IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No.288 of 1995. Judgment Reserved on: 30.07.2008. Date of decision: 27.08.2008. Ajay Sharma & Others …Appellants Versus Smt.Leela Wati & Others …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Appellants: Mr.Ramakant Sharma, Advocate. For Respondents 1&2: Mr.K.D. Sood, Advocate. Dev Darshan Sud,J. RSA No.288 of 1995 & CMP No.701 of 1995. This application has been moved by the appellant under Order 6 Rule 17 of the Code of Civil Procedure with a prayer that the plaint may be allowed to be amended by inclusion of Khasra No.1357, measuring 61 square meters situate in village Ser (Chowk Bazar Solan), Khata Khatauni No.138/259, Tehsil and District Solan in the original plaint as this was inadvertently omitted in the plaint although it was a part of the agreement to sell of which specific performance was sought. The amendment was opposed by 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 the respondents-defendants on the ground that the application has been filed at a very late stage considering the fact that the suit out of which it arises was instituted on 7.10.1989 and the application has been moved in the year 1995 after a period of more than 6 years. There is no explanation as to why this fact was not urged before the first appellate Court for consideration and decision; that the plaintiff had voluntarily abandoned this claim and now he cannot be permitted to raise this ground as the rights of the parties had become settled by efflux of time. I have heard learned counsel for the parties and have gone through the record. It is undisputed before me that even before the trial Court, an amendment was sought for by the plaintiff and an application was filed on 6.9.1990 which was allowed. The parties went to trial on the amended pleadings. It is also undisputed that the parties were aware about their respective case(s) since both the plaintiff and the defendants were leading evidence on their pleadings. There is no explanation on the record as to why after a period of more than 5 years of the first amendment, another amendment is now sought. There is substance in this submission made by the learned counsel appearing for the respondents- defendants that this part of the relief with respect to the Khasra No.1357 which is now sought to be incorporated cannot be allowed. He is also correct in 3 submitting that at this stage allowing the amendment would result in a trial de-novo and re-determination of the rights already settled by limitation. Admittedly, the law relating to amendment is liberal and all amendments which are necessary to determine the true controversy between the parties should be allowed. However, this is not a license to a party to seek repeated amendments and a retrial of the entire case. There is substance in the submissions made by the learned counsel appearing for the respondents. I do not find that this application is bonafide or that it has been moved for the purposes of settling the true controversy between the parties. The application for amendment is accordingly dismissed. There shall be no order as to costs. The plaintiff has appealed against the judgment of the learned District Judge reversing the judgment and decree of the learned trial Court granting a decree for specific performance to the plaintiff for the suit land. The plaintiff filed a suit for specific performance on the allegations that his father Nandu Ram and the successors-in-interest of late Shri Kanshi Ram, father of defendants No.1, 2 and 4 to 6 and husband of defendant No.3, were brothers. They belong to District Hamirpur, but were also owning property in Mauja Ser (Chowk Bazar, Solan), comprised in Khasra 4 Nos.36 and 31, measuring 73 square meters having a shop, residential rooms, toilets etc. The mainstay of the plaintiff’s case was agreement to sell Ex.PW-3/B executed by his brother Kanshi Ram on 17th April, 1980 to sell his property for a consideration of Rs.55,000/-. The plaintiff alleges that Rs.40,000/- were paid as advance and Rs.10,000/- were to be paid at the time of registration of the sale deed and Rs.5,000/- at the time of attestation of mutation. Notice Ex.PW-6/A was sent by the plaintiff to the defendant on 8th April, 1987 vide registered AD receipt Ex.PW-6/B calling upon the defendant / his successors-in-interest to execute the sale deed. Vide reply Ex.PW-6/C the defendant stated that the sale was to be executed after the shop portion was got vacated from its tenant, namely, Shri Bansi Lal for which purpose the deceased Nandu Ram was to file/institute appropriate proceedings in Court and to incur the entire expenditure. Kanshi Ram died on April 16, 1987 and Nandu Lal on 10th March, 1988. The plaintiff Kishori Lal has inherited the estate of his father by a will Ex.PW-5/A and hence brought the present suit against the legal representatives of the deceased Kanshi Ram. The suit was contested by two sons of the deceased Kanshi Ram, namely; Gian Chand and Rattan Chand who alleged that the case set up by the plaintiff is false as their late father Shri Kanshi 5 Ram was never in need of money, Nandu Ram, the predecessor-in-interest of the plaintiff; was attorney of their father; that his signatures had been obtained on blank papers by him which were later-on fabricated to prepare the agreement to sell Ex.PW-3/B. Both the defendants plead that they had been serving in the Indian Army and were looking after / providing maintenance