K.K. GIRIJA v. KUMARAN

Judgment

4. KUMARAN, S/O. NARAYANAN, THATTANKEKKUDIYIL HOUSUE, AIMORY KARA, KOOVAPPADY VILLAGE, KUNNATHUNADU TALUK. USHA, W/O. KUMARAN, THATTATEKKUDYIL HOUSE, AIMORY KARA, KOOVAPPADY VILLAGE, KUNNATHUNADU TALUK. SIVARAMAN, S/O. NARAYANAN, THATTANTEKKUDYIL HOUSE, AIMORY KARA, KOOVAPPADY VILLAGE, KUNNATHUNADU TALUK. THIRUMENI, KOOVAPPADY VILLAGE, KUNNANTHUNADU TALUK. THATTANTEKKUDYIL HOUSE, AIMORY KARA,

ADV. SRI.GEORGE VARGHESE KIZHAKKAMBALAM THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON 24/08/2009, THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: AFA 21/1997 ORDER ON CMP NO. 272/1998 IN A.F.A.. 21/1997 // DISMISSED //

24.8.2009. P.R. RAMAN, JUDGE. P. BHAVADASAN, JUDGE. // TRUE COPY // KNC/- P.S. TO JUDGE. P.R. RAMAN & K. SURENDRA MOHAN, JJ. = = = = = = = = = = = = == == = = = A.F.A. NO. 21 OF 1997 = = = = = = = = = = = = = = = = = = = = = DATED THIS, THE 24TH DAY OF AUGUST, 2009. J U D G M E N T Raman, J. This is an appeal arising out of the judgment rendered by the learned Single Judge in A.S. 373 of 1995, dated 28.7.1995, confirming the judgment and decree in O.S. 426/1991 passed by the Additional Sub Court, North Paravur.

2. The plaintiff is the appellant. The suit was one for damages. According to the plaintiff, her father purchased an extent of 8.490 cents of land in 1984 from the first defendant for a consideration of Rs.3,000/-. Later, the property was proposed to be sold and the sale was to be completed on or before 30.10.1987 for the purpose of raising money for the marriage of the plaintiff. A formal ante-nuptial settlement was stated to be held on 31.10.1987 on which day, the plaintiff's father agreed to pay substantial amount equivalent to her share in the property. But the property could not be sold because of the interim injunction obtained in O.S. 289/1987 by the first defendant herein restraining her AFA 21/1997 2 father from alienating the property. It was contended that the first defendant fought a vexatious case against her father and that she, who has got 40% disability, lost her chance of marriage life and solely because of the frivolous suit against her father the property could not be sold and conduct the marriage.

3. The defendant contended that the suit was not vexatious or malicious as alleged, that the defendants were not even aware of the marriage proposal at all and they have not caused any obstruction to the plaintiff's marriage as alleged. The trial court raised necessary issues for trial. The evidence in the case consists of the oral testimony of PWs 1 to 5 and Exts.A1 to A9 on the side of the plaintiff. On the defendants' side no evidence was adduced. After trial, eventually, the suit was dismissed finding that the plaintiff was not able to establish that the earlier suit instituted by the first defendant against her father was vexatious and malicious. Though the maintainability of the suit was questioned, the trial court entered a finding that the suit is maintainable. It was found out that after the disposal of the suit O.S. 289/1987 an appeal was filed and the same is pending and therefore, it is premature to enter a final verdict. Against the said decision, an appeal was preferred and the learned Single Judge agreed with the finding of the trial court that ' it is premature to enter AFA 21/1997 3 a finding that the institution of the suit by the first defendant against the plaintiff's father was a wrongful act or that it was filed frivolously and vexatiously with ulterior motive to disrupt the proposed marriage of the plaintiff. More over, the damages alleged to have been sustained appears to be too remote with reference to the disputed wrongful act so as to award compensation.' Accordingly, the appeal was dismissed against which this A.F.A. Is filed.

4. We have heard the learned counsel for the appellant Ms. Anamika and and the learned counsel Sri. George Varghese Kizhakkambalam, appearing for the respondents. It was contended by the learned counsel for the appellant that the court below dismissed the suit which was confirmed by the appellate court solely on the ground that it is premature to enter a finding that the institution of suit O.S. 289/1987 was in any way vexatious or wrongful only on the ground that an appeal was pending at that time, that subsequently, that appeal was also dismissed and therefore, it is evident by the verdict of the two courts that the aforesaid suit was filed vexatiously against the father and as a result the marriage of the plaintiff could not be performed.

5. Per contra, the learned counsel appearing for the respondents would submit that it is not solely based on the reasoning that the appeal AFA 21/1997 4 was pending that the court dismissed the suit. On the other hand, it was also found that the claim for damage is too remote with respect to the disputed wrongful act and further, the appellant/plaintiff was not even a party in the earlier suit and therefore, she could not successfully sustain a claim against the defendants alleging malicious prosecution as no case was mooted against the appellant. Further, there is nothing to show that the marriage of the appellant happened to fail for the reason as stated in the plaint. According to the defendants, it is contended that they were not aware of the marriage proposal. Accordingly, the counsel sought to support the judgment.

6. The suit is one alleging that the earlier suit O.S. 289/1987 filed by the first defendant against the father of the appellant is vexatious and malicious. True that the suit was dismissed and confirmed in appeal. But merely because the suit happened to be dismissed, that cannot be said to be malicious or vexatious. Secondly, the observation if any, to award cost by itself is no reason to hold that the suit was of such a nature to bring it within the comprehension of the term “malicious”. At any rate, the appellate court did not dismiss the appeal or rendered any finding as to whether the suit is vexatious or malicious. Added to that, it is also to be seen that the appellant was not a party to the proceeding in O.S. 289 of 1987. Therefore, AFA 21/1997 5 the appellant could not have stated that there was any malicious prosecution against her claiming any compensation thereafter.

7. Then the next question is as to whether the suit has got direct linkage with the non performance of the marriage of the appellant. May be that the father could not have disposed of the property to raise funds. But even the plaint allegations would show that the father only agreed to give a share in the property or the consideration that may have received against the sale of the property. What is the amount agreed upon and why the father could not raise funds are matters on which there are no clinching evidence. At any rate, it cannot be said that the filing of the suit against the father has got any direct connection with the marriage proposal of the appellant. However, it has also to be seen that the appellant was suffering from a disability and even after the injunction was vacated or the suit was dismissed, the property could be sold. Therefore, the claim made in the suit is remotely connected with the disputed wrongful act on the part of the first defendant. Being an appeal from the first appeal and in view of the aforesaid fact finding both by the trial court and by the first appellate court, we do not find that this appeal deserves to be allowed reversing the two concurrent judgments. The judgment of the court below confirmed by the appellate court is after appreciating the evidence on record and applying the AFA 21/1997 6 correct principles of law. In such circumstances, we find no merit in this appeal. Accordingly, it is dismissed. However, in the facts and circumstances of the case, there will be no order as to costs. P.R. RAMAN, (JUDGE) K. SURENDRA MOHAN, (JUDGE) KNC/-