Karnataka High Court
Nagendra Reddy vs M G Shanthkumar on 1 April, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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RFA No. 200 of 2013
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF APRIL, 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 200 OF 2013 (DEC/INJ)
BETWEEN:
NAGENDRA REDDY,
SON OF NANJUNDA REDDY,
AGED ABOUT 50 YEARS,
NAGENDRA REDDY AGRO FARMS,
SY NO.60/7 etc., HUSKUR MAIN ROAD,
HEBBAGODI VILLAGE,
ELECTRONIC CITY POT,
BENGALURE-560100.
...APPELLANT
(BY SRI.M.S.BHAGAVATH, LEARNED SENIOR COUNSEL
FOR SRI. RAMAKRISHNA M., ADVOCATE)
AND:
1. M.G. SHANTHKUMAR
SINCE DECEASED BY LRS,
1.(A) SRI. M.G. DATTATHREYA
Digitally SON OF LATE M.L. GOPALA SETTY
signed by
SHAKAMBARI AGED ABOUT 54 YEARS,
Location: NO.146, 5TH CROSS, 8TH MAIN, II BLOCK,
HIGH COURT JAYANAGAR, BANGALORE-560011.
OF
KARNATAKA
1.(B) SRI. M.G. CHANDRAMOHAN,
AGED ABOUT 67 YEARS,
SON OF LATE M.L. GOPALA SETTY,
NO. 444, 9TH CROSS,
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NC: 2024:KHC:13114-DB
RFA No. 200 of 2013
I BLOCK, JAYANAGAR,
BANGALORE-560011.
1.(C) SRI. M.G. NAGENDRA,
SON OF LATE M.L. GOPALA SETTY,
AGED ABOUT 65 YEARS,
NO.9, 15TH CROSS, 6TH PHASE,
J.P. NAGAR, BANGALORE-560078.
1.(D) SRI. M.G. JAYARAM,
SON OF LATE M.L. GOPALA SETTY,
AGED ABOUT 64 YEARS,
APT. NO. 1002, C BLOCK,
STERLING TERRACE APARTMENTS,
3,100 FIT RING ROAD, BSK III STAGE,
BANGALORE-560085.
1.(E) SRI. M.G. RAMESH,
AGED ABOUT 60 YEARS,
SON OF LATE M.L. GOPALA SETTY,
NO.1314, III FLOOR, 15TH CROSS,
GIRINAGAR II STAGE,
BANGALORE-560085.
1.(F) SMT. R. VIMALA @ SMT. SHUBHADRA
@ SMT. R.VIMALA DEVI,
AGED ABOUT 76 YEARS,
WIFE OF SR.B.RAGHAVAN,
OLD NO.5/1A, RAGHAVAN STREET,
SWARNAPURI,
SALEM-634004,
TAMILNADU.
1.(G) SMT. B.K.UMA @ B.S. UMA DEVI,
AGED ABOUT 62 YEARS,
WIFE OF SRI. B.K.SOMASHEKHAR,
HIG 47M KHB COLONY,
VINOBA NAGAR II STAGE,
SHIVAMOGGA-577204.
1.(H) SMT. RUKMINI SUKUMAR,
AGED ABOUT 57 YEARS,
WIFE OFLATE K.SUKUMAR,
NO.69/70, MC.NICHOLAS ROAD,
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RFA No. 200 of 2013
FLAT NO.58, LAND MARK TOWN HALL,
CHETPET, CHENNAI-600031.
1.(I) SMT. Y.R.SARASWATHI,
AGED ABOUT 55 YEARS,
WIFE OF SRI. Y.N. RAJENDRA,
SAWAN APARTMENTS,
GROUND FLOOR, NO.19,
VIVEKANANDA ROAD,
YADAVAGIRI, MYSORE-570020.
1.(J) SMT. GAYATHRI @ SMT. GAYITHRI KISHOR,
AGED ABOUT 51 YEARS,
WIFEOF SRI. S.KISHOR,
NO.4, P AND T COLONY, STAFF ROAD,
OPP.SECUNDERABAD CLUB,
SECUNDERABAD-500003,
ANDHRA PRADESH.
1.(K) SMT. VIJAYALAKSHMI
@ SMT. M.J.VIJAYALAKSHMI,
AGED ABOUT 63 YEARS,
WIFE OF LATE SRI M.G.JAGADISH,
NO.369, (5) 8TH CROSS,
10TH MAIN, 1 BLOCK, JAYANAGAR,
BANGALORE-560011.
1.(L) SMT. AKHILA @ SMT.AKHILA D. ANANTHRAM,
AGED ABOUT 39 YEARS,
WIFE OF SRI. D.R. ANANTHRAM,
D/O. LATE SRI. M.G. JAGADISH,
NO. 125, 7TH MAIN, 9TH CROSS,
GOKULAM III STAGE,
MYSORE-570011.
1.(M) SRI.VINAYA @ VINAY M. JAGADISH,
AGED ABOUT 36 YEARS,
NO.369, (5) 8TH CROSS,
10TH MAIN, I BLOCK, JAYANAGAR,
BANGALORE-560011.
2. THE SUB REGISTRAR,
ANEKAL,
BANGALORE DISTRICT-562106.
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RFA No. 200 of 2013
3. THE STATE OF KARNATAKA
REPRESENTED BY ITS CHIEF SECRETARY,
M.S. BUILDING,
BANGALORE-560001.
4. MR. A.B.U. GEORGE,
AGED ABOUT 40 YEARS,
SON OF LATE M.T. GEORGE,
NO.1683, 5TH 'A' CROSS,
10TH MAIN, BANASHANKARI 3RD STAGE,
BANGALORE-560070.
...RESPONDENTS
(BY SRI. RVS NAIK, SENIOR COUNSEL FOR SRI.NITIN PRASAD
AND SRI. T. SURYANARAYANA, ADVOCATES FOR R1(A -G) AND
R1(I-M); SRI. NITIN PRASAD, ADVOCATE FOR R1(H);
LEARNED AGA FOR R2 AND R3; NOTICE SERVED TO R4)
THIS REGULAR FIRST APPEAL FILED UNDER SECTION 96
OF THE CODE OF CIVIL PROCEDURE, PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER DATED 03.01.2013 (AS PER ANNEXURE-
A) PASSED IN OS NO.2237/2006 ON THE FILE OF THE FAST
TRACK COURT IV, BANGALORE RURAL, DISTRICT, BANGALORE,
BY ALLOWING THE APPEAL WITH COSTS AND GRANT SUCH
OTHER RELIEFS AS THIS HON'BLE COURT DEEMS FIT TO GRANT
IN THE CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
27.02.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT,
THIS DAY, RAMACHANDRA D. HUDDAR, J., DELIVERED THE
FOLLOWING:
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RFA No. 200 of 2013
JUDGMENT
This appeal is directed against the judgment and decree passed in O.S.No.2237/2006 dated 03.01.2013 by the Fast Track Court-IV Bengaluru Rural District, Bengaluru (for short "Trial Court") decreeing the suit of the plaintiffs by declaring that plaintiffs are the absolute owners in possession and enjoyment of the suit schedule property and declaring that the sale deed dated 06.07.2006 presented for registration on 11.07.2006 before defendant No.2 bearing No.P7130/06-07 in respect of the suit schedule properties is null and void and the permanently restraining the defendants from interfering with plaintiff's possession and enjoyment over the suit schedule property. There was direction to draw a decree in the above terms.
2. The appellant was defendant No.1 and respondents 1(A) to 1(M) were the plaintiffs and respondents 2 to 4 were the defendants 2 to 4 before the Trial Court.
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3. For the purpose of convenience, the parties to this appeal are referred as per their rank before the Trial Court.
4. The records of this appeal reveal that, the original plaintiff by name M.G.Shantakumar S/o.Late M.L.Gopalashetty filed suit in O.S.No.2237/2006 seeking the relief of declaration and permanent injunction against the defendants in respect of suit schedule properties. During the pendency of the suit, after the original plaintiff was cross-examined in part, he was killed and plaintiffs 1(A) to 1(M) were brought on record by virtue of the so called Will stated to have been executed by original plaintiff and they prosecuted the suit. The facts in nutshell made out in the plaint are as under:
5. It is the case of the plaintiff that, the so called purported agreement in respect of the schedule properties got executed by defendant No.1 is null and void and as -7- NC: 2024:KHC:13114-DB RFA No. 200 of 2013 there was interference by the defendants, the original plaintiff prayed for grant of permanent injunction. It is stated by the plaintiff that, he is the owner of agricultural properties situated in Sy.Nos.53/1, 53/2B, 55/1, 55/2, 55/3, 55/4, 56, 57/1, 57/2 and 58/2 in all measuring 22 acres 22 guntas, which is converted as part of the property bearing Sy.No.60/7 measuring about 26,470 sq. ft. situated in Hebbagodi village, Attibele Hobli, Anekal Taluk, Bengaluru District (hereinafter referred to as "suit schedule property" for convenience). It is stated that, all these properties form one unit. The original plaintiff was unmarried and had no issues. He used to reside alone. He got brothers and his brother's family members, who are the plaintiffs, who came on record in the suit.
6. A specific assertion is made that, one year prior to filing of the suit, defendant No.1 approached the original plaintiff and proposed to purchase the suit schedule properties. To that effect, several discussions took place. According to original plaintiff, before entering -8- NC: 2024:KHC:13114-DB RFA No. 200 of 2013 into an agreement, defendant No.1 wanted to issue paper publication calling upon objections from the public, if any. Accordingly, in the month of December-2005, paper publication was issued. Even after issuance of paper publication, defendant No.1 did not show any interest on the terms specified by the plaintiff to sell the schedule properties. Thereafter, plaintiff requested M/s.Colliers International India Property Services Pvt., Ltd., to help him to sell the schedule properties. One Mr. George introduced the said M/s.Colliers International India Property Services Pvt., Ltd. It is his assertion that, the said M/s.Colliers International India Property Services Pvt., Ltd., brought one M/s.Magna Warehousing Pvt. Ltd., as potential purchaser of the schedule properties and agreed to purchase the same after conversion at the rate of `825/- per sq.ft. The lawyers of the said company issued a public notice with regard to the proposed transaction. This fact was informed by defendant No.1 to M/s.Magna Warehousing and Distribution Pvt., Ltd., stating that he already had an understanding with the original plaintiff to -9- NC: 2024:KHC:13114-DB RFA No. 200 of 2013 that effect. The plaintiff clarified that, there was no understanding with defendant No.1. The lawyers of the proposed purchaser company wrote to defendant No.1 and sought further details of his claim but defendant No.1 did not reply.
7. It is the specific case of the plaintiff that, on 10.07.2006 Mr.George called the plaintiff and informed that it is defendant No.1, who was interested to offer a fresh rate in respect of the schedule properties and to that effect, they wanted to have a discussion. The plaintiff was asked to come near Adiga Hotel, 4th Block, Jayanagar, Bengaluru at 2.30 p.m. Accordingly, to have a discussion, plaintiff went to the said place. There, he noticed the presence of Mr.George, defendant No.1 and other couple of people, who appeared to have waiting for the plaintiff. Mr.George, defendant No.1 and the plaintiff commenced discussion and there was a suggestion to continue the discussion in some quiet place. On that guise, they took the plaintiff near a car of defendant No.1. The original
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 plaintiff did not suspect any foul play, but he was compelled to sit inside the car by holding his hands and feet. Mr. George and defendant No.1 also boarded the car and gave threat to kill the original plaintiff if he raises any alarm. They also gave a threat that, they know the residence of the plaintiff and their family and if plaintiff raises any alarm they would harm them. They all set to physically assault the original plaintiff and assaulted him. They snatched his mobile phone and took the car from that place. Plaintiff being scared, did not do anything. They took the said car towards Anekal and stopped it at the outskirts of Anekal. It is alleged that defendant No.1 brought stamped sheets, which were typed as an agreement of sale and sale deed. He also gave Demand Draft for `63 Crores drawn on State Bank of Mysore, Hosur Branch, dated 15.02.2006 and also gave five cheques to the original plaintiff for `17 Crores drawn on Central Bank of India in the name of the plaintiff. It is stated in the documents that the plaintiff is selling the schedule properties for `80 Crores. The original plaintiff
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 noticed that, the person sitting next to him was holding a revolver like weapon in his hands. The plaintiff was directed to fill up the number and date of Demand Draft in the document and sign the sale deed. He could not read the entire text of the documents, as he was not allowed to do the same. The said document was purported to be an agreement of sale as if the original plaintiff agreed to sell the suit schedule properties to defendant No.1. He was forced to sign the papers. But however, plaintiff added the words "subject to realization of the D.D.'' and signed the papers under threat.
8. It is alleged that, thereafter the plaintiff was taken to the office of the Sub-Registrar in the same car and was asked to sit in the car itself. The said George and defendant No.1 went outside the car and entered the Sub- Registrar Office at Anekal by parking their car from a distance. On that day, no transaction took place and there was no execution of the document. Though the plaintiff requested for help and as he is signing the document by
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 force, when he was taken inside the Sub-Registrar's office he narrated the incident of practicing force by the defendant No.1 and others but because of defendant No.1 managing the officials of the Sub-registrar, nobody cared the words of the original plaintiff. Thereafter, defendant No.1 and his goondas continued to restrain the original plaintiff and took him to one house appearing to be house of defendant No.1 at BTM layout, 2nd stage, Bengaluru. He was locked in a room and was threatened. As he was not married and had no issues, the other family members did not feel his absence. He was not given any food by defendant No.1 and because of that, he was feeling weak and upset and did not sleep well.
9. It is further alleged that, on 11.07.2006 he was given some food to eat. Thereafter, defendant No.1 and his goondas made the plaintiff to sit in a car and he was taken to office of Sub-Registrar at Anekal. He was made to wait in a car. The original plaintiff was feeling very weak and suspected that something was mixed in the food given
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 to him by defendant No.1 and others. He was taken inside the office of the sub-registrar and there documents were presented. At that time, though the plaintiff tried to shout and say that, the said document is not executed with his free will and he was abducted by defendant No.1 and others, but no action was taken by the officials of the Sub- Registrar. Because of the presence of the goondas brought by defendant No.1 they kept mum. He was again threatened by defendant No.1 and his henchmen and directed him to keep quiet. He was forcibly asked to give his photograph and thumb impression and because of threat he gave his photograph and thumb impression. He was asked to sign some registers by force. It is the further allegation that, defendant No.1 thrusted Demand Draft for `63 Crores into the plaintiffs hand to show that he had paid the sale consideration amount. But when they came out of the sub-registrar's office, the plaintiff was forced to return the said Demand Draft and defendant no.1 snatched the same from the hands of the original plaintiff.
