IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.: 90 of 2001. Reserved on: 07.07.2011. Decided on: 24.08.2011. ____________________________________________________________ Dharamvir Sood. … Appellant. Versus Anil Kumar and others. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Appellant : Mr. G.C. Gupta, Senior Advocate with Mr. Pawan Sharma, Advocate. For the Respondents : Mr. Sanjeev Kuthiala, Advocate. Rajiv Sharma, Judge: This regular second appeal is directed against the judgment and decree passed by the learned Additional District Judge, Shimla, dated 12.1.2001 in Civil Appeal No.4-S/13 of 2000. 2. Material facts necessary for the adjudication of this regular second appeal are that the appellant/plaintiff 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - (hereinafter referred to as “the plaintiff” for convenience sake) has instituted a suit for possession of one room in the 4th storey of building No.15/2, Lakkar Bazar, Shimla (hereinafter referred to as “the suit premises” for brevity sake) and for recovery of ` 10,500/- with interest at the rate of 12% per annum from the respondents/defendants (hereinafter referred to as “the defendants” for convenience sake). 3. According to the plaintiff, he was occupying one room on the top floor as tenant on the rent of ` 400/- per annum. He was having godown in the room. On the intervening night of 24/25th September, 1988 land slide took place above the suit premises and damage was caused to the building of the defendants, where the suit premises was situate. Defendants wanted to reconstruct the building, however, the same was not possible unless it was vacated by the plaintiff. An agreement was entered into between the plaintiff and defendants to the effect that the defendants would provide one room of the size of 10’ x 10’ in the newly constructed building for the purpose of godown and rent would be ` 500/- per annum. The building was agreed to be reconstructed by 23.10.1989. The agreement was reduced into writing in the presence of witnesses on 25.10.1988. It was also agreed that the plaintiff will be entitled to ` 50/- per day as damages till he - 3 - was not put in possession of the premises. The plaintiff delivered possession to the defendants for reconstruction without surrendering or relinquishing his tenancy rights. However, the accommodation has not been provided to the plaintiff as per agreement dated 25.10.1988 (Ex.P-1). 4. The suit was resisted by the defendants. According to them, there is no four storeyed building known as 15/2, Lakkar Bazaar, Shimla. It was alleged that the building bearing No.15/2, Lakkar Bazaar was consisting of four storeys and an attic prior to its destruction due to heavy rains and the plaintiff was tenant on annual rental of ` 400/-. The attic was rented out by the previous owner to the plaintiff and the tenancy came to an end on the destruction of the building. There was no contractual tenancy between the plaintiff and the defendants in respect of the attic portion. The defendants were running the business in the building and after destruction of the building, they came on the road. They were forced to take shelter in the out houses at Jakhoo. They wanted to reconstruct the building to earn their livelihood and residence. The plaintiff threatened them to obtain stay from the Court and wanted to cause hindrance in the construction of the building. The plaintiff has not removed his articles from the building. He was pressurising the defendants and was taking undue advantage also by filing - 4 - F.I.R. against them. According to them, the agreement was illegal, null and void and the same was not executed by them with their own will and free consent. According to them, they were forced to execute the agreement under mental tension and undue influence. According to them, the construction of 4th storey was not permissible under the Municipal Bye Laws. Therefore, the suit was liable to be dismissed. 5. The learned trial Court framed the issues on 23.6.1992 and 26.11.1998. The trial Court decreed the suit on 27.11.1999 for possession of the room of the size of 10’ x 10’. He was held entitled to a decree of ` 10,500/- from the date of filing the suit with interest at the rate of 12% per annum. He was also held entitled to ` 50/- per day as damages till the room was not provided to him, as agreed. The defendants preferred an appeal before the learned Additional District Judge, Shimla. He allowed the same on 12.1.2001. Hence, this regular second appeal. 6. The regular second appeal was admitted by this Court on the following substantial questions of law, on 29.3.2001:- 1. Whether the first appellate court has rightly held the agreement dated 28.9.1988 to be the result of undue influence and having been executed under compelling circumstances? - 5 - 2. Whether the tenancy of the appellant came to an end with the damage caused to the premises by the land-slide, especially, in view of the fact that such rights were never surrendered by the appellant as per the agreement? 3. Whether the agreement dated 28.9.1988 gave an unfair advantage to the appellant and has been rightly held to be un- enforceable in view of the fact that the damages fixed in the agreement were on a higher side? 4. Whether material evidence and the documents mis-interpreted and mis-read by the first appellate court? 7. Mr. G.C. Gupta, learned Senior Advocate with Mr. Pawan Sharma, learned counsel for the plaintiff has supported the judgment and decree passed by the learned trial Court. According to him, the learned first appellate court has misconstrued, misread and mis-appreciated the evidence led by the parties while coming to the conclusion that Ex.P-1, dated 25.10.1988 was the outcome of undue influence and coercion. 