Allahabad High Court
Sahab Deen vs Keshav Prasad & Ors. on 6 March, 2020
Author: Rajnish Kumar
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 7 / Reserved AFR Case :- SECOND APPEAL No. - 187 of 2017 Appellant :- Sahab Deen Respondent :- Keshav Prasad & Ors. Counsel for Appellant :- Angrej Nath Shukla Counsel for Respondent :- Mohammad Aslam Khan,Ram Dev Tiwari Hon'ble Rajnish Kumar,J.
1. Heard, Shri Angrej Nath Shukla, learned counsel for the appellant and Shri Mohammad Arif khan, learned Senior Advocate assisted by Shri Ram Dev Tiwari, learned counsel for the respondents.
2. This second appeal has been filed for setting aside the judgment and decree dated 27.01.2017 passed in Regular Civil Appeal No.27 of 2014 by the learned Additional District Judge / Special Judge (A.P.) CBI, Lucknow as well as the judgment and decree dated 18.10.2002 passed in Regular Suit No.64 of 1999 (Sahab Deen Vs. Keshav Prasad and Others) by the learned Civil Judge, (J.D), Hawali, Lucknow
3. The brief facts of the case are that the land in question i.e. gata no.216 having an area of 9 Bigha, 12 Biswa, 9 Biswansi situated in Village- Bhaisora, Pargana, Tehsil and District- Lucknow was purchased by the appellant / plaintiff from his father-in-law on 21.02.1998. Thereafter he instituted a case for mutation before the Tehsil. His father-in-law, under the influence of his other son-in-laws, demanded additional money. When the appellant / plaintiff showed his inability to pay the additional money, the brother-in-laws of the appellant / plaintiff i.e. the son-in-laws of his father-in-law namely Ram Nath, Juggi Lal and Suresh filed a forged objection putting his thumb impression. The respondent / defendants no.1 and 2 had also filed objection in the court of Naib Tehsildar on the ground that the father-in-law of the appellant / plaintiff has entered into an agreement for sale with them. The appellant / plaintiff has no knowledge about the alleged agreement. The father-in-law of the appellant / plaintiff, who is a member of scheduled tribes, also could not sell the land in question to the respondent / defendants no.1 and 2 who are not member of scheduled tribes under Section 157 (B) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950. The respondent / defendants no.1 and 2 had also filed a Regular Suit No.828 of 1998 in the court of Civil Judge, Junior Division- Hawali against the father-in-law of the appellant / plaintiff for cancellation of sale deed.
4. The appellant / plaintiff had filed a regular suit no.64 of 1999 for cancellation of sale deed dated 23.11.1998 executed in favour of the respondent / defendant no.4 namely Sarju on the ground that the respondent / defendants had kidnapped the appellant / plaintiff and Shri Raghunandan Prasad, the witness of the sale deed on 21.11.1998 and kept them in their custody, beaten, threatened and asked them to execute the sale deed and in case of default they would be implicated in a false criminal case. They had taken to the appellant / plaintiff and Raghunandan Prasad to the office of the Sub Registrar and got the sale deed executed while the appellant / plaintiff and Raghunandan Prasad were under duress which was registered in the office of Sub Registrar at Sl. No.4516 part 97/98 PU.73/84 on 23.11.1998. The appellant / plaintiff and the witness were released by the defendants after execution of the sale deed without paying the sale consideration and threatening of implicating in a false case in case they tell to anybody. On coming back he came to know that his wife had given information of his kidnapping to the State Authorities and had also gone to the Police Station- Gosainganj but no action was taken. On receipt of copy of the sale deed the appellant / plaintiff came to know that the purchaser is Sarju S/o Sita Ram resident of Ahibaranpur. He had also given application to the higher Police officers on 26.12.1998 for his safety and lodging FIR against the accuseds but under the pressure of the respondent / defendants the FIR could be lodged on 20.01.2001 at Police Station- Gomti Nagar.
