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Asghar Ali and ors. Vs. Chidda - Court Judgment

LegalCrystal Citation
SubjectContract
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 539 of 1972
Judge
Reported inAIR1982All186
ActsCode of Civil Procedure (CPC) , 1908 - Sections 96 and 100 to 101 - Order 6, Rules 4 and 5; Evidence Act, 1872 - Sections 3
AppellantAsghar Ali and ors.
RespondentChidda
Appellant AdvocateS.K. Tewari, Adv.
Respondent AdvocateV.S. Saxena and ;M.A. Qadeer, Advs.
DispositionAppeal allowed
Excerpt:
.....6 of the civil p. , and since no application was made by the plaintiffs for further and better particulars of fraud alleged in the written statement the plaintiffs cannot fall back on the provisions of rule 4 of order 6 of the civil p. both these submissions were accepted by the court of appeal and it observed that defects clearly existed and they had made a strong impression on its mind. the rule only deals with the power of the court and enjoins that every court trying a suit has a power to compel a party to supply better and further particulars of a fraud or other objectionable conduct imputed against the other party. basanto kunbi, air 1916 all 226, is in the teeth of the decision of the supreme court and also that of the privy council and cannot be accepted as laying down good..........which emerges from) the above discussion is that although the' defendant-respondent pleaded fraud, no particulars of fraud alleged were disclose in the written statement. the only thing stated was that said mohammad had appended his signatures on blank stamp paper on which the agreement to sell dated nov. 29, 1967 has been subsequently scribed. the circumstances which led said mohammad to sign blank stamp papers are not disclosed either in the pleadings or in the evidence. the averment of fraud, howsoever strongly worded they may be, could not be relied upon and no amount of evidence in support of this allegation could be looked into. 15. it is unfortunate that the court of] appeal in discussing the oral evidence led by the parties has allowed its vision to be clouded by.....
Judgment:

S.J. Hyder, J.

1. The plaintiffs are the appellants before this Court. They are aggrieved because a suit for specific performance was dismissed by the court of appeal who reversed the decree passed by the primary court.

2. According to the plaintiffs-appellants, who shall hereinafter be referred to as 'the plaintiffs' only, Said Moham-mad, who was one of the defendants in the suit, was the Bhumidhar of certain plots of land. He agreed to convey the said land to the plaintiffs for a sum of Rs. 4,000/- and received a sum of Rupees 2,000/- as earnest money. The balance of the sale consideration was payable at the time of the execution of the sale deed which was to be completed by May, 1958, An agreement embodying the said conditions was executed by Said Mohammad on the same date. It is futher disclosed in the plaint that in contravention of the said agreement, Said Mohammad transferred the land in dispute to Chidda Khan, defendant respondent No. 1 for a sale consideration of Rs. 5000/- on Mar. 29. 1968. Plaintiffs stated that Chidda Khan obtained the conveyance in his favour with full knowledge of the fact that a prior agreement executed by Said Mohammad existed and that the plaintiffs were entitled to the conveyance of the said land in accordance with the conditions of the said agreement. According to the plaintiffs Chidda Khan was not a bona fide transferee without knowledge of the agreement in favour of the plaintiffs. In the plaint it was disclosed that the plaintiffs were in possession over the land in dispute. On the basis of these facts, it was prayed that a decree for specific performance may be passed against the two defendants directing them to convey the plots mentioned in the agreement dated Nov. 29, 1967 in favour of the plaintiffs after receiving the sale consideration of Rs. 2,000/- and in case of default, the court may execute a sale deed of the said plots in favour of the plaintiffs.

3. Both the defendants contested the suit. Said Mohammad did not dispute his signatures on the agreement dated 29th Nov. 1967. He, however, stated that his signatures had been taken on blank stamp papers and that the so-called agreement dated Nov. 29, 1967 was vitiated by fraud. His written statement did not disclose the circumstances in which Said Mohammad was persuaded by the plaintiffs to give his signatures on blank stamp papers. Particulars of fraud on which reliance was placed on his behalf have also not been disclosed in the written statement. On behalf of Chidda Khan, defendant-respondent No. 1, it was contended that he was a bona fide transferee for value without notice of the agreement dated Nov. 29, 1967.

4. The primary court negatived the contention of the two defendants and accordingly decreed the plaintiff's suit. Said Mohammad submitted to the decree of the primary court and an appeal was preferred only by Chidda Khan. The court of appeal reversed the findings of the trial court on both the pleas referred to above and in consequence dismissed the suit filed by the plaintiffs.