8. Mr. Sanjeev Kuthiala, learned counsel for the defendants has supported the judgment passed by the learned Additional District Judge. According to him, the agreement, dated 25.10.1988 was the outcome of undue - 6 - influence and coercion. He then argued that the agreement is not capable of being implemented since 4th storey cannot be constructed in the area as per the existing bye laws of Municipal Corporation, Shimla. 9. I have heard learned counsel for the parties and gone through the pleadings carefully. 10. Since all the substantial questions of law are interconnected and interlinked, they were taken up together for determination to avoid repetition of discussion of evidence. 11. There is no dispute about the execution of the agreement Ex.P-1, dated 25.10.1988. 12. DW-1, Ashok Kumar has deposed that the agreement was got signed from him in the office of counsel for the plaintiff. Anil Kumar, DW-10 was also present and no other witness was present there. In his cross-examination, he has admitted that the godown was in the attic portion of the building. He has categorically admitted that the possession was handed over to the defendants by the plaintiff. He has identified and admitted his signatures on Ex.P-1. He has also admitted that his brothers had also signed the agreement alongwith Ram Gopal and Hari Om, but not in his presence. He has further admitted that no notice was ever issued to the plaintiff after executing the agreement Ex.P-1. Initially, he has - 7 - stated that F.I.R. was registered after the execution of agreement, but later on he admitted that no F.I.R. was registered. He has also admitted that the agreement was never repudiated. He has further admitted that the plaintiff has never surrendered the tenancy rights. According to him, one room was to be provided to the plaintiff as per the agreement, but the same was not provided to him. 13. DW-3, T.N. Bharat has produced the certificate of registration Ex.DW-3/A. According to him, he being the Secretary of Lakkar Bazaar Residents Welfare Association, has issued letters Ex.PW-3/B and Ex.PW-3/C to the Engineer-in-Chief for removing the debris etc. He has also stated about the mental condition of the defendants. 14. DW-5, Narinder Bhardwaj has been examined to prove that land slide has occurred and the building was damaged. DW-6, Chaman Lal has also been examined to prove that the land slide has occurred which caused damage to the suit premises. However, he has stated that after reconstruction, there was only three storeyed building and there is no attic. 15. DW-7 and DW-8, Saravjeet and Shyam Lal, respectively have also deposed that land slide had occurred which has caused damage to the building in question. - 8 - 16. DW-10, Anil Kumar has deposed that their property was damaged due to land slide and thereafter they were not in fit mental state. He has deposed that they never entered into any agreement to provide any accommodation to the plaintiff. According to him, the plaintiff took them to his counsel, Gian Chand and got the document signed. According to him, tenancy stood terminated. However, he has testified that he alongwith Ashok Kumar signed Ex.P-1. He has also admitted that Ram Gopal is his relative. He has categorically deposed that they were not threatened while signing the document. According to him, the possession was to be delivered by the plaintiff after the signing of the document. However, later on stated that no possession was to be delivered as the house had collapsed. They never filed any complaint before any court regarding the agreement. The notice issued by the plaintiff has been admitted, but it was never replied. He has denied that the agreement Ex.P-1 was signed in the shop of Ashok Kumar in the presence of Ram Gopal. According to him, the building was not damaged, but only the roof has collapsed due to falling of debris. He has admitted that he has signed the agreement after going through the same. 17. The plaintiff was examined in rebuttal. According to him, the debris fell on the roof of the - 9 - tenanted premises. The defendants wanted to reconstruct the building. They entered into an agreement with him. He vacated the suit premises. The defendants did not abide by the agreement Ex.P-1 and he was not provided accommodation within one year. Thus, he was entitled to damages to the tune of ` 50/- per day till the room is provided. He took the premises on rent in 1981. He has denied that agreement was typed and signed in the office of his Advocate. According to him, the agreement was written in the shop of Puri Brothers and Ram Gopal. He signed the agreement alongwith Ashok Puri. 18. PW-2, Ashok Puri is examined as a marginal witness to the agreement Ex.P-1. He has deposed that he has signed the agreement and has also testified regarding the contents of the agreement. He has testified that all the defendants alongwith witnesses were present in his shop at the time of execution of the agreement and they signed the same. He has denied the suggestion that the agreement was signed in the office of Shri G.C. Gupta, Advocate. He has admitted that Ram Gopal was his uncle. He has denied the suggestion that the defendants were made to sign the agreement under pressure and that they were not in fit mental condition. 19. According to PW-3, Hardyal, the plaintiff was having his godown in the attic of the building. According - 10 - to him, the shop remained closed for few days and thereafter it was restarted. 