Himachal Pradesh High Court
Mrs. Ram Piari vs Managing Director M/S Competent ... on 24 April, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.524 of 2017.
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Date of decision: 24.04.2018.
Mrs. Ram Piari .....Appellant.
Versus
Managing Director M/s Competent Automobiles Company Limited and others ....Respondents.
Coram r The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 No For the Appellant : Mr.G.D.Verma, Senior Advocate with Mr.Balwant Singh Thakur, Advocate.
For the Respondents : Nemo.
Tarlok Singh Chauhan, Judge (Oral).
The plaintiff is the appellant, who aggrieved by the judgment and decree passed by the learned trial Court, whereby her suit came to be dismissed, had filed an appeal before the learned first appellate Court, however, the same was dismissed and now being aggrieved by the judgments and decrees rendered by both the learned Courts below has filed the instant appeal. The parties shall be referred to as plaintiff and defendants.
2. Briefly stated the facts of the case are that the plaintiff filed a suit for declaration and permanent prohibitory injunction to the effect that the judgment and decree/order passed in Civil Suit No.11/05 dated 22.03.2005 titled as "Parmodh Singh versus K.K.Mehta etc." regarding 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 26/04/2018 22:57:13 :::HCHP 2 the alleged agreement dated 27.11.2003 executed between late Shri Parmodh Singh and defendant No.2, K.K.Mehta, regarding the lease of .
land comprising Khata No.87min, Khatauni No.90min, Khasra Nos.
602/474, 659/476, kita-2, area measuring 11 Kanals and also agreement dated 10.12.2003 for the lease of the aforesaid land are the result of fraud, misrepresentation, coercion and undue influence and are, therefore, null and void. Therefore, in such circumstances, the plaintiff was not bound by the same in any manner.
3. In alternative, a decree for possession by way of demolition of any super structure/ construction raised over the land by defendants No.1 and 2 was also sought. It was averred that in the year 2002, the health of Parmodh Singh deteriorated to an extent that he was not in a position to move about, much less read or write and remained confined to bed. On 27th November, 2003, defendants No.1 and 2, prepared a forged agreement for lease of land on behalf of late Kishan Chand for about 99 years on rent at the rate of `30,250/- per month which was payable by defendants No.1 and 2 to late Parmodh Singh and, thus, the so-called lease would be revisable after the expiry of 99 years at the option of defendants No.1 and 2. As per lease deed, late Parmodh Singh had agreed to transfer possession of land from the date of expiry of lease deed dated 27.11.2003. It was further alleged that defendants No.1 and 2 after the agreement of lease deed dated 27.11.2003 had prepared another agreement of lease dated 10.12.2003 wherein they had sought to change the description of land and also the terms thereof to the ones as mentioned in agreement dated 27.11.2003 and new witnesses were introduced in the subsequent agreement dated 10.12.2003. Both these ::: Downloaded on - 26/04/2018 22:57:13 :::HCHP 3 agreements were prepared fraudulently as late Parmodh Singh had never agreed to the terms as contained therein. It was further alleged that late .
Parmodh Singh was never ready and willing to execute the agreements and, therefore, defendants No.1 and 2 in connivance with defendants No.3 and 4 kept a close secret regarding these two agreements from Parmodh Singh and his wife i.e. the appellant herein. Defendant No.3, during the lifetime of his father and on his behalf, in connivance with defendants No.1 and 2, had filed a suit against them on 28.02.2005 and thereafter on 22.03.2005 had entered into a compromise with them on behalf of his father Parmodh Singh. It was also averred that defendant No.3 was not competent to file the suit and, therefore, the plaintiff is not bound by the same and likewise she is also not bound by the judgment and decree passed in such suit.