5. On behalf of the plaintiffs-appellants, the findings recorded by the court of appeal on both the questions decided by it have been strongly assailed. It is contended that the particulars of fraud not having been disclosed in the written statement, the court of appeal was in error in upholding the said plea. It -s next urged that the finding on the question of Chidda Khan being a bona fide transferee for value and without knowledge of the agreement in favour of the plaintiffs is only consequential on the finding recorded on the first question by the court of appeal and in case the finding on the first question is reversed, this court should also set aside the finding on this aspect of the case.

6. I have examined the written statements filed in the case. There is not a whisper of the particulars of fraud practised by the plaintiffs upon Said Mohammad in obtaining his signatures. The submission of the learned counsel that there are no particulars of fraud as required, by Rule 4 of Order 6 of the Civil P. C. is, therefore, well founded. In support of his submission, learned counsel has placed reliance on Bishnu Deo Narain v. Seogeni Rai : [1951]2SCR548 . In that case, it has been found that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as led. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice howsoever strong the language in which they are couched may be, and the same applies to undue influence and coercion.

7. On behalf of the contesting defendants-respondents, however, it is urged that it was open to the plaintiffs to apply for further and better particulars relating to fraud in accordance with the provisions of Rule 5 of Order 6 of the Civil P. C., and since no application was made by the plaintiffs for further and better particulars of fraud alleged in the written statement the plaintiffs cannot fall back on the provisions of Rule 4 of Order 6 of the Civil P. C. in order to sustain their claim for reversing the decree passed by the court of appeal. An other argument was also raised on behalf of the defendant-respondent in answer to the plaintiff's objection. Learned counsel appearing on behalf of the respondent submitted that since the parties went to trial knowing the alleged particulars of fraud, it is no longer open for the plaintiffs to rely on the technical rule of pleadings to buttress their claim in the suit. In the alternative, it is submitted on behalf of the respondent that it had been specifically pleaded that no amount had been received by Said Mohammad towards earnest money as alleged by the plaintiffs, and this amounted to giving sufficient particulars of fraud pleaded cm their behalf.

8. As regards the first submission urged on behalf of the defendant-respondent, it may be stated that for the first time before the court of appeal, two facts were brought to its notice on behalf of the respondent. In the first place, it was urged that the date of sale of the stamps scribed by the Stamp Vendor on the back of the two stamps on which the agreement dated Nov. 29, 1967 had been written appeared to have been written after rubbing out something else which had been written there. It was next urged that the figure '145' on the back of the stamp written by the Stamp Vendor appeared to have been over-written. Both these submissions were accepted by the court of appeal and it observed that defects clearly existed and they had made a strong impression on its mind. With the above impression subsisting in its mind, the court of appeal examined the testimony of the witnesses of the parties and had no difficulty in accepting what was stated by the defendent's witnesses and in rejecting the evidence offered on behalf of the plaintiffs. The facts that there was something amiss in the purchase of the stamp papers on which the document dated Nov., 29, 1967 had been written cropped up for the first time before the court of appeal and the plaintiffs had no notice that any such objection would be raised against them. At the stage, I do not consider it necessary to refer to the alleged defects in the endorsement made by the Stamp Vendor on the back of the stamp papers. The question is whether the defendant could be permitted by the court of appeal to raise these matters before it so as to make an impression on its mind. In my opinion, Rule 4 of Order 6 of the Civil P. C. has been enacted to put a stop to this kind of practice. It is needless to say that the plaintiffs had no opportunity to lead evidence in the case to prove that there was no such defect as alleged by the defendant in the endorsements made by the Stamp Vendor. There can be no doubt that the plaintiffs had been taken completely by surprise as these facts were permitted to be raised on behalf of the respondent for the first time at the stage of appeal.

9. Rule 4 of Order 6 of the Civil P. C. is based on the principle that a charge of fraud, undue influence etc. is a charge of a quasi criminal nature. Whenever, it is alleged that a transaction is vitiated on account of fraud or undue influence, an insidious and unworthy conduct Is attributed to the person who is said to be guilty of fraud and undue influence. The policy of law, therefore is that the person charged with a fraud or undue influence etc. should be apprised of its particulars so that the said party may be in a position to rebut those particulars. If no particulars are furnished to the party charged with such conduct, he is put at a disadvange and is unable to meet the case sought to be established by the party making the charge. In the case of Bharat Dharma Syndicate Ltd. v. Harish Chandra 0049/1937 . It was observed :--

'Before parting with this case their Lordships desire to call attention to the great difficulty which is occasioned both to person charged with fraud or other improper conduct, and to the tribunals which are called upon to decide such issues, if the litigant who prefers the charges is not compelled to place on record precise and specific details of those charges. In the present case the petitioner ought not to have been allowed to proceed with his petition and seek to prove fraud, unless and until he had, upon such terms as the Court thought :ii to impose, amended his petition by including therein full particulars of the allegations which he intended to prove. Such cases as the present will be much simplified if this practice is strictly observed and insisted upon by the court, even if as in the present case, no objection is taken on behalf of the parties who are interested in disproving the accusations'.