5. On issuance of the notices, the respondent / defendants had appeared in the suit but did not file any written statement therefore the suit was proceeded ex-parte. The appellant / plaintiff- Sahab Deen was examined as PW-1, Chameli W/o Shri Sahab Deen as PW-2 and Raghunandan Prasad S/o Ram Deen as PW-3. Thereafter the suit was decided ex-parte on 18.02.2002 and dismissed on the ground that the incident is of 21.11.1998 and the First Information Report has been lodged on 20.01.2001 which does not support the statements of the plaintiff because the FIR should have been lodged immediately or within some period while it has been lodged after a period of about two years. The regular civil appeal filed by the appellant / plaintiff against the judgment and decree dated 18.02.2002 was also dismissed by the judgment and decree dated 27.01.2007. Hence, the present second appeal has been filed under Section 100 of Civil Procedure code, 1908 (here-in-after referred as C.P.C.) which was admitted on the following substantial questions of law:-
"1. Whether the dispute can be decided without framing the issues in the case.
4. Whether the judgment can be passed without framing the issues if the matter relates to cancellation of sale deed.
5. Whether judgment can be passed without discussing the evidence and statement of the witnesses in the proceeding.
a. Whether without framing of issues, evidence of witnesses can be ignored in the judgment on the mere strength of probability of a fact which even does not constitute a part of cause of action."
6. An application for impleadment under order 1 Rule 10 of C.P.C. readwith Section 151 C.P.C. has also been filed to implead Managing Director of E Squire Homes as he has purchased the suit property during pendency of the suit / appeal which is bard by Section 52 of the Transfer of Property Act.
7. Submission of learned counsel for the appellant was that the appellant / plaintiff was owner of the land in dispute which was purchased by him from his father-in-law through registered sale deed dated 21.02.1998. The respondent / defendants had kidnapped the appellant / plaintiff and got the sale deed executed after beating and threatening and this evidence was also given by the marginal witness. A telegram was also sent in regard to kidnapping of appellant / plaintiff by the wife of the appellant / plaintiff. The appellant / plaintiff was released by the respondent / defendants after threatening him for implicating in a false criminal case. After release the appellant / plaintiff had also informed to the higher Police officer but under the pressure of the respondent / defendants the FIR could be lodged in regard to the occurrence on 28.01.2001. The appellant / plaintiff had specifically pleaded about his kidnapping, beating and threatening and execution of sale deed under duress and the evidence to this effect was also adduced before the trial court during the suit proceedings. The respondent / defendants though appeared but did not file any written statement therefore the suit proceeded ex-parte and the trial court without framing issues and considering and appreciating the evidence adduced before it dismissed the suit merely on the ground of delay in lodging the FIR and the appeal has also been dismissed which could not have been done by the trial court as well as by the appellate court without considering and appreciating the evidence on record and recording any finding on the basis of the evidence.
8. It was also submitted that since no written statement was filed the averments of the plaint stands admitted therefore the suit should have been allowed on this ground alone. The coercion and unlawful influence under which the sale deed was got executed without any sale consideration was proved before the trial court on which the contract can be set aside under Section 19(A) of the Indian Contract Act but without considering it the learned trial court as well as appellate court dismissed the suit and the appeal respectively, which is not sustainable in the eyes of law.
9. Per contra, learned counsel for the respondent / defendants had submitted that as alleged by the appellant / plaintiff, plaintiff and the witness were kidnapped on 21.11.1998 and the sale deed was executed on 23.11.1998 thereafter they were released forthwith. But no effort was made for lodging the FIR after the release and highly belated FIR was lodged on 21.01.2001. He had also submitted that the kidnapped witness can not be made witness and Section 68 of the Indian Evidence Act deals with proof of wills. He had also submitted that there is no proof of coercion etc. which is clear from the demeanor of witnesses of the plaintiff. Since no written statement was filed therefore there was no need of framing issues. The suit was dismissed in default and it was restored without notice therefore no written statement could be filed but the appellant / plaintiff had to prove his case even if no written statement was filed. But he failed to do so. The appeal was decided complying the provisions of Order 41 Rule 31. He had also submitted that there is no documentary evidence to show coercion and signature of Sub Registrar on the registered sale deed itself is a presumption of execution of valid sale deed under Section 70 of the Indian Evidence Act. Lastly, it was submitted that the concurrent findings of the facts can not be interfered by re-appreciating the evidence and substituting findings. Accordingly, the present second appeal, being misconceived, is liable to be dismissed with cost.
