remedy has been lost to the appellants. As already held by the Apex Court in the above decision, such a contention cannot be countenanced at all, since such a right claimed as regards the forum of appeal cannot be considered as one causing prejudice to the party concerned. Herein, what we find further is that the plaint was amended to include more reliefs and even the valuation was also shown as above Rs.8,40,000/-. Such a suit can only be tried by the Sub Court. If the plaint RFA Nos.699 & 859 of 2012 -42- was returned, it would have been filed before the Munsiff's Court. Once the amendment is made, again it will have to go back to the Sub Court. In that view of the matter, it cannot be said that much prejudice has been caused to the appellants in presenting the suit before the Sub Court, Attingal.

52. We have already adverted to Section 50(iii) of the Court Fees Act. The valuation as originally shown, is in tune with the said provision. When such a valuation is shown, the suit should have been presented before the Sub Court itself and not before the Munsiff's Court. The jurisdictional valuation will go by the valuation shown in the plaint which cannot be disputed. Therefore, when the valuation shown was as above, it can only be filed before the Sub Court.

53. We find substance in the argument of the learned Senior Counsel for the plaintiffs that at no point of time the defendants have raised such an objection before the court below, i.e. after the suit was filed before the Sub Court, Attingal. Even if Section 15 C.P.C. provides for filing a suit before the lowest court, assuming without admitting that such an aspect was there, as per Section 21 C.P.C., it should have been raised at the earliest point of time which never happened in this case. Therefore, we find no reason to RFA Nos.699 & 859 of 2012 -43- agree with the learned counsel for the appellants on the above argument. Apart from that, on a true interpretation of Section 15, as held in Hubert Peyoli's case (supra), Section 15 of the C.P.C. will not take away the jurisdiction of the higher court trying the suit.

54. These aspects will have to be considered in the light of the fact that the appellants, even though had got opportunity to raise objections either with regard to the local jurisdiction or with regard to the pecuniary jurisdiction, have not raised it before the court below. The defendants/appellants herein appeared before the court pursuant to the summons issued on 25.3.2008. There were two interlocutory applications, viz. I.A.Nos.1729/2008 and 1035/2008 filed by the plaintiffs which were being adjourned from time to time for hearing arguments. Additional third defendant was impleaded by the order in I.A. No.1760/2008 dated 18.10.2008. Hearing on I.A. Nos.3637/2007 and 1035/2008 was over on 3.11.2008 and by order dated 15.11.2008 I.A. No.1035/2008 was rejected in favour of the appellants. The same was one seeking for a temporary injunction restraining the defendants from transferring possession of the plaint schedule building, from inducting any other person therein or RFA Nos.699 & 859 of 2012 -44- allowing enjoyment or use or occupation of the building either by way of lease, licence or any other agreement till the disposal of the suit and the other application was for appointment of a Commissioner. Against the order rejecting I.A. No.1035/2008, the plaintiffs approached the appellate court by filing C.M.A. No.16/2009 before the District Court, Thiruvananthapuram. After hearing both sides including the appellants herein, the said appeal was disposed of directing the court below to dispose of the suit within a period of six months. Thereafter, the suit was proceeded with. The plaintiffs had filed an application for amendment as I.A. No.1814/2008 and after allowing opportunities for filing objections, the matter was heard and the order was passed on the said application on 28.8.2009 allowing the amendment. The defendants also filed I.A. No.1880/2008 for amending the written statement, on 28.10.2008. The said application was dismissed on 28.8.2009. The proceedings show that there was a posting for producing the amended copy of the plaint to 26.9.2009 and on 26.9.2009 it was posted for framing issues and finally on 14.12.2009 it was posted for evidence to 2.1.2010. From that date it was adjourned to 5.1.2010 and on that date defendants 1 and 2 were not present. RFA Nos.699 & 859 of 2012 -45- Their counsel was also not present and they were set ex-parte. The plaintiffs filed proof affidavit and Exts.A1 to A65 documents were marked. Therefore, upto 5.1.2010 the defendants/appellants in R.F.A. No.699/2012 were participating in the proceedings before the court below. It is seen that they have not raised any objection either with regard to the pecuniary jurisdiction or with regard to the territorial jurisdiction. Therefore, Sections 21(1) and 21(2) C.P.C. and its effect will have to be considered. Going by the same, no objection as to the place of suing or with regard to the pecuniary limits of jurisdiction shall be allowed by any appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity. It is settled law that long and continued participation in the proceedings does amount to waiver and that Section 21 is the statutory recognition of the principle that the defect as to the place of suing under Sections 15 to 20 can be waived. (Bahrein Petroleum Co. Ltd. v. P.J. Pappu and another (1965 KLT 1193 - AIR 1966 SC 634). In Kamalakshmi Amma v. Karthyayani Amma (2001 KHC 33), it has been held that "unless it is established that any prejudice is caused to the defendant on merits or there is failure or miscarriage of justice, it cannot be RFA Nos.699 & 859 of 2012 -46- said that the decree passed by the Court is nullity and objection should be raised at an earlier stage". Even though in the written statement filed before the vacation court as I.A. No.3636/2007, in paragraph 9 it is stated that the suit is one which should have been filed before the Sub Court, Attingal, and in paragraph 11 it was contended that the suit ought to have been proposed to be filed before a Munsiff's Court in terms of pecuniary jurisdiction, these contentions were never pursued before the trial court at Attingal and the judgment was allowed to be pronounced. In that view of the matter, the objection should be deemed to have been waived and further, there is no failure of justice. We therefore answer this point in favour of respondents 1 to 3.

55. The further argument raised by the learned counsel for the appellants is that fraud has been committed by the plaintiffs and in that regard he relied upon paragraph 23 of the judgment of the Apex Court in Indian Bank's case {(1996) 5 SCC 550} wherein the Apex Court observed that "Similarly, where the court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order." (Paragraph 23) RFA Nos.699 & 859 of 2012 -47-

56. In A.V. Papayya Sastry's case {(2007) 4 SCC 221}, the above principles have been elaborated. In paragraph 26 it was held that "in fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam." Various judgments of the Apex Court have been discussed from paragraphs 27 to 33 wherein the relevant principles have been explained further. It is well settled that inherent powers can be used to recall a judgment obtained by fraud also.