4. Defendants No.1 and 2 contested the suit by filing written statement wherein preliminary objections regarding locus-standi, cause of action, maintainability, res judicata, estoppel, suit being time barred and not maintainable under Order 23 Rule 4 CPC, were raised. On merits, the entire claim set out by the plaintiff was denied. It was averred that Parmodh Singh during his lifetime had entered into an agreement with the defendants for leasing out the land for purpose of carrying on business of Maruti Dealership in the name and style of "M/s Competent Automobile Company Limited" and on the basis of the agreements, the defendants had raised construction of showroom along with other structure. The allegations regarding ill-health of Parmodh Singh were denied. Likewise, the allegations of fraud, coercion, misrepresentation etc. were also denied.
::: Downloaded on - 26/04/2018 22:57:13 :::HCHP 45. Defendants No.3 and 4 filed their written statement wherei n they fully supported the case as set out by the plaintiff.
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6. On 22.02.2007, the following issues were framed by the learned trial Court:-
"1. Whether the plaintiff is entitled for the relief of declaration to the effect that the judgment and decree passed in civil suit No.11/05 dated 22.3.2005 titled as 'Parmodh Singh versus K.K.Mehta etc.' is null and void? OPP.
2. Whether the agreement dated 27.11.2003 executed between late Shri Parmodh Singh and defendant No.2 K.K.Mehta and agreement dated 10.12.2003 for lease of the suit land is a result of fraud, misrepresentation, coercion and undue influence? OPP.
3. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as prayed for? OPP.
4. Whether the plaintiff is entitled for the relief of possession, as prayed? OPP.
5. Whether the plaintiff has no cause of action and locus-standi to file the present suit? OPD.
6. Whether the suit is collusive and is filed at the instance of defendants No.3 and 4, if so, its effect? OPD.
7. Whether the suit is not maintainable? OPD.
8. Whether the suit is barred by the principle of resjudicata?
OPD.
9. Whether the plaintiff is estopped from filing the suit by her own act and conduct? OPD.
10. Whether the suit is not within time? OPD.
11. Whether the suit is also barred under the provisions of Order 2 Rule 2 CPC? OPD.
12. Whether the defendants are entitled to special costs under Section 35-A CPC? OPD.
13. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD.::: Downloaded on - 26/04/2018 22:57:13 :::HCHP 5
14. Relief."
7. The learned trial Court after recording the evidence and .
evaluating the same dismissed the suit filed by the plaintiff and the appeal filed against the said judgment and decree also met with the same fate. It is against both these judgments and decrees that the plaintiff has filed the instant appeal.
8. It is vehemently contended by Shri G.D.Verma, Senior Advocate assisted by Shri Balwant Singh Thakur, Advocate, for the appellant-plaintiff that the findings recorded by the learned Courts below are not only erroneous but are perverse and are, therefore, liable to be set aside.
9. What is 'perverse' was considered by the Hon'ble Supreme Court in a detailed judgment in Arulvelu and another vs. State Represented by the Public Prosecutor and another (2009) 10 SCC 206 wherein it was held as under:-
"26. In M. S. Narayanagouda v. Girijamma & Another AIR 1977 Kar. 58, the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough, (1878) 1 LR 1r 331 the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey 106 NW 814, the Court defined `perverse' as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc.
27. The expression "perverse" has been defined by various dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current English Sixth Edition ::: Downloaded on - 26/04/2018 22:57:14 :::HCHP 6 PERVERSE:- Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.
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2. Longman Dictionary of Contemporary English - International Edition PERVERSE: Deliberately departing from what is normal and reasonable.
3. The New Oxford Dictionary of English - 1998 Edition PERVERSE: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
4. New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition) PERVERSE: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or r petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.
28. In Shailendra Pratap & Another v. State of U.P. (2003) 1 SCC 761, the Court observed thus: (SCC p.766, para 8 "8...We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity."
29. In Kuldeep Singh v. The Commissioner of Police & Others (1999) 2 SCC 10, the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under: (SCC p.14, paras 9-10) "9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is ::: Downloaded on - 26/04/2018 22:57:14 :::HCHP 7 thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be .
treated as perverse and the findings would not be interfered with."
