R.S.A. No.3616 of 2007 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.3616 of 2007 (O&M) Decided on : 10-02-2010 Gurjant Singh .... Appellant VERSUS Harbans Kaur & others .... Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER. Present:- Mr. I.K. Mehta, Senior Advocate, with Mr. M.S. Kohli, Advocate, for the appellant. Mr. Prem Chand Kalia, Advocate, for the respondents. MAHESH GROVER, J (Oral). This Regular Second Appeal has been preferred against the judgments and decrees dated 30.10.1979 and 22.5.2007 passed respectively by the Sub Judge Ist Class, Fazilka (referred to hereinafter as `the trial Court') and the Additional District Judge, Ferozepur (described as `the first appellate Court'). Initially a suit was filed by Harpal Singh, Chamkaur Singh, Balour Singh, the predecessors-in-interest of the respondents herein against Smt. Shanti Devi and Bishan Singh, who are the predecessors-in-interest of the present appellant Gurjant Singh, who is their adopted son. The suit initiated was for specific performance of an R.S.A. No.3616 of 2007 (O&M) -2- agreement to sell dated 28.6.1978, pertaining to the land belonging to the defendants Smt. Shanti and Bishan Singh, which land was described in the suit. The total consideration was fixed at Rs.70,000/- out of which Rs.4,000/- were paid to Smt. Shanti Devi as earnest money. The sale deed was to be executed on 2.11.1978. It was alleged that on the appointed date, the respondents were present before the office of Sub Registrar and got their presence marked, but the proposed vendors did not turn up and as a result thereof, they were constrained to file the suit in question. The predecessors-in-interest of the appellant, who contested the suit, set up a plea of fraud, denied the execution of the agreement to sell and pleaded that it was on the pretext of making an application for change of warabandi that their signatures were obtained and they never intended to sell the land to the respondents. On the pleadings of the parties, the following issues were framed:- 1. Whether the defendant No.1 executed any the agreement to sell dated 28.6.78 in favour of the plaintiff?OPP. 2. If issue No.1 is proved, which of the parties thereto committed breach of the said agreement?OP Parties. 3. Relief. Learned Trial Court decreed the suit of the plaintiff- respondents against which Regular First appeal was preferred before this Court for the reason that the Court of Sessions was not vested with the pecuniary jurisdiction at that point of time to deal with the appeal in question. During the pendency of the proceedings before this Court, an application under Order 6 Rule 17, was moved for R.S.A. No.3616 of 2007 (O&M) -3- seeking amendment of the written statement. But, before the proceedings could culminate, the Court of Sessions was vested with the requisite pecuniary jurisdiction and the matter was remitted back to the Court of Sessions for decision, which then proceeded to decide the matter. The application under Order 6 Rule 17 moved by the appellant was dismissed and so was the appeal vide impugned order dated 22.05.2007. This has, now, resulted in the filing of regular second appeal. It has been contended by learned counsel for the appellant with reference to the order declining the prayer for amendment of the written statement that the same is erroneous and the Court should have appreciated that the law of amendment is liberal and the application should have been allowed. In so far as the case on merits is concerned, he has pleaded that a fraud had been played upon the appellant and that Smt. Shanti Devi, who executed the agreement to sell was never intending to do so as there was a misrepresentation made to her that she was to execute an application regarding the change of warabandi and at no point of time, she had intended to enter into an agreement to sell. He has further pleaded that the fraud can be inferred from the fact that in agreement to sell there is a stipulation that the possession had been handed over to the proposed vendee i.e. the respondents, but as a matter of fact, the possession was found to be that of the appellant throughout which fact can also be inferred because the respondents had cut the crops to take the forcible possession, leading to the R.S.A. No.3616 of 2007 (O&M) -4- registration of F.I.R. just prior to the agreed date of execution of the sale deed. It is thus contended that the findings recorded by both the Courts below are erroneous as the plea of fraud and the corresponding evidence led by the appellant to substantiate such a plea, was not considered by the court in its true perspective and that the executor of the agreement Smt. Shanti Devi being an illiterate lady, is being sought to be deprived of her land on account of this. In support of his contentions, learned counsel for the appellant has placed reliance on a decision of the Hon'ble Supreme Court in S.P. Chengal Varaya Naidu by LRs. vs. Jagannath by LRs. and ors (1994) 1 SCC 1 and the judgment of this court in case reported as Harmesh Kumar & Ors. vs. Maya Bai & Anr., decided on 9.8.2005. Learned counsel for the respondents pleaded that there was a valid agreement to sell, which was duly proved by examining three witnesses, who had appended their signatures thereto. The agreement to sell was also witnessed by her husband, who was present on the spot and who has also appended his signatures on the same. All the witnesses belong to the same village and supported the execution of the agreement to sell. During the course of cross- examination of these witnesses, no suggestion was put that they are deposing falsely and there is any animus towards the appellant. The person, who scribed the agreement was also deed writer and the entry regarding the execution of the agreement to sell was duly entered in his register where their presence was marked and the register was also signed by Smt. Shanti Devi. It is further pleaded that Smt. Shanti Devi died on 22.12.1994 and during her entire life R.S.A. No.3616 of 2007 (O&M) -5- time, she did not make any complaint to the police authorities regarding the fraud in the sale of the land and only F.I.R., which has been got recorded by the appellant is the F.I.R. regarding trespass into the land, but even at that point of time no complaint was made to the police authorities regarding any fraud. It has next been contended that Smt. Shanti Devi during her cross-examination has admitted that she has been selling parcels of land to other persons. She also admitted that the attesting witnesses had accompanied her. On the basis of these averments, learned counsel for the respondents contended that since the execution of agreement to sell had been duly proved and likewise the passing of the sale consideration and the readiness and willingness of the respondent to perform his part of the agreement also stood established then the only conclusion that could be arrived at was that the