Delhi District Court
Sh. Virender Kumar & Ors. vs . Sangam Supari Co. & Ors. on 25 May, 2022
Sh. Virender Kumar & Ors. vs. Sangam Supari co. & ors.
IN THE COURT OF SH. ALOK SHUKLA,
ADDL. DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
CNR No.:- DLCT01-013910-2018
RCA No.:- 12/2018
RCA DJ No.:- 166/2018
IN THE MATTER OF :-
Late Mithan Lal (Deceased) Through his LRs
(1) Sh. Virender Kumar
S/O Late Mithan Lal,
(2) Sh. Rajinder Prashad
S/O Late Mithan Lal,
(3) Sh. Devender Kumar
S/O Late Mithan Lal,
(4) Sh. Anil Kumar Mittal
S/O Late Mithan Lal,
All R/o. D17, Kamla Nagar, Delhi-110007
(5) Smt. Saroj Garg
W/O Late Prem Chand
D/O Late Mithan Lal,
R/O B-41, Shankar Garden,
Vikas Puri, New Delhi
(6) Smt. Shashi Bansal
W/O Sh. Pawan Bansal
D/O Late Mithan Lal,
R/O 60, Ghalib Apartments,
Pitam Pura, Delhi
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Sh. Virender Kumar & Ors. vs. Sangam Supari co. & ors.
(7) Smt. Suman Aggarwal
W/O Sh. Anil Aggarwal,
D/O Late Mithan Lal,
R/O 261, Rishi Nagar, Gali no. 4,
Rani Bagh, New Delhi 110034
(8) Ms Sangita Bindal
w/o Sh. Rajesh Kumar Bindal
D/O Late Mithan Lal,
R/O B-1691, Shastri Nagar,
New Delhi .... Appellants
Vs.
(1) Sangam Supari Co.,
Through its partner
D17, Kamla Nagar,
Delhi -110007
(2) Shri Kishan Lal Balani
Son of Sh. Geri Mal Balani,
R/o. E-42, Kamla Nagar,
Delhi 110007
(3) Shri Chand Kimtani
Son of Sh. Tota Mal Kimtani (deceased),
Through his sole LR- Sh. Pawan Kimtani
R/o. QD-34, Pitam Pura
Delhi 110034.
(4) Shri Ashok Kumar
Son of Sh. Raghubir Singh,
R/o. 32, Old Market,
Timarpur, Delhi.
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Sh. Virender Kumar & Ors. vs. Sangam Supari co. & ors.
(5) Shri Narender Singh
Son of Sh. Raghubir Singh,
R/o. 32, Old Market,
Timarpur, Delhi.
(6) Shri Mahesh Kumar
Son of Shri Madan Lal
R/o. BQ-116, Shalimar Bagh,
Delhi.
(7) Shri Fateh Singh Rajawat
Son of Sh. Ganga Dhar Rajawat,
R/o. L-91,Raghubir Nagar,
Delhi.
.... Respondents
APPEAL UNDER ORDER 96 OF CPC AGAINST THE JUDGMENT & DECREE DATED 09/08/2018 PASSED BY LD. CIVIL JUDGE-02, (CENTRAL) IN SUIT NO. 95626/16 TITLED AS SH. MITHAN LAL (DECEASED) THROUGH LR'S VERSUS M/S SANGAM SUPARI COMPANY & ORS.
Date of institution of the Appeal : 22/10/2018
Date on which Judgment was reserved : 20/04/2022
Date of Judgment : 25/05/2022
::- J U D G M E N T -::
1 The appellants were plaintiff and the respondents were
defendants before the Ld. Trial Court. Appellants and respondents are respectively referred in this Judgment according to the original status before the Ld. Trial Court. Succinctly, the appellants/plaintiff have filed a suit for RCA No.166/2018 Page 3 of 24 Sh. Virender Kumar & Ors. vs. Sangam Supari co. & ors.
possession, declaration and permanent injunction. The suit of the appellants/plaintiff was decreed by the Ld. Trial Court vide Judgment and Order dated 09.08.2018 vide which it was held that the plaintiff/appellants are not entitled to any relief and suit of the plaintiff was dismissed. Being aggrieved by the judgment and order dated 09.08.2018, the appellants/plaintiff have filed the present appeal.
