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Musammat Manki Kunwar Vs. Gauri Shankar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1923)ILR45All624
AppellantMusammat Manki Kunwar
RespondentGauri Shankar and ors.
Excerpt:
.....be ordered within 10 days to deliver to the defendant further and better particulars of the fraud alleged in paragraph of the plaint, stating whether the representations alleged were verbal or in writing; if verbal, giving the substance of each and every of the said representations and stating, as regards each one, the date when and the place where and the person by whom and the person to whom the said representation was made, and that the plaintiff be precluded at the trial from giving any evidence of any representations other than those (if any) clearly pleaded in paragraph. ' 6. subordinate judges should be watchful to see that in all cases the parties have pleaded their cases so plainly, fully and clearly that each side knows the nature of the case which has to, be met, and..........of the judge him self to require the defendant to specify with particularity the nature of the fraud alleged. he should have done this in the interest of the plaintiff and because the rules require it arid in the public; interest. if subordinate judges would make the parties comply with reasonable strictness with the provisions of order vi, cases would be more satisfactorily decided and a very large amount of public time would be saved in their disposal, with a corresponding benefit to litigants.5. taking the case of fraud as an illustration, the proper form of application in an ordinary suit where the plaintiff has alleged fraud vaguely would be somewhat as follows: 'that the plaintiff be ordered within 10 days to deliver to the defendant further and better particulars of the fraud.....
Judgment:

Grimwood Mears, C.J. and Piggott, J.

1. In the lower court this was a suit for specific performance of a contract for sale embodied in a document, dated the 2nd of December, 1918. That document set forth that a dispute had arisen between Musammat Manki Kunwar and the defendant and other parties in like interest in relation to about 17 acres of land in mauza Lachipur. That land had been bought by Gauri Shankar a few years before. That land was the subject of a pre-emption suit brought by the present plaintiff, which at the date of this agreement of the 2nd of December, 1918, had been through two courts, and in each court had been decided adversely to the lady. At the date of this agreement there was an appeal pending in the High Court. With a view to put an end to the dispute relating to this land in mauza Lachipur, and also with a view to put an end to a rivalry between the parties with regard to certain land under the control of the Maharaja of Benares, they entered into the agreement in suit. In substance, in certain events the lady had to pay Rs. 5,000 in order to become the owner of, the land in mauza Lachipur; and as regards the other property, mauza Saktanpur and other mauzas, set out in the plaint, the parties were willing to become partners in that property, and partners on the basis of each taking a half. It appears that there were various persons who wished to acquire this property, and a man whose name is of no importance in the action, first offered a small amount of nazrana. The lady capped that by what became ultimately an offer of Rs. 10,000 and thereupon the defendant and his party added to it Rs. 1,000, making the offer Rs. 11,000. In this state of affairs the court of His Highness the Maharaja of Benares looked into the matter, and by the 2nd of December all the parties to this suit had recognized the inadvisability of bidding against each other, and indeed, on the 4th of January, 1919, they made it perfectly clear to the officers of His Highness that Rs. 11,000 would be paid--as to Rs. 5,500 by the lady, and as to Rs. 5,500 by Gauri Shankar and his father, and they would be content each to receive one-half of the property. That is in fact what has happened.

2. The complaint of the present plaintiff was that in breach of the definite agreement the defendants had refused to convey to her the Lachipur property for the Rs. 5,000 set out in the agreement. The defendant, searching about for a defence, thought that some vague allegations of fraud would help him and embodied them in paragraph 4. The plaintiff did not apply for particulars of the fraud and the learned Subordinate Judge, in entire disregard of the provisions of Order VI of the Code of Civil Procedure, proceeded to frame issues.

3. The one relating to fraud was remarkable. It runs as follows: Issue 1(c): 'Were there any allegations is connection with the pre-emption second appeal made with intense deception which affected the defendants as alleged in paragraph No. 4 of the written statement? If so, how does that fact affect the claim?'

4. It was the duty of the pleader for the plaintiff to apply to the Subordinate Judge to order the defendant to deliver further and better particulars of the charge of fraud. He did not do so. When settling issues it was the duty of the Judge him self to require the defendant to specify with particularity the nature of the fraud alleged. He should have done this in the interest of the plaintiff and because the rules require it arid in the public; interest. If Subordinate Judges would make the parties comply with reasonable strictness with the provisions of Order VI, cases would be more satisfactorily decided and a very large amount of public time would be saved in their disposal, with a corresponding benefit to litigants.