to their father and it was only the blank papers signed by him which were misused by the plaintiff. It was pleaded that the transaction was unconscionable since the property was worth more than Rs.10,00,000/- and could not have been sold for Rs.40,000/- which prima facie shows their malafides and intention to defraud and substantiates the fact that the agreement Ex.PW-3/B is the result of fraud, undue influence, misrepresentation etc. One other plea taken was that Shri Kanshi Ram was suffering from cancer and was not in possession of his full mental faculties and as such could not be bound by any purported document executed by him. Of the 10 issues settled, the first three issues:(1) as to whether Ex.PW-3/B has been entered into and that late Nandu Ram was in possession of the property in part performance of the contract dated 17.4.1980, (2) whether the predecessor-in-interest of the defendant had received part consideration of Rs.40,000/-; (3) whether the plaintiff was ready and willing to perform his part of the contract or not, 6 the learned trial Court on consideration of the entire evidence on record conclusively held in favour of the plaintiff and decreed the suit for specific performance. An appeal preferred by the defendants to the Court of the learned District Judge was accepted primarily on the ground that the special power of attorney Ex.PW-3/C was in Hindi while the agreement to sell Ex.PW-3/B was in Urdu which, exfacie established that Ex.PW-3/B was manipulated and that undue influence had been exercised on the executant. The learned appellate Court also refers to the evidence of Gian Chand DW-1 who stated that he was in the Army and his father was never in need of money. Shri Shiv Kumar (DW-2) stated that the father of the defendant was suffering from cancer and remained under his treatment. The testimony of DW-3 Shri Ishwar Dass was that in or about 1980 (12 years prior to recording of the statement in the suit) he met deceased Kanshi Ram in hospital where he requested him to sell the suit property to him (DW-2), but he refused to enter into any such transaction stating that DW-1 Gian Chand was to retire from the Army and he would look after the shop in Solan. This witness has stated that the property was worth more than Rs.40 lacs. The learned District Judge also found that the agreement to sell Ex.PW-3/B did not bear any signatures of the predecessor-in- interest of the plaintiff i.e. Nandu. The appeal was 7 accordingly allowed and the suit filed by the plaintiff was dismissed. In appeal, the plaintiff has challenged the judgment on three questions on which it was admitted, namely:- “1. Whether the appeal filed by the respondents No.1 and 2-defendants was maintainable when admittedly, the decree was joint against all the defendants- respondents 1 to 6 as passed by the learned trial Court? 2. Whether the impugned judgment and decree is the result of misreading of evidence particularly Exhibits PW-3/A, PW-3/B, PW-6/A, PW-6/B, PW-6/C and the other evidence led by the appellant in this behalf? 3. Whether the learned lower appellate Court has fallen into error by holding that the readiness and willingness that was to be seen for specific performance was to be seen of late Shri Nandu and not the plaintiff?” Taking question No.1 first, all that can be said is that the appeal is not bad for non-joinder of necessary parties as the memo of parties before the learned Court below clearly shows that all the parties have been impleaded either as appellant or proforma respondents. On the other two questions, the pleadings and the issues may be noticed. The record shows that the learned trial Court on three crucial issues has 8 held in favour of the plaintiff. Issue Nos.1, 6 and 7 were decided together by the learned trial Court. Issue No.1 was, whether the agreement to sell had been entered into between the predecessor-in-interest of the plaintiff and predecessor-in-interest of the defendant for the sale of suit property, 2nd issue, whether the predecessor-in-interest of the defendant received Rs.40,000/- as sale consideration and 3rd issue which is very vital was, as to whether the plaintiff was ready and willing to perform his part of the contract. 6th and 7th issues which were relevant and the central pivot of the controversy were; whether the agreement was a result of misrepresentation, fraud and undue influence and whether the agreement suffers from indefiniteness, vagueness and is unenforceable. The learned trial Court rightly holds on the basis of the agreement Ex.PW-3/B, dated 17th April, 1980 as proved by PW-3 Shri Goverdhan Lal who had stated in evidence that Kanshi Ram and Nandu Ram had come to him to get the agreement scribed/executed and he drafted it and made an entry in his register abstract of which is Ex.PW-3/A. This witness is very clear in his evidence when he states that it was Kanshi Ram at whose insistence the agreement was scribed and that it was read over and explained to him and signed by S/Shri Satish and Tulsi Ram as witnesses. PW-4 Shri Satish, corroborates PW-3 Goverdhan Lal on all material particulars including the fact of the agreement having 9 been scribed in his presence. He says that the deal was finalized for Rs.55,000/- out of which Kanshi Ram admitted to have already received Rs.25,000/- and Rs.15,000/- on two different occasions. He is clear in his deposition / statement that Kanshi Ram was in a sound disposing state of mind at the time