K.S. Palaniswamy, J.
1. This summons is taken out by the plaintiff under Order 6, Rule 16 Civil Procedure Code, and Order 14, Rule 8 of the Original Side Rules praying (1), that the portions of the written-statement as shown in her affidavit should be struck out as being scandalous and defamatory; (2) that the defendant should be prohibited from making any allegation casting reflection on the character or status of the plaintiff before the Commissioner, before whom the defendant is to be examined, and (3) to direct the defendant to give evidence in Court.
2. The suit is to enforce specific performance of a contract of sale of the suit property, which is a building in Santhome High Road, Madras. It is alleged in the plain that the plantiff advanced a loan of Rs. 4,70,000, to the defendant in the year 1966, flat the defendant subsequently expressing his inability to repay the loan offered to sell the suit property, that the sale amount was fixed at Rs. 4,00,000, that a sum of Rs. 1,20,000, was fixed as the price of the furniture, fittings, etc. that the ?contract was reduced to writing on 12th April, 1967, that the transaction was agreed to be completed within three months from the date of the agreement, that in November, 1967 the defendant delivered possession of the suit property to the plaintiff, that subsequently the defendant made request for extension of time and put forward untenable contentions and did not fulfil his part of the contract. With these allegations the plaintiff has prayed for a decree for specific performance.
3. The gist of the defence is this : The plaintiff (a lady) who was a stranger to the defendant became his acquaintance in 1965 and began to move on friendly terms with him and in course of time gained a position of trust and confidence. The defendant was not really in need of money, but the plaintiff volunteered to lend. In course of time the plaintiff, representing that she was put to difficulties at the place where she was living, requested the defendant to permit her to move into the suit building. The plaintiff having gradually ingratiated herself in a position of trust and confidence and having placed the defendant in obligation to her by lending lump-sum of money broached the subject of selling the suit property to her. The plaintiff persisted in the request and prevailed upon the defendant and induced him to enter into an agreement to sell, by representing that she would always remain steadfast and loyal to the defendant and that the transfer of property to her would make no difference to the defendant's right to continue to use the suit property and live in it whenever he comes to Madras in the manner in which he had been using it (the defendant is a resident of Coimbatore). The sum of Rs. 4 lakhs fixed was not the price of the property but was the value of the equity of redemption inasmuch as the property was subject to an equitable mortgage in favour of the South Indian Bank Ltd. Having regard to the relationship and intimacy, the defendant allowed the plaintiff to shift into the suit property. In course of time, the defendant found that the various representations, on the basis of which the plaintiff had induced him to consent to the agreement, were false. So subsequently the matter was discussed and on 9th July, 1967 a supplemental agreement was executed providing inter alia that certain other terms and conditions were yet to be agreed upon by both parties concerning their personal sentiments before putting through the transaction and execution of the sale deed. It was further stipulated that if such a mutual agreement was not possible, the defendant was at liberty to withdraw from the transaction with liability only to pay to the plaintiff the amount taken by him with interest. In pursuance of this supplemental provisions, no agreement could be reached and therefore the defendant is entitled to withdraw from the contract with liability only to repay to the plaintiff the money which he had. received from her.
4. Issues have been settled covering the several contentions raised by the defendant : in his written-statement. After the issues Were framed, the plaintiff filed a reply statement repudiating the several allegations made by the defendant in his written-statement. After the suit was set down for trial, the defendant took out an application to examine him on commission on the ground that he was unwell and unable to attend Court. This request was granted with the condition that the defendant should be examined at Madras. The defendant began to give evidence on 31st March, 1969 when his Counsel put questions to elicit answers from him to show the circumstances under which he happened to know the plaintiff. Thereupon, the plaintiff's Counsel objected to those questions being put, and the further examination was stopped. The plaintiff filed this application on 2nd April, 1969 to strike out some allegations in the written-statement on the ground that those allegations contain scandalous and defamatory matters and that the plaintiff would be prejudiced in the trial of the suit if these allegations are allowed to remain on record. The defendant opposes this application on two main grounds. Firstly, it is contended that this application has been filed after an inordinate delay and that on the ground of delay alone it should be rejected. Secondly, it is contended that the passages objected to by the plaintiff are relevant and necessary to establish the defence and that if the defence is established, the plaintiff would be non-suited. It is, therefore, contended that the plaintiff cannot under the guise of striking out some allegations virtually deprive the defendant of his right to establish his defence.