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 His signatures were taken by force. All throughout he was threatened and physically restrained.
10. It is specifically alleged by the plaintiff that, when he was forced to put his thumb impression, he tried to shout and convey that the said act was done against his will and he was abducted. He wanted to convey that, he never consented to the transaction but because of the conduct of the officials of the Sub-Registrar, the plaintiff came to know that it was defendant No.1 managed all of them. Defendant No.1 was present with all his henchmen and no public dared to come near the plaintiff to find out what was happening. Plaintiff was again threatened by defendant No.1 and his men stating that, if plaintiff makes any hue and cry, they would kill him and cause harm to his brothers. By saying so, he was forcibly compelled to give his photographs and his thumb impression. He was also forced to put his signatures on some registers. Thereafter, a Demand Draft for `63 Crores was handed over to him saying that the defendant No.1 had paid the
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 sale consideration. Thereafter, he was taken in a car by force and was forced to wait in car itself. Thereafter, the said car was taken to the house of defendant No.1. By force and threat the plaintiff's signatures were taken on some papers.
11. A specific allegation is made by the plaintiff that, on 11.07.2006, at 11.30 p.m., the plaintiff was taken in a car during night hours near Adiga Hotel and he was pushed out of the car, where he had parked his car. Thereafter, plaintiff came to his house in a drowsy mood and was unable to think. He slept in the night in his house and even in the morning he felt weakness. At 10.00 a.m. on 12.07.2006, his sister from Chennai called him and enquired about getting a buyer to sell the suit properties. But he was unable to answer. Thereafter, plaintiff informed his brother M.G.Nagendra about the incident. It is alleged that, defendant No.1 with his wife and Babu came to the house of the plaintiff in the afternoon and threatened the plaintiff stating that, if the incident is
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 disclosed to anybody, he will take the life of the plaintiff. Defendant No.1 demanded the plaintiff to give the original title deeds. By that time, the brother of the plaintiff M.G.Nagendra came to the house before whom plaintiff narrated the incident, which has happened with him and also told about the conduct of defendant No.1, which has taken place on previous days. Defendant No.1 gave a threat to kill the plaintiff's brother. Because of this, galata took place and the neighboring householders came out to see the Galata. On seeing the people, defendant No.1 and his men fled away from the said place.
12. It is further the case of the plaintiff that on 12.07.2006, he initially went to Jayanagar 4th Block Police Station and as per their direction he went to the jurisdictional Tilakanagar Police Station and lodged complaint. Thereafter, on 13.07.2006 he went to the office of Anekal Sub-Registrar with his brother M.G.Nagendra and nephew Mr.Amar. There, he noticed the purported document stated to have been presented on the previous
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 day, it was mentioned as `7 Crores as value of the property and the payment has been made in cash. But plaintiff has not received any sale consideration from defendant No.1. He gave a letter to the Sub-Registrar attaching a copy of the complaint lodged with the police and requested the Sub-Registrar to provide a copy of the deed and details being furnished with it. On seeing the said documents, the plaintiff was taken aback and he again approached the police. He gave his further statement on 13.07.2006 and requested the police to initiate action against the concerned persons. It is further alleged that, to have unlawful gain, defendant No.1 in collusion with his henchmen planned to abduct the plaintiff, forced the plaintiff by threatening to kill him and his brothers and created the said so called document purported to be a sale deed without any consideration. Even defendant No.1 taking advantage of his old-age and other diseases like asthmatic and weakness and living alone, kidnapped him and without providing any food has done all these illegal acts.
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13. According to the plaintiff, he never executed the sale deed with his own free will. Because of coercion and undue influence and threat to his life and his family members, he was compelled to put his signatures on the documents prepared by the defendant No.1. He never agreed to sell any property to defendant No.1. Thus, his signatures and documents named as agreement of sale and sale deed were obtained by force, duress, threat, etc., The schedule properties are valuing more than `63 Crores. The said so called document is not admitted before the defendant No.2/Sub-registrar by this plaintiff. Defendant No.2 ought to have recorded his admission or consent for registration of the document. The contents of the documents were not read over to him. There was a continuous protest by the plaintiff and in collusion with all defendant No.1 has created and concocted the said document.
14. Based upon the complaint so filed by him, police have initiated action against the accused persons
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 including defendant No.1 by registering crime in Cr.No.174/2006 of Tilaknagar Police Station and after investigation, filed charge sheet against the accused which was registered in C.C.No.1.6.28725/2007 before the CMM Court and thereafter, it was committed to the Sessions Court i.e. FTC-5 and numbered as Sessions Case No.705/2008. During the course of investigation, police have seized the original sale deed. All the documents in respect of the schedule properties are with the plaintiff. It is the plaintiff, who is in possession of the schedule properties. In view of all these factual features, according to plaintiff, he is entitled for relief so claimed in the plaint. Therefore, it is prayed by the plaintiff to decree the suit as prayed for.
15. Before the Trial Court, in response to the suit summons, defendants appeared before the Court and it was defendants 1, 2 and 4 filed their written statements independently.
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16. So far as defendant No.1 is concerned, he denied all the assertions and allegations made in the plaint with regard to fraud, coercion, threat alleged by the plaintiff. He admits that the plaintiff was the owner of the suit schedule properties. It is admitted that, the plaintiff was unmarried. As per the specific defence of defendant No.1, as plaintiff was in need of money to clear his debts, he requested defendant No.1 to help him to sell the schedule properties. On going through the records, he showed his interest to buy the suit schedule properties for developmental activities. Discussion and negotiation took place for few months to complete the deal. Plaintiff addressed several letters to the advocate of defendant No.1 authorizing him to give paper publication regarding sale of the schedule properties. Even he addressed letter to the Tahsildar seeking corrections in the computerized RTCs.
17. It is contended that, on going through the draft sale deed, it was the plaintiff who got it corrected and the
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 defendant No.1 had agreed to purchase the schedule properties with a fair price and stamp papers were brought to execute the sale deed. It is stated that, on 11.07.2006, voluntarily plaintiff and his brothers with two witnesses came to the office of the Sub-Registrar, Anekal and on going through the sale deed, accepted the contents of the same and having satisfied, without raising any objections by receiving `7 Crores has executed the sale deed, which was presented before the Sub-Registrar for registration. According to defendant No.1, he handed over two Demand Drafts i.e. for `59,78,000/- and `7 lakh towards stamp duties. Voluntarily the plaintiff put his signatures and thumb impressions in the concerned registers and the said documents were numbered as P.7130/2006-2007 dated 11.07.2006. It was directed to defendant No.1 to produce the latest RTC extract of the agricultural lands. Pending registration, the said document was received by the Sub- Registrar for registration.
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18. According to defendant No.1, there were several continuous negotiations and discussions took place between himself and the plaintiff right from May-2005. It is contended that, the part of sale consideration was also drawn by the plaintiff on 07.03.2006 and it was agreed by the plaintiff to receive the balance sale consideration in the presence of Sub-Registrar. Thus, according to defendant No.1, the registration took place without any intervention of third party and the said registration was in accordance with law. It is contended that, by virtue of the said sale deed, defendant No.1 was put in physical actual possession of the schedule properties on 11.07.2006 and even prior to that. Therefore, it is contended that he is in peaceful possession and enjoyment of the schedule properties. It is contended that, soon after the registration in respect of the schedule properties, the title has been flown on defendant No.1 and he has got exclusive right, title and interest over the schedule properties and thus has become the owner of the same. Therefore, for all
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 these reasons, it is prayed by defendant No.1 to dismiss the suit.
19. Defendant No.2, being Sub-Registrar, filed written statement contending that the said document was executed with free own volition and consent by the plaintiff. The said properties were sold for a consideration of `7 Crores in favour defendant No.1. It was plaintiff, who represented defendant No.2 not to proceed with the registration and requested him to furnish the details. He requested to get the said document pending registration.
20. It is contended by defendant No.2 that on 15.07.2006, the sub-inspector of Tilaknagar police station visited the Sub-Registrar, Anekal and secured the said document on the ground of investigation in Crime No.174/2006 registered for the offence punishable under section 364, 342, 506 r/w 34 of IPC. To that effect, he obtained endorsement from the police and specifically contended that, the Tilaknagar Police have seized the original sale deed, which was presented for registration. In
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 the endorsement, it is made clear that in view of pending investigation in the aforesaid crime, till the outcome of the case, no further action be taken in respect of the said sale deed.
21. Defendant No.2 has denied the other allegations made in the plaint against him. According to defendant No.2, the suit is bad for non-joinder and misjoinder of parties. The suit is bad under the provisions of Order XXVII Rule 5-A of CPC as the government is not arrayed as a party in this suit.
22. Defendant No.4 filed independent written statement specifically contending that, it was the plaintiff who used to transact in shares with his company known as "Illicit Liquor and Fs Investment Mart". In the said company, he was the manager. In the month of June- 2006, the plaintiff noticed defendant No.1 in his house. It is contended that, on some occasions, plaintiff and defendant No.1 met defendant No.2 in his office and discussed with regard to the schedule properties. It is
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 contended that, on 10.07.2006 at 12.30 p.m., defendant No.1 asked defendant No.2 to call the plaintiff to discuss about the sale transactions near Adiga Hotel and accordingly he called. When defendant No.2 went near the said Adiga Hotel and was sitting in a car, plaintiff came there on a request made by defendant No.1 and it was 1.30 p.m. on that day. Plaintiff came to the said spot at about 2.30 p.m. Plaintiff was made to sit in a car. Though the plaintiff made an attempt to get down from the vehicle, the private people who sat next to the plaintiff did not allow him to get down from the car. Defendant No.2 also tried to get down from the car but defendant No.1 threatened him with dire consequences due to which he also could not get down from the car. Thereafter, defendant No.1 drove the said car towards the office of the Sub-Registrar, Anekal, but stopped the car at a distance of ½ km away from the office. Thereafter, he brought some papers already prepared by him styled as "sale deed" in respect of the schedule properties and gave it to the plaintiff with a cheque of `7 Crores and Demand Draft of
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 `63 Crores. He directed the plaintiff to put his signatures by filling the blanks regarding date and number of the Demand Draft in the sale deed. When plaintiff put his signatures, one Afroze Babu, who was sitting next to the plaintiff threatened to kill him, if he fails to put his signatures. On account of said life threat, the plaintiff put his signatures on the documents. After this, defendant No.1 and his accomplices went to the office of the Sub- Registrar and were returned. Subsequent to that, it was revealed that, a complaint was lodged before the Tilaknagar police station by the plaintiff. Accordingly, defendant No.4 went to the Tilaknagar police on 15.07.2006 and gave his statement. On 18.11.2006, he gave his further statement before the police. It is further contended that, as no relief is claimed against him, he prays to dismiss the suit.
23. Based upon the rival pleadings of both the parties, the Trial Court framed in all nine issues and 12 additional issues. They read as under:
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 ISSUES
1) Whether the plaintiff proves that his signatures and documents styled as agreement of sale and sale deed said to have been executed by the plaintiff in favour of the 1st defendant in respect of Suit Schedule Property were taken from him by force and coercion and hence the said documents are null and void?
2) Whether the plaintiff proves that the he is in possession of the Suit Property?
3) Whether the plaintiff proves that the 1st defendant is interfering with his peaceful possession and enjoyment of Suit Property?
4) Whether the 1st defendant proves that the plaintiff voluntarily appeared before the 2nd defendant i.e. sub-Registrar Anekal and executed the sale deed on 11.7.2006 in his favour in respect of Suit Properties for a consideration of `7,00,00,000/-?
5) Whether 1st defendant proves that the plaintiff has received the entire consideration of `7,00,00,000/-(Seven Crores) from the 1st defendant is respect of sale of suit properties to him (defendant No.1)?
6) Whether the 1st defendant proves that the suit of the plaintiff is not maintainable as contended by the 1st defendant?
7) Whether the valuation made and court fee paid by the plaintiff is not correct?
8) Whether the plaintiff is entitled for the reliefs as claimed by him?
9) What order or decree?
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 ADDITIONAL ISSUES
1) Whether the plaintiff proves that his signatures and documents styled as agreement of sale and sale deed said to have been executed by the plaintiff in favour of the 1st defendant in respect of suit schedule properties were taken from him by force and coercion and hence the said documents are null and void?
2) Whether the plaintiff proves that the he is in possession of the suit properties?
3) Whether the plaintiff proves that the 1st defendant is interfering with his peaceful possession and enjoyment of suit properties?
4) Whether the 1st defendant proves that the plaintiff voluntarily appeared before the 2nd defendant i.e. Sub-Registrar Anekal and executed the sale deed on 11.7.2006 in his favour in respect of suit properties for a consideration of `7,00,00,000/-?
5) Whether 1st defendant proves that the plaintiff has received the entire consideration of `7,00,00,000/-(Seven Crores) from the 1st defendant is respect of sale of suit properties to him (defendant No.1)?
6) Whether the 1st defendant proves that the suit of the plaintiff is not maintainable as contended by the 1st defendant?
7) Whether the valuation made and court fee paid by the plaintiff is not correct?
8) Whether the plaintiff is entitled for the reliefs as claimed by him?
9) What order of decree?
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 ADDITIONAL ISSUES FRAMED 7/1/2011 Issue No.10. Whether the plaintiff proves that the sale deed dated 6/7/2006 presented for registration before the 2nd defendant on 11/7/2006 bearing pending No.P7130/2006-07 in respect of the suit schedule property is tampered by playing fraud by the 1st defendant by erasing the paragraph containing the details of demand draft for `63 Crores and the hand written matter by the plaintiff?
Issue No.11. Whether he the plaintiff proves that the erased portion contains the details of the demand draft for `63 Crores?
Issue No.12.Whether the plaintiff proves that the State Bank of Mysore, Hosur Branch had issued the demand draft in favour of the Plaintiff for `63 only, not for `63 Crores as mentioned the Sale Deed?
24. To substantiate the case of the plaintiff, before the Trial Court, he himself entered the witness box as PW1. He was cross-examined in part. The order sheet reveals that, as the defendants did not come forward to direct further cross-examination, on 27.07.2011, it was ordered that, further cross-examination of the plaintiff by the defendants it taken as nil. Thereafter, defendant No.1 filed I.A.No.22 before the Trial Court seeking recall of PW1
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 for further cross-examination. The said application filed by defendant No.1 came to be rejected by the Trial Court on the same day. The said order of the Trial Court in rejecting the prayer of defendant No.1 seeking recall of PW1 was not challenged by defendant No.1 before the appropriate Appellate or Revisional Forum. Thus, as per the case of the plaintiff, the said order has attained finality.