10. In regard to the application for impleadment he had submitted that Sahab Deen had executed the sale deed on 23.11.1998 to Sarju i.e. the respondent / defendant no.4. He had executed the sale deed to Rajeshwari Mishra on 11.10.2001. Rajeshwari Mishra executed various sale deeds; one on 15.12.2004 to Arvind Singh Sisodiya for an area of 1-10-0, on 18.05.2016 an area of 1.10 in favour of E Squire Homes but the application for impleadment has been filed only to implead the Managing Director of E Squire Homes who has purchased only a part of the land therefore the same is liable to be dismissed.
11. I have considered the submissions of learned counsel for the parties and perused the record.
12. The land in dispute was purchased by the appellant / plaintiff from his father-in-law on 21.02.1998. Thereafter he had filed a case for mutation before the Tehsil, in which the objections were filed. It appears that a suit for cancellation of sale deed was filed by the respondent / defendants no.1 and 2 on the ground that the father-in-law of the appellant / plaintiff had entered into an agreement for sale with them but the same was dismissed as informed.
13. It appears that the appellant / plaintiff alongwith Raghunandan Prasad was kidnapped on 21.11.1998. An information in this regard was sent by his wife on 22.11.1998. On 23.11.1998 a sale deed was got executed by the appellant / plaintiff in favour of the respondent / defendant no.4 namely Sarju S/o Sita Ram. The suit was filed alleging therein that the respondent / defendants have got the sale deed executed by abducting, beating and threatening to the appellant / plaintiff without paying any consideration. Therefore, after release from the custody of the respondent / defendants, he had filed the suit for cancellation of sale deed. The respondent / defendants appeared in the suit but they did not file any written statement. However, it has been argued on their behalf that since the suit was dismissed in default and thereafter restored without notice therefore no written statement could be filed. Be that as it may, it is not disputed that no written statement was filed.
14. Order XIV provides settlement of issues and determination of suit on issues of law or on issues agreed upon. Rule 1(1) provides issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. Rule 1 (6) provides that nothing in this rule requires the court to frame and record issues where the defendant at the first hearing of the suit makes no defence. Rule 3 provides that the Court may frame the issues from all or any of the materials i.e. allegations made on oath by the parties, or by any persons present on their behalf, or made by the pleaders of such parties; allegations made in the pleadings or in answers to interrogatories delivered in the suit and the contents of documents produced by either parties. The Hon'ble Apex Court, in the case of Sham Lal (Dead) By Lrs. Vs. Atme Nand Jain Sabha (Regd.) Dal Bazar; (1987) 1 SCC 222, has held that "at the first hearing of the suit" would be the day when the Court applies its mind to the case, which may be the date of settlement of issues or the date for preliminarily examination of the parties.
15. In view of above, issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other party and in case the defendant makes no defence the court need not frame and record issues. In the present case the respondent / defendants had not filed any written statement therefore there was no material proposition of fact or law which were affirmed by the appellant / plaintiff and denied by the respondent / defendants. Therefore, this court is of the view that the decision of the regular suit filed by the appellant / plaintiff without framing of the issues, even though it was the case of cancellation of sale deed, does not suffer from any error or illegality and the substantial question of law nos.1 and 4 are decided accordingly.