RESPONDENT /PLAINTIFF CASE :
2 Appellants/plaintiff had filed the suit on the following averments :
(i) That the wife of the plaintiff Mithan Lal was owner of property bearing No. D17, Kamla Nagar, Delhi 110 007 which was purchased by her and was subsequently transferred in favour of the plaintiff vide registered sale deed in the year 1952, who had been head of HUF and was carrying on the business of flour mill in the capacity of Karta. Plaintiff alongwith his other family members were residing in the said property.
(ii) It was further stated that due to the sudden and untimely death of son of plaintiff on 03.07.1986, plaintiff became mentally retarded and was unable to manage the affairs and since then his son Sh. Devender Kumar was managing the affairs.RCA No.166/2018 Page 4 of 24
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(iii) It is further submitted that defendant no.7 had visiting relations with the family of plaintiff being the colleague of the son of plaintiff and defendant no.4 is the brother-in-law of defendant no.7 whereas defendant no.6 is a friend of defendant no.4 and defendant no.5 is the brother of defendant no.4.
(iv) It is further submitted that defendant no.4 to 6 are notorious persons of the locality and with malafide intentions to cheat and grab the property of HUF of plaintiff, they obtained signatures of the plaintiff on some blank papers and also got registered a power of attorney dated 08.12.1986 in the office of registrar at Ghaziabad on the pretext that they would get the entire ground floor vacated from all the tenants. However, later on when the son of the plaintiff came to know about the fraud being played by the defendants, the said power of attorney was got cancelled by Cancellation Deed dated 29.12.1986 registered in the office of Sub Registrar Ghaziabad on 29.12.1986. Defendant nos.4 to 6 were intimated regarding the same cancellation deed, however, defendant nos. 2 and 3 in active collusion with defendant nos. 4 to 7 and with malafide intentions executed a sale deed in favor of the defendant no.1 in respect of certain portion of the suit property as shown in red color.
(v) It is further submitted that the said sale deed executed by the defendants is null and void. Accordingly, it is prayed that a decree in favor of the plaintiff and against the defendants be passed declaring the sale deed dated 24.12.1986 as null and void as well as defendant nos. 1 to 3, their assignees, RCA No.166/2018 Page 5 of 24 Sh. Virender Kumar & Ors. vs. Sangam Supari co. & ors.
representatives etc. or any other partner of the defendant no.1 be restrained from alienating or parting with the possession of the portion in the suit property, as shown in red colour. The relief of possession has also been sought by the plaintiff / LRs of the plaintiff. With these averments, the plaintiff / LRs of the plaintiff have filed the present suit against the defendants.
3 Summons of the suit were issued to the defendants. Defendant no.1 to 3 filed their joint written statements. Defendant no.4 Sh. Ashok Kumar expired during the proceedings and proceedings qua him were abated. The other defendants were proceeded Exparte during the proceedings.
4 In the written statement, filed by the defendant nos. 1 to 3, it was denied that the wife of plaintiff was owner of the suit property or the same was transferred in the name of the plaintiff. It was also denied that due to untimely death of son of the plaintiff, he became mentally retarded. It was further stated that plaintiff has not named the mental disease nor has disclosed about the nature of treatment taken by him and it was submitted that plaintiff was a man of sound mind and had executed special as well as General Power of Attorney in favor of the defendants in full senses and also got the special and general attorneys of Sh. Mahesh Kumar Gupta cancelled. It was stated that the plaintiff has received consideration for the sale transaction executed by his attorneys and has himself put defendant no.1 into possession RCA No.166/2018 Page 6 of 24 Sh. Virender Kumar & Ors. vs. Sangam Supari co. & ors.
of the property in dispute and made him the rightful owner of the property. Rest of the contents were denied and it was prayed that the instant suit be dismissed.
ISSUES 5 After completion of pleadings, the Ld. trial Court framed the following issues: --
(i). Whether the plaintiff is entitled for decree of declaration, as prayed for? OPP.
(ii). Whether the plaintiff is entitled for relief of permanent injunction, as prayed for? OPP.
(iii). Whether the present suit is bad for misjoinder of necessary parties? OPD.
(iv). Whether the present suit is maintainable by the next friend on behalf of the plaintiff? OPP.
(v). Relief.
EVIDENCE OF THE PLAINTIFF AND DOCUMENTS RELIED UPON.