57. Shri G.S. Reghunath emphasised the fact that even where the court is misled by a party, it amounts to a fraud. It is submitted that by getting the plaint returned and re-presented it before the Sub Court, Attingal, that too along with the written statement of the defendants which was filed before the vacation court, as if it was for presenting before the Sub Court, Attingal, fraud has been committed. It is submitted that the summons issued by the court is by mistake and it has misled the parties.

58. We do not find any reason to agree with the above contention. As we have already found, the reliefs sought for in the plaint originally filed RFA Nos.699 & 859 of 2012 -48- was valued under two provisions, one under Section 50(iii) of the Court Fees Act and one under Section 27 of the said Act. The valuation under Section 50(iii) of the Court Fees Act enables the plaintiffs to file the suit before the Sub Court itself. Therefore, the summons issued cannot be an exercise without jurisdiction. Section 15 of the C.P.C. does not tie the hands of the Sub Court in entertaining it. Apparently, it is a case where the defendants did not, at any stage, pursue the contentions raised in the original written statement and they did not even take an objection in that regard, even in the additional written statement or in C.M.A. No.16/2009 before the District Court. In that view of the matter, we reject the said contention.

59. The next important argument is regarding the defect of non framing of issues and non formulating them in the judgment. From 'B' Diary what we find is that after the plaint was allowed to be amended, there was a posting on 26.9.2009 for filing amended plaint. It was posted then to 14.10.2009 to raise issues and on the said date it was posted for hearing I.A. No.1756/2009 to 29.10.2009. The defendants sought time on that day and it was posted to 3.11.2009. On 3.11.2009 I.A. No.1809/2009 was allowed RFA Nos.699 & 859 of 2012 -49- and it was posted for framing issues to 16.11.2009. From that date it was posted to 1.12.2009 for issues and on 1.12.2009 the endorsement is: "issues framed" and for payment of balance court fee it was posted to 14.12.2009. On 14.12.2009 it was posted to 2.1.2010 for evidence.

60. Learned counsel for the appellants points out that a reading of the judgment will show that after narration of the pleadings, issues are not even mentioned. We have noted on a reading of the judgment that in paragraph 1, the plaint averments have been extracted. In paragraph 2 after stating that defendants 1 and 2 are set ex-parte, it is recorded that the second plaintiff filed an affidavit in lieu of chief examination. Reference is made about marking of documents as Exts.A1 to A65 and cross examination of R.W.1 by the learned counsel for the third defendant. In paragraph 3 which is only a solitary sentence, it is concluded that the plaintiffs could prove their case through the deposition of P.W.1 and the exhibits marked in the case. Paragraph 4 is the decreetal portion. The discussion of any evidence is absent in the judgment.

61. In this context, the appellants relied upon Order 14 Rules 1 and 2 as well as Order 20 Rule 4(2). Rule 1 of Order 14 states that "issues arise RFA Nos.699 & 859 of 2012 -50- when a material proposition of fact or law is affirmed by the one party and denied by the other". Sub-rule (3) states that "each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue." Going by sub-rule (4), issues are of two kinds; issues of fact and issues of law. Sub-rule (6) reminds that if the defendant makes no defence at the first hearing, the court is not required to frame an issue. Going by Rule 2 of Order 14, the court will have to pronounce judgment on all issues. Rule 3 of Order 14 refers to the materials from which issues may be framed. Under Order 20, Rule 4(2), the judgment shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision. The 'B' diary shows that there were several postings for framing of issues and finally it is recorded on 1.12.2009 that issues have been framed, but issues are not seen in the case records. Evidently, the judgment also, as we have already noticed, does not contain the points for determination. The question is whether it is an irregularity which affects the merits of the case.

62. The contention by the learned Senior Counsel for the plaintiffs is that mere non framing of issues is not an irregularity and under Section 99 RFA Nos.699 & 859 of 2012 -51- of the C.P.C., the suit need not be remanded. He also contended that the parties were not at variance in respect of the main averments in the plaint and therefore also issues need not have been framed.

63. The first question is whether issues need not have been framed as contended by the learned Senior Counsel for the plaintiffs. For considering this argument, we will refer to the pleadings in the plaint as well as in the written statement. In paragraph 2 of the plaint, the plaintiffs have referred to a meeting of the managing partner of the plaintiffs firm and the second defendant, on 29.12.2005 and the alleged agreement by the second defendant to complete the construction of the building by 30.4.2006 and to hand over 17500 sq. ft. carpet area of the building to the plaintiffs on certain terms and conditions regarding the payment of rent, viz. Rs.5/-, Rs.4/- and Rs.3/- per sq. ft. for the ground, first and second floors having an area of 5500 sq. ft., in the ground floor and 6000 sq. ft. each in the first and second floors. Going by the averments in the plaint, the defendants had approached the plaintiffs for assistance due to financial difficulty for completing the building. In paragraph 4 of the written statement, they partly admitted it but disputed the averment that the defendants approached RFA Nos.699 & 859 of 2012 -52- the plaintiffs and the contention is that it was the plaintiffs who approached the defendants. There is an averment that both the parties entered into an agreement on 29.12.2005 as far as the deal is concerned, viz. For effecting a pucca construction in their property by seeking financial assistance from some bank and that the terms were unilateral in nature. In paragraph 5 of the written statement after stating that the averment in paragraph 3 of the plaint is partly correct, they denied the averment in the plaint that the decisions were recorded on a plain sheet of paper and alleges that the plaintiffs might have fabricated an agreement making use of a blank paper signed by the defendants for the sake of the contract. With regard to the averments in paragraph 4 of the plaint that the plaintiffs issued signed cheques and papers to the HDFC Bank, it is stated by the defendants in paragraph 5 of the written statement that the plaintiffs issued the same under the capacity of being a proposed tenant to the building to be constructed. With regard to the averments in paragraph 5 of the plaint, it is stated in paragraph 6 of the written statement that the averments in paragraph 5 are not fully correct. In the subsequent meetings between the second defendant and the plaintiffs, the plaintiffs agreed to pay some RFA Nos.699 & 859 of 2012 -53- amount as advance to the rental agreement, but so far the agreed advance amount has not been totally paid by the plaintiffs which delayed the construction undertook by the defendants. Actually, in paragraph 5 of the plaint, the plaintiffs have averred about the various payments offered and actually paid it and certain other circumstances. In paragraph 7 of the written statement, the defendants have stated that the plaintiffs had agreed to do the interior work of the proposed building and so they are least concerned about the extent and amount spent by the plaintiffs for that matter. With regard to paragraph 8 of the plaint, it is stated that the averments are false and they attribute the cause of delay in completing the construction to the plaintiffs in paying the balance advance amount and certain other factors. It is further alleged that the plaintiffs did not perform their part of the contract by finishing the interior work within the time frame as stipulated in the agreement. Paragraphs 9, 10 and 11 of the written statement contains the pleas regarding territorial jurisdiction, pecuniary jurisdiction and about the valuation shown in the plaint. In paragraph 12 it is contended that the first agreement is void, for being an unregistered one as the period is above one year.

