Himachal Pradesh High Court
Mohar Singh vs The Registrar on 22 August, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
R.S.A. No. 276 of 2017
Date of decision: 22 nd August, 2017
.
Mohar Singh .....Appellant
Versus
The Registrar, H.P. Co-operative Societies, Himachal Pradesh
and ors. .....Respondents
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ? 1 No
For the appellant: Mr. Sunil Chauhan, Advocate.
For the respondents: Ms. Meenakshi Sharma, Addl.
A.G. with Mr. Neeraj K. Sharma,
Dy.A.G. for respondent No.1.
Mr. Y.P. Sood, Advocate, for
respondents No.2 to 4.
Tarlok Singh Chauhan, Judge (Oral)
The plaintiff is the appellant, who aggrieved by impugned judgments and decrees passed by both the courts below has preferred the present appeal.
2 The brief facts giving rise to the present appeal are that the plaintiff filed a suit against defendants No.1 to 4 seeking relief of declaration to the effect that the mortgage 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 25/08/2017 22:56:15 :::HCHP 2 deed got executed from the plaintiff and proforma defend ant No.5 by defendant No.3 on 4.7.1996 was the outcome of fraud and misrepresentation and, therefore, the same be .
declared illegal, null and void; and not binding upon him.
The plaintiff further prayed for a decree of permanent prohibitory injunction restraining defendants No. 2 and 3 to enforce the said mortgage deed in respect of the suit land.
According to the plaintiff on 4.6.1999 he and proforma defendant No.5 had jointly applied to the defendants-Bank for raising a loan of Rs.8,00,000/- for the construction of building at their respective villages. It was claimed that defendant No.3 asked the plaintiff as also proforma defendant No.5 to visit the bank on 4.7.1996 and also bring the revenue record pertaining to their respective lands. On the said date, only the columns of the document, in which the description of the land was to be mentioned, were filled in by the Branch Manager, whereas the remaining columns were left blank.
The plaintiff and proforma defendant No.5 signed the said document believing the version of defendant No.3 that the said document pertained to the grant of house loan. However, later on it appeared that it in fact was the mortgage deed when the defendants-Bank filed a case for recovery against ::: Downloaded on - 25/08/2017 22:56:15 :::HCHP 3 the plaintiff and proforma defendant No.5 before the authority constituted under the Cooperative Societies Act.
3 Defendants No. 2 to 4 contested the suit by filing .
written statement taking therein preliminary objections regarding maintainability, cause of action, valuation, non-
joinder of necessary parties, estoppel, jurisdiction, res judicata and the plaintiffs having not approached the Court with clean hands. On merits, it was denied that the plaintiff and proforma defendant No.5 had applied for house loan and it was specifically averred that a society namely Mahashiv Transport Co-operative Society Ltd., Bharanu was formed and got registered under the Societies Registration Act, 1956 in the year 1987. Soon after its registration, a vehicle loan was applied by the said society. Thereafter a cash credit limit for a vehicle of Rs.2,56,000/- was sanctioned by the bank in favour of the said society. The society purchased the vehicle/mini bus, but did not pay the loan amount constraining the defendants to file a case before the Arbitrator, which came to be decided on 23.2.1998 and it was decreed for a sum of Rs.8,48,151/-. It was alleged that the mortgage deed was executed by the plaintiff and proforma defendant No.5 out of their own fee will and volition and even ::: Downloaded on - 25/08/2017 22:56:15 :::HCHP 4 otherwise, the plaintiff had been duly appearing on behalf of the society when the proceedings were pending before the Arbitrator and, thus, could not feign ignorance.
.
4 On the pleadings of the parties, the learned trial court on 18.9.2012 framed the following issues:-
1. Whether the plaintiff is entitled for a decree by declaring the mortgage deed as fraudulently and by misrepresentation get executed from the plaintiff and proforma defendant No.5 by the defendant No.3 on 4 th day of July, 1996 and registered before the Sub Registrar, Nerwa, Tehsil Chopal, District Shimla , H.P. at Serial No.56/96 volume IV, page No.31 on 8th day of August, 1996 as illegal and null and void and not binding upon the plaintiff as alleged? OPP
2. Whether plaintiff is entitled for consequential relief for grant of decree of permanent prohibitory injunction by restraining the defendants No. 2 and 3 to enforce the mortgage deed of the land as comprised in Khewat No.9/10 (new Khewat No.10) Khasra Nos. 6, 51 (new Khasra Nos. 11 and 113) at mauja Jangal Gauncha, Tehsil Chopal, District Shimla, H.P., as alleged? OPP
3. Whether the suit of the plaintiff is not maintainable in the present form, as prayed? OPD
4. Whether the suit of the plaintiff has no cause of action to file the present suit, as prayed? OPD
5. Whether the plaintiff has not come to the Court with clean hands, as prayed? OPD
6. Whether the plaintiff has not valued the present suit properly, as prayed? OPD
7. Whether the suit is bad for non -joinder of necessary parties, as prayed? OPD
8. Whether the plaintiff is estopped to file the present suit by his act, conduct, deed, omission and commissions, as prayed? OPD
9. Whether this Court has no jurisdiction to file the present suit, as alleged? OPD ::: Downloaded on - 25/08/2017 22:56:15 :::HCHP 5
10.Whether the suit of the plaintiff is barred by res-
judicata, as prayed? OPD
11.Relief.