PLAINTIFF'S EVIDENCE 6 In support of their case, the plaintiff / LRs of the deceased plaintiff have examined three witnesses i.e. PW1 Sh. Anil Kumar (son / LR of the deceased plaintiff), PW2 Sh. Devender Kumar (son / LR of the deceased plaintiff) and RCA No.166/2018 Page 7 of 24 Sh. Virender Kumar & Ors. vs. Sangam Supari co. & ors.
PW3 Sh. Jai Parkash (Record Clerk, Ram Manohar Lohia Hospital, Delhi).
DEFENDANT'S EVIDENCE 7 In the defence evidence, defendants have examined only one witness i.e. defendant no.2/ DW1 Sh. Kishan Lal Bilani, who has tendered his evidence by way of affidavit. In his examination in chief, DW1 mostly reiterated the averments as made in the written statement.
8 The Ld. Trial Court vide Judgment dated 09.08.2018 held that the plaintiff/appellants are not entitled to any relief and suit of the plaintiff was dismissed. Being aggrieved by the judgment and order dated 09.08.2018, the appellants/plaintiff have preferred the present appeal.
9 In the aforesaid background, the following points for the determination arise for the consideration in the present matter :-
(i). Whether the judgment passed by the Ld. Trial Court is bad in law in so far as the issue with regard to the possession was never framed and/or adjudicated upon by the Ld. Trial Court thereby recording in miscarriage of justice.
(ii) Whether the Ld. Trial Court has erred in deciding the issue no. 4 viz whether the present suit is maintainable by the next friend on behalf of the plaintiff?
(iii) Whether the judgment passed by the Ld. Trial Court is contrary to the evidence on record?RCA No.166/2018 Page 8 of 24
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(iv) What order ?
FINDINGS AND CONCLUSIONS OF THE COURT 10 The present appeal has been preferred against the judgment and decree dated 09/08/2018, whereby the suit filed by the plaintiff was dismissed.
11 It is urged on behalf of the appellants that the trial court has failed to frame/adjudicate upon the issue of possession, which relief had been incorporated vide amendment of pleadings allowed vide order dated 19/11/2013. It is argued on behalf of the appellants that despite the amendment being allowed and amended plaint being filed by the plaintiff, the trial court has failed to frame issue with regard to relief of possession.
12 Per contra, it is argued on behalf of the respondents that even in the amended plaint filed by the plaintiff, the relief of possession has not been prayed for in the prayer clause by the appellants/plaintiff. It has been further argued on behalf of the respondent that the relief of possession is consequential relief in the suit for declaration. Possession is not an independent relief. If the court allows the relief of declaration, then relief of possession being a consequential relief, may be granted. In the present case the issue of declaration has been determined against the plaintiff, and therefore, no question of possession remains to be decided.
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13 Perusal of the order dated 19/11/2013 passed by the Ld. Trial Court shows that leave was granted to the plaintiff to amend the plaint to incorporate and seek the relief of possession. However, the amended plaint filed by the plaintiff shows that the plaintiff failed to amend the prayer clause and no relief with regard to possession was incorporated in terms of order dated 19/11/2013. The plaintiff thus failed to amend the plaint. Further when the issues were framed by the Ld. Trial Court, the plaintiff did not raise the issue of possession. Therefore, the non-framing of issue with regard to possession by the Ld. Trial Court is due to the failure of the plaintiff to amend the plaint in terms of order dated 19/11/2013. Further, as rightly argued by the respondents that the relief of possession is a consequential relief in the suit for declaration and in the present case, the trial court has already determined the issue of declaration against the plaintiff and therefore, no prejudice has been caused to the plaintiff/appellants by non-framing of issue with regard to relief of possession. Reliance is placed by the appellants for the judgment passed by the Apex Court in Makhan Lal Bangal vs. Manas Bhunia and Ors, AIR 2001 SC 490. The ratio of the judgment is not applicable in the present case as in the present case the plaintiff failed to amend the suit in terms of order dated 19/11/2013 and no relief for possession was sought in the amended plaint. The arguments of the appellants that the cause title of the suit was amended is of no avail.