25. It is on record that, during the pendency of the suit, PW1 was murdered in Anekal Court Compound. On the death of original plaintiff, his legal heirs were brought on record. Accordingly, plaint came to be amended. Thereafter, one of the legal representatives of the plaintiff by name M.G.Dattatreya entered the witness box as PW2 and he was thoroughly cross-examined by the defendants to prove with regard to the handwriting etc. One Sri.Sayyed Ajagar Imam, Scientific Examiner of the FSL, Bengaluru was examined as PW3. On behalf of the plaintiffs Ex.P1 to Ex.P59 were marked. During the course of cross-examination directed to these PW1 and PW2,
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 Ex.D1 to Ex.D9 were marked on behalf of the defendants. When PW3 was to be cross-examined by the defendants, defendants have not cared to cross-examine this PW3. The Court has given sufficient time to the defendants to cross- examine PW3, despite that the defendants did not care to cross-examine him and therefore, cross-examination of PW3 was taken as not led and the case was posted for defendant's evidence.
26. Though, as per the order sheet, sufficient time was granted to the defendants to lead their evidence, but the defendants have not led any evidence. There was an order to dispose of the suit at the earliest point of time by fixing time schedule by the Hon'ble High Court vide its judgment dated 06.10.2010 in MFA No. 9969/2008 (CPC) C/w MFA No.9968/2008 and MFA No.2898/2009. The case was posted on day-to-day for the purpose of speedy disposal as per the directions, even then the defendants did not care to cross-examine PW1 and PW3 or to lead any further evidence. In the meanwhile, defendants sought for
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 transfer of the matter from one court to another. The defendants did not show any interest to lead any further evidence and therefore, the evidence of the defendant was taken as not led.
27. On hearing the arguments advanced by the counsel for the plaintiffs and considering the oral and documentary evidence placed on record by the plaintiffs and defendants, the Trial Court answered Issue No.1 to 3 and 8 in the affirmative, Issue No.4 to 7 in the negative and Additional Issue No.1, 2 and 10 to 12 in the affirmative and ultimately decreed the suit of the plaintiffs as prayed for.
28. It is this judgment that has been assailed by the defendant by preferring this Regular First Appeal.
29. During the pendency of this appeal before this Court, the appellant-defendant No.1 has filed I.A.No.3/2021 under Order XLI Rule 27 of CPC seeking permission to the appellant to produce additional
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 documents. To this application, respondents 1(a) to 1(g) and 1(i) to 1(m) have filed their detailed objections.
30. The records of this case reveal that, during the pendency of the suit, several interlocutory applications were filed and the Trial Court passed orders on various interlocutory applications. Learned counsel for the appellant made available the list of relevant orders passed in the suit and also the dates on which the Court proceedings have taken place with page numbers. The same is taken on record for the purpose of convenience.
31. It is argued by Sri.M.S.Bhagavath, learned Senior Counsel appearing for the appellant that, it is a suit for declaration and injunction. In addition to narrating the facts of the case, so made out in the pleadings of both the parties, he submits that initially the plaint, which was filed by the plaintiff, was not properly drafted. After pointing out the mistakes so stated in the original plaint, the plaintiff amended the prayer and also inserted paragraphs 9(aa) in the plaint. According to his submission, the Trial
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 Court ought not to have allowed the said amendment. On reading the original plaint, without any cause of action and without any basis, though the original plaintiff admitted about the execution of the sale deed, but has denied the very execution of the sale deed on flimsy grounds, the Trial Court ought not to have allowed the said amendment.
32. It is on record that, though the amendment application was allowed by the Trial Court, the said order was not challenged by defendant No.1-appellant before any proper forum. Thus the said order on application seeking amendment so filed by the plaintiff has become final.
33. It is argued by the counsel for the appellant that, the prayer so made in the plaint itself is wrong and it is not in consonance with the provisions of Section 34 of the Specific Relief Act. He submits that, while passing the orders, liberty was given to the appellant to put forth his contentions, if an appeal is preferred. Therefore, the
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 appellant has taken up all these contentions in this appeal with regard to the mistakes that have been committed by the Trial Court. According to him, when the application was allowed and plaint was amended, the appellant- defendant No.1 was not permitted to file any additional written statement by the Trial Court. Further, he submits that, the judgment so passed by the Trial Court is not in accordance with law and facts so made out by the defendants. Based upon the pleadings of the plaintiff himself, he submits that, the plaint ought to have been dismissed by the Trial Court. As per the orders passed in the writ petition, the judgment so passed was to be set aside and matter requires to be remanded before the Trial Court. Some witnesses were examined on behalf of the plaintiffs and PW3 was also not cross-examined. Additional issues were framed by the Trial Court after six years of filing of the plaint, which was time barred. According to him, the Trial court has relied upon the statements recorded by the police under Section 161 of Cr.P.C. This is not permissible under law.
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013
34. He further submits that, no opportunity was given to defendant No.1 to cross-examine the PW1 and PW3. He submits that, the finding on issue No.6 is wrong. The suit is not properly framed by the plaintiff. Amendment was sought after six years of filing of the suit. The prayer so made in the plaint was not cognizable by the Civil Court. Suit for declaration filed by the plaintiff is hopelessly barred by time. The original plaint prayer is very much vague. Further, he submits that, in view of the law laid down by the Hon'ble Apex Court in various judgments, when there is no opportunity given to the defendant to cross-examine the witnesses, the very passing of the judgment of the Trial Court is vitiated. Though it is submitted that the defendants have not cared to cross-examine PW3, but defendant No.1 was always diligent in contesting the suit filed by the plaintiffs. As there was passing of consideration, the original plaintiff by virtue of said sale transaction of payment, it is defendant No.1, who has become the owner of the schedule properties. But in view of the filing of police complaint
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 against defendant No.1 and others and also filing of affidavit before the Sub-Registrar now the rights of defendant No.1 are prejudiced and affected.
35. Learned senior counsel also submits that, even much prior to the sale transaction, defendant No.1 was put in possession of the schedule properties. Even there is no dispensation of notice to the Government. Defendant No.2 is a government officer. There is no notice issued to him as required under section 80 of CPC. He further submits that, as the suit is bad for want of notice under Section 80 of CPC, the suit is not maintainable. He further submits that, the attesting witnesses to the said sale deed are not examined by the plaintiffs. According to him, Section 33 of the Indian Evidence Act, 1872 come into operation. In support of his submission, he relied upon various pleadings, evidence, both oral and documentary, citations and prayed to allow the appeal and dismiss the suit of the plaintiff.
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013
36. As against this submission, learned senior counsel Sri. RVS Naik counsel for the respondent-plaintiffs submits that the main grounds urged in this appeal is:
i) no proper opportunity was given to file additional written statement,
ii) no proper opportunity was given to cross-
examine PW1 and PW3,
iii) no opportunity was given to lead evidence, Section 80 of CPC notice is not complied with, Trial Court has passed cryptic order to that effect,
iv) Amendment of the plaint at paragraph 9(aa) is barred by limitation and the reliefs so claimed are barred by limitation and the Trial Court could not have allowed upon the statement of the witnesses recorded under section 157 of Cr.P.C.
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013
37. It is submitted by the learned Senior Counsel that in this case, list of events that have taken place before the Trial Court, play important role. The conduct of the appellant also plays an important role in contesting the suit of the plaintiffs. Though sufficient opportunity was given by the Trial Court, but the defendants have not availed that opportunity. In a case of present nature, the conduct of the parties plays an important role to decide the lis. According to him, false statement is made that, no opportunity was given to the defendants. In support of his submission, he relied upon the orders being passed by this Court in W.P.No.51760/2012. He submits that, when opportunity was very much given to the defendants and as it was not availed properly, then now the appellant- defendant No.1 cannot seek any sympathy. He submits that on going through the records in this case, when a provision is very much available with regard to the subsequent pleadings under CPC, it was open for the appellant to state that no time was given to defendant No.1. Initially suit was against defendant No.1 and 2 and
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 subsequently defendants 3 and 4 were impleaded as per the orders dated 09.09.2009 passed on I.A.No.12. No written statement was filed by the defendant No.3. Notice to defendant No.3 was dispensed with by the Trial Court and that order was not challenged by defendant No.1. The question is that, whether Section 80 of CPC notice is mandatory or can it be waived of has to be understood by the appellant himself. According to him, there must be proper objections to be raised by the appellant-defendant No.1. The conduct of the defendant No.1 with regard to not raising such objection is deemed to have waived his right of objections.
38. When there is a clear order passed by the Trial Court in allowing the amendment, it goes back to the date of the suit. So within three years the plaintiff has amended the suit as required under the provisions of the Indian Limitation Act. The said prayer made by the plaintiff is well within the time. No additional written statement was filed and no pleading was taken up by the defendant No.1. In a
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 criminal case filed by the plaintiff, being the complainant, during investigation, the investigating officer recorded the statement of the witnesses with regard to fraud, coercion committed by the appellant-defendant No.1 against the plaintiff. The witnesses clearly stated about the behavior and conduct of defendant No.1 with the original plaintiff and the Trial Court has come to the conclusion that fraud has been committed on the plaintiff. Therefore, according to his submission, the arguments of the counsel for the appellant cannot be accepted. In support of his arguments, he has placed reliance on the following judgments:
1. Kundan Lal Rallaram v. The Custodian, Evacuee Property Bombay1
2. Dr.N.G.Dastane v. Mrs. S. Dastane2
3. R.V.E.Venkatachala Gounder v. Arulmigu Vishwesaraswami & V.P. Temple and Another3
4. Armugam v. Channagiri N. Govindaraj Shetty4
5. Vidhyadhar v. Manikrao and others5 1 AIR 1961 SC 1316 2 (1975) 2 SCC 326 3 (2003) 8 SCC 752 4 ILR 1992 KAR 1660 5 (1999) 3 SCC 573
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013
6. A.E.G. Carapiet v. A.Y. Derderian6
7. Sarwan Singh v. State of Punjab7
8. Bal Gangadhar Tilak and others v. Shriniwas Pandit and another8
9. Mohamed Ghouse v. The State9
10. Iqbal Singh Marwah and another v. Meenakshi Marwah and another10
11. Khatri and others v. State Of Bihar and others11
12. Chainchal Singh v. King-Emperor12
13. Sri. M.S.Dharmalingu S/O. M.D.Siddaramaiah since deceased by his Lr's v.
M/s.C.M.R.Janardhana Trust in RFA No.1302/2011 (DD-23/10/2020)
14. Sangmesh S/o. Durgappa Bhajanthri v. Kumareshwar S/o. Yellappa Bhajantri @ Hunagund in RFA No.200008/2014 (DD-
10/06/2021)
15. AL.AR. Vellayan Chettiar (deceased) and others v. The Government of the Province Of Madras, through the Collector of Ramnad at Madura and another13
16. Dhirendra Nath Gorai and Subal Chandra Shaw and Others v. Sudhir Chandra Ghosh And Others14 6 AIR 1961 CAL 359 7 (2003) 1 SCC 240 8 Vol.XLII Indian Appeals of High Court at Bombay 9 (1965) 2 Cri.L.J., 288 10 (2005) 4 SCC 370 11 (1981) 2 SCC 493 12 Vol.LXXII Indian Appeals in High Court at Lahore 13 (1947) 60 LW 630 14 6 S.C.R 1001
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013
17. N.Vajrapani Naidu and another v. The New Theatre Carnatic Talkies Ltd., Coimbatore15
18. Arce Polymers Private Limited v. Alphine Pharmaceuticals Private Limited and Others16
19. Hirachand Himatlal Marwari v. Kashinath Thakurji Jadhav17
20. Life Insurance Corporation Of India v. Sanjeev Builders Private Limited And Another18
22. State Of Karnataka v. Nagendra Reddy S/o. Late Nanjunda Reddy in Criminal Appeal No.97/2017 (DD-29/01/2024)
39. He further submits that, the Trial Court on proper evaluation of the evidence and assessment of the same has rightly decreed the suit and hence, prays to dismiss the appeal.
40. Refuting the submission, once again in reply arguments, the learned senior counsel for the appellant reiterated the earlier arguments and submits that, the order sheets of the Trial Court clearly establish that 15 6 S.C.R. 1015 16 (2022) 2 SCC 221 17 AIR 1942 BOM 339 18 2022 SCC ONLINE SC 1128 19 2019 0 AIR(MAD) 91
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 several adjournments are granted at the instance of the plaintiff himself and it was not at the instance of the defendants.
41. According to him, his interlocutory applications filed to receive the additional documents have to be allowed. Further, he submits that, as sufficient opportunity was not given to defendant No.1-appellant and as he wants to produce additional documents to prove his defence, the appeal has to be allowed and the judgment impugned in this appeal has to be set aside and defendant No.1 has to be permitted to lead evidence. Ex.P59 is the sale deed. This sale deed plays an important role to decide the lis between the plaintiff and the defendants, which was voluntarily executed by the plaintiff in favour of defendant No.1.
42. The appellant has filed I.A.No.3/2021 under Order XLI Rule 27 of CPC to lead additional evidence. According to the appellant-defendant No.1, the documents sought to be produced along with said I.A.No.3/2021 are
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 quite necessary for disposal of this appeal. If the applications are not allowed and documents are not received on record, it will prejudice the rights of the appellant-defendant No.1 and he would be put to hardship. He too relied upon the following judgments:
1) L. C. Hanumanthappa (since dead) r/by LRs v. H.B. Shivakumar20;
2) Ashok Kumar Kalra v. Wing CDR. Surendra Agnihotri and others21
3) Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and others22
4) State of A.P. and others v. Pioneer Builders A.P.23
5) Raghwendra Sharan Singh v. Ram Prasanna Singh (dead) by legal representatives24
6) Sugandhi (dead) by LR's and Another v.
P.Rajkumar R/by His Power Agent Imam Oli in Civil Appeal No.3427 of 2020 (Arising out of S.L.P(C) No.16491 of 2019)
7) Godrej Pacific Tech. Ltd., v. Computer Joint India Ltd., in Criminal Appeal No.1181 of 2008 (Arising out of S.L.P. (Crl.) No.6396 of 2006)
8) Nagendra Reddy v. M.G.Shanthkumar (deceased) by LR's, Sri. M.G. Dattathreya 20 (2016) 1 SCC 332 21 (2020) 2 SCC 394 22 (2013) 4 SCC 465 23 (2006) 12 SCC 119 24 (2020) 16 SCC 601
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 and others in WP.No.52447/2012 C/w.
WP.No.52449/2012 & WP.No.51760/2012 (GM-CPC) (DD-03.01.2013).