5. Taking the case of fraud as an illustration, the proper form of application in an ordinary suit where the plaintiff has alleged fraud vaguely would be somewhat as follows: 'That the plaintiff be ordered within 10 days to deliver to the defendant further and better particulars of the fraud alleged in paragraph of the plaint, stating whether the representations alleged were verbal or in writing; if in writing, identifying and producing the document or documents for inspection; if verbal, giving the substance of each and every of the said representations and stating, as regards each one, the date when and the place where and the person by whom and the person to whom the said representation was made, and that the plaintiff be precluded at the trial from giving any evidence of any representations other than those (if any) clearly pleaded in paragraph...and the particulars to be delivered, and that the plaintiff be ordered to pay Rs. ...to the defendant as the costs of and occasioned by this application, such payment to be made with the delivery of the particulars to be ordered.'

6. Subordinate Judges should be watchful to see that in all cases the parties have pleaded their cases so plainly, fully and clearly that each side knows the nature of the case which has to, be met, and this rule is one of general application. Frequently the result of ordering particulars of nebulous claims and defences will be to make it manifest that the claim or defence has no substance.

7. A Subordinate Judge should, when ordering particulars to be given, order the party in default to pay a specified sum of costs to the other side-for the costs occasioned by the application; such payment to be made on or before the delivery of the particulars. If the order is disobeyed, and the plaintiff is in default, he should have his action stayed; and if the defendant is in default, his defence should be struck out.

8. Particulars having been furnished, the Judge should be careful at the trial to exclude all evidence which is not fairly covered by the original paragraph and the particulars, and should give that as his reason.

9. Unless pleadings are definite a Judge is entirely at the mercy of the parties and has a difficulty in excluding evidence however irrelevant. The case is protracted and the opposite party not infrequently put in an unfair position. A defendant is entitled, before delivering his written statement, to have an order that the plaintiff shall deliver to him a pleading in compliance with Order VI. Equally, a plaintiff is entitled, before being called to take any further step in the action, to have proper particulars of the defendant's written .statement. If the Judge is of opinion that a groundless application is made to him, the party putting in the application should likewise be ordered to pay costs.

10. We have made these observations at length because we are persuaded that, without undue strictness or pedantry, every Subordinate Judge could effect a large saving of public time by requiring reasonable compliance with the existing rules, and we think that Subordinate Judges should entertain applications by the parties if made within a few days of the receipt by them of the plaint and written statement, respectively. Pleadings at present are not infrequently deliberately framed in the most general of terms and are involved, unsystematic, argumentative and, indeed, abusive. They should contain clear, definite allegations of fact, with, when occasion demands it, the necessary reference to statutory law.

11. In the particular case under consideration, if the defendant had been made to specify in clear terms what was the nature of the fraud that he alleged, with the proper particulars which s, h a plea requires, it would have been found at once that there was no substance in his allegation. It now turns out that it condenses itself into this, that because the lady was alleging from first to last that she had a right of preemption, therefore she was guilty of deceipt or, to use the curious language of the Subordinate Judge as embodied in issue 1(c), 'intense deception.' That is a phrase with which we are wholly unfamiliar. There is no doubt that the lady was alleging a right of pre-emption. It may have been a good claim, it may have been a bad claim. At the very time when the right of pre-emption was being asserted by hen in the agreement of the 2nd of December, 1918, matters had reached the stage when two competent courts had decided against her, and this was a fact that was known to the defendants; and yet it is said that the lady made statements as regards her right to pre-emption which were false to her knowledge, were intended to deceive, and in fact did deceive these defendants and caused them damage in that they were induced to enter into the contract. Of course it is not put in that way in the pleadings, because that would have shown there was no substance in the plea. The learned Subordinate Judge, when he got into close quarters with the facts, said that he did not believe the defence allegation that -the plaintiff got the agreement 'through deceptive words.' To prove a case of fraud it must be proved that representations were made which were false to the knowledge of the party making them or were such that the party making them could have no reasonable, belief that they were true, that they were made for the purpose of being acted upon and believed, that they were believed and acted upon and caused the actual damage for which relief is claimed. We can find no possible answer of the defendant to this suit, and we are of opinion that this is one, of those cases in which specific performance of the contract must be declared, and that the judge was right. We, therefore, dismiss this appeal with costs.


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