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14 The appellants have also urged that the procedure as laid down under Order 32 CPC has not been followed in the present matter and the ld. Trial Court without taking note that the suit has been preferred by the next friend vide order dated 03/07/1987 had issued the notices to the defendant. The said procedural error strikes at the root of the matter. Reliance is placed by the appellants on the judgment passed by the Apex Court in Hon'ble Apex Court in Kasturi Bai & Ors. vs. Anguri Chaudhary, (2003) 3 SCC 225 and by the Hon'ble High Court in Shyam Pahwa Vs Narendra Pratap Bhatia, 2018 SCC OnLine Del 7970. It is further urged on behalf of the appellants that the ld. trial court did not dispose off the application though the plaintiff had personally appeared before the Ld. Trial Court on 07/11/1988 and also moved an application u/s 151 CPC and stated that he was mentally stable now and would himself prosecute the suit. It is urged on behalf of the appellants that once the plaintiff had appeared in person and filed the application, the issue no. 4 ought not to have been decided against the plaintiff. It is further urged on behalf of the appellants that after the death of the plaintiff, the application for substitution of his LRs was allowed at the appellate stage.
15 Per contra, it is argued on behalf of the respondent that the issue was rightly decided against the plaintiff and in favor of the defendant as the procedure laid down under Order 32 CPC was not followed and the appellants have RCA No.166/2018 Page 11 of 24 Sh. Virender Kumar & Ors. vs. Sangam Supari co. & ors.
failed to prove on record that the plaintiff was of unsound mind at the time of institution of the present suit.
16 In view of Ratio of the Judgments passed by the Hon'ble Apex Court in Kasturi Bai & Ors. vs. Anguri Chaudhary, (2003) 3 SCC 225 and by the Hon'ble High Court in Shyam Pahwa Vs Narendra Pratap Bhatia, 2018 SCC OnLine Del 7970, It is no longer res integra that the courts are duty bound to conduct an inquiry in the suit instituted by the next friend. In the present case the Ld. Trial Court has issued summons in the suit instituted on behalf of the plaintiff through next friend without conducting any inquiry, which order was never challenged by either of the parties. Ld. Counsel appearing for the Appellants has failed to apprise this court as to how the appellants are aggrieved by the order passed by the Ld. Trial Court issuing summons of the suit filed by the plaintiff. Further even in the present appeal no such ground has been urged on behalf of the appellants and the same has been raised for the first-time during argument with a view to reagitate the lost cause afresh after passage of almost 35 years. The suit was filed by the son of the plaintiff as next friend of the plaintiff. Plaintiff filed an application u/s 151 CPC on 08/12/1988, that he has recovered from the unsoundness of mind and no such issue was raised in the application. Thereafter on the death of the Plaintiff, his LRs including his son, who filed the suit as next friend were brought on record. No issue was ever raised at any stage on behalf of the plaintiff that the procedure under RCA No.166/2018 Page 12 of 24 Sh. Virender Kumar & Ors. vs. Sangam Supari co. & ors.
Order 32 was not followed by the Ld. Trial Court. Appellants cannot be allowed to take benefit of their own wrong and reagitate an issue, which was never raised by them.
17 In the present case, the plaintiff also moved an application u/s 151 CPC before the Ld. Trial Court on 08/12/1988 and stated that he was mentally stable now and would himself prosecute the suit. However, before the application filed by the plaintiff could be decided, the plaintiff died on 25/01/1989 and an application for substitution was filed under Order 22 Rule 3 CPC, which was allowed vide judgment dated 26/05/2000 passed in RCA No. 104/2000. The contention of the appellants that once the plaintiff had appeared in person and filed the application u/s 151 CPC and stated that he was mentally stable now and would himself prosecute the suit, the trial court ought not to have decided issue no.4 against the plaintiff, is without any merit. Issues were framed by the Ld. Trial Court vide order dated 26.11.2014 and the onus to prove the issue no.4, that suit is maintainable by the next friend on behalf of the plaintiff, was on the plaintiff. Admittedly, the application filed by the plaintiff u/s 151 could not be decided as the plaintiff died soon after filing the application. It was for the plaintiff to discharge the onus by leading evidence that plaintiff was of unsound mind, when the suit was filed through next friend under Order 32 CPC.
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18 Perusal of the evidence and documents placed on record shows that the Appellants have failed to prove the issue that the plaintiff was of unsound mind at the time of filing the present suit. PW1 in his cross examination has admitted that the plaintiff had instituted/filed 5-6 cases against the defendant in April, 1987 onwards. Before delving further into the evidence led on behalf of the plaintiff, I deem it appropriate to decide the application filed on behalf of the applicant under Order 41 Rule 27 CPC to lead additional evidence.