43. The respondents have filed objections to this application denying all the assertions made in the application. The documents sought to be produced along with the application are not at all necessary for just decision in this appeal. The records of Criminal case and the judgments so passed in the said cases are irrelevant to decide the lis between the parties. Just to harass the respondent, the said applications are filed. Hence, prayed to dismiss the application as well as the appeal.
44. We have given our anxious consideration to the arguments advanced by both the sides, meticulously perused the records. In view of the rival submissions made by both the sides and on perusal of the material on record, the following points would arise for our consideration:
i) Whether the judgment of the Trial Court with regard to declaration of the title and possession over the suit schedule properties
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 with the plaintiff is perverse, capricious and requires interference by this Court?
ii) Whether the appellant has made out any grounds to receive any additional documents?
45. Before adverting to the other factual aspects of this case, it is just and proper to have a discussion with regard to the points being raised by the counsel for the appellant with regard to the dispensation of notice to defendant No.2 and also allowing the prayer made by the plaintiffs before the Trial Court seeking declaration. Evidently, in this case, the original plaintiff filed a suit initially before the Civil Judge (Sr.Dn) and JMFC, Anekal in O.S.2237/2006. The suit was filed seeking relief of declaration and permanent injunction against the defendants. The prayer so made in the plaint reads as under:
"WHEREFORE the plaintiff prays that this Hon'ble Court may be pleased to :-
a) Declare the any purported deed claimed to be executed by the plaintiff in favour of the 1st
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 defendant in respect of the schedule properties as null and void;
b) Declare that any purported agreement in respect of the schedule properties with the 1st defendant as null and void;
c) Grant a relief of permanent injunction against the 1st defendant from interfering with the possession and enjoyment of the schedule properties by the plaintiff;
d) Grant a relief of permanent injunction restraining the 2nd defendant from registering any documents purported to be executed by or on behalf of the plaintiff, in respect of the schedule properties;
e) Grant such other relief/s and costs of the suit as this court may deem fit, in the facts and circumstances of the case, in the interest of justice and equity.
46. On perusal of the Trial Court records and order sheets along with the plaint, as the suit was filed against the Government, I.A.No.1 was filed by the plaintiff under Section 80(2) of CPC seeking permission to institute a suit dispensing the notice to defendant No.2 considering the grounds made out in the application and the affidavit annexed with it. On 26.07.2006, the learned Civil Judge (Sr.Dn) and JMFC, Anekal having heard the arguments of the counsel for the then plaintiff, passed an order
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 dispensing notice to defendant No.2 on consideration of facts and circumstances of the case. Accordingly, summons came to be issued to all the defendants. Pursuant to the suit summons, defendants appeared before the Trial Court. Throughout the proceedings before the Trial Court, no little finger was raised by the defendant No.1 or defendant No.2 that the dispensing of notice by the Trial Court was incorrect.
47. The only defence taken by defendant No.2 in the written statement was that the suit is hit under provisions of Order XXVII of CPC. Therefore, suit is not maintainable. Except bald contention taken in the written statement, no objections were raised with regard to dispensation of notice by the Trial Court by any of the defendants. For the first time, the appellant herein is raising the objections. Suit was filed in the year 2006 and was disposed of in the year 2013. For the first time, in the final arguments, such submission is made by the learned counsel for the appellant that the Trial Court has passed a
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 cryptic order dispensing the notice and therefore, unless there is strict compliance of the provisions of Section 80 of CPC, the suit so filed by the original plaintiff was not maintainable. In support of his submission he relied upon the judgment of the Hon'ble Apex Court in the case of State of Andhra Pradesh and others v. Pioneer Builders, Andhra Pradesh25.
48. In the aforesaid judgment, the Hon'ble Apex Court has held with regard to the purpose of issuing of notice to the Government, which is proposed to be filed against the Government, which may consider the decision and decide for itself whether the claim made could be accepted or not. It is held that the service of notice is imperative except where urgent and immediate relief is to be granted by the court, in which case a suit against the Government or a public officer may be instituted in absence of notice, but with the leave of the court. It is held that such a leave is a condition precedent and must 25 (2006) 12 SCC 119
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 precede the institution of a suit without serving notice. Thus, the proper procedure is mandated under Section 80 of CPC.
49. In this case, I.A.No.1 came to be filed by the plaintiff seeking some urgent reliefs in a comprehensive suit for declaration and injunction. Certain acts of defendant No.2 were alleged in the plaint. As per the argument of the learned senior counsel for the respondents, because of presentation of the so called document styled as "sale deed" by defendant No.1- appellant for registration, though there was objection being raised by the original plaintiff not to register the said sale deed because of the conduct of the appellant- defendant No.1, the plaintiff had a apprehension that the said document would be registered. As the sale deed itself was challenged by way of comprehensive suit for declaration and injunction, the purpose of the suit would be frustrated. Therefore, he filed an application/petition before the Sub-registrar not to act upon the said so called
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 sale deed as there is no passing of any consideration and it is outcome of fraud, coercion, threat etc. Even he lodged a complaint before the Tilaknagar Police Station to that effect. He filed civil suit to get his grievance redressed. So considering the facts and circumstances so stated in the I.A.No.1, the plaintiff has sought the urgent relief. No ex parte order was passed against any of the defendants after presentation of the plaint. Subsequently, on consideration of the submission of both the sides, temporary injunction was granted during the pendency of the suit. So, this silence on the part of defendant No.1 throughout the proceedings amounts to waiver of his right of taking objections with regard to dispensation of notice. With due respect, it is submitted that the said judgment relied upon by the counsel for the appellant cannot be made applicable to the facts of this case.
50. As the Trial Court has dispensed notice to defendant No.2 after satisfaction, which is not challenged by the defendant No.1 throughout the proceedings, this
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 silence on the part of defendant No.1, as submitted by the learned counsel for the plaintiff, amounts to waiver. No doubt, the law mandates about issuance of notice, on general reading the provision of section 80(1) and (2) of CPC, service of notice under sub-section 1 is emergent, except where urgent and immediate relief has to be granted by the Court. It is also made clear under the provisions of Section 80 of CPC that, with the leave of the Court, the plaintiff can seek dispensation by filing a proper application under Section 80(2) of CPC and must satisfy as to how the leave is sought for or given. Yet the order granting leave must indicate the grounds pleaded and application of mind thereon.
51. On perusal of the order so passed by the Trial Court on 26.07.2006, it is observed in the course of the order that, after considering the "facts and circumstances of the case made out by the plaintiff, he was permitted to institute the suit against defendant No.2". If that is so, now appellant-defendant No.1 cannot contend that the
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 very filing of the suit without issuing notice to defendant No.2 is bad in law. Therefore, there is no merit in the submission of the counsel for the plaintiff.
52. The counsel for the respondents also submits that in view of silence on the part of the appellant- defendant No.1 and other respondents before the Trial Court throughout the proceedings and raising such objection now, is not at all tenable under law, that too before the Appellate Court. In support of his submission, he relies upon the judgment of the Privy Council in the case of AL.AR.Vellayan Chettiar (Deceased) and others v. The Government of Province of Madras, through the Collector of Ramnad at Madura and another26. In this judgment, the Privy Council relying upon its earlier judgments made an observation as; "why the notice required to be given under section 80 should not be waived if the authority concerned thinks fit to waive it. It is for his protection that notice is required. If in the 26 1947 SCC Online PC 41
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 particular case he does not require that protection and says so, he can lawfully waive his right."
53. In this case, as defendant No.1 has not raised any objections throughout the proceedings before the Trial Court, in the light of the above observations, we find that arguments of learned senior counsel for the appellant on the point is not acceptable.
54. One more submission made by the counsel for the appellant-defendant No.1 is that, after six years of filing of the suit, the plaintiff sought amendment of the plaint and has amended the prayer of declaration. So this amendment so sought with regard to declaration is hopelessly barred by law of limitation. In support of his submission, he relied upon the prayer so made by the plaintiff in the plaint, which according to him was amended after six years of filing of the suit. So also he submits that, serious objections were raised by the defendants to that effect. But the Court passed an order allowing the said amendment.
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013
55. Counsel for the appellant-defendant No.1 has also raised objections regarding the amendment.
56. Initially, the plaintiff has sought for the relief of declaration that, any purported deed claimed to be executed by the plaintiff in favour of defendant No.1 in respect of the schedule properties as null and void and to declare that, any purported agreement in respect of the schedule properties with the 1st defendant as null and void. He also sought for permanent injunction against both the defendants in respect of schedule properties.
57. By amending the plaint, he inserted certain paragraphs in the plaint and inserted paragraph (aa) in the prayer column seeking to declare that the purported sale deed dated 06.07.2006 presented for registration on 11.07.2006 before the second defendant bearing pending No.T/06-07 in respect of the schedule property as null and void but he has not deleted the earlier prayer at (a) and
(b) so sought in the original plaint. As per the submission of the counsel for the respondents, now this amendment is
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 clarificatory in nature and to avoid ambiguity with regard to challenging of the sale deeds dated 06.07.2006 presented for registration on 11.06.2006. The original plaintiff by amending the original plaint, inserted paragraph (aa) in the original plaint by way of amendment. According to him, now such amendment cannot be termed as barred by law of limitation.
58. The counsel for the appellant submits that, when the amendment is sought after six years of filing of the suit and when further relief is added by way of amendment, after barred by limitation on the date of grant of amendment, the doctrine of relating back the amendment to the date when the suit was originally filed, then in such contingency the allowing of such amendment, as it would not relates back to the date of original suit stands barred by law of limitation.
59. In support of his submission, he relied upon the judgment of the Hon'ble Apex Court in the case of L.C.Hanumanthappa (since dead) represented by his
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 legal representatives v. H.B.Shivakumar27. So also in Pioneer Builders (supra).
60. In these judgments, the scope of Order VI Rule 17 of CPC has been discussed. It is held that an amendment cannot be claimed as a matter of right under all circumstances. Yet the bar to allow the amendment is vide and can be exercised at any stage of the proceedings in the interest of justice. It is also further held in these judgments that, unless serious injustice or irreparable loss is likely to be caused to the defendants, the Courts should adopt a liberal approach and not hyper-technical approach, particularly, in a case where the other side can be compensated with costs.
61. While considering the interlocutory application filed by the original plaintiff, on hearing the objections of defendant No.1, the Trial Court has passed considered order by allowing such application on payment of costs. Even on scrupulous reading of earlier prayer so made and 27 (2016) 1 SCC 332
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 the proposed amendment of prayer at (aa) in the prayer column, it shows that this prayer so sought to be inserted at (aa) is interconnected with the prayer at (a) and (b). So it is clarifactory in nature. Therefore, when such amendment is allowed by the Trial Court and is not challenged by the appellant-defendant No.1 before any appropriate forum by filing revision or writ petition etc., now the appellant cannot contend that the said amendment could not have been allowed and it is barred by law of limitation. It is settled principles of law that, unless there is a specific order with regard to amendment to give effect from the date of application or from the date of order, such amendment relates back to the date of the suit. As discussed above, this declaration so sought at (aa) column in the prayer is related to original prayer (a) and
(b). Therefore, there is no substance in the submission of the appellant that the Trial Court has committed an error in allowing the said application. Hence, the argument of the counsel for the appellant to that effect cannot be accepted.
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62. One more submission is made by the counsel for the appellant-defendant No.1 that defendant No.1 was not permitted by the Trial Court to cross-examine PW3. So also, to lead evidence on behalf of defendant No.1. The Trial Court posted the matter on day-to-day basis and without giving sufficient opportunity has passed a hasty judgment against the defendants. It is his submission that, this conduct of the Trial Court has affected the principles of natural justice. According to his submission, in view of the events that have been taken place throughout the proceedings before the Trial Court, as it was a suit for declaration and permanent injunction, the Trial Court ought to have granted opportunity to defendant No.1 to cross-examine PW3. Further cross-examination of PW1 was taken as not led. It is his submission that unless PW1 and PW3 are cross-examined in full, their evidence cannot be accepted. It is his further submission that, the very opportunity of leading evidence by defendant No.1 is deprived of by the Trial Court. Hence, he submits that an opportunity has to be given to defendant No.1 to adduce
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 evidence and decide the lis between the plaintiffs and defendants in an effective manner. In support of his submission, Sri.M.S.Bhagavath, learned Senior Counsel, has furnished details of proceedings and even has furnished a typed copy of the order sheet so as to assist this Court about the proceedings that have taken place before the Trial Court from the date of filing of the suit till the date of its disposal. He also made available the details of interlocutory applications filed by both the sides in O.S.No.2237/2006 before the Trial Court.
63. On scrupulous reading of the entire text of the order sheet, it shows that the Trial Court as per the directions issued by this Court in the judgment dated 06.10.2010 in MFA No. 9969/2008 (CPC) C/w MFA No.9968/2008 and MFA No.2898/2009, has taken steps to expedite the trial of the suit. In the course of the order passed by this Court in the above said case, in paragraph 4 and 5, it is observed as under:
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 "4.The learned counsel for the appellant and the first respondent who is party in person submit that the appeals may be disposed of, directing the Trial Court to dispose of the matter within a specified period.
5. Accordingly, the appeals are disposed of directing the Trial Court to dispose of the matter by 30/6/2011. In the meanwhile, the parties are directed are to maintain Status-quo as ordered by this court on 19/2/2010 till the disposal of the suit."
64. On scrupulous reading of the above paragraphs 4 and 5 of the order, stated above, it shows that the said appeals were filed by the appellant herein, who was common in all appeals. Before the Single Bench of this Court, the learned counsel for the appellant and respondent No.1, who was party-in-person submitted that, the appeals be disposed of directing the Trial Court to dispose of the matter within a specified period. Therefore, accordingly, the learned Single Judge of this Court directed the Trial Court to dispose of the matter by 30.06.2011. In the meanwhile, both the parties were directed to maintain status-quo as ordered on 19.02.2010 till disposal of the suit. Even though direction was issued to dispose of the
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 suit on or before 30.06.2011 but the Trial Court has sought extension of time to dispose of the suit because of events that have taken place before it. All the while defendants prayed for time and case was adjourned from time to time and therefore, extension was sought and it was granted by this Court. The direction was issued by this Court on 06.10.2010 and if the order sheet of the Trial Court is scrupulously perused, right from 06.10.2010 series of interim applications were filed and orders were passed on various dates. It was defendant No.1 who filed I.A.No.6 under Order VIII Rule 1 of CPC seeking permission to file his written statement by condoning the delay. Said application came to be allowed and thereafter the case was posted for evidence. Plaintiff also filed series of applications. In all total 35 interlocutory applications were filed by both the sides before the Trial Court. Amongst them, 20 interlocutory applications were filed by the original plaintiff and 15 interlocutory applications were filed by the defendants. From 06.10.2010, in all 19 interlocutory applications were filed by both the sides of
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 which 11 interlocutory applications were filed by the plaintiff and 8 interlocutory applications were filed by the defendant No.1. Even Miscellaneous Petitions were also filed in Misc.No.118/2011 on 14.09.2011, Misc.No.126/2012 on 04.08.2012 and Misc.No.202/2012 on 07.12.2012. The first two miscellaneous petitions were filed by the legal representatives of original plaintiff and third petition was filed by defendant No.1. Based upon the contents of both the parties, petitions filed by the legal representatives of plaintiff were allowed and initially original suit was transferred to FTC-VI Court Anekal from FTC-III Bangalore Rural District as per the order dated 25.11.2009 and thereafter as per the orders dated 20.02.2012 suit was transferred from FTC-III Bangalore Rural District to FTC-IV Bangalore District, whereas the petition filed by defendant No.1 on 07.01.2012 seeking transfer of the suit was dismissed on 14.12.2012. The allegations were made against the presiding officer stating that, the presiding officer has suggested for compromise and also I.A.No.28 and 29 were dismissed by the Trial
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 Court. Such allegations were made in the transfer petitions.