20. What emerges from the evidence discussed hereinabove is that the agreement was executed between the parties. DW-1 has admitted his signatures on the agreement. He has also deposed that as per agreement, one room was to be handed over to the plaintiff. The tenancy was never surrendered by the plaintiff. No notice was ever issued to the plaintiff for terminating the agreement. He initially stated that F.I.R. was registered after the execution of the agreement, but later on stated that no F.I.R. was registered. Similarly, DW-10, Anil Kumar has deposed that he alongwith Ashok Kumar signed Ex.P-1. He has also admitted that they were not pressurized while signing the document. He has also admitted that after the signing of the document, possession was to be delivered. However, he clarified the same by stating that the possession could not be delivered as the building has collapsed. He has also admitted that the defendants never approached any court regarding the execution of the agreement. He has also admitted that notice was issued by the plaintiff, but the defendants have not replied the same. It is also evident from the statements of the witnesses that land slide has taken place which has resulted in extensive damage to the suit premises. The - 11 - suit premises were to be reconstructed by the defendants and in these circumstances, the agreement Ex.P-1 was signed. The defendants have not led any tangible evidence to prove that they were unduly influenced and coerced to sign the agreement. The learned first appellate court has come to wrong conclusion that the defendants were coerced or unduly influenced to execute the agreement Ex.P-1. The defendants have admitted their signatures on the agreement. It has come in the evidence that they were not threatened at the time when the agreement was signed. The signing of the agreement was a voluntary act. The defendants knew the consequences of execution of the agreement on the basis of which they had to hand over possession of one room to the plaintiff. Merely that the building has collapsed, it cannot be presumed that the defendants were not in a fit mental state to understand the contents of the agreement. The plaintiff, as per the agreement, has handed over the possession to the defendants to enable them to reconstruct the building. The defendants have only stated that the plaintiff was threatening them to get the injunction from the Court of law to restrain them from raising the construction. The defendants have not led any evidence to this effect. It has not come in evidence in whose presence the plaintiff has advanced these threats to - 12 - the defendants. The reconstruction could not be carried out without the possession being handed over by the plaintiff to them. The plaintiff has done his part by parting with the possession as per agreement, but the defendants have not honoured the terms and conditions of the agreement by handing over possession of one room to him. The defendants have not even cared to file reply to the notice sent by the plaintiff to them. The defendants were educated and it can safely be presumed that they have read the contents of the agreement before signing the document. There was no mental duress, coercion or undue influence on them to execute the agreement. 21. What can be gathered from the evidence as discussed above, is that the defendants required the possession from the plaintiff immediately in order to reconstruct the building. The learned appellate court has come to a wrong conclusion that the terms and conditions of the agreement were against the public policy. The execution of the agreement, as noticed above, is not disputed. The terms and conditions of Ex. P-1 were not unconscionable as held by the first appellate court. It is true that the defendants may be under distress after the destruction of the building and their being out of business, but from this fact alone, it cannot be deduced that they have not voluntarily executed the agreement. - 13 - 22. Mr. Sanjeev Kuthiala, learned counsel for the defendants has also argued that the agreement is not capable of being implemented since four storeys are not permitted to be constructed in the area. This position was known to the defendants at the time when the agreement was signed between the parties. The defendants cannot be permitted to take the advantage of this position. They have reconstructed the building after the possession was handed over by the plaintiff to them and in these circumstances, one room could be provided to the plaintiff on the 3rd floor itself if 4th floor could not be constructed as per the Bye Laws of Municipal Corporation, Shimla. The plaintiff has not taken any undue advantage of the circumstances as held by the first appellate court. The plaintiff has immediately handed over the possession to the defendants to enable them to reconstruct the building. No steps have ever been taken by the defendants to get the agreement repudiated. 23. In the instant case, the defendants have also failed to prove that the plaintiff was in a dominating position and he has used this position to influence the defendants to enter into an agreement vide Ex.P-1. Thus, the finding recorded by the learned first appellate Court to this effect is contrary to the pleadings and the evidence on record. - 14 - 24. Their Lordships of Hon’ble Supreme Court in Ladli Parshad Jaiswal v. The Karnal Distillery Co., Ltd. Karnal and others, AIR 1963 SC 1279 have held that in order to prove the plea of undue influence, the party has to give particulars. Their Lordships of Hon’ble Supreme Court have analyzed Order 6 Rule 4, Section 16 of the Contract Act, 1872 as under (paras 20, 25 and 26):- “Order 6 Rule 4 Civil P.C. provides that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms in the Appendix, particulars (with dates and items if necessary) shall be stated in the pleading. The reason of the rule is obvious. A plea