19 It is urged on behalf of the applicant that the application was preferred by the plaintiff under Order 7 Rule 14 CPC on 18/01/2017 to place on record the cancellation deed executed by the original plaintiff and the said application was allowed on the same day i.e. 18/01/2017. Thereafter, on 17/07/2017 another application under order 7 Rule 14 CPC was filed on behalf of the plaintiff to place on record the medical record of late plaintiff and the said application was also allowed due to non-opposition by the Ld. counsel for the respondent. It is further urged on behalf of the appellants that the documents placed on record were de-exhibited though the same has been mentioned in the affidavit for evidence filed on behalf of PW1. It is further urged that the said prescription issued by Medical Practitioner are vital for determination of the present appeal as the same goes to the very root of the matter and shall facilitate this court in arriving at the truth of the matter. It is RCA No.166/2018 Page 14 of 24 Sh. Virender Kumar & Ors. vs. Sangam Supari co. & ors.
further urged that the said documents are more than 30 years old and have been placed on record in another court and there is no doubt as to the veracity of the said documents. Reliance is placed by the plaintiff on the judgment passed by the Hon'ble Apex Court in Gurdev Singh vs. Megha Ram - AIR 1997 SC 3572. It is no longer res-integra that while allowing an application under order 41 Rule 27 CPC the issue before the appellate court is whether the appellate court is able to pronounce judgment on the material before it without taking into consideration the additional evidence sought to be adduced.
20 The learned counsel for the respondents opposed this application contending that appellants cannot be permitted to lead additional evidence as plaintiff / appellants has failed to assign any reason for the same.
21 The appellants have failed to assign any reason for not leading the evidence now sought to be adduced at the appellate stage before the Ld. Trial Court despite the fact that the application file by the plaintiff before the Ld. Trial court under order 7 Rule 14 was allowed and the medical documents were taken on record. It is established preposition of law vide catena of judgments viz. AIR 2001 SC 2802, AIR 1997 SC 3572AIR 2005 P& H 42 and (2001) 7 SCC 503− that U/o XLI, rule 27 additional evidence could be adduced in one of the three situations, namely, (a) whether the trial court has illegally refused the evidence although it RCA No.166/2018 Page 15 of 24 Sh. Virender Kumar & Ors. vs. Sangam Supari co. & ors.
ought to have been permitted;(b) whether the evidence sought to the adduced by the party was not available to it despite the exercise of due diligence;(c) whether additional evidence was necessary in order to enable the Appellate court to pronounce the judgment or any other substantial cause of similar nature. It is equally well− settled that additional evidence cannot be permitted to be adduced so as to fill in the lacunae or to patch up the weak points in the case. The general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. Order 41Rule 27 CPC enables appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only and only if the conditions laid down in this rule are found to exist. The parties are not entitled to the admission of such evidence. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the rule itself. It is also no longer res integra that the appellate court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. It is not the business of the appellate court to supplement the evidence adduced by one party or the other in the lower court. Hence, in the absence of the satisfactory reasons for the non-production of the evidence in the trial court, additional evidence should not be admitted in appeal. Nonetheless, it is the duty of the Court to adopt liberal approach to allow such additional evidence, RCA No.166/2018 Page 16 of 24 Sh. Virender Kumar & Ors. vs. Sangam Supari co. & ors.
without which judgment cannot be pronounced on the basis of material already on record.
22 Perusal of the record in the present case shows that the plaintiff has already adduced medical certificate in his evidence which is marked as mark 'A'. In the present suit the case of the appellants/plaintiff is that the plaintiff was suffering from mental disorder/unsoundness of mind and the defendant taking benefit of his condition obtained his signatures on blank papers and also got executed a registered power of attorney dated 08/12/1986 by the plaintiff in favor of defendant no.4 and 6. It is further averred in the plaint that when the sons of the plaintiff came to know regarding the execution of the power of attorney dated 08/12/1986, the plaintiff executed the cancellation deed on 29/12/1986, Ex.PW1/2. The additional evidence which the plaintiff/appellants sought to lead in the present suit are two medical documents. None of which has been issued by an expert. The first document is the medical prescription of 28/10/1986 issued by a child specialist wherein the plaintiff is allegedly diagnosed with mixed anxiety/depression and the second document is a medical certificate dated 20/11/1986 issued by a physician stating that the plaintiff is suffering from mental retardation and disorientation. Perusal of this document shows that the plaintiff was advised two months' rest and no medicine was prescribed in this document. In the present case the plaintiff has exhibited power of attorney on 08/12/1986 and deed of cancellation RCA No.166/2018 Page 17 of 24 Sh. Virender Kumar & Ors. vs. Sangam Supari co. & ors.