65. On going through the order sheet of the original suit, it shows that PW1-original plaintiff entered witness box and in installments he was cross-examined by the defendants. When the case was posted for cross- examination of PW1 as a last chance, there was no cross- examination of PW1 and prayer of the defendant seeking time was rejected and cross-examination of PW1 was taken as not led. In the meantime, I.A.No.20 came to be filed under Section 14 of CPC seeking review of the orders dated 29.03.2011, which came to be dismissed by the Trial Court on 20.04.2011. Throughout the proceedings, PW1 remained present before the Court. On 04.06.2011 an interlocutory application came to be filed by the defendant No.1 under Order VI Rule 17 of CPC seeking amendment of the written statement. Likewise, the plaintiff also filed I.A.No.30 under Order VI Rule 7 of CPC seeking amendment of the plaint. On 03.10.2012, the said
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 application came to be allowed by the Trial Court. Consequently, there was an amendment of the plaint. So also on death of original plaintiff, because of murder, his legal representatives also filed I.A.No.31 to receive the evidence by way of documents. The said application also came to be allowed on the said date itself. The order sheet reveals that though the counsel for plaintiffs was present on the dates of proceedings before the Trial Court, but there was no representation on behalf of the defendants. Despite the amendment of the plaint, defendant No.1 did not care to file additional written statement. Therefore, it was ordered on 09.05.2012 as additional written statement of defendant No.1 not filed.
66. On 17.10.2012, the examination-in-chief of PW2 was filed by way of affidavit. Through him, certain documents were marked from Ex.P43 to Ex.P48. In the meantime, High Court passed an order to return the original sale deed and it was directed to the plaintiff to produce the same. PW2 was further examined and cross-
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 examined in installments. In the meantime, I.A.No.33 came to be filed by the plaintiff to issue witness summons and the same came to be allowed. On 05.12.2012, it was observed by the Trial Court that, defendant No.1 has sought adjournment on the ground that he wants to prefer an appeal before the Hon'ble High Court. Accordingly, five days' time was granted on 05.12.2012. It is further observed that, there is already a direction issued by the High Court to dispose of the case within six months and extended time was also already expired in the month of December-2012 itself. Therefore, it was ordered by the Court giving short dates.
67. It is further stated that, defendant No.1 has not preferred any appeal as submitted by him and the proceedings of the suit are not stayed. I.A.No.33 filed by defendant No.1 came to be rejected. On that day, PW3 was present before the Trial Court and he was examined. The prayer to adjourn the case was rejected because of direction of the High Court for early disposal. Thereafter,
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 case was posted for defendant evidence on 07.12.2012 but was adjourned and was again posted to 10.12.2012 for defendant evidence as a last chance.
68. On 10.12.2012 it was submitted by the counsel for the defendant No.1 that, they will proceed with the case at 4.00 p.m. But when the case was called, time was prayed to lead defendant evidence. On that day, it was ordered that defendants have not led any evidence. It was submitted by the counsel for defendant No.1 stating that Miscellaneous Petition was filed before the District Court by filing a memo to that effect. Thereafter case was posted on 11.12.2012 for arguments. There was representation for the plaintiff on that day and counsel for plaintiff advanced his arguments but the counsel for defendants was not present. Time was sought by the counsel for the plaintiff to file written arguments. Accordingly, draft written arguments were filed on the subsequent date.
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013
69. Case was posted for defendants' arguments on 13.12.2012. There was no representation on that day on behalf of the defendants. It was ordered that defendants have no arguments. The reply of the counsel for plaintiff was heard. No representation was made on behalf of the defendants. It was ordered that inspite of giving sufficient opportunities, the defendants have neither filed application to reopen the case nor have cross-examined PW3 or submitted their arguments. Therefore, the arguments of the defendants were taken as heard and case was posted for judgment.
70. On 02.01.2013, the counsel for the defendant No.1 filed a memo stating that they have filed three writ petitions before the Hon'ble High Court in W.P.No.51760/2012, 52447/2012 and 52449/2012 against the order passed by the Court and also against the order of dismissal of transfer petition. No stay was granted in the said writ petitions. It is observed that the Trial Court has not received any stay order from the Hon'ble High
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 Court and on 03.01.2013 the Trial Court passed the judgment which is impugned in this appeal.
71. The above are all calendar of events that have taken place with regard to the proceedings before the Trial Court.
72. The main arguments of the counsel for the appellant-defendant No.1 is that, sufficient opportunity was not given to defendant No.1 to lead evidence. therefore, opportunity has to be given to the defendant to lead evidence and he seeks to remand of the case by setting aside the judgment impugned. Though it is submitted by the counsel for the appellant that the matter requires remand, but in the case of present nature, the conduct of the parties also plays an important role. When sufficient opportunities were given to the defendants to cross-examine the witnesses as well as to lead evidence and when those opportunities were not used by the defendants in a proper manner, the question arises that whether the defendants can still be permitted to lead their
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 evidence as prayed. Defendants cannot be permitted to lead their evidence for the simple reason that the order sheet of the Trial Court do reveal the time consumed by the defendants to cross-examine the plaintiff witnesses and to lead their evidence. Defendant No.1 has availed opportunity of cross-examining PW1 in part and also cross-examine PW2 in full but failed to cross-examine PW3. Throughout the proceedings they remained silent. There is nothing on record to show that defendant No.1 to 4 made any attempts to recall the orders of closing their cross-examination and closing the stage of their evidence. Thus, in the aforesaid circumstances, it cannot be said that the defendants were not provided with sufficient opportunities to represent and prosecute their defence before the Trial Court. Merely because the Trial Court had posted the matter at short dates, it does not mean that the Trial Court had deprived the appellant of any opportunity, particularly, when defendants and their counsel remained absent before the Trial Court on several dates of hearing.
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013
73. In this case, already as per the orders passed by the Single Judge of this Court, a direction was issued to the Trial Court to dispose of the case expeditiously by putting a mandate. The Trial Court had to obey the said directions. As observed above, time was stipulated by the order of the Single Bench while passing judgment in MFA No.9969/2008 C/w MFA No.9968/2008 and 2898/2009. Moreso, the appellant-defendant No.1 was the appellant in the said appeals and as per his request only the time was stipulated to dispose of the suit. If that is so, now the appellant cannot contend that he was deprived of opportunities to lead evidence etc., Therefore, the argument of the counsel for the appellant-defendant No.1 that sufficient opportunity was not given to appellant- defendant No.1 cannot be accepted.
74. In a case of similar nature, this Court in RFA No. 200008/2014 (Sangamesh S/o. Durgappa Bhajanthri and others v. Smt.Renuka W/o.Sharnappa Bajantri and others) disposed on
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 10.06.2021 at paragraph 13 a Co-ordinate Bench of this Court has observed as under:
"13. The aforesaid order sheet reveal that written statement of defendant Nos.1 to 4 has been taken on record though filed belatedly. Defendant Nos.1 to 4 have not availed the opportunity to cross-examine P.W.1 despite sufficient opportunity provided by the trial Court. They have remained absent on all most every hearing dates after evidence of P.W.1. There is nothing on record even to suggest that defendant Nos.1 to 4 made any attempt to recall the order closing their cross- examination and closing the stage of their evidence. Thus, under the aforesaid facts and circumstances, it cannot be said that the defendants were not provided with sufficient opportunity to represent and prosecute their case before the trial Court. Merely because the trial Court had posted the matter at a short intervals does not mean that the trial Court had deprived the appellants, any opportunity, particularly, when defendant Nos.1 to 4 and their counsel had remained absent during the dates of hearing. Thus, we hold that the trial Court had afforded sufficient opportunity to defendant Nos.1 to 4. Accordingly, issue No.1 answered in the affirmative."
75. So also, in RFA No.1302/2011 (Sri.M.S. Dharmalingu S/o. M.D.Siddaramaiah (dead) By LRs. v. M/s. CMR Janardhana Trust and others) decided on
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 23.10.2020 a Co-ordinate Bench of this Court at paragraph 23 has observed as under:
"23. As regards the arguments of not providing sufficient opportunity to the defendant to cross- examine the plaintiff and tender evidence on his behalf is wholly unacceptable for the reason that the plaintiff has let in his evidence on 29.05.2010 and further evidence was adduced by the plaintiff on 31.05.2010 and again on 04.10.2010. As could be seen from the order sheet, the matter was posted for the cross- examination of the plaintiff on 17.06.2010, 21.06.2010, 05.07.2010, 13.07.2010, 30.07.2010, 18.08.2010, 01.09.2010, 06.09.2010, 16.09.2010, 22.09.2010, 28.09.2010 and on 04.10.2010, plaintiff's cross- examination was taken as nil. Except on 05.07.2010, 13.07.2010, 30.07.2010 and 22.09.2010, the plaintiff was present before the Court on all the hearing dates but the defendant failed to cross-examine him. On the application submitted by the defendant/appellant No.1 on 19.10.2010 to re-call the order dated 04.10.2010, the application was allowed and the defendant was permitted to cross-examine the plaintiff as a last chance. It is noticed from the order sheet that the matter was listed again
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 on 25.10.2010, 02.11.2010, 16.11.2010, 29.11.2010, 06.12.2010, 10.12.2010, 18.01.2011, 27.01.2011, 31.01.2011, 16.03.2011, 21.03.2011 and 28.03.2011.
Except on 02.11.2010, 18.01.2011, 27.01.2011, 16.03.2011 and 21.03.2011 the plaintiff and his counsel were present before the Court, the defendant has not availed the opportunity to cross-examine the plaintiff and tender his evidence. Thus, it is evident that the defendant though afforded with 27 opportunities, has failed to defeat the cause of the plaintiff."
76. So, on scrupulous reading of the observation made by this Court as well as time being consumed by the defendants to lead evidence, it goes without saying that the Trial Court afforded sufficient opportunities to defendant No.1 to lead evidence. Now defendants cannot raise their voice and contend that no opportunity was given to them. Therefore, in the considered view of this Court, in view of the events that have been taken place, defendant No.1 has not made out any grounds in this case to show that no opportunity was given to the defendants.
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77. With regard to remand of the matter to the Trial Court, the Hon'ble Supreme Court of India in C.N. Ramappa Gowda v. C.C. Chandregowda28 at paragraphs 25, 26 and 27 has held as under:
"25. We find sufficient assistance from the apt observations of this Court extracted hereinabove which has held that the effect [Ed.: It would seem that it is the purpose of the procedure contemplated under Order 8 Rule 10 CPC upon non-filing of the written statement to expedite the trial and not penalise the defendant.] of non-filing of the written statement and proceeding to try the suit is clearly to expedite the disposal of the suit and is not penal in nature wherein the defendant has to be penalised for non-filing of the written statement by trying the suit in a mechanical manner by passing a decree. We wish to reiterate that in a case where written statement has not been filed, the court should be a little more cautious in proceeding under Order 8 Rule 10 CPC and before passing a judgment, it must ensure that even if the facts set out in the plaint are treated to have been admitted, a judgment and decree could not possibly be passed without requiring him to prove the facts pleaded in the plaint.
26. It is only when the court for recorded reasons is fully satisfied that there is no fact which needs to be proved at the instance of the plaintiff in view of the deemed admission by the defendant, the court can conveniently pass a judgment and decree against the defendant who has not filed the written statement. But, if the plaint itself indicates that there are disputed questions of fact involved in the case arising from the plaint itself giving rise to two versions, it 28 (2012) 5 SCC 265
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 would not be safe for the court to record an ex parte judgment without directing the plaintiff to prove the facts so as to settle the factual controversy. In that event, the ex parte judgment although may appear to have decided the suit expeditiously, it ultimately gives rise to several layers of appeal after appeal which ultimately compounds the delay in finally disposing of the suit giving rise to multiplicity of proceedings which hardly promotes the cause of speedy trial.
27. However, if the court is clearly of the view that the plaintiff's case even without any evidence is prima facie unimpeachable and the defendant's approach is clearly a dilatory tactic to delay the passing of a decree, it would be justified in appropriate cases to pass even an uncontested decree. What would be the nature of such a case ultimately will have to be left to the wisdom and just exercise of discretion by the trial court who is seized of the trial of the suit."
78. The observations made by the Hon'ble Apex Court in the aforesaid paragraphs are aptly applicable to the present facts of the case. As per the proceedings of the Trial Court that, it was dilatory tactics adopted by the defendant No.1 to stall the proceedings. Ultimately it was the discretion of the Trial Court which was ceased of the trial of the suit when there was a direction given by the Hon'ble High Court stipulating time for disposal of the case. If the trial court by recording reasons was fully satisfied that there was no fact which needs to be proved
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 at the instance of defendant and plaint itself indicates about the disputed questions involved to be decided, the Court was justified in rejecting the prayer of the defendant No.1 and thereafter the Trial Court has passed the judgment. Now for the first time, defendant No.1 contends that he is deprived of an opportunity of leading evidence.
79. With regard to remand of the case, the judgment of the Apex Court in P.Purushottam Reddy and another v. Pratap Steels Ltd.,29 while considering the remand, the provisions of the Order XLI Rule 23-A, 23, 27 and 25 of CPC has to be kept in mind. In this case, the aforesaid provisions have no application to the present facts of the case. No doubt, the appellant has produced certain documents by filing interlocutory applications to produce the additional evidence before the Appellate Court. Those documents were well within the knowledge of defendant No.1. The said documents had already come into existence during the pendency of the suit or prior to 29 (2002) 2 SCC 686
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 the suit. Therefore, the submission of the counsel for the appellant-defendant No.1 cannot be accepted. As far as additional evidence is concerned, it will be dealt with separately. The aforesaid provisions with regard to remand of the case, no grounds have been made out by the appellant.