.
5 After recording the evidence and evaluating the same, the learned trial court dismissed the suit so filed by the plaintiff vide judgment and decree dated 10.6.2015 and the appeal preferred against the said judgment and decree also came to be dismissed by the learned first appellate court vide judgment and decree dated 30.7.2016.
6. It is against both these impugned judgments and decrees rendered by the learned courts below that the plaintiff has filed the instant regular second appeal on the ground that the findings recorded by the learned courts below are totally pe rverse and, therefore, cannot be sustained inasmuch as they are based on complete misreading of the material evidence ; and fraud and mis-representation that has been practiced by the defendants upon the plaintiff and proforma defendant No.5 while executing the mortgage deed, Ext.PW1/A .
7 I have heard the learned counsel for the parties and have also gone through the record of the case carefully.
8 What is 'perverse' was considered by the Hon'ble Supreme Court in a detailed judgment in Arulvelu and ::: Downloaded on - 25/08/2017 22:56:15 :::HCHP 6 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 PERVERSE:- Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.
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) ::: Downloaded on - 25/08/2017 22:56:15 :::HCHP 7 PERVERSE: Purposely deviating fro m accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or 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 r 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 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."::: Downloaded on - 25/08/2017 22:56:15 :::HCHP 8
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 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 r 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."
9 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 ::: Downloaded on - 25/08/2017 22:56:15 :::HCHP 9 in miscarriage of justice, is open to correction, because it is not treated as a finding according to law.
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, sta nds vitiated."
10 What is 'perversity' recently 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) ::: Downloaded on - 25/08/2017 22:56:15 :::HCHP 10
"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) "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 ::: Downloaded on - 25/08/2017 22:56:15 :::HCHP 11 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 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 ::: Downloaded on - 25/08/2017 22:56:15 :::HCHP 12 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 r 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 Co urt 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 ::: Downloaded on - 25/08/2017 22:56:15 :::HCHP 13
(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."
.
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 case 6, SCC p. 615) "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 ::: Downloaded on - 25/08/2017 22:56:15 :::HCHP 14 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. Sta te .
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."
11 Thus, it can be taken to be settled that a judgment can be said to be perverse if the conclusions arrived at by the learned Courts below are contrary in evidence on record, or if the Court's entire approach with respect to dealing with the evidence or the pleadings is found to be patently illegal, leading to the miscarriage of justice , or if its judgment is unreasonable and is based on erroneous ::: Downloaded on - 25/08/2017 22:56:15 :::HCHP 15 understanding of law and of the facts of the case. A perverse finding is one which is based on no evidence or one that no reasonable person would have arrived at. Therefore, unless it .
is found that some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration, the findings cannot be said to be perverse.
12 Adverting to the facts, it would be noticed that the plea of fraud and misrepresentation is only contained in para 9 of the plaint, relevant portion whereof reads thus:
"9. That the representation of the defendant No.3 that the mortgage deed was for the release of the loan amount as allegedly sanctioned by the defendant No.2 was fraudulent and misrepresentation by which the same was got executed by the then defendant No.3 and thus is illegal, void and initio."
13 Evidently, the aforesaid allegations 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."::: Downloaded on - 25/08/2017 22:56:15 :::HCHP 16
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, wilful 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 r controversy at the earliest.
'Fraud' is obtaining of an advantage by unfair or wrongful means.
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, are not enough and the Court will not take notice .
16 The plaintiff apart from using the word "fraudulent/misrepresentation" has not given any specific particulars regarding fraud and misrepresentation and it is more than settled that a vague or general plea can never ::: Downloaded on - 25/08/2017 22:56:15 :::HCHP 17 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.
r to 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):
"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 ::: Downloaded on - 25/08/2017 22:56:15 :::HCHP 18 obtaining in the family in the year 1944 do not show tht the impugned transaction was of such a nature as to shock one's conscience. The plaintiff had no son. For a good man y 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:
"While it is true that 'undue influence', 'fraud', 'misrepresentation' are cognate vices and may, in part, overlap in 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 ::: Downloaded on - 25/08/2017 22:56:15 :::HCHP 19 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.) (d ead) 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:
::: Downloaded on - 25/08/2017 22:56:15 :::HCHP 20"............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 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 th at 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 do minate the will of the donor, and (2) has the donee used that position to obtain an unfair ::: Downloaded on - 25/08/2017 22:56:15 :::HCHP 21 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 the gift deed was execu ted by donor in favour of the donee under undue influence or fraud......"