RFA Nos.699 & 859 of 2012 -54-

64. Even though it is contended by the learned Senior Counsel for the plaintiffs that there is admission on various aspects in full, a bare reading of the written statement will show that the defendants have a different case. In paragraph 13 of the written statement, they have taken a contention that the two alleged agreements have lapsed by the running out of time since, both parties have not performed their part of the contract and they have not agreed in black and white to extend the time frame of the agreement. They have also undertaken to let out the building to the plaintiffs provided the rent as per the prevailing rate and enhancement per year is approved and accepted by the plaintiffs and a fresh rental agreement is entered upon between the parties.

65. In the light of these contentions, we cannot agree with the forceful argument raised by the learned Senior Counsel for the plaintiffs that there was no serious issue to be framed in the suit.

66. But the said question becomes rather unnecessary in the light of the fact that the court had recorded that it had framed the issues on 1.12.2009, going by the endorsement in 'B' diary. But nothing is seen in the judgment about the said issues and there is no discussion on the points for RFA Nos.699 & 859 of 2012 -55- determination. Files do not contain the issues framed.

67. We will now come to the decisions relied upon by the learned Senior Counsel for the respondents in that regard. The first one is Mussumat Mitna's case (13 MIA 573). Therein, the Judicial Committee held at page 582 thus:

"But they do not find in the Code anything which says positively that the omission to settle those issues is fatal to the trial..............But being of opinion that there has not in this case been a failure of justice in consequence of the omission to settle the issues, their Lordships are not prepared to send it back for further litigation, and they must, therefore, advise Her Majesty to dismiss the appeal with costs."

The said conclusion was rested on one fact, going by the discussion that no objections seem to have been taken in the court below to deal with the case of issues without settlement. It is a decision under the Civil Procedue Code, 1859.

68. In Shri Radha Gobinda Jew's case (AIR 1974 Cal. 283), it was argued that no specific issue was framed by the trial court on the question of acting upon the deed and it was negatived in paragraph 14 by saying that RFA Nos.699 & 859 of 2012 -56- "the parties after applying their mind to the state of pleadings went to trial and adduced evidence on it and therefore a mere omission to frame a specific issue on this question is of no moment as said by the Supreme Court in the case of Nedunuri Kameswaramma v. Sampati Subba Rao (AIR 1963 SC 884). That was a case where omission alleged was with respect to the non framing of issue on one particular aspect.

69. The next decision is Khem chand's case (AIR 1988 H.P.10) wherein it has been held by a learned Single Judge in para 11 as follows:

"11. The mere omission, therefore, on the part of a trial court to frame an issue on a matter in controversy between the parties cannot be regarded as fatal unless, upon examination of the record, it is found that the failure to frame the issue had resulted in (sic) the parties having gone to the trial without knowing that the said question was in issue between them and having, therefore, failed to adduce evidence on that point."

Paragraph 3 of the judgment will show that six issues had been framed in that suit. Paragraph 5 will show that the failure alleged is to frame an issue covering the plea of adverse possession and to record finding thereon and the argument was that the same had vitiated the trial and resulted in RFA Nos.699 & 859 of 2012 -57- miscarriage of justice. The situation herein is different.

70. In Katya Bala Dasi's case (1987 Calcutta 248) also a similar question was considered. Therein, with regard to the non-framing of an additional issue it was held as follows in paragraph 32:

"We are of the view that the way and the manner in which the issues were framed, has left no room or any need for framing any additional issue, even after the admitted filing of the additional written statement by Katyabala and her daughter and that too when, the manner in which the said additional written statement was filed or the language in which the same was worded. The issues in this case were really framed upon the case as founded on the pleadings or which were consistent with the case of the respective parties." (emphasis added) Therein also, paragraph 7 will show that certain issues have been framed (10 in numbers) in two suits which were tried. The non framing of an additional issue was the question considered, which is different from the facts of this case.

71. In Nedunuri Kameswaramma's case (AIR 1963 SC 884) in paragraph 6, the following dictum was laid down:

RFA Nos.699 & 859 of 2012 -58- "Where the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mix- trial which vitiates proceedings. The suit could not be dismissed on this narrow ground, and also there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion and neither party claimed that it had any further evidence to offer. Where the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mix-trial which vitiates proceedings. The suit could not be dismissed on this narrow ground, and also there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion and neither party claimed that it had any further evidence to offer.

72. Learned counsel for the appellants submitted that the point considered in Nedunuri Kameswaramma's case (AIR 1963 SC 884), Shri Radha Gobinda Jew's case (AIR 1974 Cal. 283) as well as Katya Bala Dasi's case (1987 Cal. 248) are concerning the framing of additional issues. Apart from the same, it is submitted that Order 14 Rule 2 is a new RFA Nos.699 & 859 of 2012 -59- provision brought in after the amendment in 1976 which obliges the court to pronounce the judgment on all issues and therefore the view taken in the earlier decisions cannot be of any application herein.