on 29/12/1986, Ex PW1/2. There is no averment in the plaint that the plaintiff was having lucid intervals. The soundness of mind is defined by section 12 of the Indian Contract Act as under:
12.A person is said to be of sound mind for the purpose of making a contract, if, at the time when he makes it, he is capable of understanding it and of forming a rational judgment as to its effect upon his interests. A person who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind. A person who is usually of sound mind, but occasionally of unsound mind, may not make a contract when he is of unsound mind.
Illustrations
(a) A patient in a lunatic asylum, who is, at intervals, of sound mind, may contract during those intervals. (a) A patient in a lunatic asylum, who is, at intervals, of sound mind, may contract during those intervals."
(b) A sane man, who is delirious from fever, or who is so drunk that he cannot understand the terms of a contract, or form a rational judgment as to its effect on his interests, cannot contract whilst such delirium or drunkenness lasts. (b) A sane man, who is delirious from fever, or who is so drunk that he cannot understand the terms of a contract, or form a rational judgment as to its effect on his interests, cannot contract whilst such delirium or drunkenness lasts."
23 Illustration (a) appended to the section 12 states that a patient in lunatic asylum may enter into contract during lucid intervals. The illustration makes it clear that Mental illness does not itself imply that the person is of unsound mind-
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What is relevant is the capacity to understand the terms of a covenant and forming a rational judgment as to its effect upon one's interest. Mental illness is a medical condition, whereas unsoundness of mind is legal determination of a person's incapacity to comprehend the terms of a covenant at the time of its execution and to form a rational judgment as to its effect upon one's interest.
24 The documents which the appellants have filed along with the application under Order 41 Rule 27 CPC does not show that on 08/12/1986, when the power of attorney was executed, the plaintiff was suffering from unsoundness of mind and on 29/12/1986 at the time of execution of cancellation deed Ex. PW1/2, he was having a lucid interval. The medical documents sought to be adduced as evidence by the appellants by way of the application under order 41 Rule 27 do not indicate that the accused was a person of unsound mind. The medical documents dated 28/10/1986 and 20/11/1986 at the best indicate that the accused was under
treatment for some form of mental illness and the same does not prove the factum of unsoundness of mind at the time of execution of power of attorney dated 20/12/1986. The documents relied upon by the plaintiff are not such without which this court cannot determine the controversy between the parties as there is sufficient material on record to decide the present appeal. Accordingly the application under Order 41 Rule 27 CPC is dismissed.RCA No.166/2018 Page 19 of 24
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25 The onus to prove the unsoundness of mind is on the person who alleged to be of unsound mind. The Hon'ble High Court in Ashok Baury v. State, 2021 SCC OnLine Del 1248 held as under:
'11. Section 114 under the aforesaid Chapter VII of Part III of the Evidence Act enables the Court to presume existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the case.
12. The common course of natural events and human con-
duct is of soundness of mind and unsoundness of mind an aberration. If a testator/testatrix has led a normal life, per- formed day to day functions in the normal course of human conduct, the presumption under Section 114 would be of soundness rather than unsoundness of mind' 26 The plaintiff personally appeared before the Ld. Trial Court on 07/11/1988 and also moved an application u/s 151 CPC and stated that he was mentally stable now and would himself prosecute the suit. No evidence on record has been adduced on behalf of the plaintiff, which shows that the plaintiff had been under continuous treatment for some form of mental illness and got rid of the disability on 07/11/1988. All the medical prescription/certificates sought to be adduced in evidence are from different medical professionals. Medical evidence is in the form of expert evidence and it itself does not prove or disprove a fact in issue; it is merely advisory in nature. Especially in a case, where there is a glaring inconsistency between the direct RCA No.166/2018 Page 20 of 24 Sh. Virender Kumar & Ors. vs. Sangam Supari co. & ors.
evidence and the medical evidence in respect of a fact in issue, the medical evidence cannot be treated as the conclusive proof of the fact in issue.