21 Now, adverting to the evidence available on record, it would be noticed that the plaintiff, Mohar Singh, appeared in the witness box as PW8 and filed his duly sworn affidavit, Ext.PW-8/A reiterating therein the averments made in the plaint. He further proved on record the legal notice, postal receipts etc. In the affidavit, it was averred that the contents of the mortgage deed, Ext.PW1/A, were never explained to him either at the time of its preparation or at the time of its registration.
22 The plaintiff also examined Mast Ram, Manager Co-operative Bank, Bharanu as PW-1, who produced the concerned record and proved on record copy of the mortgage deed, Ext.PW1/A. The official from the office of Sub Registrar, ::: Downloaded on - 25/08/2017 22:56:15 :::HCHP 22 Nerwa, Sarla Chauhan, appeared as PW-2 and produced the original record of the said mortgage deed. One Bir Singh appeared in the witness box as PW-3 and filed his duly sworn .
affidavit, Ext.PW3/A stating therein that on 4.7.1996, he had visited the Co-operative Bank, where the plaintiff and proforma defendant were present and they were talking to the Manager regarding grant of house loan to them. They also signed some documents, the contents of which were not read over and explained to them by the Manager. Some time /date was given to them for getting the said document registered.
Likewise, PW4, Prem Singh, averred that Manager of the Bank obtained his signatures over a document, the contents of which were not explained to him. This witness was examined to prove that the Manager of the Bank was in the habit of obtaining the signatures over the documents without reading out its contents. PW5, Ram Lal and PW6, Bhag Sigh, who are the attesting witnesses to the mortgage deed, categorically denied the execution of the said mortgage deed and deposed that they never visited the office of Sub Registrar, Nerwa. PW-9, Bhag Mal is the attesting witness to another mortgage deed. His statement is of no relevance as ::: Downloaded on - 25/08/2017 22:56:15 :::HCHP 23 the mortgage deed sought to be proved by him is not under challenge in this case.
23 At this stage, in case cross-examination of the .
plaintiff as well as the other witnesses is perused, it would be noticed that the mortgage deed, Ext.PW1/A has been duly proved on record as having been executed by the plaintiff and proforma defendant No.5 out of their own free will and volition. The said fact has been duly proved by DW2, Mast Ram.
24 In addition to the aforesaid, it would be noticed that there is no material placed on record by the plaintiff to prove that the grounds, now sought to be taken before this Court, were in fact raised before the adjudicatory authority constituted under the Societies Registration Act and are, therefore, clearly an afterthought.
25 It is otherwise more than settled that the appellate Court continues to be a final court of fact and law and second appeal to the High Court lies only where there is a substantial question of law, meaning thereby, the pure findings of fact remain immune from challenge before this Court in second appeal. It shall be apt to refer to three Judges Bench decision of the Hon'ble Supreme Court in ::: Downloaded on - 25/08/2017 22:56:15 :::HCHP 24 Santosh Hazari vs. Purushottam Tiwari (deceased) by LRs (2001) 3 SCC 179 wherein it was observed as follows:
"15......The first appellate Court continues, as before, to be a .
final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one."
26 What would be the substantial question of law was thereafter considered in para 12 of the judgment, which reads thus:
"12. The phrase 'substantial question of law', as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying "question of law", means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of substantial question of law by suffixing the words of general importance as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta & Anr. Vs. T. Ram Ditta, AIR 1928 Privy Council 172, ::: Downloaded on - 25/08/2017 22:56:15 :::HCHP 25 the phrase "'substantial question of law" as it was employed in the last clause of the then existing Section 110 of the C.P.C. (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held th at it did not .
mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. Vs. The Century Spinning and Manufacturing Co., Ltd., (1962) Supp.3 SCR 549, the Constitution Bench expressed agreement with the following view taken by a Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju, ILR 1952 Madras 264:-
r to "When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative view, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law."
and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:-
"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled ::: Downloaded on - 25/08/2017 22:56:15 :::HCHP 26 by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles .
to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
27 Finally, in paragraph 14, the Hon'ble Supreme Court laid down the guidelines on the test of as to what is the substantial question of law, which reads thus:
"14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial", a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."::: Downloaded on - 25/08/2017 22:56:15 :::HCHP 27
28 The findings recorded by the learned Courts below are based on the correct appreciation of the pleadings and .
evidence and are pure findings of fact which are immune from challenge in second appeal. Therefore, no question of law much less substantial question of law arises for consideration in this appeal.
29 Accordingly, there is no merit in this appeal and the same is dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.
August 22, 2017 (Tarlok Singh Chauhan)
(pankaj) Judge
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