80. Order XLI of CPC provides for remand by an Appellate Court on hearing the appeal against the decree
i) if trial Court dispose of the case otherwise than on preliminary point and ii) the decree is reversed in appeal and retrial is considered necessary. On twin conditions being satisfied, the Appellate Court can exercise the power of remand under Order XLI Rule 23-A as well under Rule 23 of CPC. After the amendment of CPC in 1976, cases on wholesale remand are covered by Rules 23 and 23-A of Order XLI of CPC. There is express provision in these rules. It is only in exceptional cases where the Court may exercise power of remand dehors Rules 23 and 23-A of Order XLI of CPC. That means the superior Court if finds
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order XX Rule 3 or Order XLI Rule 31 CPC and hence, it is no judgment in the eye of law, it may set aside the same and send the matter back for rewriting the judgment so as to protect the valuable rights of the parties. An Appellate Court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23-A or Rule 25 of Order XLI of CPC. That means, unwarranted order of remand gives the litigation an undeserved lease of life and therefore, must be avoided. So the aforesaid principles laid down by the Hon'ble Apex Court can very well be applied to the present case. Therefore, in view of these factual features, the submission of the counsel for the appellant cannot be accepted.
81. Before adverting to the factual aspects of this case, let us understand the admitted facts between the parties. It is not in dispute that the original plaintiff was the owner of the suit schedule properties more particularly
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 described in the schedule, in all measuring 22 acres 22 guntas and converted part of the property bearing Survey No.60/7 measuring about 26470 sq.ft. of Hebbagodi village of Attibele Hobli, Anekal Taluk, Bengaluru District. According to the original plaintiff, all these properties form one unit and pieces of land. It is also not in dispute that, original plaintiff was unmarried and had no issues. He used to live alone. His family is consisting of his brothers and their family members. This fact is not seriously disputed by the defendants either in their pleadings or in evidence.
82. It is also an admitted fact that defendant No.1 approached the plaintiff with an intention to purchase the schedule properties about a year prior to filing of the suit. After several discussions, before entering into an agreement, defendant No.1 wanted to issue paper publication calling for objections from public for purchase of the schedule properties. Accordingly, paper publication was issued in the month of December 2005. It is alleged
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 by the plaintiff that, there was no interest being shown by defendant No.1 with regard to transaction agreed between himself and the plaintiff. Therefore, plaintiff requested one M/s.Colliers International India Property Services Pvt., Ltd., to assist him to sell the schedule properties and one Mr.George introduced the plaintiff to the said M/s.Colliers International India Property Services Pvt., Ltd. They brought one M/s.Magna Warehousing and Distribution Pvt., Ltd., as potential purchaser of the schedule properties and agreed to purchase the same after conversion at the rate of 825/- per sq.ft. The lawyers of the said company issued public notice with regard to the proposed transaction. But defendant No.1 informed over the phone to M/s.Magna Warehousing and Distribution Pvt., Ltd., stating that already there is understanding between him and the plaintiff in this regard. But it is alleged by the plaintiff that there was no understanding and it was clarified by him to defendant No.1. The lawyers of the proposed purchaser company, AZB and Partners addressed letter dated 19.05.2006 to defendant No.1
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 seeking further details. These are the initial facts that have been taken place between the plaintiff and defendant No.1.
83. According to the plaintiff, the main allegation against defendant No.1 is that, on 10.07.2006 Mr.George called the plaintiff on his phone and informed him to come near Adiga Hotel, 4th Block, Jayanagar at 2.30 p.m. to meet him. Under the impression that a discussion would take place with regard to the sale of the properties as defendant No.1 was interested in offering a fresh rate, the plaintiff went near the said hotel. There he noticed the presence of Mr.George, defendant No.1 and his henchmen. It is alleged by the plaintiff that, initially they had a talk near the said Adiga hotel. Thereafter, they took the plaintiff in a car of defendant No.1 along with Mr.George and others. Plaintiff was abducted by defendant No.1 and was taken in a car. Defendant No.1 by stopping his car at a distance of ½ km from his house at Anekal, brought certain stamp papers styled as agreement of sale and sale
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 deed. By giving Demand Draft to the plaintiff for 63 Crores drawn on State Bank of Mysore branch dated 15.06.2006 and also handing over five cheques for 17 Crores drawn on Central Bank of India in favour of the plaintiff stated that the plaintiff was selling the property for 80 Crores, but in fact plaintiff never agreed to sell the schedule properties. The person who was sitting by the side of the plaintiff was holding a revolver in his hand and threatened him to put his signatures on the documents. Because of fear, the plaintiff could not read the documents and was compelled to put his signatures on the said documents but there was no registration because of non- processing of the papers in the office of the Sub-Registrar, however on the Demand Draft the plaintiff mentioned words as "subject to realization of the DD". He signed the papers at the gunpoint. Thereafter, defendant No.1 and Mr.George took the plaintiff to BTM layout to the house of defendant No.1 and confined him without giving food on the said day. On the following day, as the plaintiff was old aged, became weak and was given food with mix of
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 certain chemicals. Defendant No.1 along with his gundas, took the plaintiff out of his house and made him to sit in the car. The car was taken to Sub-Registrar's office at Anekal. The plaintiff was made to wait there and thereafter he was taken to outskirts. All arrangements were made by defendant No.1. Though the plaintiff wanted to convey a message of his abduction and false transaction made by defendant No.1, he was unable to convey the same to his family members because there was a threat by defendant No.1 and his henchmen. In fact, plaintiff was forced to sign some registers and defendant No.1 forcibly handed over the demand draft of 63 Crores in the hands of the plaintiff and thereafter snatched away the said demand draft. In fact, it was a demand draft for 63. Thus, throughout the pleadings, it is pleaded by the plaintiff that, a fraud has been committed by defendant No.1 in getting the sale deed in his favour. After putting his signatures, the plaintiff was brought in a car and in the midnight he was left near Adiga Hotel where he had parked his car. There was no attempt to get any original
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 deeds by defendant No.1. The plaintiff informed the said fact to his brothers on 12.07.2006 and initially the plaintiff went to Jayanagar 4th Block police station to lodge a complaint but as per the direction of the police, he went to jurisdictional Tilaknagar police station and lodged complaint about the said incident of committing fraud and coercion in taking his signatures on the documents by kidnapping the plaintiff by defendant No.1.
84. On 13.07.2006, plaintiff went to Anekal Sub- Registrar Office along with his brother M.R.Nagendra and nephew-Amar and noticed that the said sale deed was presented for registration showing the value at `7 Crores. According to the plaintiff, he never received any amount from defendant No.1. He gave a letter to the Sub- Registrar along with a copy of police complaint submitted to Anekal Police Station requesting the sub-registrar to stop the registration of document in respect of schedule lands. He was shocked to know that fraud and coercion have been committed on him by defendant No.1. On
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 13.01.2007 he gave his further statement to the police. Throughout the pleadings it is stated that, the original plaintiff never agreed to sell the schedule properties for 17 Crores or 63 Crores. There is no passing of any consideration. Based upon the complaint, criminal case was registered against defendant No.1 and others and police have investigated the matter and filed charge sheet against defendant No.1 and accused persons. Accordingly, defendant No.2 also acted contrary to law and failed to discharge his duties. The COD conducted enquiry and it was noticed that the documents collected by the Investigating Officer such as Demand Draft etc., have been fabricated by defendant No.1. To that effect, report was collected and charge sheet came to be filed by the investigating officer in C.C.No.1.6.28725/2007 before the CMM Court. The said criminal case was committed to the Sessions Court in S.C.No.705/2008 and assigned to FTC Court-V Bengaluru. Thus, throughout the pleadings the plaintiff has pleaded about the conduct of the defendant in
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 committing fraud, coercion, misrepresentation, duress against him.
85. These allegations so made by the original plaintiff have been stoutly denied by defendant No.1 in his written statement.
86. So far as Defendant No.2 is concerned, according to him, in official capacity, he has received the said document and as per the complaint being lodged by the plaintiff, said sale deed was not registered and now the police have seized the said document. According to defendant No.2, no such fraud or misrepresentation have been committed by him. The only defence taken is that the criminal case so filed by the plaintiff ended in acquittal by the Sessions Court and no such offence was committed by defendant No.2.
87. To substantiate the plea of fraud, coercion, duress by defendant No.1, the original plaintiff entered witness box as PW1. Throughout his evidence, he has
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 maintained that how he was abducted from the said Jayanagar 4th Block near Adiga Hotel and how his innocence was being misused by defendant No.1. He maintained that because of threat with a gunpoint, he was made to put his signatures on the documents prepared by defendant No.1. This PW1 was thoroughly and intensively cross-examined by defendant No.1. It is brought on record that, for the last 15 years the memory power of PW1- original plaintiff come down. According to him for the last 6-7 years prior to giving of his evidence, he was doing business in shares. When he was doing a business in share, it cannot be said that this PW1 has really lost memory power. He admits about he filing of various suits against other persons wherein he has lost. It is suggested to PW1 throughout cross-examination that there was a tendering of sale consideration in the hands of the plaintiff by way of demand draft and cheques etc., but PW1 has denied the receipt of consideration in the manner stated by defendant No.1. Throughout the cross-examination he has maintained that a fraud and coercion has been
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 committed by defendant No.1 on him and based upon that the documents were prepared and signatures of the original plaintiff were taken by defendant No.1 forcibly. He has denied the suggestion so directed to him.
88. PW2, after demise of PW1 because of murder, came on record as plaintiff No.1(a) and deposed in line with the evidence of PW1 in material particulars. He denies that there is receipt of `63 Crores by original plaintiff-PW1. It is his evidence that defendant No.1 has fraudulently after taking signatures of plaintiff purporting to show the signatory for the corrections due in the DD numbers and on the said DD, it was written as "subject to realization of the above DD". With fraudulent intention to show as if entire sale consideration is `7 Crores, the document was created by defendant No.1. There was no reference with regard to payment of `63 Crores or `17 Crores. Without payment of the amount, defendant No.1 wants to have unlawful gain.
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89. Throughout the evidence, PW1 has maintained that in the said so called sale deed the word "valuable consideration" is mentioned and not "actual consideration"
There is fabrication of the quantum of amount in the said sale deed. This PW2 being brother of the original plaintiff has been thoroughly cross-examined by defendant No.1.
Though he has been thoroughly cross-examined by putting so many suggestions etc., but the evidence of PW1 and PW2 shows that, in categorical terms, in cross-
examination, dated 16.11.2011 this PW2 has stated whenever PW1 wanted to take a major decision, he used to consult his brothers. There is no denial of these answers by defendant No.1 or other defendants in their respective cross-examination directed to PW2. It is elicited that his brother (original plaintiff) had told him about defendant No.1 taking away him and forcing him to put his signatures on the documents. That means, though intensive and searching cross-examination was directed to this PW2, he too has withstood the test of cross-
examination as stated above. Ex.P59 was confronted to
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 him and he identified the signature of the original plaintiff but according to him, those signatures were taken by force, coercion and fraud. He has not obtained any information regarding value of the property etc. It is further elicited that from 2005-06 his brother PW1 was mentally and physically sound. According to him, right from creation of Ex.P59 schedule properties have never gone to any person muchless to defendant No.1. It is denied that at his instance only PW1 had lodged a false complaint against defendant No.1 and others before the police to get more consideration amount. Throughout the cross-examination, so many suggestions were directed to him but he has answered the said questions and suggestions in a proper manner. No doubt he has deposed some ignorance about some facts. It is quite natural to expect such a evidence.
90. PW3 Sayyed Ajagar Imam was the Assistant Director of FSL Bengaluru to whom Ex.P59 was sent, who has noticed about incorporation of words "purchaser has
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 paid `63 Crores by way of DD bearing No.550136 dated 15.06.2006 drawn on State Bank of Mysore, Hosur Branch in favour of vendor towards partial sale consideration subject to realization of the DD". It is noticed that certain words were incorporated and the Demand Draft was purchased for only `63 by defendant No.1 in the name of the original plaintiff. To that effect, report is also submitted by PW3.
91. So far as documentary evidence is concerned, most of the documents have been admitted by the defendants. Ex.P1 is the land revenue receipt, Ex.P2 to 9 are the RTC Extracts of the schedule properties. The contents of these documents are not disputed by the defendants. Likewise Ex.P10 is a paper publication calling upon public at large to state their objections, if any. So also objections to Ex.P11 and Ex.P12. Other documents have been admitted by the defendants.
92. Most important documents are, Ex.P14 and Ex.P15 being the complaint and notice. This complaint and
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 notice establish that on the following day of the so called incident, complaint came to be lodged before the Tilaknagar police station alleging fraud being played by defendant No.1. Ex.P18 was not at all being executed by the plaintiff in the manner stated by defendant No.1. Based upon the said complaint, a crime came to be registered against defendant No.1 and others in crime No.174/2006 for the offence punishable under Section 364, 342 and 506 read with section 34 of IPC. Based upon the said complaint, investigation was conducted and police filed charge sheet against defendant No.1 and others. A copy of the charge sheet is also marked in this case.
93. To show that defendant No.1 had really possessing `63 Crores or `17 Crores, as the case may be, Ex.P46 was produced before the Trial Court. On scrupulous reading of this Ex.P46, it reveals that at the relevant time in the year 2006, there was no bank balance in the name of defendant No.1 to the extent of `17 Crores or `63 Crores. To that effect, the manager has issued a letter
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 addressed to the office of the Director General Police, COD Special Wing of Economic offences, Bengaluru. During the course of cross-examination certain documents are confronted by Defendant No.1 marked as per Ex.D1 to Ex.D9. Similar documents were also produced along with the interlocutory applications filed before this Court seeking leave of this Court to produce them as additional evidence. So far as proceedings so stated in Ex.D1 to Ex.D4, they are not disputed by the plaintiff. So when proceedings have taken place in between original plaintiff and others, whether such proceedings are helpful to the case of defendant No.1 is now the question. In our considered opinion, these documents never help the defence of defendant No.1 to show his innocence.
94. As stated supra, PW1-original plaintiff was examined and cross-examined in part. He died because of murder and thereafter his brothers came on record as per the Will and it was PW2 who was examined. Throughout his evidence, he has maintained that no such
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 consideration was passed. By virtue of the Will, they became the owners of the properties of the original plaintiff. The execution of the said Will is not denied by defendant No.1.