suit had to be decreed and which has rightly been done by both the Courts below. In so far as the plea that the amendment of written statement has been wrongly disallowed, learned counsel for the respondents contended that there was no need for the same as the appellant had denied the execution of the agreement on the basis of fraud and to substantiate such a plea, she was free to lead any evidence and the amendment which was sought, was not essential at all and in any eventuality could not be granted at such a belated stage. More so when the appellant was aware of the facts, which were sought to be incorporated in the written statement, he turned the application for amendment to be a mala fide exercise. He thus, prayed that the appeal be dismissed. R.S.A. No.3616 of 2007 (O&M) -6- I have heard learned counsel for the parties and have perused the impugned judgments. According to learned counsel for the appellant, the following law points arise for the consideration of this Court:- “i) Whether the Lower Appellte Court was in error in dis-allowing the application under Order 6 Rule 17 for amendment of the written statement on the ground of delay alone? ii) Whether the Lower Court were in error in not framing issue regarding fraud which was mere basis of the pleadings ? iii)Whether the lower Appellate Court failed to appreciate that fraud vitiates the transaction and negates all actions?” The foremost question that is to be considered is as to whether Shanti Devi has executed a valid agreement to sell or whether the agreement was a subject matter of misrepresentation or fraud. She has pleaded that a misrepresentation had been made to her that she was required to put her signatures on the document, which was intended to be an application for change of warabandi. but instead an agreement to sell has been executed. To substantiate her plea, she has examined few witnesses, who had merely stated that they were present at the bus stop when Shanti Devi met them and she apprised them that she was going to make an application for effecting a change in warabandi. If this evidence of appellant is to be contrasted with the evidence adduced by the respondents in support of the execution of the agreement to sell, then, I am afraid the only conclusion that can be arrived at is that the agreement to sell was R.S.A. No.3616 of 2007 (O&M) -7- executed by Smt. Shanti Devi and a plea of fraud is without any basis. To prove the execution of the document, the plaintiff had examined Harpal Singh as PW-1 and the scribe Thakar Dass as PW- 2 and both the attesting witnesses, who had appended their signatures as PW-3 and PW-5. The scribe duly stated that he had got the agreement written at the instance of deceased owner, who had thumb marked the same, after the contents of the documents were read over to her and she accepted them to be correct. To the similar effect is the testimony of the attesting witnesses that a sum of Rs.4,000/- had been paid to her at that point of time. The evidence further shows that the entry had been made in the register of the scribe, which was also signed by Smt. Shanti Devi. Her husband Bishan Singh, who is also defendant in the suit, was also present and appended the signatures on the agreement to sell as well. There is thus an inescapable conclusion that the agreement to sell had been duly executed by Smt. Shanti Devi and witnessed by her husband Bishan Singh. Both of them never raised any dispute regarding fraud, having been played upon them and never complained to the police authorities even though Smt. Shanti Devi remained alive till 1994. The F.I.R. which was got registered soon after the execution of agreement to sell was merely qua the allegations that the plaintiff- respondents had tried to trespass into the land forcibly by cutting the crops. If a fraud had been played upon her, some action would have been taken by the aggrieved person to lodge a complaint to the police regarding the same. Much has been said that no issue regarding fraud was R.S.A. No.3616 of 2007 (O&M) -8- framed, but if the issues in hand are to be seen, then the first issue, which the Court had framed was to the following effect:- “Whether defendant No.1 executed any agreement to sell dated 28.6.1978 in favour of the plaintiff. The issue itself is broad enough to cover both the aspects i.e. the assertion that the agreement has been executed and the denial that the same had not been executed on whatever grounds that the same had not been validly executed. In any eventuality, the defence pleaded by Smt. Shanti Devi was of fraud and she led evidence on the issue, which was appreciated by both the Courts below. She cannot plead any prejudice on this account, therefore, merely because a specific issue to that effect would not prejudicially effect the case of the appellant. In the considered opinion of this Court, issue No.1 was almost like an umbrella issue an all encompassing issue, which could take within its fold, the respective pleas and evidence of both the parties. Lastly it has to be seen as to whether the amendment had been disallowed rightly by the first Appellate Court or not. From the facts, it is concluded that the appellant had pleaded fraud, therefore there was sufficient pleadings to this effect. The amendment, which was sought, was merely meant to qualify the manner, in which the fraud had been played, which was of course necessary to be pleaded. But a fact of fraud and the manner in which it has been perpetrated is always within the knowledge of the victim and therefore, such a plea has to come in the first instance in a forth right manner. When the appellant was conscious of the facts R.S.A. No.3616 of 2007 (O&M) -9- at the initial stage itself, he could not plead ignorance of these facts which should have been pleaded in the first instance. The application was filed much belated at the appellate stage and the Court was therefore right in disallowing the same. For the reasons, which have been recorded above, this Court is of the considered opinion that the appeal deserves to be dismissed. The substantial question of law, which have been agitated before this Court are not the questions which arise in the instant appeal because it is settled principle of law that the person who pleads fraud necessarily has to produce sufficient evidence in support of such a plea which was not done and since the issue No.1 was all encompassing which also could take into its fold any plea including the plea of fraud raised by the respondent and in the eventuality of specific issue having not been framed regarding fraud the same has not prejudicially effect the case of the appellant. Similarly, the reasons have also been given as the application under Order 6 Rule17 being dismissed justifiably. Consequently, the appeal is dismissed being devoid of any merit. All pending applications are disposed of in view of the above. 10th February, 2009. (MAHESH GROVER) Monika JUDGE