30. The meaning of `perverse' has been examined in H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992 Supp (2) SCC 312, this Court observed as under: (SCC pp. 316-17, para 7) "7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised r and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law."
10. What is 'perverse' has further been considered by this Court in RSA No.436 of 2000, titled 'Rubi Sood and another vs. Major (Retd.) Vijay Kumar Sud and others, decided on 28.05.2015 in the following manner:-
"25..... A finding of fact recorded by the learned Courts below can only be said to be perverse, which has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or is grossly erroneous that, if allowed to stand, it would result in miscarriage of justice, is open to correction, because it is not treated as a finding according to law.::: Downloaded on - 26/04/2018 22:57:14 :::HCHP 8
26. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or even the finding so outrageously defies logic as to suffer from .
the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law.
27. If the findings of the Court are based on no evidence or evidence, which is thoroughly unreliable or evidence that suffers from vice of procedural irregularity or the findings are such that no reasonable persons would have arrived at those findings, then the findings may be said to be perverse.
28. Further if the findings are either ipse dixit of the Court or based on conjectures and surmises, the judgment suffers from the additional infirmity of non application of mind and thus, stands vitiated."
11. What is 'perversity' came up for consideration before the Hon'ble Supreme Court in Damodar Lal vs.Sohan Devi and others (2016) 3 SCC 78 wherein it was held as under:-
"8. "Perversity" has been the subject matter of umpteen number of decisions of this Court. It has also been settled by several decisions of this Court that the first appellate court, under Section 96 of The Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse.
9. In Krishnan v. Backiam (2007) 12 SCC 190, it has been held at paragraph-11 that: (SCC pp. 192-93) "11. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect."
10. In Gurvachan Kaur v. Salikram (2010) 15 SCC 530, at para 10, this principle has been reiterated: (SCC p. 532) ::: Downloaded on - 26/04/2018 22:57:14 :::HCHP 9 "10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the .
same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent."
11. In the case before us, there is clear and cogent evidence on the side of the plaintiff/appellant that there has been structural alteration in the premises rented out to the respondents without his consent. Attempt by the respondent-defendants to establish otherwise has been found to be totally non-acceptable to the trial court as well as the first appellate court. Material alteration of a property is not a fact confined to the exclusive/and personal knowledge of the owner. It is a matter of evidence, be it from the owner himself or any other witness speaking on behalf of the plaintiff who is conversant with the facts and the situation. PW-1 is the vendor of the plaintiff, who is also his power of attorney. He has stated in unmistakable terms that there was structural alteration in violation of the rent agreement. PW-2 has also supported the case of the plaintiff. Even the witnesses on behalf of the defendant, partially admitted that the defendants had effected some structural changes.
12. Be that as it may, the question whether there is a structural alteration in a tenanted premises is not a fact limited to the personal knowledge of the owner. It can be proved by any admissible and reliable evidence. That burden has been successfully discharged by the plaintiff by examining PWs-1 and
2. The defendants could not shake that evidence. In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact. Hence, only the trial court came to the definite finding on structural alteration. That finding has been endorsed by the first appellate court on re-appreciation of the evidence, and therefore, the High Court in second appeal was not justified in upsetting the finding which is a pure question of fact. We have no hesitation to note that both the questions of law ::: Downloaded on - 26/04/2018 22:57:14 :::HCHP 10 framed by the High Court are not substantial questions of law. Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out on a .
complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man's inference on the facts.
To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity.
13. In Kulwant Kaur v. Gurdial Singh Mann (2001) 4 SCC 262, this Court has dealt with the limited leeway available to the High Court in second appeal. To quote para 34: (SCC pp.278-79) "34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication -- what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below:
'103. Power of High Court to determine issues of fact.- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,--
(a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or
(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100."::: Downloaded on - 26/04/2018 22:57:14 :::HCHP 11
The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact .
cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with."