5. Order 6, Rule 16, Civil Procedure Code which is a reproduction of English Order 19, Rule 27 provides:
The Court may at any stage of the proceedings order to be struck out or amend-ed any matter in any pleading which may be unnecessary or scandalous or which may tend to prejudice, embarrass or delay the fair trial of the suit.
6. It would be seen from the language employed in the rule that the power to-make the order is discretionary, and the power could be exercised at any stage of the proceedings. The Court could exercise this power even suo motu, if the Court is of the opinion that the matter is unnecessary or is scandalous or is such that it may tend to prejudice or embarrass or delay the fair trial of the suit. But the question has arisen for consideration whether a party can move the Court under Order 6,. Rule 16 at any stage he or she likes. If an application is made by a party after an inordinate delay, the Court would be justified in refusing to exercise the discretionary power. In Gross v. Earl Howe (1892) 62 L.J. Ch. 342, the Court refused to grant the relief which would otherwise have been granted on the sole ground of delay, the defendant not having made the application until the pleadings were closed and the case was set down for trial. In the instant case, the defendant filed his written statement on 27th March, 1968. Issues were framed on 20th August, 1968. I find from the records that draft issues were given by both parties and thereupon the Court framed the issues. After the framing of the issues, the plaintiff filed her reply statement on 10th October, 1968, though it appears to have been prepared even in August, 1968. She filed Appln. No. 644 of 1969 for amendment of the plaint for the inclusion of a prayer to direct the defendant to redeem the mortgage subsisting on the property. The defendant applied for his examination on commission in Appln. No. 560 of 1969 and that application was allowed on 21st March, 1969. The defendant gave evidence in. part on 31st March, 1969. It was thereafter that this application was filed by the plaintiff on 2nd April, 1969. The Court allowed the plaintiff's Application No. 644 of 1969, for amendment of the plaint by order dated 8th April, 1969. It would thus be seen that this application was taken out by the plaintiff at a very late stage, after the defendant began to let in his evidence. The plaintiff had several opportunities to ask the Court to exercise its discretion under Order 6, Rule 16. Not only did the plaintiff let go those several opportunities, but she joined issues with the defendant on the several material allegations made by the defendant in his written statement and which are now sought to be expunged. With the allegations as they stand the plaintiff was prepared to meet the case of the defendant when the latter was proposed to be examined on commission. It should, therefore, be taken that the plaintiff acquiesced in the whole of the written statement forming part of the record. The fact that the plaintiff took out an application to amend the plaint for the inclusion of a direction to the defendant to redeem the mortgage subsisting on the property does not mean that the pleadings became complete only after the said amendment was allowed. If this amendment were to be construed as one by reason of which the pleadings can be considered to have become complete only after it was allowed it would be easy for any party to seek some unimportant amendment at any stage and say that by reason of the amendment the pleadings had not become complete before that amendment. The amendment sought for by the plaintiff was granted only after she filed this application to strike out the pleadings. Therefore, it is not open to the plaintiff to say that she applied for striking out the pleadings only after the plaint was amended. Taking all these circumstances into consideration, I am of the view that the plaintiff acquiesced in the whole of the written statement being treated as part of the record and was prepared to go to trial on all the allegations as they stand. On this ground of inordinate delay and acquiescence the plaintiff is not entitled to the discretionary relief under Order 6, Rule 16.
7. Let us assume that the delay does not disentitle the plaintiff, and examine whether the passages, in the written statement objected to by the plaintiff are liable to be struck out. The relief of striking out is asked for on the ground that the objected passages in the written statement are scandalous and defamatory. It is not the case of the plaintiff that those passages are irrelevant for decision of the issues that have been framed for trial. If a scandalous allegation, which is not relevant to any of the issues arising for decision, is made it is the duty of the Court to delete it in. the interest of public morals. In Story's Equity Pleadings, 10th Edition (section. 270) it is observed:
Scandal is calculated to do great and permanent injury to all persons whom it affects by making the records of the Court the means of perpetuating libellous and malignant slanders, and the Court, in aid of the public morals, is bound to interfere to suppress such indecencies which may stain the reputation and wound the feelings of the parties and their relations and friends.