16. The Hon'ble Apex Court in the case of Alka Gupta Vs. Narendra Kumar Gupta; (2010) 10 SCC 14, has held that a civil suit has to be decided after framing issues and trial permitting the parties to lead evidence on the issues, except in cases where the Code or any other law makes an exception or provides any exemption. Therefore the suit may be decided without framing issues, if the case comes under exception, but it can not be decided without considering the evidence.
17. Adverting to the substantial question of law nos.5 and (a) this court finds that the suit for cancellation of sale deed was proceeded ex-parte. Thereafter the evidence was adduced by the appellant / plaintiff. The appellant / plaintiff- Sahab Deen was examined as PW-1, Chameli his wife was examined as PW-2 and Raghunandan, the marginal witness of the sale deed in question as PW-3. Copy of the sale deed and FIR lodged on 20.01.2001 at Police Station- Gosainganj, District- Lucknow were filed.
18. The witnesses examined on behalf of the appellant / plaintiff have stated in evidence about kidnapping of the appellant / plaintiff, about the purchase of the land in dispute on 23.02.1998 by the appellant / plaintiff from his father-in-law, filing of the case for mutation, objection by the brother-in-laws by putting forged signatures of the seller, filing of regular suit no.828 of 1998 by the respondent / defendants no.1 and 2 for cancellation of sale deed in favour of the appellant / plaintiff, kidnapping of the appellant / plaintiff and Raghunandan Prasad; the marginal witness, sending information by the wife of the appellant / plaintiff to the Senior Superintendent of Police in regard to the kidnapping of the appellant / plaintiff, execution of sale deed under duress and information to the higher officers. The wife of the appellant / plaintiff has also given statement in regard to the kidnapping of the appellant / plaintiff by the respondent / defendants and about giving information to the Superintendent of Police by telegram at Police Station- Gomti Nagar. The marginal witness of the sale deed in question has also supported the evidence of the appellant / plaintiff and stated that he was also kidnapped alongwith the appellant / plaintiff and kept near Police Station- Gomti Nagar in a shop of Patra-Balli where the appellant / plaintiff was beaten and he was also threatened for doing what is being said failing which they will be thrown on railway line. It was also told to them that S.H.O., Police Station- Gosainganj is their friend and they may be implicated in NDPS case. They were taken to the Sub Registrar's Office where the thumb impression was got put by the appellant / plaintiff and signatures by the witness. No question was asked from them. They had also not seen the purchaser Sarju and no money was given to the appellant / plaintiff. After execution of the sale deed they were taken to the Khurdahi by a Maruti and released there after threatening. Thereafter their wives alongwith the others went to the Police Station. On being informed they also went to the Police Station where the Deewan, Ram Vriksha Yadav asked to send them jail under NDPS and on being assured that they would not take any action they were released. Subsequently, the appellant / plaintiff had given application to the higher officers in which the Circle Officer- Mohanlalganj had recorded his statement. He had also stated that his statement has not been recorded in any mutation proceeding on the basis of sale deed.
19. In view of above, the witnesses examined on behalf of appellant / plaintiff have given evidence in support of the pleadings of the appellant / plaintiff. But without considering and recording any finding in regard to the evidence adduced before the trial court, the trial court dismissed the suit merely on the ground that the FIR has been lodged after about two years from which the statement of the appellant / plaintiff does not get strength and the plaintiff has failed to prove his case that as to whether the thumb impression was put by him from his free will or against his will.
20. Admittedly, no written statement was filed by the respondent / defendants. Order VIII, Rule 10 of the C.P.C. provides that where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up. Therefore in case no written statement has been filed the court shall pronounce judgment against the party who has failed to file the written statement or may make such order in relation to the suit as it thinks fit.