73. The importance of framing of issues has been considered by the Apex Court in Makhan Lal Bangal v. Manas Bhunia and others (2001) 2 SCC 652). That was in an election petition. The Apex Court held thus in paragraph 19:

"The stage of framing the issues is an important one inasmuch as on that day the scope of the trial is determined by laying the path on which the trial shall proceed excluding diversions and departures therefrom. The date fixed for settlement of issues is, therefore, a date fixed for hearing. The real dispute between the parties is determined, the area of conflict is narrowed and the concave mirror held by the Court reflecting the pleadings of the parties pinpoints into issues the disputes on which the two sides differ. The correct decision of civil lis largely depends on correct framing of issues, correctly determining the real points in controversy which need to be decided. The scheme of Order XIV of the Code of Civil Procedure dealing with settlement of issues shows that an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Each material proposition affirmed RFA Nos.699 & 859 of 2012 -60- by one party and denied by other should form the subject of a distinct issue."

Hence, issues have to be framed, when there are disputed questions. Of course, in an ideal situation, where the pleadings are not intricate, the mere non framing of an issue cannot be regarded as fatal, if parties had attempted to adduce evidence after understanding the points and there is no consequent failure of justice. But the court may have to find out whether the failure has resulted in the parties having gone to the trial, without knowing the fact that the said question was the issue between them, and therefore they failed to adduce evidence.

74. Even though defendants 1 and 2 were set ex-parte, can it be contended that the issues need not have been framed at all and the non consideration of issues is not fatal? In that regard, we have to consider the true effect of the denial in the written statement filed by the appellants. A partial admission of some discussion and arrangements between the plaintiffs and defendants, if at all is evidenced by the original written statement filed by defendants 1 and 2 herein, the court had to try the points properly, as various contentions were raised by both sides. If no effective RFA Nos.699 & 859 of 2012 -61- trial is conducted, it will result in failure of justice, evidently. Therefore, even though it is highlighted by the learned Senior Counsel for the plaintiffs that Section 99 C.P.C. is a check in remanding the matter, when it is found in this case that the court has ordered framing of issues and the records do not show that issues have been framed and the judgment also does not show the points for determination, the situation is different. It will definitely result in failure of justice. This is so, especially since the suit is one wherein going by the amended plaint, the plaintiffs have sought for a decree for specific performance and in the alternative, for damages. So many aspects will have to be considered before granting a decree in a suit for specific performance and for damages, in the light of the various provisions of the Specific Relief Act. Hence, we are definitely of the view that non-framing of issues has resulted in failure of justice.

75. The next contention raised by the learned counsel for the appellants relating to the merits of the matter, is that in the decree defendants 1 and 2 have been directed to perform their part of the agreement dated 1.1.2006 and 1.7.2007 (Exts.A65 and A5) and execute a registered lease deed leasing out the plaint schedule building to the plaintiffs as agreed RFA Nos.699 & 859 of 2012 -62- in the agreement dated 1.7.2007 (Ext.A5), for accommodating the show room of the plaintiffs therein. Ext.A65 is only a photo copy and the admission of such a document amounts to violation of the provisions of Sections 63 and 65 of the Evidence Act. It is pointed out that Exts.A62 and A63 are also only photo copies of two documents.

76. In this context, learned counsel for the appellants relied upon the decision of a Division Bench of this Court in Thampy T.V. v. Varkey Emmanuel (2005 (3) KLJ 144 and submitted that both the documents are not acceptable in evidence which fact has been ignored by the court below. In the plaint in paragraph 3 with reference to the agreement dated 1.1.2006, what is averred is that "all the above decisions were recorded on a plain sheet of paper on 29.12.2005 and the original of the same was handed over to the defendants, retaining a copy thereof by the plaintiff with the original signature of the second defendant herein. As agreed between the parties an agreement was entered into between them on 1.1.2006 incorporating the decision so arrived at by them in the meeting dated 29.12.2005. The original copy of the agreement is being retained by the defendants and the copy of the same was issued to the plaintiff." With RFA Nos.699 & 859 of 2012 -63- regard to the agreement dated 1.7.2007, in paragraph 5 what is averred is that "the original copy of the above agreement was handed over to the plaintiff and the copy thereof is retained by the defendants." Learned counsel for the appellants submitted that a decree ought not have been granted based on the photo copies. It is submitted that in normal cases only if the party in custody of the originals even after notice to produce them, does not make them available and if they are unavailable alone, secondary evidence could be allowed to be adduced which method has not been adopted herein.

77. In regard to the said aspect, what we find from the records is that one I.A. No.3638/2007 was filed by the plaintiff on 24.12.2007, obviously on the date on which the suit was filed, praying to accept photo copies of document Nos.1, 2, 7, 8, 10, 11, 15 and 17. What is averred is that the original of document Nos.1, 2, 7, 10, 11 and 17 are with the defendants and the plaintiffs are taking steps for production of the originals of the above documents at the time of trial and hence it is prayed to accept the photo copies for the time being. But no orders have been passed by the court below on the said application. It was not moved also. Document No.1 is RFA Nos.699 & 859 of 2012 -64- produced as Ext.A63 and document No.2 as Ext.A62, now.

78. In the proof affidavit the averment regarding the agreement dated 1.1.2006 is that the original is kept with the second defendant and the copy is with the plaintiffs. All the documents listed in the appendix to the judgment have been tendered as evident from paragraph 12, with separate exhibit numbers including Exts.A5 and A65 with a request to mark them.

79. Regarding the admissibility of secondary evidence, the law has been settled by various decisions of the Apex Court and this Court. The best evidence is primary evidence itself. The secondary evidence is admissible only in the absence of primary evidence. What are the conditions to be fulfilled before the secondary evidence is accepted, is clear from Section 65 of the Evidence Act. In J. Yashoda v. K. Shobha Rani {(2007) 5 SCC 730} the Supreme Court has considered Sections 63 and 65 of the Evidence Act. Going by Section 65(a), in the facts of this case, it should be a situation where 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. We refer with advantage paragraphs 7, 8 and 9 of the above decision wherein the entire principles have been discussed which we RFA Nos.699 & 859 of 2012 -65- extract below:

"7. Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents.

8. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the second declares that secondary evidence "means and includes" and then follow the five kinds of secondary evidence.

9. The rule which is the most universal, namely, that the best evidence the nature of the case will admit shall be produced, decides this objection. That rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party RFA Nos.699 & 859 of 2012 -66- to prove existence and execution of the original document. Under Section 64, documents are to be provided (sic proved) by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non- production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the section. In Ashok Dulichand v. Madahavlal Dube it was inter alia held as follows : (SCC pp.666-67, para 7) "7. After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference.