95. The learned Trial Court while passing the judgment has taken into consideration all factual features and narrated the events that have taken place in between plaintiff and defendant No.1. In paragraph 34 of the judgment, the Trial Court has specifically observed that as per the orders passed by the Single Judge of this Court, a direction was issued to dispose of the suit by 30.06.2011. Thereafter, transfer petitions were filed. During the pendency of the suit, original plaintiff was murdered; Miscellaneous petition for transfer was filed before the Principal District and Sessions Judge Bengaluru Rural District in Misc.No.118/2011 on the ground that they could not appear before the court as there was a threat to their life; Said petition came to be allowed on 24.09.2011 and the case was transferred to FTC-III Bengaluru. It is further
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 observed that FTC-III Court requested the High Court for extension of time. Accordingly, letter was addressed on 26.02.2012 and High Court has extended six months time i.e. till 31.12.2012. Said order was communicated to FTC- III Court on 24.07.2012. Thereafter the case was transferred to the Trial Court. Because of direction given by the Hon'ble High Court to dispose of the suit before 31.12.2012, the case was posted on day-to-day basis. Even it is observed during the course of judgment that the documents produced by the original plaintiff and now supported by PW2, there is a proof of fraud, coercion, duress and threat by defendant No.1 in getting the said document in his favour. Even it is observed that a criminal case was registered for the offence punishable under section 364, 342, 506 read with section 34 of IPC against defendant No.1 and others. No doubt the said criminal case was ended in acquittal but as far as appreciation of evidence in criminal case is concerned, it is quite different. So also in the civil cases the court considers preponderance of probabilities and in criminal cases, the
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 courts consider the principles of proving beyond reasonable doubt. The criminal jurisprudence says that even if a slightest doubt arises, the benefit of doubt has to be given to the accused. Throughout the discussions, the Trial Court has considered the allegations made by the original plaintiff in the plaint as well as evidence spoken to by PW2 with regard to putting threat on the original plaintiff to get the documents executed in favour of defendant No.1.
96. As per the evidence of PW2, the original plaintiff never agreed to sell the suit schedule property to defendant No.1. No doubt, initially the original plaintiff had some negotiations or talks about sale of properties in favour of defendant No.1, but defendant No.1 did not show any interest for a period of one year. Thereafter original plaintiff contacted some agency and requested to assist him to sell the suit properties. At that time, defendant No.1 called upon the said company stating that he had a discussion with original plaintiff to purchase
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 schedule properties. Thereafter a publication was given by the company. The plaintiff was summoned to Adiga Hotel and there he was abducted by defendant No.1 and his men. Within two days, said documents were prepared and signatures of the original plaintiff were taken forcibly. This factual evidence is discussed by the Trial Court in detail. Even the cross-examination directed to PW1 in part as well as cross-examination directed to PW2 never falsifies the case of the plaintiff in the manner contended by defendant No.1. When Demand Draft for `63/- only was purchased and `63 Crores is added by adding zeros it goes without saying that there is no passing of any consideration. The demand draft was issued by State Bank of Mysore, Hosur Branch in favour of deceased name for `63/- only and not for `63 Crores as per the evidence brought on record by the plaintiffs. So, as rightly observed by the Trial Court, if really transaction had taken place as per Ex.P59 is a genuine transaction, there was no necessity for defendant No.1 to add paragraph after 1(a) in Ex.P59. That means there was no necessity for defendant No.1 for
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 manipulating Ex.P59 for `63 Crores even though it was taken for `63/- only. Thus, from the evidence of PW1 to PW3 and on perusal of Ex.P19, Ex.P20 and Ex.P59, as rightly observed by the Trial Court, it establishes that there was fraud committed by defendant No.1 in the manner alleged by the plaintiff in getting demand draft for `63/- only and manipulating the same for `63 Crores. It was shown as partial sale consideration. That means, original plaintiff was induced to put signatures to make him believe that the said demand draft is for `63 Crores and `17 Crores. With an intention to fraud the original plaintiff, sale deed was prepared by defendant No.1 showing partial consideration as `63 Crores. So, all these events that have spoken to by PW1 are corroborated with the evidence of PW2 and PW3 and prove that there was coercion and fraud practiced by defendant No.1 as observed by the trial Court. Throughout the evidence of PW1 and PW2 it is the consistent evidence that they have not received any consideration amount from defendant
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 No.1 but defendant No.1 says that he has paid the said amount. From where he has paid the said amount, no source is being stated.
97. The bank statement produced in this case never say about the availability of required balance in his bank account. With regard to encashment of the said demand draft, no document is produced by defendant No.1. As pointed out by the counsel for the plaintiff No.1, if really defendant No.1 has paid `63 Crores to the plaintiff through demand draft and if the original plaintiff has encashed the said demand draft by presenting the same to his banker, defendant No.1 ought to have produced the documents to that effect. But except self-serving testimony in written statement with regard to passing of consideration, defendant No.1 has not produced any document. Therefore, if all these factual features are put together, though defendant No.1 has not led any evidence in this case, but it goes without saying that based upon factual aspects in this case coupled with the evidence of PW1 to
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 PW3 it can very well be said that plaintiff is able to prove his case with legal evidence.
98. So far as coercion is concerned, section 15 of the Indian Contract Act, defines coercion, which reads as under:
"S.15."Coericon" defined.-"Coercion" is the committing, or threatening to commit, any act forbidden by the Indian Penal Code (45 of 1860), or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement.
Explanation.-It is immaterial whether the Indian Penal Code (45 of 1860) is or is not in force in the place where the coercion is employed."
99. On reading the scope of Section 15, as written in the Indian Contract Act, authored by P.C.Markanda Volume 1 at page 386, the word 'coercion' used in section 72 of the Act is to be understood in its ordinary sense and includes every kind of compulsion even if it does not measure up to coercion as defined in section 15. The word 'coercion' means "to restrain by force, particularly by word force, as by Low or authority; to repress; to compliance; to constrain.
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100. As per Black's Law Dictionary coercion means, compulsion by physical force or threat of physical force; An act such as signing a Will is not legally valid if done under coercion; Conduct that constitutes the improper use of economic power to compel another to submit to the wishes of one who wields it.
101. In this case, the plaintiff has pleaded fraud and coercion. PW1 and PW2 have also spoken to that effect. In the same book authored by P.C.Markanda at page 388 it is observed with regard to judgment referred by the Privy Council in the case of Barton v. Armstrong30, which reads as under:
"5.Ground of coercion to be proved "A disposition made under duress or undue influence was to be regarded in the same way as a disposition made as the result of fraudulent misrepresentation. Thus, if A's threats were but the reason for B's executing the deed, B was entitled notwithstanding that he might well have entered into the transaction even if A had uttered no threats to induce mot him to do so. Although B might have thought that he was entering into a satisfactory business arrangements with A in order to secure A's resignation from Landmark, he must have realised the great financial 30 1975 (2) AL.ER.465
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 risk he was taking in allowing A such highly advantageous terms without adequate financial guarantees from the Finance Corporation. There was no burden on B to show that but for A's threats which he had made to B and the unlawful pressure which he had exerted on him had contributed nothing to B's decision to sign the deed. Although B might have signed in any event such threats and pressures must have contributed towards his decision to sign. It followed that the deed had been executed under duress and was void so far as it concerns B."
102. Now with regard to fraudulent execution of the document, Order VI Rule 4 of CPC mandates that this is a plea of a special nature must be distinctly pleaded and made subject of a distinct issue.
103. In a case of present nature, when suit is filed seeking declaration that document is null and void, it is the duty of the plaintiff to prove the plea of fraud, coercion, duress, threat by adducing evidence to that effect. The non-compliance of provisions of Order VI Rule 4 of CPC with regard to specific pleading of fraud had no direct bar on the main issue. In this case, as stated supra, the plaintiff has pleaded throughout his plaint and spoken in his evidence regarding fraud and coercion. His evidence
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 is corroborated with the evidence of PW2, who also stated in his evidence that there was undue influence, fraud, threat being committed by defendant No.1. The Supreme Court in the case of Ladli Prasad Jaiswal v. Karnal Distillery Co., Ltd., and others31 has held that when a pleading of undue influence is set up, the burden lies on the party to prove it. Thus, the averments require special pleading and proof. Paragraph 19 and 25 of the judgment are relevant, which reads as under:
"19. Order 6, Rule 4 of the Code of Civil Procedure provides that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms in the Appendix, particulars (with dates and items if necessary) shall be stated in the pleading. The reason of the rule is obvious. A plea that a transaction is vitiated because of undue influence of the other party thereto, gives notice merely that one or more of a variety of insidious forms of influence were brought to bear upon the party pleading undue influence, and by exercising such influence, an unfair advantage was obtained over him by the other. But the object of a pleading is to bring the parties to a trial by concentrating their attention on the matter in 31 AIR 1963 SC 1279
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 dispute, so as to narrow the controversy to precise issues and to give notice to the parties of the nature of testimony required on either side in support of their respective cases. A vague or general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other. This rule has been evolved with a view to narrow the issue and protect the party charged with improper conduct from being taken by surprise. A plea of undue influence must, to serve that dual purpose, be precise and all necessary particulars in support of the plea must be embodied in the pleading; if the particulars stated in the pleading are not sufficient and specific the Court should, before proceeding with the trial of the suit, insist upon the particulars, which give adequate notice to the other side of the case intended to be set up.
25. A transaction may be vitiated on account of undue influence where the relations between the parties are such that one of them is in a position to dominate the will of the other and he uses his position to obtain an unfair advantage over the other. It is manifest that both the conditions have ordinarily to be established by the person seeking to avoid the transaction : he has to prove that the other party to a transaction was in a position to dominate his will and that the other party had obtained an unfair advantage by using that position. Clause (2) lays down a special presumption that a person is deemed to be in a position to dominate the will of another where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other or where he enters into a transaction with a person whose mental capacity is temporarily or permanently affected by reason of age, illness or mental or bodily distress.
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 Where it is proved that a person is in a position to dominate the will of another (such proof being furnished either by evidence or by the presumption arising under sub-s, (2) and he enters into a transaction with that other person which on the face of it or on the evidence adduced, appears to be unconscionable the burden of proving that the transaction was not induced by undue influence lies upon the person is a position to dominate the will of the other. But sub-section (3) has manifestly a limited application : the presumption will only arise if it is established by evidence that the party who had obtained the benefit of a transaction was in a position to dominate the will of the other and that the transaction is shown to be unconscionable. If either of these two conditions is not fulfilled the presumption of undue influence will not arise and burden will not shift."
104. In the instant case also, the plaintiff has projected that defendant No.1 to gain unfair advantage took the plaintiff by force in his car by kidnapping him and took him to the office of the Sub-Registrar at Anekal. His henchmen, who are goondas, by pointing a revolver towards plaintiff, took his signatures on the documents prepared by defendant No.1 and by managing the officers of the sub-registrar, defendant No.1 made the plaintiff to appear for the photograph, put his thumb impression and to put his signatures on the document. The defendant
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 No.1 has used his position in a dominant manner with unfair advantage and on that conduct tried to get sale transaction effected. To that effect, the plaintiff has pleaded in his plaint.
105. When such a fact of fraud is projected, the supreme court in Ramesh B. Desai v. Bipin Vadilal Mehta,32 at paragraphs 22 and 24 held as under:
"22. Undoubtedly, Order 6 Rule 4 CPC requires that complete particulars of fraud shall be stated in the pleadings. The particulars of alleged fraud, which are required to be stated in the plaint, will depend upon the facts of each particular case and no abstract principle can be laid down in this regard. Where some transaction of money takes place to which 'A', 'B' and 'C' are parties and payment is made by cheques, in normal circumstances a third party 'X' may not get knowledge of the said transaction unless he is informed about it by someone who has knowledge of the transaction or he gets an opportunity to see the accounts of the parties concerned in the Bank. In such a case an assertion by 'X' that he got no knowledge of the transaction when it took place and that he came to know about it subsequently through some proceedings in court cannot be said to be insufficient pleading for the purpose of Order 6 Rule 4 CPC. In such a case 'X' can only plead that he got no knowledge of the transaction and nothing more. Having regard to the circumstances of the case, we are of the opinion that 32 (2006) 5 SCC 638
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 the High Court was in error in holding that there was no proper pleading of fraud.
24. Mr Iqbal Chagla, learned counsel for the respondents, has submitted that the full particulars of fraud had not been given in the company petition and as such there was no compliance with Order 6 Rule 4 CPC in the company petition and the learned Company Judge has rightly dismissed the same. In support of this submission he has placed reliance on Bishundeo Narain v. Seogeni Rai [1951 SCC 447 :
1951 SCR 548 : AIR 1951 SC 280] wherein it was held that: (SCR p. 556) "[I]n 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 laid. 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 however strong the language in which they are couched may be...."
Reliance has also been placed on Bijendra Nath Srivastava v. Mayank Srivastava [(1994) 6 SCC 117] and paras 208 and 228 of the report in Sangramsinh P. Gaekwad v. Shantadevi P. Gaekwad [(2005) 11 SCC 314] where the same principle has been reiterated. We have already considered this aspect of the matter and in our opinion in the facts and circumstances of the case the plea raised in the company petition cannot be held to be wanting in compliance with Order 6 Rule 4 CPC."
106. Thus the coercion, undue influence and fraud so pleaded by the original plaintiff is with all particulars and
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 evidence and said cancellation of the sale deed is no doubt for non-payment of sale consideration.
107. On perusal of entire pleadings of both the parties, the original plaintiff alleges fraud, coercion, undue influence, misrepresentation against defendant No.1 stating that on the guise of discussion with regard to fresh rate to be fixed to the schedule properties, the petitioner was called near Adiga Hotel at Jayanagar 4th Block and was kidnapped and thereafter at the point of revolver he was compelled to put his signatures on stamp papers prepared by defendant No.1 and by managing the officials of the Sub-Registrar. Defendant No.1 by confining the original plaintiff in his house took the plaintiff on the following day to the office of the Sub-Registrar and there the plaintiff was compelled to put his signatures. These allegations made by the plaintiff shows that he did not put his signatures with free will and consent. Thereby the plaintiff has put up the case of non est factum. That means a plea that a plaintiff who appears to have
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 executed a deed did not in fact do so. As per the definition of non est factum, it is a latin word, it is defined under Contract Law that that allows a signing party to escape performance of an agreement "which is fundamentally different from what he or she intended to execute or sign". A claim of non est factum means that the signature on the contract was signed by mistake, without knowledge of its meaning. A successful plea would make the contract void ab initio. The strict requirements necessary for a successful plea are generally that:
i) The person pleading non est factum must belong to "class of persons, who through no fault of their own, are unable to have any understanding of the purpose of the particular document because of blindness, illiteracy or some other disability or age-old factor etc. So also undue influence" The disability must be one requiring the reliance on others for advice as to what they are signing.
ii) The "signatory must have made a fundamental mistake as to the nature of the contents of the
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 document being signed", including its practical effects.
iii) The document must have been radically different from one intended to be signed.