27 In the present case there is glaring inconsistency between the direct evidence and medical documents adduced in evidence on behalf of the plaintiff. The present suit was filed by the plaintiff through next friend on 02/07/1987. PW1 in his cross examination admits that the plaintiff has filed/instituted several cases in 1987 against the defendant, which fact shows that the plaintiff was not suffering from unsoundness of mind in the year 1987. PW2 also admitted in his cross examination that plaintiff filed three cases against defendant no. 1 to 3 between February, 1987 to December, 1987.
28 The testimony of the plaintiff witness shows that they have admitted that the plaintiff was never admitted to any mental hospital. Furthermore, the PW2 has admitted in his cross examination that the plaintiff does not possess any certificate from any doctor or hospital that the plaintiff was mentally sick or of unsound mind. PW2 also admitted in his cross-examination that he got the plaintiff examined by the doctor for the first time in March, 1987.
29 Further the plaintiff himself executed the deed of cancellation dated 29/12/1986 i.e. before filing the present suit, therefore the plea that the plaintiff was suffering from unsoundness of mind on 08/12/1986 i.e. at the time of RCA No.166/2018 Page 21 of 24 Sh. Virender Kumar & Ors. vs. Sangam Supari co. & ors.
execution of power of attorney and on 03/07/1987 at the time of filing of the present suit is highly improbable, especially in absence of any averment in the plaint that the plaintiff was suffering from unsoundness of mind with lucid intervals. PW1 and PW2 also admitted in cross examination that plaintiff filed several cases against the defendant. PW2 admitted that three cases were filed against defendant no.1 to 3 between February, 1987 to December, 1987. A civil case is decided on the basis of preponderance of probabilities. From the facts as adumbrated above, it seems highly improbable that the plaintiff was of sound mind on 29/12/1987, and at the time of filing of other suits against defendant no.1 to 3 between February, 1987 to December, 1987 and on 08/12/1996 and 03/07/1987, he was of unsound mind.
30 In the plaint, in para 4 of the plaint, plaintiff has averred that the defendants obtained the signatures of plaintiff on some blank papers and also got a power of attorney dated 08/12/1986, on the pretext that they would get the entire ground floor vacated from the tenants. This averment shows that the plaintiff has taken the plea of fraud being played by defendant no. 4 to 6 and not that of unsoundness of mind. There is no averment in the plaint that the plaintiff on 08/12/1986 was suffering from unsoundness of mind compromising his capacity to comprehend the terms of the covenant at the time of its execution and to form a rational judgment as to its effect upon plaintiff's interest. Rather a plea of fraud has been pleaded stating that the RCA No.166/2018 Page 22 of 24 Sh. Virender Kumar & Ors. vs. Sangam Supari co. & ors.
signatures of the plaintiff were obtained on the pretext of getting the entire ground floor vacated from the tenants.
31 The deed of cancellation dated 29/12/1986, Ex.
PW1/2 does not mention unsoundness of mind at the time of execution of power of attorney dated 08/12/1986, rather the plaintiff admitted the execution of power of attorney dated 08/12/1986 in the deed of cancellation dated 29/12/1986.
32 Thus the Ld. Trial Court has rightly come to the conclusion on the basis of material on record that the plaintiff has failed to prove that he was of unsound mind at the time of execution of power of attorney dated 08/12/1986 and at the time of institution of the suit i.e. on 03/07/1987. Accordingly, I do not find any infirmity in the judgment passed by the Ld. Trial Court.
33 In view of the discussions, as adumbrated above, I hereby pass the following:
:: - FINAL ORDER - ::
A. The regular civil appeal of the plaintiff/appellants is hereby dismissed.
B. The Parties shall bear their own respective costs.
The copy of this Judgment may kindly be sent forthwith to the Ld. Trial Court alongwith the record of Trial Court.RCA No.166/2018 Page 23 of 24
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Decree-sheet in the Appeal be prepared accordingly, in terms of this Judgment.
Appeal file be consigned to record room after due compliance.
Announced in the open court on this 25th Day of May, 2022.
(Alok Shukla) ADJ-07 (Central) Tis Hazari Courts, Delhi RCA No.166/2018 Page 24 of 24