that a transaction is vitiated because of undue influence of the other party thereto, gives notice merely that one or more of a variety of insidious forms of influence were brought to bear upon the party pleading undue influence, and by exercising such influence, an unfair advantage was obtained over him by the other. But the object of a pleading is to bring the parties to a trial by concentrating their attention on the matter in dispute, so as to narrow the controversy to precise issues, and to give notice to the parties of the nature of testimony required on either side in support of their respective cases. A vague or general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other. This rule has been evolved with a view to narrow the issue and protect the party charged with improper conduct from being taken by surprise. A plea of undue influence - 15 - must, to serve that dual purpose, be precise and all necessary particulars in support of the plea must be embodied in the pleading; if the particulars stated in the pleading are not sufficient and specific the Court should, before proceeding with trial of the suit, insist upon the particulars, which give adequate notice to the other side of the case intended to be set up. The doctrine of undue influence under the common law was evolved by the Courts in England for granting protection against transactions procured by the exercise of insidious forms of influence spiritual and temporal. The doctrine applies to acts of bounty as well as to other transactions in which one party by exercising his position of dominance obtains an unfair advantage over another. The Indian enactment is founded substantially on the rules of English common law. The first sub-section of S.16 lays down the principle in general terms. By sub-section (2) a presumption arises that a person shall be deemed to be in a position to dominate the will of another if the conditions set out therein are fulfilled. Sub-section (3) lays down the conditions for raising a rebuttable presumption that a transaction is procured by the exercise of undue influence. The reason for the rule in the third sub-section is that a person who has obtained an advantage over another by dominating his will may also remain in a position to suppress the requisite evidence in support of the plea of undue influence. A transaction may be vitiated on account of undue influence where the relations between the parties are such that one of them is in a position to dominate the will of the other and he uses his position to obtain an unfair advantage over the other. It is manifest that both the conditions have ordinarily to be established by the person seeking to avoid the transaction: he has to prove that the other party to a - 16 - transaction was in a position to dominate his will and that the other party had obtained an unfair advantage by using that position. Clause (2) lays down a special presumption that a person is deemed to be in a position to dominate the will of another where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other or where he enters into a transaction with a person whose mental capacity is temporarily or permanently affected by reason of age illness or mental or bodily distress. Where it is proved that a person is in a position to dominate the will of another (such proof being furnished either by evidence or by the presumption arising under sub-sec. (2) and he enters into a transaction with that other person which on the face of it or on the evidence adduced, appears to be unconscionable the burden of proving that the transaction was not induced by undue influence lies upon the person in a position to dominate the will of the other. But sub-sec.(3) has manifestly a limited application: the presumption will only arise if it is established by evidence that the party who had obtained the benefit of a transaction was in a position to dominate the will of the other and that the transaction is shown to be unconscionable. If either of these two conditions is not fulfilled the presumption of undue influence will not arise and burden will not shift.” 25. In Bishnu Priya Dei and another v. Brusabhanu Mohapatra and others, AIR 1976 Orissa 163, the Division Bench has held that it is duty cast upon the party pleading undue influence to set forth full particulars. The learned Division Bench has held as under (para 8):- - 17 - “Counsel for respondent No.1 has contended before us that there is no adequate averment to sustain the plea of undue influence and, therefore, plaintiffs should not have been permitted to lead evidence at the trial for making out a case of undue influence. The entire plea of undue influence has to be found in paragraphs 4, 7, 7(a) and 13 of the plaint. We think it worthwhile to extract these allegations in their original form:- “4. That the defendant No.1 being resident of Kolabira and a cultivator of few acres of lands was first appointed as a cleaner in 1936 and then as a driver about 6 years after, and served in those capacities for a pretty long time i.e. till the year 1953. Though appointed as a cleaner and driver he rendered all sorts of services to plaintiff No.1’s ailing father who had crossed the age of 60 and thus made himself indispensable to his master, i.e. father of the plaintiff No.1. In short, he had considerable influence on plaintiff No.1’s father and he was in a position to dominate the will of plaintiff’s father so much so that he was the cause of the differences of opinion between the plaintiff No.1 and his father in many domestic matters in which the defendant No.1 intermeddled at times to serve his purposes. 7. That because of the influence and dominating position defendant No.1 had on plaintiff No.1’