21. Balraj Taneja and Another Vs. Sunil Madan and Another; (1999) 8 SCC 396, in which the Hon'ble Apex Court has held that there are two separate and distinct provisions under which the Court can pronounce judgment on the failure of the defendant to file Written Statement. The failure may be either under Order 8 Rule 5(2) under which the Court may either pronounce judgment on the basis of the facts set out in the plaint or require the plaintiff to prove any such fact; or the failure may be under Order 8 Rule 10 C.P.C. under which the Court is required to pronounce judgment against the defendant or to pass such order in relation to the suit as it thinks fit. It has also held that if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the Court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. It has also been held that the Court has to write a judgment which must be in conformity with the provisions of code or at least set out the reasoning by which the controversy is resolved. Therefore if the Court has proceeded to decide the case after evidence by the plaintiff then it ought to have considered the evidence adduced before it.
22. In the present case since no written statement was filed the trial court could have pronounced the judgment against the respondent / defendants admitting the suit of the plaintiff. If the trial court was of the view that the judgment could not be pronounced and ex-parte evidence was filed, then it should have considered the evidence adduced before it for making such order in relation to the suit as it thinks fit. But in the present case the learned trial court has not considered and recorded any finding on the basis of evidence adduced before it and dismissed the suit merely on the ground of delay in lodging the FIR which does not constitute a part of cause of action. The cause of action for the suit for cancellation of sale deed was alleged execution of the sale deed under duress without payment of consideration.
23. The Hon'ble Apex Court in the case of ShantiLal Gulabchand Mutha Vs. Tata Engineering and Locomotive Company Limited and Another; (2013) 4 SCC 396 has held that the court must give reasons for passing such judgment, however, short it be, but by reading the judgment, a party must understood what were the facts and circumstances on the basis of which the court must proceed, and under what reasoning the suit has been decreed. The relevant paragraph-9 is extracted below:-
"9. In view of the above, it appears to be a settled legal proposition that the relief under Order VIII Rule 10 CPC is discretionary, and court has to be more cautious while exercising such power where defendant fails to file the written statement. Even in such circumstances, the court must be satisfied that there is no fact which need to be proved in spite of deemed admission by the defendant, and the court must give reasons for passing such judgment, however, short it be, but by reading the judgment, a party must understood what were the facts and circumstances on the basis of which the court must proceed, and under what reasoning the suit has been decreed."
24. The Hon'ble Apex Court in the case of Alka Gupta Vs. Narender Kumar Gupta; (2010) 10 SCC 141 has held that Code of civil procedure is nothing but an exhaustive compilation- cum-enumeration of the principles of natural justice with reference to a proceeding in a court of law. The entire object of the Code is to ensure that an adjudication is conducted by a court of law with appropriate opportunities at appropriate stages. A civil proceeding governed by the Code will have to be proceeded with and decided in accordance with law and the provisions of the Code, and not on the whims of the court. There are no short-cuts in the trial of suits, unless they are provided by law.
25. Section 10 of the Indian Contract Act, 1872 provides that all agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Section 13 defines the consent of two or more persons are said to consent when they agree upon the same thing in the same sense. Section 14 defines free consent which is said to be free when it is not caused by coercion or undue influence or fraud or misrepresentation or mistake subject to the provisions of sections 20, 21 and 22. Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation or mistake.
26. Sub Section-3 of Section 16 of the Contract Act provides that where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other. Section 19 provides the voidability of agreements without free consent at the option of the party whose consent was so caused. Section 19 (A) provides the power to set-aside the contract induced by undue influence at the option of the party whose consent was so caused.
27. In view of above, a contract, made by undue influence without free consent and consideration, is voidable at the option of the party whose consent was so caused. In the present case the appellant / plaintiff has alleged that the sale deed in question has been got executed under duress by beating and threatening him and without paying any consideration. Therefore it is voidable at his option. If the opposite parties / defendants were in a position to dominate the will of plaintiff, the burden was on them to prove that the sale deed was not induced by undue influence. But the trial court, without considering even the evidence adduced by the appellant / plaintiff, dismissed the suit for cancellation of sale-deed merely on the basis of delay in lodging the FIR which could not have been done by trial court.