14. In S.R. Tiwari v. Union of India (2013) 6 SCC 602, after referring to the decisions of this Court, starting with Rajinder Kumar Kindra v. Delhi Administration, (1984) 4 SCC 635, it was held at para 30: (S.R.Tewari case6, SCC p. 615) r to "30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC 635 : 1985 SCC (L&S) 131 : AIR 1984 SC 1805] , Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10 : 1999 SCC (L&S) 429 : AIR 1999 SC 677] , Gamini Bala Koteswara Rao v. State of A.P. [(2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372 : AIR 2010 SC 589] and Babu v. State of Kerala[(2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] .)"
This Court has also dealt with other aspects of perversity.
15. We do not propose to discuss other judgments, though there is plethora of settled case law on this issue. Suffice to say that the approach made by the High Court has been wholly wrong, if not, perverse. It should not have interfered with concurrent findings of the trial court and first appellate court on a pure question of fact. Their inference on facts is certainly reasonable. The strained effort made by the High Court in second appeal to arrive at a different finding is wholly unwarranted apart from being impermissible under law. Therefore, we have no hesitation to allow the appeal and set aside the impugned judgment of the High Court and restore that of the trial court as confirmed by the appellate court."::: Downloaded on - 26/04/2018 22:57:14 :::HCHP 12
12. Adverting to the facts of the case, it would be noticed that both the learned Courts below have concurrently held the plaintiff to be .
unsuccessful in proving the plea of fraud. The plaintiff appeared as PW-1 and tried to prove that her husband during the year 2002 and thereafter was not keeping good health. However, she miserably failed to establish the plea of fraud, misrepresentation, coercion etc. against defendants No.3 and 4, who are none other than her children born out from the loins of late Parmodh Singh. That apart, the plaintiff has even failed to plead the necessary ingredients of fraud. The plaintiff has only levelled vague and general allegations of fraud.
13. Evidently, the allegations as levelled do not meet and rather fall short of the requirement of Rule 4 of Order 6 C.P.C., which reads thus:
"4. Particulars to be given where necessary.- 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 aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading."
14. It is clearly evident from the aforesaid provision that as per Rule 4, particulars with dates and items are clearly required to be stated in the pleading inter alia in cases of misrepresentation, fraud, breach of trust, willful default or undue influence. The object of insisting on these particulars is two fold:
(i) It enables the opposite party to know the case he has to meet with; and
(ii) It prevents the issue being enlarged and enables the court to determine the controversy at the earliest.::: Downloaded on - 26/04/2018 22:57:14 :::HCHP 13
'Fraud' is obtaining of an advantage by unfair or wrongful means.
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15. Under this rule, where fraud is alleged, necessary particulars have to be set out and stated in the pleadings which must be clear, definite, express and specific. It is not enough to allege fraud without stating particulars with dates and items as to such fraud. General allegations, however strong, if unaccompanied by sufficient particulars, The r plaintiff are not enough and the Court will not take notice.
16. apart from using "fraudulent/misrepresentation" has not given any specific particulars the word regarding fraud and misrepresentation and it is more than settled that a vague or general plea can never serve this purpose of Order 6 Rule 4 CPC and 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.
17. Reference in this regard can conveniently be made to the judgment of the Hon'ble Supreme Court in Subhas Chandra Das Mushib v. Ganga Prosad Das Mushib and others AIR 1967 SC 878 wherein it was held as under:
"10. Before, however a court is called upon to examine whether undue influence was exercised or not, it must scrutinize the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as in the case of fraud. See Order 6 Rule 4 of the Code of Civil Procedure. This aspect of the pleading was also given great stress in the case of Ladli Prasad Jaiswal (1964) 1 SCR 270: (AIR 1963 SC 1279) above referred to. In that case it was observed (at p. 295 of SCR):
(at p. 1288 of AIR):::: Downloaded on - 26/04/2018 22:57:14 :::HCHP 14
"A vague of 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."
"25. There was practically no evidence about the domination of Balaram over Prasanna at the time of the execution of the deed of gift or even thereafter. Prasanna, according to the evidence, seems to have been a person who was taking an active interest in the management of the property even shortly before his death.