10. The law thus laid down in the case of Bharat Dharma Syndicate Ltd. (supra) has been consistently followed by the courts in India. The portion underlined from the judgment of that case goes against the contention advanced on behalf of the respondent based on Rule 5 of Order 6 of the Civil P. C. Rule 5 is not, an exception to the general rule enunciated in Rule 4 of Order 6 of the Civil P. C. The rule only deals with the power of the court and enjoins that every court trying a suit has a power to compel a party to supply better and further particulars of a fraud or other objectionable conduct imputed against the other party. It cannot be urged that a party who is not invoking the jurisdiction of the court under Rule 5 of Order 6 is precluded from raising an objection based on R, 4 of Order 6 of the Civil P. C. I cannot accept the second contention urged on behalf of the respondent. The case of Beni Madho v. Basanto Kunbi, AIR 1916 All 226, is in the teeth of the decision of the Supreme Court and also that of the Privy Council and cannot be accepted as laying down good law. As already pointed out above, the court of appeal has accepted the facts as constituting fraud which were never urged before the primary court and which can be said to have been present in the mind of the parties. The submission of the learned counsel for the defendant respondent that the parties went to trial knowing fully well the case which they were required to meet is, therefore, not accepted.

11. In the case of Mohan Lal v. Anandi Bai, AIR 1871 SC 2177 the facts were that the plaintiffs relied on certain documents which were in the nature of deeds of gift executed in favour of the plaintiffs. At the hearing of the case, perhaps at the stage of arguments, it was submitted on behalf of the defendant of that case that the said deeds were vitiated by fraud. This contention was accepted by the primary court as well as by the court of appeal. In a second appeal preferred by the plaintiffs High Court held that a plea based on fraud was not available to the defendant of the suit as he had not staled any particular concerning the alleged fraud in the written statement filed by him. The defendant took the matter to the Supreme Court by filing a Civil Appeal. It was urged on his behalf that the High Court was not justified in setting aside the finding of the first court of appeal. The pleadings having been entertained by the primary court it was evident that the parties were aware of the controversy which required adjudication. In support of this contention, reliance was placed on behalf of the appellant of that case before the Supreme Court on earlier decisions of that court including the decision in Kunju Kesavan v. M. M. Philip : [1964]3SCR634 . With reference to the ratio in Kesavan's case V. Bhargava J. observed (at p. 21821 :

'Again it is manifest that, in that case, parties had gone to trial consciously on that question and had given evidence, while the only omission was in the pleadings. In the case before us, we have already held that there was not merely omission in the pleadings but in fact, the question of fraud and antidating was never the subject matter of any evidence and no party was over conscious in the trial that such questions are going to be decided by the court.'

12. The present case is similar to the decision of the Supreme Court in Mohan Lal's case (supra).

13. In support of his alternative submission, learned counsel for the respondent has relied on the case Iswar Radha Kanta Jew Thakur v. Gopi Nath Das : AIR1960Cal741 , which is the decision of the Calcutta High Court. The case related to a religious endowment governed by the Hindu Law. A transfer of some property was assailed on the ground of fraud and it was held that by the mere fact that the transaction was without any legal necessity it was not binding on the deity and the transfer was, therefore fraudulent. That case turned on principles of Hindu Law relating to endowments. It lends no support to the defen-dent-respondent in the present case. I am, therefore, unable to agree with the submission urged on behalf of the learned counsel.

14. The position which emerges from) the above discussion is that although the' defendant-respondent pleaded fraud, no particulars of fraud alleged were disclose in the written statement. The only thing stated was that Said Mohammad had appended his signatures on blank stamp paper on which the agreement to sell dated Nov. 29, 1967 has been subsequently scribed. The circumstances which led Said Mohammad to sign blank stamp papers are not disclosed either in the pleadings or in the evidence. The averment of fraud, howsoever strongly worded they may be, could not be relied upon and no amount of evidence in support of this allegation could be looked into.