According to clause (a) of Section 65 of 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 RFA Nos.699 & 859 of 2012 -67- 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. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of clause (a) of Section 65, the appellant filed applications on 4-7-1973, before Respondent 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed photostat copy. Prayer was also made by the appellant that in case Respondent 1 denied that the said manuscript had been written by him, the Photostat copy might be got examined from a handwriting expert. The appellant RFA Nos.699 & 859 of 2012 -68- also filed affidavit in support of his applications. It was however, nowwhere stated in the affidavit that the original document of which the Photostat copy had been filed by the appellant was in the possession of Respondent 1. There was also no other material on the record to indicate that the original document was in the possession of Respondent 1. The appellant further failed to explain as to what were the circumstances under which the Photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent 1 in his affidavit denied being in possession of or having anything to do with such a document. The Photostat copy appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the Photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court."

RFA Nos.699 & 859 of 2012 -69- The Apex Court relied upon therein, an earlier decision of the Apex Court in Ashok Dulichand v. Madahavlal Dube {(1975) 4 SCC 664}. Therefore, it is clear that the conditions laid down in Section 65 of the Evidence Act will have to be fulfilled before the secondary evidence can be accepted. The non production of the original will have to be first accounted for.

80. A Division Bench of this Court in Thampy's case (2005 (3) KLJ 144 = 2005 KHC 1226) has also considered in detail the admissibility of secondary evidence when there is no explanation as to the existence of the original document. That was also a case where a photo copy was produced wherein the Division Bench held that photostat copy is not admissible if there is no explanation as to the existence of the original document. Reliance was placed on Ashok Dulichand's case {(1975) 4 SCC 664 = AIR 1975 SC 1748}. In paragraph 8 the following aspects have been highlighted:

"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 RFA Nos.699 & 859 of 2012 -70- plaintiff miserably failed to explain as to what were the circumstances 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."

It was held that there was no proof of the accuracy of the photostat copy or of its having been compared with or being a true reproduction of the original. It was also held that "the photostat copy in the normal course should have been certified by the other party to be a true copy." Even P.W.1 has not deposed as to the accuracy of the copy or of its having been compared with the original." In paragraph 10 the Division Bench relied upon the decision of the Apex Court in Roman Catholic Mission v. State of Madras (AIR 1966 SC 1457) wherein it was 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." The Division Bench then held as follows:

"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 RFA Nos.699 & 859 of 2012 -71- and that it could not have been acted upon."

Ultimately, the suit was dismissed by the court.

81. But herein, the plaintiffs never proved before court that it was from the original from which the photo copy has been taken and that it was compared . No attempt was made even in the proof affidavit to explain or to lay foundation for producing photo copy. It has been merely put among the documents to be marked and listed in the proof affidavit. The court has readily acted upon and marked the same also without recording any finding that a case for acceptance of secondary evidence has been made out. In the light of the tests laid down by the above decisions, it could not have been accepted as a secondary evidence. Ext.A65, the other documents like Exts.A6, A62 and A63 are only photo copies. On that score, the decree passed based on the same cannot survive.

82. The other vitiating circumstance argued by the learned counsel for the appellants is that with regard to the alternative relief sought by the plaintiffs for damages, no evidence has been adduced. The plaint was amended as per order in I.A. No.1809/2009 to include the following prayer:

"i(a) If on any account the Hon'ble Court finds that specific RFA Nos.699 & 859 of 2012 -72- performance of the contract is not allowable the plaintiff be allowed to recover an amount of Rs.36,48,545/- (Rupees Thirty-six lakhs fortyeight thousand five hundred and fortyfive) from the defendants and their assets with 18% interest from the date of suit till the date of realisation."

Therefore, recovery of Rs.36,48,545/- has been sought with 18% interest. The foundation for the same has been raised in the pleadings as paragraphs 6(a) to 6(c). In the proof affidavit in paragraph 6, the amounts, viz. Rs.4 lakhs paid on 22.11.2006 and another Rs.1 lakh paid on 21.7.2007 has been stated. In paragraph 7 it is stated that there was an agreement with White Aluminium Device at Kottakkal for doing the fabrication work and a quotation for Rs.23,22,000/- has been received from them. It is also stated that the aluminium panel and other materials for fabrication have been purchased by them. It is stated that the details have been shown in the plaint. In paragraph 8, after stating various amounts of expenditures to the tune of Rs.4,83,377/- , a total amount of Rs.36,48,545/- is claimed as loss from the defendants for breach of the agreement. It is claimed that they were expecting a net profit of Rs.1 Lakh per month.

83. Exts.A10 to A26 are certain invoices. Exts.A27 and 28 are two RFA Nos.699 & 859 of 2012 -73- quotations. Exts.A29 to 32 are also invoices/purchase vouchers. Exts.A37 to 56 are cash receipts, Exts.A59 to 61 are three invoices. Except by marking these documents in bulk, they have not been proved properly by examining anybody who had issued them and the details of payments, expenditures, etc. have also not been proved. The documents produced as receipts are also seen executed by different persons and establishments after receiving amounts. But the details have not been spoken to by anybody in evidence and the persons who issued the receipts have not been examined also to prove the same.

84. Thus, learned counsel for the appellants is right in submitting that the documents have been marked in serial numbers without proving them and the persons who issued them have not been examined also. Thus, the claim for damages has not been established in full by proper evidence, even though it is an alternative prayer in the suit.

85. Another serious objection raised is with regard to Ext.A5 based on which the decree has been granted. A perusal of Ext.A5 will show that therein the signatures of Shri Salim, viz. the second defendant and that of Shri Saidalavi, viz. the second plaintiff are there. Ext.A65 contains very RFA Nos.699 & 859 of 2012 -74- few filled up columns and it is a photo copy. There is no schedule of the property also. According to the learned counsel for the appellants, it is an incomplete document. It is also stated that there is no provision to execute a lease deed in Ext.A5 and therefore, the decree now granted to direct the appellants to execute a registered lease deed cannot be sustained.