The circumstances obtaining in the family in the year 1944 do not show that the impugned transaction wa s of such a nature as to shock one's conscience. The plaintiff had no son. For a good many years before 1944 he had been making a living elsewhere.
According to his own admission in cross-examination, he owned a jungle in his own right (the area being given by the defendant as 80 bighas) and was therefore possessed of separate property in which his brother or nephew had no interest. There were other joint properties in the village of Parbatipur which were not the subject matter of the deed of gift. It may be that they were not as valuable as the Lokepur properties. The circumstances that a grandfather made a gift of a portion of his properties to his only grandson a few years before his death is not on the face of it an unconscionable transaction. Moreover, we cannot lose sight of the fact that if Balaram was exercising undue influence over his father he did not go to the length of having the deed of gift in his own name. In this he was certainly acting very unwisely because it was not out of the range of possibility that Subhas after attaining majority might have nothing to do with his father."
18. It shall be apt to make reference to the judgment of the Hon'ble Supreme Court in Afsar Shaikh and another v. Soleman Bibi and others AIR 1976 Supreme Court, 163, wherein the Hon'ble Supreme Court has held as under:
"15. While it is true that 'undue influence', 'fraud', 'misrepresentation' are cognate vices and may, in part, overlap in ::: Downloaded on - 26/04/2018 22:57:14 :::HCHP 15 some cases, they are in law distinct categories, and are in view of Order 6, Rule 4, read with Order 6, Rule 2 of the Code of Civil Procedure, required to be separately pleaded, with specificity, .
particularity and precision. A general allegation in the plaint, that the plaintiff was a simple old man of ninety who had reposed great confidence in the defendant, was much too insufficient to amount to an averment of undue influence of which the High Court could take notice, particularly when no issue was claimed and no contention was raised on that point at any stage in the trial court, or, in the first round, even before the first appellate court."
19. In Sukhdei (Smt.) (dead) by LRs vs. Bairo (dead) and others (1999) 4 SCC 262, the Hon'ble Supreme Court held that while pleading fraud, particulars necessary for establishing the same should be specifically stated in the plaint and it was further held that findings on a question of fraud concurrently arrived at by the Courts below should not be interfered with by the High Court while exercising power under Section 100 of CPC. The aforesaid Rule is mandatory and no departure from the Rule is permissible while leading evidence. As regards the plea of misrepresentation, the same means wrong, false or misleading representation.
20. Yet again on the subject, reference to a judgment rendered by this Court in Upasna and others vs. Omi Devi, 2001 (2) Current Law Journal (H.P.) 278 is also essential as the law on the subject was lucidly dealt and it was held as under:
"............The allegation of fraud, coercion and undue influence could not be proved by the plaintiffs and as such both the courts below have rightly held that the plaintiffs have failed to prove that the gift deed was as a result of fraud, coercion and undue influence. The possession of the land in dispute was given to the defendant and the mutation of entry in the revenue record in her ::: Downloaded on - 26/04/2018 22:57:14 :::HCHP 16 name was made by the Patwari in the presence of Beli Ram during his life time. The execution of the gift deed was the personal right of the donor and since Beli Ram had not assailed .