108. The Madras High Court in Chidambaram Pillai and others v. Multhammal and others33 has discussed the doctrine of non est factum and when such doctrine can be made applicable. In the course of judgment, it has observed with regard to the prepositions of non est factum as under:
"(1) The plea of non est factum can only rarely be established by a person of full capacity; and, although it is not confined to blind or illiterate persons, any extension in the scope of the plea will be kept within narrow limits. (2) The burden of establishing the plea falls on the signatory seeking to disown the documents; and he must show that, in signing the document he acted with reasonable care. Carelessness which would preclude him from pleading non est factum is based on the principle that no man can take advantage of his own wrong and is not an instance of negligence operating by way of estoppel. (3) In relation to the extent and nature of the mistake relied upon to set up the plea, the distinction formerly drawn between the character and class and the contents of a document is unsatisfactory. For the plea to succeed, it is essential to show that there is as regards the 33 (1993) 1 MLJ 535
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 transaction a radical or "fundamental distinction between what the person seeking to set up the plea actually signed and what he thought was signing. The decision of the House of Lords in this case is particularly significant in so far as it has held that a person who signs a document may not be permitted to raise the defence of non est factum where he has been guilty of carelessness in appending his signature. It was formerly held in Carlisle and Cumberland Banking Co. v. Bragg, and other cases that negligence was only material where the document actually signed was a negotiable instrument, for there was not otherwise any duty of care owned by the person executing the document to an innocent third party who acted in reliance on it. The House of Lords in Sounders v. Anglia Building Society, has overruled Carlisle and Cumberland Banking Co. v. Bragg, and has held that no matter what class of document would exclude the defence of "non est factum."
109. The Indian Courts as well as Privy Council evolved the doctrine as to burden of proof in cases of the documents executed by a class of women in India who were identified as Pardanashin Ladies.
110. In a recent judgment of the Hon'ble Apex Court in Ramathal and others v. K.Rajamani (Dead) Through LRs and another (Civil Appeal No.8830/2012 disposed on 17.08.2023) at paragraph 18 has observed with regard to doctrine of non est factum which reads as under:
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 "18. As already noted above, the plea of non est factum basically means, "it is not my deed." The said plea has been a subject matter of consideration of this court in the case of Bismillah v Janeshwar Prasad (supra). In the said case, the plaintiff/appellant therein had claimed herself to be a Pardanashin lady and on the representation of the defendant/respondents, had appointed them as agent to manage the estate under a written document which was drafted in Hindi, a language not known to her. Later on, she discovered that it contained an unauthorized clause empowering sale of properties. Taking advantage of the same, the said agents had executed fraudulent and elusive sale of the said property. The said case set up the plaintiff/appellant was considered and dealt with in paras 12 and 13 of the report. A further issue which this Court considered in the said case was a distinction between fraudulent mis- representation as to the character of the document and fraudulent misrepresentation as to the contents thereof. Such defense of non est factum was held to be available only where the mistake was as to the very nature or character as to the transaction. This Court also relied upon an earlier decision in the case of Ningawwa v. Byrappa12. This Court further placed reliance upon the judgement of the House of Lords in case of Saunders v Anglia Building Society13 to fine tune the distinction between the document being void or voidable. Paras 11 to 15 of Bismillah (supra) are reproduced hereinunder:
"11. The assumption underlying the reasoning of the High Court is that if the action had really been one based on the need for the cancellation of the deeds, without which possession could not be granted, the civil court would have had jurisdiction. The cause of action in the appellant's suit does admit of being brought within this class of cases.
AIR 1968 SC 956 (1970) 3 ALL ER 961
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12. The common law defence of non est factum to actions on specialities in its origin was available where an illiterate person, to whom the contents of a deed had been wrongly read, executed it under a mistake as to its nature and contents, he could say that it was not his deed at all. In its modern application, the doctrine has been extended to cases other than those of illiteracy and to other contracts in writing. In most of the cases in which this defence was pleaded the mistake was induced by fraud; but that was not, perhaps, a necessary factor, as the transaction is "invalid not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signor did not accompany the signature; in other words, that he never intended to sign, and therefore, in contemplation of law never did sign, the contract to which his name is appended"
13. Authorities drew a distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. It was held that the defence was available only if the mistake was as to the very nature or character of the transaction.
14. In Foster v. Mackinnon [(1869) LR 4 CP 704 : 38 LJCP 310] , Mackinnon, the defendant was induced to endorse a bill of exchange on the false representation that it was a guarantee similar to one he had signed on a previous occasion. He was held not liable when sued even by an innocent endorsee of the bill. Byles, J. said:
"... The defendant never intended to sign that contract or any such contract. He never intended to put his name to any instrument that then was or thereafter might become negotiable. He was
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 deceived, not merely as to the legal effect, but as to the 'actual contents' of the instrument."
15. This decision was referred to with approval by this Court in Ningawwa v.Byrappa [(1968) 2 SCR 797 : AIR 1968 SC 956] . It was observed:
(SCR pp. 800-01) "It is well established that a contract or other transaction induced or tainted by fraud is not void, but only voidable at the option of the party defrauded. Until it is avoided, the transaction is valid, so that third parties without notice of the fraud may in the meantime acquire rights and interests in the matter which they may enforce against the party defrauded." This would be a voidable transaction. But the position was held to be different if the fraud or misrepresentation related to the character of the document. This court held: (SCR p. 801) "The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the former, it has been held that the transaction is void, while in the case of the latter, it is merely voidable." (emphasis supplied) However the House of Lords in Saunders v. Anglia Building Society [1971 AC 1004 : (1970) 3 All ER 961] reviewed the law and held that the essential features of the doctrine, as expressed by Byles, J. in Foster v. Mackinnon [ Chitty on Contracts, 25th edn., p. 341] , had been correctly stated. Lord Reid, however, observed: (AC head note at p. 1005) "The plea of non est factum could not be available to anyone who signed without taking the trouble to find out at least the general effect of the document. Nor could it be available to a person whose mistake was really a mistake as to the legal effect of the document. There must be
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 a radical or fundamental difference between what he signed and what he thought he was signing.""
111. It is settled principle of law with regard to doctrine of non est factum in the aforesaid illustrated judgments that the non est factum to actions on specialties in its origin was available where an illiterate person, to whom the contents of a deed had been wrongly read, executed it under a mistake as to its nature and contents, he could say that, it was not his deed at all.
112. In this case, the original plaintiff was more than 73 years old when the so called alleged transaction took place. According to his plaint averments, because of abducting him, he was compelled to put his signatures at gunpoint. He was confined in a room without any food. Defendant No.1 by giving threat through his henchmen made the original plaintiff to put his signature in the office of the Sub-Registrar. Though defendant No.1 has taken a demand draft for `63/- only, it was manipulated as for `63 Crores. Thus, according to him, the said document is not a
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 valid sale deed at all. Thus, the doctrine of non est factum is applied by the plaintiff throughout his pleading.
113. In the modern application of this doctrine, this doctrine has been extended to cases other than those of illiteracy and to other contracts in writing also. Throughout the pleadings, the original plaintiff has pleaded with regard to inducement by fraud, coercion, threat, duress and according to him, said transaction has become invalid not merely on the ground of fraud, but on the ground that he never intended to put his signature to the said deed at any point of time as no transaction has taken place in between himself and defendant No.1. In other words, according to his evidence, he never intended to sign the said document. Therefore, in contemplation of law never did sign, the contract to which his name is appended to the said deed. According to him, he has never intended to sign on any instrument and even there was no negotiation with regard to sale of the suit schedule properties. He was deceived by defendant No.1 and his henchmen not merely as to the
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 legal effect, but as to the 'actual contents' of the document. According to his pleadings, the actual contents of the document never disclose about the payment of the consideration amount so stated by defendant No.1. Therefore, according to the plaintiff, there was inducement and the said document was tainted by fraud, which is a void document. He has been defrauded by defendant No.1. Immediately after such incident, he was thrown away from the car in the midnight and on the following day, he went to Tilaknagar police station and lodged a complaint and thereafter gave petition to the Sub-Registrar, Anekal not to act upon the said transaction, which is voidable transaction. Based upon the complaint, the police have filed charge sheet. Thus, there is fraud and misrepresentation by defendant No.1 in getting the said document signed by the plaintiff. Because of this fraudulent misrepresentation by defendant No.1, the original plaintiff has been put to hardship and now his legal representatives, being his brothers, are on record.
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114. It is true that the plea of non est factum could not be available to anyone who signed without taking the trouble to find out at least the general effect of the document. Nor could it be available to a person whose mistake was really a mistake as to the legal effect of the document. In this case, the plaintiff has taken legal steps to get the document declared as null and void. As stated above, he filed police complaint, he filed petition before the Sub-Registrar and also filed a suit seeking reliefs claimed in the plaint. Therefore, the character of the said document so alleged by the original plaintiff is the outcome of fraud, misrepresentation and threat. That means the fundamental requirements have been complied by the plaintiff. The burden which was cast on the plaintiff has been properly discharged by him. So to say the burden of proof shall always rest upon the person who seeks to sustain a transaction entered with a person like present plaintiff. According to the plaintiff, he never executed such document with clear understanding of the nature of transaction. He has cleared the evidence and it
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 was not only his physical act but also mental act. He has discharged his burden. Thus, normally in such transactions, the pleadings play an important role while seeking the declaration as prayed by the plaintiff.
115. In this case, the plaintiff has pleaded and proved about the fraud, coercion practiced against him in getting document signed by him and such documents were presented before the Sub-Registrar Anekal. The Trial Court taking into consideration all these aspects and appreciating the evidence placed on record by the plaintiff as well as documents being confronted to PW1 and PW2, has come to the conclusion that the plaintiffs have made out a case to decree the suit. No doubt, in this case, learned counsel appearing for the appellant has relied upon so many judgments, but they cannot be justifiably applicable to the facts and circumstances brought on record by the parties to the lis. The plaintiffs are able to prove their case with legally acceptable evidence. Defendant No.1 has utterly failed to prove due execution
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 of the sale deed in his favour by the original plaintiff. The original plaintiff immediately after presentation of the said sale deed before the Sub-Registrar, Anekal, initially lodged complaint to Tilaknagar Police Station and thereafter went to the office of the Sub-registrar Anekal and filed a petition not to entertain the registration of the said document because of fraud having been committed against him. Several steps have been taken by the original plaintiff to get the sale deed nullify stating that it is null and void document. The defendant No.1 though has put his appearance and filed written statement to justify his defence of fair and valid execution of the sale deed, but has utterly failed to prove the same with legal evidence. Though sufficient opportunities were given to defendant No.1 to lead evidence, but as observed above, defendant No.1 has not availed those opportunities. At his instance only a direction was given by the Single Bench of this Court to dispose of the suit within six months. However he has not co-operated with the trial court and remained absent.
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116. Several interlocutory applications were filed by either of the parties. The Trial Court entertained all those applications and disposed of the matter on merits. Because of direction of the High Court to dispose of the matter in six months, the trial Court took the matter on day-to-day basis, however defendant No.1 did not co- operate and went on stalling the proceedings by praying for time and adopting various methods. He filed transfer petition from one court to another. In the meanwhile PW1 was murdered in the compound of court premises at Anekal. With an apprehension life threat the plaintiffs filed transfer of the suit to Bengaluru Rural District and it was transferred. These are all the events that have taken place before the Trial Court. Defendant No.1 has not proved his case with legal evidence and he wants to have undue advantage to gain the property without paying any consideration amount. To show that he has really paid the consideration, except self-serving statement, no evidence is placed on record by defendant No.1. A bald pleading is made by the defendant No.1 and hence, we have no
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 hesitation to hold that the point No.1 raised by this Court is proved by the plaintiff with legal evidence. Hence, we answer the said point against the appellant-defendant No.1 and in favour of the plaintiff.
117. So far as production of additional evidence is concerned, by filing interlocutory application on 02.02.2013 the appellants want to produce 17 documents. It is stated in the affidavit annexed with the application that RTCs are available and document is pending registration and the said documents are quite necessary for adjudication of the lis. They are all public documents, which were obtained during the pendency of the suit. That means, much prior to disposal of the suit, those documents were very much available to defendant No.1. Even if the said documents, as per the list, are received on record no purpose would be served. The plaintiffs have filed detailed objection statement to this application. So far as provision of Order XLI Rule 27 of CPC is concerned, the production of documents may be allowed not in all
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 cases as a matter of right. The party intends to produce additional evidence must satisfy the ingredients of Order XLI Rule 27 of CPC. Unless those ingredients are satisfied as contemplated under Order XLI Rule 27 of CPC, no additional evidence be received on record. In this case, except a bald statement in the affidavit annexed with I.A.No.3/2021, no acceptable grounds have been made out in the affidavit. As per the provision The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court and the parties have to satisfy that (i) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or the parties seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (ii) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
118. None of the aforesaid ingredients are duly proved in accordance with law by the appellant-defendant No.1. The object of Order XLI Rule 27 of CPC must be read in conjunction with the provisions to admit the additional evidence. As none of the ingredients stated supra are satisfied, there is no merit in I.A.No.3/2021 and it is liable to be dismissed. Therefore, point No.2 is answered against the appellant.
119. On reappreciation of entire evidence on record, we are of the considered view that the Trial Court after considering the material placed on record has decreed the suit of the plaintiff and granted relief of declaration to that effect. The Trial Court has categorically held that the plaintiff has never executed the said sale deed for valuable consideration. Though sufficient opportunity was given, defendant No.1 has not led any evidence. He has not
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NC: 2024:KHC:13114-DB RFA No. 200 of 2013 availed the opportunities afforded by the Trial Court. Therefore, there is no merit in the submission of the counsel for the appellant-defendant No.1 and cannot be accepted.
120. In view of the above discussions, in this case, we hold that the appellant-defendant No.1 has utterly failed to prove the grounds made out in the appeal memo so as to interfere with the judgment and decree passed by the Trial Court. We do not find any factual or legal error being committed by the Trial Court in decreeing the suit of the plaintiff. Therefore, the appeal filed by defendant No.1 is liable to be dismissed. Accordingly, we pass the following:
ORDER
i) The appeal filed by the appellant-
defendant No.1 is hereby dismissed. No order as to costs.
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RFA No. 200 of 2013
ii) Further, the application filed Order XLI
Rule 27 of CPC for production of
documents filed by the appellant-
defendant No.1 is hereby dismissed.
iii) Send back the Trial Court records along with copy of this judgment forthwith.
Sd/-
JUDGE Sd/-
JUDGE YAN List No.: 19 Sl No.: 1