8. In Christie v. Christie (1873) L.R. 8 Ch. App. 499, the suit was to restrain the publication of a prospectus by the defendants on the allegation that if the publication was made it would induce the public to believe that the business was that of the plaintiffs. In that action the plaintiffs alleged that one of the defendants was a bankrupt and had been committed for trial previously on a charge of fraud. On the application taken out by the defendants to strike out the scandalous allegations Lord Selborne, L.C. observed at page 503:
If on the one hand, it is important and necessary, as I think it is, to adhere to the rule that everything relevant to the issue between the parties must be admitted to be averred however it may bear on the character of the parties, it is no less important to keep scandal off the record. The sole question in such a case is whether the matter alleged to be scandalous has a tendency, or, in other words, would be admissible in evidence to show the truth of any allegation in the bill that is material with reference to the relief that is prayed.
9. In Knowles v. Roberts (1888) L.R. 38 Ch. D. 263, the suit was to enforce a compromise arrived at in an earlier litigation. In the plaint, allegations were made about the defendant's rights and liabilities which had the effect of relitigating the same question raised in the former suit. It was held that the allegations were unnecessary and embarrassing and were liable to be struck out. Bowen, L.J., in the. course of the judgment observed:
It seems to me that the rule that the Court is not to dictate to parties how they should frame their case, is one that ought always to be preserved sacred. But that rule is, of course, subject to this modification and limitation, that the parties must not offend against the rules of pleading which have been laid down by the law ; and if a party introduces a pleading which is unnecessary and it tends to prejudice, embarrass, and delay the trial of the action, it then becomes a pleading which is beyond his right.
10. In Gomathi Ammal v. Parvathi Bhai A.I.R. 1953 T.C. 524, the suit was to set aside a sale deed on the ground that it was not supported by consideration and was obtained by the defendant by coercion and fraud. These were passages in the plaint attributing a de facto position to the defendant in the administration of the State and allegations of exploitation of that position by the defendant. In an application to expunge these pass-ages the Court observed that the said allegations were not only unnecessary for a proper adjudication of the case but were also scandalous in the extreme and had been inserted apparently with the sole and deliberate intention of prejudicing, ?embarrassing and delaying the fair trial of the suit.
11. It is not every scandalous allegation that is liable to be struck out. As observed in Fisher v. Owen (1878) L.R. 8 Ch. D. 645, nothing can be scandalous if it is relevant. The jurisdiction of the Court under Order 6, Rule 16, Civil Procedure Code, is one that should be exercised with great caution and care. The Court should not as a rule decide an important point as to the relevancy of matters in an application to strike out certain pleadings. The jurisdiction conferred on the Court by Order 6, Rule 16 should be exercised only to strike out pleadings if it is clear beyond all reasonable doubt that the allegations which are sought to be struck out are such as cannot afford a defence in the action. In Tennent v. Mitchel : AIR1925Cal860 , a Bench of the Calcutta High Court (Sanderson, C. J. and Rankin J.) has given a note of caution in exercising jurisdiction under Order 6, Rule 16. In that case, in defence to a suit on the basis of certain cheques which had been dishonoured the defendant alleged that there was a contemporaneous oral agreement between the parties by which on a certain dispute being settled in a certain manner, the cheques would not be presented for payment. Buckland, J., before whom an application was taken for striking out certain allegations in the written statement held that the said allegations were embarrassing and should be struck out. But in the appeal, the Bench held that the question whether the oral agreement was inadmissible in evidence would depend to some extent upon the way in which the defendant's case would be presented at the trial and that the pleading as it stood was susceptible of the meaning that when the defendant handed over the cheques to the plaintiff it was agreed between them that the cheques should not be presented for payment until the dispute which had arisen between the parties should be settled in a particular manner. It was, therefore, held that it could not he held at that stage of the proceedings that evidence of such an agreement would be inadmissible and that hence the jurisdiction of the Court vested under Order 6, Rule 16 should not be exercised.
12. A similar view was taken by the Nagpur High Court in All India Reporter v. D.D. Datar A.I.R. 1951 Nag. 412. In that case, the suit was to recover money by way of remuneration alleged to be due to the plaintiff from the defendant. The defendant alleged that the plaintiff had been dismissed and at the same time admitted that the plaintiff's services were terminated by consent. The question arose whether the allegation regarding the alleged dismissal was liable to be struck out. Though the trial Court directed the striking out, in revision it was held that the statement in the written statement that the plaintiff had been dismissed was not inconsistent with the defenant's admission that the plaintiff's services were terminated by consent and that the Court ?cannot ignore the specific plea of a party and deny it the right given by law to defend itself by raising available pleas. In that view, it was held that the order striking out the pleadings was wrong.