28. So far as the arguments of the learned counsel for the respondents in regard to the alleged concurrent findings is considered, as discussed above in fact no finding has been recorded by the learned trial court on the basis of evidence adduced before it. The learned appellate court has also, though mentioned the evidence adduced by the appellant / plaintiff but without considering and recording any finding, dismissed the appeal on the ground that the FIR has been lodged keeping in mind the subsequent events after about two years but has not disclosed any alleged subsequent events. In regard to the evidence simply it has been stated that the contents of the plaint does not strengthen from the documentary / oral evidence but no reasons have been assigned. Therefore in fact no finding of facts on the basis of evidence adduced before the trial court has been recorded by the court's below.
29. The Hon'ble Apex Court in the case of Ishwar Dass Jain (Dead) Through LR's Vs. Sohan Lal (Dead) By LR's; (2000) 1 SCC 434 has held that there are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The said judgment has been relied by the Hon'ble Apex Court in the case of Thulasidhara and Another Vs. Narayanappa and Others; (2019) 6 SCC 409.
30. The Hon'ble Apex Court in the case of T. Ramalingeswara Rao (Dead) Vs. N. Madhava Rao; 2019 (37) LCD 1664 has held in paragraph 12 as under:-
"12. When the two Courts below have recorded concurrent findings of fact against the plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High Court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be wholly perverse, a case for interference may call for by the High Court in its second appellate jurisdiction."
31. A coordinate Bench of this Court in the case of State of U.P. and Others Vs. Ashok Kumar and Others; 2014 SCC Online All 12789 has held that under Section 107 C.P.C. the appellate court has got jurisdiction to exercise all such powers which is vested in the Courts of original jurisdiction. Virtually, the appeal is in continuation of suit.
32. In view of the aforesaid discussion this court is of the considered opinion that the suit could not have been decided without considering, appreciating and recording any finding on the basis of evidence adduced before it merely on the ground of delay in lodging the FIR. Accordingly, the substantial question of law nos.5 and (a) are decided in favour of the appellant / plaintiff and against the respondent / defendants. Therefore the judgment and decree passed in Regular Suit and the Civil Appeal are not tenable in the eyes of law and liable to be set-aside with direction to decide the Regular Suit No.64 of 1999 (Sahab Deen Vs. Keshav Prasad and Others) afresh after considering the evidence adduced before it in accordance with law.
33. So far as the application for impleadment of the appellant / plaintiff is concerned, the provisions of Section 52 of the Transfer of Property Act would be applicable on the subsequent sale deeds. However and since the second appeal is being decided considering the substantial question of laws and being remanded for fresh disposal, the application stands disposed of with liberty to the appellant / plaintiff to implead the subsequent purchasers before the trial court, if so advised.
34. The Hon'ble Apex Court in the case of Arjan Singh Vs. Punit Ahluwalia and Others; (2008) 8 SCC 348 has held that execution of sale deed during pendency of the suit would be hit by the doctrine of lis pendens as adumbrated under Section 52 of the Transfer of Property Act and would not come in the Court's way in passing a decree in favour of the appellant. Its validity or otherwise would not be necessary to be considered as the appellant is not bound thereby.
35. The second appeal is, accordingly, allowed. The judgment and decree dated 27.01.2017 passed in Regular Civil Appeal No.27 of 2014 by the learned Additional District Judge / Special Judge (A.P.) CBI, Lucknow and judgment and decree dated 18.10.2002 passed in Regular Suit No.64 of 1999 (Sahab Deen Vs. Keshav Prasad and Others) passed by learned Civil Judge, (J.D.) Hawali, Lucknow are hereby set-aside. The matter is remanded to the trial court to decide the Regular Suit No.64 of 1999 (Sahab Deen Vs. Keshav Prasad and Others) afresh expeditiously and preferably within six months from the date of receipt of record. No orders as to costs.
36. The lower court record, alongwith a copy of this order, shall be remitted to the trial Court within two weeks from today.
........................................................ .....(Rajnish Kumar,J.) Order Date :- 06.03.2020 Haseen U.