Kerala High Court
Rajagopalan Nair vs Manikandan P.R on 9 September, 2021
Author: V.G.Arun
Bench: V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
THURSDAY, THE 9TH DAY OF SEPTEMBER 2021 / 18TH BHADRA, 1943
OP(C) NO. 2683 OF 2017
AGAINST THE ORDER/JUDGMENT IN OS 248/2013 OF SUB COURT,
OTTAPPALAM, PALAKKAD
PETITIONERS:
1 RAJAGOPALAN NAIR
AGED 54 YEARS
S/O.BALAKRISHNAN NAIR,SIVA PRIYA,VETTAKKARA AMSOM,
KATAMPAZHIPURAM VILLAGE,OTTAPALAM TALUK,
PALAKKAD DISTRICT.
2 DEVIKA NAIR
AGED 52 YEARS,W/O.RAJAGOPALAN NAIR,
SIVA PRIYA,VETTAKKARA AMSOM,KATAMPAZHIPURAM VILLAGE,
OTTAPALAM TALUK,PALAKKAD DISTRICT.
BY ADV SRI.P.JAYARAM
RESPONDENTS:
MANIKANDAN P.R
AGED 40 YEARS,S/O.RAJAGOPALAN NAIR,
RAJA VIHAR,NADAMALIKA ROAD,ARAKURUSI.P.O-678582.
MANNARKAD TALUK,PALAKKAD DISTRICT.
BY ADV SRI.K.RAVI (PARIYARATH)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09.09.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO. 2683 OF 2017
2
JUDGMENT
Petitioners are the defendants in O.S.No248 of 2013 on the files of the Sub Court, Ottappalam. The suit is filed by the respondent seeking specific performance of an agreement dated 17.09.2012. In the written statement the petitioners had denied the execution of the agreement and alleged that the agreement produced by the plaintiff is a concocted document. Various circumstances in support of the contention were also pleaded in the written statement. Based on the pleadings issues were raised and the trial commenced. In the affidavit submitted by the 1 st defendant (DW1), in lieu of chief examination, it was averred that item No.1 in the plaint schedule was sold by him on 21.01.2012, much prior to the agreement. During cross-examination of DW1, specific questions were put to him regarding the sale of item No.1 property. After examination, DW1 filed interlocutory applications seeking permission to produce the sale deed under which item No.1 was sold and to recall and re-examine him to prove that document. By the OP(C) NO. 2683 OF 2017 3 impugned order the prayer seeking permission to produce the document was dismissed. Consequently, the application for re-opening the evidence of DW1 was also dismissed. Aggrieved, this Original Petition is filed.
2. Sri.P.Jayaram, learned counsel for the petitioners assailed the impugned oder by which the application seeking production of document was dismissed. It is contended that execution of the sale agreement having been denied in the written statement itself, the court below had no justification in shutting out the best evidence. Referring to paragraphs 7 and 8 of the written statement it is contended that execution of the document had been specifically denied and production of the prior sale deed would lend support to the pleadings. Further, the 1st defendant having been cross-examined with regard to the sale of item No.1, he was legally entitled to produce the document to substantiate his oral testimony. Reliance is placed on the decision of Hon'ble Supreme Court in Bhagwati Prasad v. Chandramaul [AIR 1966 S.C.735] to contend that absence of a specific plea in the pleadings will OP(C) NO. 2683 OF 2017 4 not dis-entitle a party from relying upon such plea, if it is satisfactorily proved in evidence. It is hence contended that mere absence of a specific averment regarding sale of plaint item No.1 in the written statemen will not dis-entitle the defendants from leading evidence in support of their contention that no agreement of sale was ever executed. According to the learned counsel, the production of the document will only further the defence already set up. Finally, it is contended that the evidence sought to be let in is not contradictory to the pleadings on record and as such, there is no prohibition.
3. Per contra, Sri.Ravi K.(Pariyarath), learned counsel for the respondent contended that the sum and substance of the defence set up by the petitioners is that the sale agreement is a concocted document. To buttress this contention, learned counsel drew attention to paragraphs 1 to 4 of the written statement. It is contended that no mention is made in the written statement about sale of plaint item No.1 property prior to execution of the agreement. Being so, the evidence so sought to be let in OP(C) NO. 2683 OF 2017 5 has nothing to do with the defence set up. According to the learned counsel, the decision in Bhagwati Prasad (supra) will not aid the case of the petitioners since, the dictum therein is to the effect that one party should not be allowed to rely upon a matter on which the other party had no opportunity to lead evidence. Reliance is also placed on the decision of this Court, in Elizabeth v. Saramma [1984 KHC 286].
4. Having heard the learned counsel and having perused the written statement, I am unable to agree with the contention that basic pleadings being available in the written statement, trial court should not have denied permission to produce evidence in support of the pleadings. A perusal of the written statement reveals that the petitioners have denied the execution of the sale agreement and have alleged that the agreement is a concocted document. Of course, as contended by the learned counsel for the petitioners, the sale of one item of property and inclusion of that property in the subsequent sale agreement may be a relevant circumstance. If so, the defendants OP(C) NO. 2683 OF 2017 6 were bound to plead that fact in the written statement and to cross examine the plaintiff on this aspect. The factum regarding the sale of item 1 was stated for the first time in the affidavit in lieu of chief examination filed by the 1 st defendant. Therefore, grant of permission to let in the evidence will definitely be to the prejudice of the plaintiff. Even in the decision in Bhagwati Prasad (supra) relied on by the petitioner, the Apex court has held as under:
"What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was in volved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has no opportunity to lead evidence would introduce considerations or prejudice, and in doing justice to one party, the Court cannot do injustice to another."
The same view has been expressed by this Court in Elizabeth v. Saramma [1984 KHC 286]. Hence, I find no reason to interfere with the impugned order in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India.
OP(C) NO. 2683 OF 2017 7 For the aforementioned reasons, the original petition is dismissed.
Sd/-
V.G.ARUN JUDGE scs OP(C) NO. 2683 OF 2017 8 APPENDIX OF OP(C) 2683/2017 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.248/2013 ON THE FILES OF SUB COURT,OTTAPALAM EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT IN O.S.NO.248/2013 ON THE FILES OF SUB COURT,OTTAPALAM EXHIBIT P3 TRUE COPY OF THE AFFIDAVIT IN I.A.1404/2017 IN O.S.NO.248/2013 ON THE FILES OF SUB COURT,OTTAPALAM EXHIBIT P4 TRUE COPY OF THE APPLICATION IN I.A.NO.1405/2017 IN O.S.NO.248/2013 ON THE FILES OF SUB COURT,OTTAPALAM EXHIBIT P5 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE NO.436/2017 DATED 25.01.2017 ISSUED FROM S.R.O,KATAMPAZHIPURAM EXHIBIT P6 TRUE COPY OF THE ORDER DATED 25.O8.2017 IN I.A.NIO.1404/2017 IN O.S.NO.248/2013,ON THE FILES OF SUB COURT,OTTAPALAM.
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 25.08.2017 IN I.A.NO.1405/2017 IN O.S.248/2013,ON THE FILES OF SUB COURT,OTTAPALAM.
EXHIBIT P8 TRUE COPY OF THE ISSUES FRAMED ON 09.03.2015 IN O.S.NO.248 OF 2013 BY SUB COURT, OTTAPALAM EXHIBIT P9 COPY OF THE DEPOSITION OF THE PETITIONER DATED 19.08.2017 IN O.S. NO.248 OF 2013 ON THE FILES OF SUB COURT, OTTAPALAM