13. In exercising jurisdiction under Order 6, Rule 16, the Court should consider the question whether the allegations complained of is or is not necessary for establishing the claim of the plaintiff or establishing the defence. In other words, in deciding the question whether the allegation, which is objected to, is relevant to any of the issues, the correct test to be applied is whether the controversial allegation should be spoken to by the plaintiff in his evidence for establishing his claim, if he had made that allegation or should be spoken to by the defendant in his evidence, if he had made it for the purpose of establishing his defence, which if established, would non suit the plaintiff. If such an allegation is scandalous, it cannot be struck out merely because it is scandalous ignoring the fact that it is relevant for decision of the issue (Vide Shamdasani v. Central Bank of India : AIR1944Bom197 .
14. [His Lordship set out the passages sought to be expunged and proceeded. ]
15. Being a suit for specific performance of a contract, the defendant is entitled under Section 9 of the Specific Relief Act to plead by way of defence any ground which is available to him under law relating to contract. What the defendant in the instant case pleads is that the contract was vitiated by misrepresentation and undue influence. It is his case that the plaintiff, whom he came to know for the first time in about 1965 'sedulously wormed herself into a position of confidence in course of time' and also evoked his sympathy by representing that she was a helpless girl and had been separated from her husband and that in course of time close intimacy developed between them. It is also his case that taking advantage of this intimacy and also taking advantage of the fact that she had advanced moneys to him when he -was in need, the plaintiff induced him to enter into the agreement of sale. It is not as though this trust and confidence had been reposed only by the defendant in the plaintiff. As a matter of fact the plaintiff also admits that she had reposed confidence in the defendant. Her allegation in the plaint is that she was induced by the defendant by his pompous display of his assets and that she had so much confidence in the defendant that she advanced large amounts of Rs. 4,70,000 without even taking any receipt--Vide paragraph 4. She has also alleged in paragraph 10 of the plaint that the defendant took advantage of the confidence which he had induced in her by big show of his assets. Thus, it is clear that both parties moved with each other in terms of great confidence and trust. There appears to have been a special or unusual relationship between them. The question to be decided in the suit is whether by taking advantage of this relationship the plaintiff gained any undue advantage over the defendant. If the parties to a transaction were bound by a special or unusual relationship at the time of the transaction in which one party was able to exercise such influence over the other that the other party was not able to exercise his or her own freewill in entering into the transaction, there would be justification to draw the presumption of undue influence--vide Allcard v. Skinner I.L.R. (1887) 36 Ch.D. 145 .
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16. Having regard to the contents of the supplemental agreement to which the plaintiff was a willing party, and having regard to the fact that the plaintiff has joined issue with the defendant on the material allegations contained in the written statement, I am of the view that it cannot be said that the allegations to which the plaintiff takes objection are irrelevant, though they may to some extent affect her reputation. But on the sole ground that the plaintiff's reputation is likely to be affected, the defendant cannot be deprived of his right of defence. If the passages which are objected to are struck out, clearly it will amount to denying the defendant his right to urged his defence. I do not think that a party can put the opposite party in such a disadvantageous position by invoking the jurisdiction of the Court under Order 6, Rule 16. Similarly, the plaintiff cannot ask the Court to shut out questions being put to her in cross-examination because of their damaging effect on her reputation, if those questions relate to the facts in issue or to matters necessary for the determination of the facts in issue. No doubt under Section 151 of the Evidence Act, the Court has discretion to forbid any question which it regards as indecent and scandalous, although such question may have some bearing on the questions before the Court. But such a discretion cannot be exercised if such questions relate to facts in issue or to matters necessary to be known in order to determine whether or not the facts in issue existed.
17. It is submitted on behalf of the defendant that though he took out an application for examining him on commission at a time when he was ill, he is now in a. position to attend Court and is prepared to give evidence before Court. If in the course of evidence any question that is not relevant to the fact in issue is put to the plaintiff in cross-examination, it would be certainly disallowed if the plaintiff takes objection to it.
18. For all the foregoing reasons, I am of the view that the plaintiff-applicant is not entitled to reliefs (1) and (2) prayed for in this application. The application is. dismissed with costs, with the direction to the defendant to give evidence before this Court.