86. In this context, learned counsel for the appellants relied upon the decision of the Apex Court in Anthony's case (2000 (3) KLT123 - SC) and that of this Court in Rahelamma Koshy's case (1986 KLT 1130). It is contended that a lease deed for more than one year is compulsorily registrable. In Anthony's case (2000 (3) KLT 123 - SC) the requirement to register a lease deed and the consequence of non registration has been examined. It was held that in the light of Section 107 of the Transfer of Property Act and Sections 17(1) and 49 of the Registration Act, an unregistered lease deed cannot create a lease. As far as the decision in Rahelamma Koshy's case (1986 KLT 1130) is concerned, it was held that it is settled law that a co-owner cannot grant a lease so as to bind the other co-owners.

87. Thus, the main ground of attack as against the decree which has RFA Nos.699 & 859 of 2012 -75- been granted based on Exts.A65 and A5 is that one is a photo copy and the other is an incomplete document and one co-owner cannot bind the other by agreeing to execute a lease also.

88. Apart from these contentions, learned counsel vehemently argued that the relief of specific performance is totally discretionary under Section 20 of the Specific Relief Act and none of the parametres of Section 20 has been adverted to or considered by the trial court while granting the decree. It is submitted on the basis of authorities, that even in the absence of written statement the court will have to enter satisfaction on various aspects. It is also submitted that in paragraphs 6 and 8 of the written statement the defendants had alleged breach of contract on the part of the plaintiffs also. One of the contentions was that there was no valid or legally enforceable agreement. There were objections on the part of the third defendant also which has also not been considered and thus absolute prejudice has been caused to the appellants. Coupled with the fact that going by paragraph 8 of the proof affidavit the loss stated is only Rs.5 lakhs.

89. As regards the jurisdiction under Section 20 of the Specific Relief Act is concerned, learned counsel for the appellants relied upon a decision RFA Nos.699 & 859 of 2012 -76- of a Division Bench of this Court in Thomas P. Abraham v. Aleyamma Abraham (2003 (3) KLT 864) by which it was held that "being a discretionary remedy, the fact that defendant has not filed written statement as such is not a ground for passing an ex-parte decree." It was held by the Division Bench that "the court will have to examine whether the averment made by the party is legal and valid and a specific performance decree be granted which is discretionary." The above aspect is sought to be further supported by the decision of the Apex Court in Nirmala Anand's case {(2002) 5 SCC 481} holding the view that specific performance of a contract is an equitable relief and that the court is not obliged to grant relief merely because it is lawful to do so. Reliance is also placed on Adimakutty Hydu Ali's case (2003 (2) KLT 328) in that context. With regard to the necessity to plead and proof readiness and willingness on the part of the plaintiffs, he relied upon the decision of the Apex Court in Coromandel Indag Products Privae Ltd. v. Garuda Chit and Tgrading Company Private Ltd. And another {(2011) 8 SCC 601} and that of this Court in Susheela (died) and another v. T.M. Muhammedkunhi (2012 (1) KLJ 780). The decision of the Apex Court in C.N. Ramappa Gowda v. RFA Nos.699 & 859 of 2012 -77- C.C. Chandregowda (dead) By Lrs. and another {(2012) 5 SCC 265} is also relied upon to contend that even in the case of non filing of written statement, the court should proceed cautiously and exercise its discretion in a just manner. Therein, it was held that it is a well-acknowledged legal dictum that assertion is no proof and hence the burden lay on the plaintiff. It was further held that "reliance placed on the affidavit in a blindfold manner by the trial court merely on the ground that the defendant had failed to file the written statement would amount to punitive treatment of the suit and the resultant decree would amount to decree which would be nothing short of a decree which is penal in nature."

90. The decision of a Division Bench of this Court in Aliyas's case (2006 (4) KLT 282) is relied upon to contend that even in an extreme case, while exercising the discretion under Section 20 of the Specific Relief Act in a suit for specific performance of the agreement, unsustainable defence cannot be a ground for denial of equitable consideration in all circumstances. Thus, in a nutshell the contention is that merely because defendants 1 and 2 were set ex-parte, the court should not have, based on the proof affidavit alone, granted a decree for specific performance of RFA Nos.699 & 859 of 2012 -78- Exts.A5 and A65 without entering into any conclusions on the disputed questions.

91. Learned counsel appearing for the appellant in R.F.A. No.859/2012 also contended that the decree cannot be supported in the light of the infirmities pointed out by the learned counsel for the appellants in the other appeal, Shri G.S. Reghunath.

92. These contentions have been answered by the learned Senior Counsel for the plaintiffs by stating as follows: Ext.A62 is the minutes of the meeting held on 29.12.2005 and Ext.A63 is the copy of the work agreement. Therein, defendants 1 and 2 had promised to complete the construction by 30.4.2006 and to hand over the premises to the plaintiffs for making interior work. This was not complied with by defendants 1 and 2. It is submitted that Ext.A1 is a notice issued from the part of the plaintiffs to the defendants informing about the delay. It is further stated that Exts.A62 and 63 are not denied in the written statement. The defendants, in the meanwhile, requested to issue cheques to the H.D.F.C. and the plaintiffs confirmed the same by sending Ext.A2 letter expressing willingness to remit through crossed cheques every month an amount of Rs.60,000/- payable RFA Nos.699 & 859 of 2012 -79- from August, 2006. It is submitted that this was in reply to the request made by defendants 1 and 2 by Ext.A3 to the plaintiffs. Ext.A4 is the letter by the plaintiffs to defendants 1 and 2 informing about the delay in completing the work. Thereafter, Ext.A5 fresh agreement was executed. There was a payment of Rs.4 lakhs by the plaintiffs to the second defendant. Ext.A7 dated 10.1.2007 is from White Aluminium Devices to the Managing Director of the plaintiffs whereby the quotation was submitted for executing interior decoration, glass fixing, etc. Learned Senior Counsel for the plaintiffs also relied upon Ext.A6 dated 21.7.2007 which is a request made by defendants 1 and 2 to issue a cheque for Rs.1 lakh which was complied with. Ext.A9 is the agreement with one Shri Yakoob for the performance of interior decoration work. It is submitted that the details regarding quotation and other purchase made by the plaintiffs will support the case of the plaintiffs for executing certain works and Exts.C1 and C2 will show the status of the building also. It is submitted that around Rs.36 lakhs has been spent by the plaintiffs and there is no injustice in the matter. In the meanwhile, the third defendant was inducted. Learned Senior Counsel also relied upon certain paragraphs of the written statement to RFA Nos.699 & 859 of 2012 -80- contend that there is no specific denial of various aspects explained in the plaint.