the gift made by him in favour of the defendant during his life time, the plaintiffs have failed to establish that the donee had not rendered any service to the donor during his life time. The gift has been validly made by the donor in favour of the donee voluntarily and with his free will and accepted by the donee it cannot be said that the gift was induced by undue influence under Section 16 (2) & (3) of the Indian Contract Act, 1872 and was as a result of fraud as defined under Section 1 of the Act. The ratio of the judgment in Ladli Parshad Jaiswal v. The Karnal Distillery Co., Ltd. Karnal & Ors., AIR 1963 Supreme Court 1279 strongly relied on by the learned counsel for the plaintiffs in my view does not advance the case of the plaintiffs that the gift in question was as a result of undue influence under S. 16 (2) & (3) of the Contract Act, 1872. In Subhas Chandra Das Mushib v. Ganga Prasad Das Mushib & Ors., AIR 1967 Supreme Court 878, it has been observed that law under Section 122 of the Transfer of Property Act, 1882 as to undue influence is the same in case of a gift inter vivos as in case of a contract. It has further been held that the court trying a case of undue influence under Section 16 of the Contract Act, 1872 must consider two things to start with, namely, (1) are the relations between the donor and the donee such that the donee is in a position to dominate the will of the donor, and (2) has the donee used that position to obtain an unfair advantage over the donor? Upon the determination of these issues a third point emerges, which is that or the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other. The judgment further proceeded to observe that merely because the parties were nearly related to each other or merely because the donor was old or of weak character, no presumption of undue influence can arise. In this view of the matter, as noticed hereinabove, the plaintiffs have miserably failed to establish that ::: Downloaded on - 26/04/2018 22:57:14 :::HCHP 17 the gift deed was executed by donor in favour of the donee under undue influence or fraud......"
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21. The question whether a particular transaction is vitiated on the ground of undue inf luence, fraud and misrepresentation etc. is primarily a decision on a question of fact as was held by the Privy Council in Satgur Prasad versus Har Narain Das, A.I.R. 1932 Privy Council 89 wherein it was observed that in a suit for setting aside a deed on the ground that it was procured by undue influence and fraud, the finding as to undue influence and fraud is a finding of pure fact and in appeal the concurrent finding of fact by the lower Courts will not be disturbed unless it is shown that there has been a miscarriage of justice or violation of any principle of law.
22. The ratio laid down in Satgur Prasad's case (supra) was relied upon with approval by a Constitution Bench of the Hon'ble Supreme Court in Ladli Parshad Jaiswal versus The Karnal Distillery Co. Ltd., Karnal and others, AIR 1963 SC 1279 and it was observed as under:-
"19. Whether a particular transaction was vitiated on the ground of undue influence is primarily a decision on a question of fact. In Satgur Prasad v. Har Narain Das, 59 Ind App 147: (AIR 1932 PC
89) the Privy Council held that in a suit to set aside a deed on the ground that it was procured by undue influence and fraud, the finding that it was so procured is a finding of fact and is not liable to be reopened if fairly tried. Under the Civil Procedure Code, a second appeal does not lie to the High Court, except on the grounds specified in the relevant provisions of the Code, prescribing the right to prefer a second appeal, and the High Court has no jurisdiction to entertain a second appeal "on the ground of an erroneous finding of fact however gross or inexcusable the error may seem to be" (Mt.Durga Choudhrain v.::: Downloaded on - 26/04/2018 22:57:14 :::HCHP 18
Jawahir Singh Choudhri, 17 Ind App 122(PC). But the challenge before Bishan Narain, J., to the decision of the District Judge was founded not on the plea that appreciation of evidence was .
erroneous, but that there were no adequate particulars of the plea of undue influence, that the particulars of facts on which undue influence was held established by the District Judge were never set up, that there was no evidence in support of the finding of the District Judge and that burden of proof on a misconception of the real nature of the dispute was wrongly placed on the plaintiff. A decision of the first appellate Court reached after placing the onus wrongfully or based on no evidence, or where there has been substantial error or defect in the procedure, producing error or defect in the decision of the case on the merits, is not conclusive and a second appeal lies to the High Court against that decision."
23. Similar reiteration of law can be found in the subsequent judgment of the Hon'ble Supreme Court in Bellachi (dead) by LRS.
versus Pakeeran, (2009) 12 SCC 95 and in a judgment of this Court in Smt. Padma Devi & Anr. versus Smt. Soma Devi, AIR 2011 HP 98.
24. Since, the findings recorded by both the learned Courts below are pure findings of fact, therefore, no question of law much less substantial question of law arises for consideration.
25. Accordingly, there is no merit in this appeal and the same is dismissed in limine, alongwith all pending applications.
( Tarlok Singh Chauhan ) 24th April, 2018. Judge.
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