15. It is unfortunate that the court of] appeal in discussing the oral evidence led by the parties has allowed its vision to be clouded by extraneous considerations which I have already referred to above. I have myself examined the agreement to sell dated Nov. 29, 1967 and in my opinion, the criticism of the court of appeal directed against the said document was wholly unreasonable and cannot be allowed to stand. In disregarding the mandatory provision of Order 6, Rule 4 of the Civil P. C., the court of ap-peal can be said to have committed an error of procedure which has created a substantial defect in the decision of the case upon merits.

16. As already stated, the court of appeal was impressed by the alleged defects in the endorsements made by the Stamp Vendor and this fact coloured its vision in the appreciation of evidence produced by the parties. It rejected the testimony of the scribe of the agreement dated 26-9-1967 merely on the ground that he is unable to give the exact date of the execution of the document. The testimony of the attesting witness was discarded On the solitary ground that he lived in a village which was about 6 miles away from village Rasoolpur where the parties lived. In doing so, the court of appeal, overlooked the fact that, the document dated Nov. 29, 1967 was executed in the compound of the Registration Office at Bulandshahr, A man living at a distance of six miles from the place of residence of the parties and visiting the village as an itinerant vendor could have been on friendly terms with them and may have been invited to attest the agreement as a witness. The fact that the attesting witness lived at a place six miles away from the residence of the parties could not have been made a ground for rejecting his testimony. There should have been something in his evidence itself on the basis of which this statement could be discarded. The documents having been executed at Bulandshahr the presence of the scribe was only natural. Professional scribes are required to write a large number of documents and they cannot be expected to remember by rote the date of each and every document written by them. The testimony of the plaintiff's witnesses have been discarded by the court of appeal on account of its preconceived notion which has been clearly stated above in this judgment. The assessment of evidence made by the court of appeal cannot be said to be reasonable and it clearly perverse.

17. The judgment of the court of appeal further goes to show that it was of the opinion that since the document dated Nov. 29, 1967 had never been executed on the day given in the document but was brought into existence subsequently after the execution of the sale deed in favour of the respondent, Chidda Khan respondent could not be attributed with any knowledge of the said agreement. I have already shown above that the assumption on which this reasoning is founded is itself incorrect. The court of appeal has, therefore, erred in relying on this circumstance for holding that Chidda Khan was bona fide purchaser for value without knowledge of the agreement relied upon by the plaintiffs-appellants. True it is that the court of appeal has also called in aid the statement of Chidda Khan and his witnesses to support this findings. It is, however, clear that the oral testimony has only been referred to as confirmatory of the assumption about the forged nature of the agreement dated Nov. 29, 1967. It is not a case where a finding has been based on two distinct grounds and if one of the grounds is found to be unsustainable the finding may be sustained on the other ground. In fact reliance on oral testimony is only consequential as confirming the original finding about the nature of the agreement dated Nov. 29, 1967. I am, therefore, of the view that the court of appeal was in error in coming to the conclusion that Chidda Khan was a bona fide transferee for value without notice of the agreement to sell in favour of the plaintiffs-appellants.

18. Learned counsel for the defendant-respondent also placed reliance on a single Judge decision of this court in Bir-bal Singh v. Harphool Khan : AIR1976All23 and contended that merely on the basis of the admission of signatures on the document dated Nov. 29, 1967, it should not be held that Said Mohammad had executed the said document. He contended that there was a distinction between signing a document and executing it in the sense of appending one's signature in token of the correctness of the recitals contained in the document. The proposition of law for which the learned counsel has contended is undoubted and is supported by a number of other authorities which are referred to in the case of Ch. Birbal Singh (supra). However, in order to invoke this principle, some acceptable explanation should be offered by the person signing the document from which it may be reasonably concluded that he intended to append his signatures on a blank document only. In the instant case, no such explanation has been offered by Said Mohammad or by Chidda Khan. The inference that forces itself is that the apparent tenor of the document must be accepted unless there is some impediment in doing so. The burden of proving that impediment was on the defendant-respondent. hP has not led any evidence to show the circumstances in which Said Mohammad was led to sign blank stamp papers. Ch. Birbal Singh's case is, therefore, clearly distinguishable.

19. On the basis of this case, learned counsel further submitted that the question of appreciation of evidence is within the domain of the last court of fact and this court must accept the assessment made by that court. This principle is not applicable in the present case. I have already referred to the grounds on which the assessment of evidence made by the court of appeal stands vitiated in law.

20. The result is that this appeal succeeds and is hereby allowed. The decree of the first court of appeal is set aside and that of the trial court is restored. The appellants shall be entitled to their costs throughout.


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