93. In the light of the various aspects pointed out by us earlier with regard to the non framing of issues, the admission of secondary evidence in violation of Section 65 of the Evidence Act and the fact that the alternative relief sought for by the plaintiffs, has not been fully established by giving proper evidence, the matter will have to go back.

94. Before going further, we may have to consider another important aspect. R.F.A. NO699/2012 was filed with a petition to condone delay as C.M.Appl. No.608/2012. Notice was ordered on the delay petition on 22.8.2012. By order dated 3.9.2012 the delay was condoned. The following is the order passed by the Bench:

"C.M.Appl. No.608/2012

Notice issued. None appears for the respondents.

We have heard the learned counsel for the appellants and have perused the affidavit filed in support of the application seeking condonation of delay of 856 days. Having perused the different grounds including the proceedings which were pending before the Hon'ble Supreme Court, we are satisfied that sufficient cause has been shown. Delay condoned."

RFA Nos.699 & 859 of 2012 -81- On the same day, the following order was also passed:

"R.F.A.Admitted. Issue notice. BCF to be paid in two weeks."

On 10.9.2012, in I.A. No.1912/2012 this Court directed that the execution/enforcement proceedings on the basis of the impugned decree will stand deferred for a period of four weeks, to enable the final hearing of the appeal, in the meanwhile. Records were also called for.

95. The order dated 3.9.2012 in C.M.Appl. No.608/2012 was recalled by the order in R.P.No.909/2012 at the instance of the plaintiffs. The Review Petition was disposed of by order dated 15.10.2012. In paragraph 3 of the order, it was noticed that though the respondents in the appeal who are the review petitioners did not appear on 3.9.2012, the date fixed for hearing of the appeal, they had appeared on the next day seeking opportunity to explain why the delay ought not have been condoned. Therefore, the Bench passed the following order in the review petition:

"In the fitness of things, we think that they are entitled to an opportunity of hearing on C.M.Appl. No.608/12. For this reason, we are of the view that there is error apparent on the face of the record, as appropriate opportunity is not seen extended to the review petitioners as regards hearing on the C.M. Application. RFA Nos.699 & 859 of 2012 -82- For the aforesaid reasons, this review petition is allowed. Order dated 3.9.2012 is recalled, however, preserving in tact the order admitting the RFA and the interim orders in that appeal. Post the C.M.Appl. No.608/2012 for further consideration on 18.10.2012."

Along with the appeal, we heard C.M.Appl. No.608/2012 also.

96. In R.F.A. No.859/2012 which is the appeal filed by the third defendant, there is a delay of 711 days in filing the appeal and C.M.Appl. No.740/2012 is filed along with the appeal, for condonation of delay.

97. Shri G.S. Reghunath, learned counsel for the appellants in R.F.A. No.699/2012 submitted that after the appeal was admitted, balance court fee was paid and an interim order has been granted. It is submitted that in the order dated 15.10.2012 in R.F.A. No.699/2012, it is clearly mentioned that the order dated 3.9.2012 is recalled however preserving in tact the order admitting the appeal and the interim orders in the appeal. It is therefore submitted that the C.M. Application seeking for condoning the delay is not at all material at this stage and even if this Court passes a separate order, the delay has to be formally condoned.

98. Learned Senior Counsel appearing for the plaintiffs opposed the application for condoning the delay.

RFA Nos.699 & 859 of 2012 -83-

99. We have gone through the reasons stated in C.M.Appl. No.608/2012 for condoning the delay of 856 days. It is averred that the appellants were appearing through counsel who is the brother of the first defendant who had assured that he shall do everything necessary for the proper conduct of the case. As advised by him, an application for amendment of the written statement was filed also. Only when the appellants received notice on 25.6.2010 from the execution court, they knew about the decree passed. Another advocate was engaged and a petition to set aside the ex-parte decree was filed as I.A. No.1362/2010. This was filed along with a petition to condone delay of 160 days, but they were dismissed by the trial court on 4.8.2011. F.A.O.No.4/2012 was filed before this Court which was also dismissed. The appellants filed S.L.P.No.15380/2012 before the Apex Court and the same was dismissed on 27.7.2012. It is therefore prayed that from 24.7.2010 to 27.7.2012 the appellants were prosecuting legal proceedings with all bonafides. The appeal is thereafter filed on 22.8.2012. The contention raised is that they were prosecuting other proceedings bonafide.

100. In the counter affidavit filed by respondents 1 to 3, they have RFA Nos.699 & 859 of 2012 -84- also relied upon the order passed by the trial court dismissing the application to set aside the ex-parte decree which stands confirmed in F.A.O.No.4/2012 by this Court and the dismissal of the Special Leave Petition by the Apex Court on 27.7.2012. It is submitted that Section 14 of the Limitation Act cannot be called in aid by the appellants. It is submitted that they were fully aware about the proceedings in the suit.

101. The question is whether the delay in filing the appeal has to be condoned or not. Our attention is invited by Shri G.S. Reghunath to various decisions of the Apex Court and this Court that a liberal view will have to be taken in a matter like this, especially since the decree cannot be supported. The following are the decisions relied upon in this context:

Apangshu Mohan Lodh and others v. State of Tripura and others {(2004)1 SCC 119}, State of Karnataka v. Y. Moideen Kunhi (dead) by Lrs. and others (AIR 2009 SC 2577) and Improvement Trust, Ludhiana v. Ujagar Singh and others {(2010) 6 SCC 786).

102. In Apangshu Mohal Lodh's case {(2004) 1 SCC 119}, It was held that the power under Section 5 of the Limitation Act is discretionary and is to be liberally construed. In Improvement Trust's case {(2010) 6 RFA Nos.699 & 859 of 2012 -85- SCC 786} it was held that "while considering the application for condonation of delay no straitjacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not. Each case has to be weighed from its facts and circumstances in which the party acts and behaves. From the conduct, behaviour and attitude of the appellant it cannot be said that it had been absolutely callous and negligent in prosecuting the matter. "

103. In Moideen Kunhi's case (AIR 2009 SC 2577) the expression "sufficient cause" in Section 5 of the Limitation Act came up for consideration. It was held in paragraph 19 that the expression sufficient cause" must receive a liberal construction so as to advance substantial justice.

104. Learned Senior Counsel for the plaintiffs relied upon a decision of the Apex Court in Improvement Trust's case {(2010) 8 SCC 685}} wherein it was held that the expression "sufficient cause" implies presence of legal and adequate reasons. The word "sufficient" means adequate enough, as much as may be necessary to answer the purpose intended. It was held that the party should show that besides acting bonafide, it had RFA Nos.699 & 859 of 2012 -86- taken all possible steps within its power and control and had approached the court without any unnecessary delay.

105. Having considered the rival submissions, we are of the view that the Division Bench, in its order in R.P.No.909/2012 dated 15.10.2009, even though recalled the order condoning the delay, has kept the order admitting the appeal in tact and the direction to pay balance court fee and the order granting stay have also been preserved. Therefore, for all intent and purposes the appeal has been admitted and therefore it had to be finally disposed of on merits also. The balance court fee has also been paid.

106. As regards the explanation offered for condoning the delay also, we are satisfied that reasons have been properly shown by the appellants also. Of course, the order on the application to set aside the ex-parte decree went against them which was challenged in appeal before this Court and before the Apex Court. Even though Shri S. Sreekumar, learned Senior Counsel for the plaintiffs submitted that in those orders it was found by the court that there are no sufficient reasons to allow the application to set aside the order making them ex-parte, as far as the question of considering the delay in filing the appeal against the decree is concerned, we are of the view RFA Nos.699 & 859 of 2012 -87- that merely because those orders went against the appellants, it cannot be contended that the appeal against the decree has to be dismissed automatically. Even though the application to set aside the ex-parte decree filed under Order 9 Rule 13 has been dismissed, the remedy to file an appeal under Section 96 of the C.P.C. is still there, in the light of the decisions of the Apex Court in Bhanu Kumar Jain's case {(2005) 1 SCC 787}. They have got a right to challenge the decree on merits. The decree is liable to be set aside, and the suit will have to be remanded back for consideration afresh. Therefore, we are satisfied that the delay in filing the appeal can be condoned. Accordingly, the C.M. Application No.608/2012 in R.F.A.No.699/2012 is allowed.

107. Since we have condoned the delay in filing R.F.A.No.699/2012, we find no reason to reject the prayer of the appellant in R.F.A. No.859/2012 also to condone the delay. Against him, no relief has been granted by the decree. Accordingly, the delay in filing the appeal therein is also condoned.

108. We therefore sum up the relevant aspects below :

As far as our findings regarding the non framing of issues and other RFA Nos.699 & 859 of 2012 -88- vitiating factors are concerned, it is axiomatic that these aspects will loom large requiring a remand of the matter to the trial court. This is a case where, as we have already noticed, the court has recorded that the issues have been framed. But even the file does not contain the issues framed. We do not agree with the contention of the learned Senior Counsel for the plaintiffs that going by the pleas in the written statement no issues need be framed. Different contentions have been raised by defendants 1 and 2 as well as the third defendant. It requires framing of proper issues. But as far as this case is concerned, when there is a noting in 'B' diary that issues have been framed, unlike a case where no issues have been framed, the circumstances herein are different. There is a failure on the part of the court after passing an order to frame issues, to act under Order 14 Rule 2 C.P.C. which cannot be lightly accepted. None of the points for determination have been stated in the judgment also and the judgment, after narrating the plaintiffs' case, has straightaway proceeded to grant a decree, without discussing the evidence and contentions of the defendants and conclusions for allowing the reliefs in the suit. Therefore, it is not a case where Section 99 of the C.P.C. will deter this Court from remanding the matter to the trial RFA Nos.699 & 859 of 2012 -89- court.

109. Apart from the same, the acceptance of secondary evidence without complying with Section 65 of the Evidence Act is also a glaring illegality. We have already found that Exts.A62, A63 and A65 are only photo copies. In that view of the matter also, the decree cannot be supported.

110. Lastly, another factor is also relevant, viz. with regard to the marking of documents in bulk without proving the contentions by the plaintiffs. Many of the documents, as we have already noticed, relate to invoices and receipts issued by third parties and none of the parties have been cited as witnesses and examined to prove the contents. In a matter like this where a decree for specific performance is sought and where the effect of Section 20 of the Specific Relief Act will have to be considered by the court, as the relief in such a case is discretionary, the court may have to consider the alternative relief for damages and its sustainability. That also requires a remand of the matter to the trial court for adducing evidence in the matter, as we are not dismissing the suit as such. After amendment of the plaint, there was no posting for filing additional written statement. In RFA Nos.699 & 859 of 2012 -90- view of all these factors, we are not going into the merits of the remaining contentions raised by the learned counsel on both sides. Even though learned Senior Counsel for the respondents submitted that even if the suit is remanded, defendants 1 and 2 are not entitled for participation in the further proceedings, we cannot agree. Once the decree is set aside, there cannot be any limitation with regard to their participation. Therefore, we reject the said contention.

111. Accordingly, R.F.A. No.699/2012 is allowed and the decree and judgment are set aside and the matter is remanded for consideration by the trial court afresh after allowing both parties opportunities including one to adduce evidence. Every effort will be taken to dispose of the suit expeditiously, at any rate, within a period of six months from the date of receipt of records. The appellants are entitled for refund of court fee paid on the memorandum of appeal.

112. As regards R.F.A. No.859/2012, the appeal has not been admitted. There is no decree as against the appellant therein. In that view of the matter, no other directions are necessary in the said appeal. The appellant therein also will be heard by the trial court. R.F.A. NO.859/2012 RFA Nos.699 & 859 of 2012 -91- is accordingly closed.

The parties are directed to appear before the court below on 8.12.2014. No costs.

(T.R.RAMACHANDRAN NAIR, JUDGE) (P.V.ASHA, JUDGE) kav/

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