when this agreement was executed/signed. He was cross-examined at length and nothing contrary to what he has stated in his examination-in-chief, has been elicited from him. The learned trial Court has held that there is no specific denial by defendants No.1 and 2 that the agreement Ex.PW-3/B did not contain the signatures of their father Shri Kanshi Ram. Their only defence is that the predecessor-in-interest of the plaintiff late Shri Nandu Ram was attorney of their father Kanshi Ram who had obtained the signatures of their father Shri Kanshi Ram on blank papers which were later-on interpolated. DW-1 Shri Gian Chand has stepped into the witness box to say that he was serving in the Army and that his father did not require any money as he was possessed of sufficient landed property and cash. In these circumstances, the question of executing Ex.PW- 3/B did not arise at all. The learned District Judge has gone awry in considering the case of the parties. Obviously, when the case of the parties was being evaluated, it was incumbent upon the appellate Court to have considered 10 the entire pleadings and evidence of the parties and not merely on conjectures and surmises to draw conclusion on certain facts which, as it would be noticed, have not been established on the record. Considering the plea of the defendants that the signatures of the deceased Kanshi Ram were obtained on blank papers which were later-on interpolated, it does not stand to reason as to how such a plea can be considered when the evidence of the witness and the scribe has not been controverted in any manner. There is nothing on the record to suggest that these witnesses are lying or they are in any manner a party to a larger conspiracy to deprive late Shri Kanshi Ram and his successors-in-interest of the suit property. The learned District Judge, has been swayed by the fact that the two documents are in different languages i.e. Urdu and Hindi. The Court observes that Ex.PW-3/C, Special Power of Attorney, is in Hindi and Ex.PW-3/B is in Urdu. How this constitutes fraud, misrepresentation etc. is not clear. Order 6 Rule 4 of the Code of Civil Procedure provides:- “4. Particulars to be given where necessary.- In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the 11 forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.” In the written statement, the allegations of fraud, undue influence are:- “5. That the alleged agreement can not be the basis for this suit as it was the out come of misrepresentation fraud and undue influence and was obtained by Nandu Ram fraudulently and by under hand means, and it is unregistered document and is inadmissible in evidence and the plaintiff never performed the contract of his part. 6. … … … … … … … … … … 7. That the alleged agreement and alleged transaction is unconscionable and is unenforceable under law. The suit property is situated in the heart of the Solan town and is worth ten lacs of rupees because of its commercial nature. 8. That Shri Kanshi Ram was a weak minded person, he was a simpleton and was suffering from so many diseases at the relevant time, which subsequently culminated in cancer and he died of cancer. He had no firm mind and had no mental faculty in 1980 and subsequently and was always under the influence of his elder brother Nandu Ram who 12 had always dominated the will of Shri Kanshi Ram deceased, father of the replying defendants. In fact, this Nandu Ram and the plaintiff Kishori Lal had been his Mukhtiar and had been helping him in the protracted litigation against the third brother Bansi Lal. Nandu Ram had always dominated the will of Shri Kanshi Ram who was under the thumb of Nandu Ram. Shri Nandu Ram and Kishori Lal had obtained signatures of Kanshi Ram on several blank papers and fabricated and forged the alleged documents which are illegal and void. The sons of Shri Kanshi Ram i.e. the replying defendants have been serving in the Indian Military, serving the mother land and defending the border of mother’s land and they were never aware of such agreement alleged to have been made by their father nor their father ever told them that any such agreement had been executed by him. There was no question of selling the property and there was no need of money as the defendants were always in service and were helping their fathers. The recitals in the agreement are wrong and contrary to the facts. The property being coparcinary property can not be sold by Kanshi Ram without any legal necessity and there was no 13 legal necessity at all. The alleged agreement is therefore void.” This is the only pleading. Reading of these pleadings shows that paragraph-5 of the preliminary objection is so general and sweeping that it can at best be ignored. Paras 7 and 8 if considered together, make out a case that the transaction is unconscionable. It is un-enforceable as Kanshi Ram was suffering from many diseases; he had no sound mental faculty and died of cancer. His brother Nandu Ram, predecessor-in-interest of the plaintiff, had been helping him in litigation and was always in a position to dominate his will. It is by now well settled that fraud and undue influence etc. must be clearly pleaded. In Sangramsinh P.Gaekwad and Others vs. Shanta Devi P.Gaekwad (Dead) through LRs and Others, (2005)11 SCC 314, it was held: “182.Mala fides, improper motive and similar other allegations it is trite, must be pleaded and proved as envisaged in the Code of Civil Procedure. Acts of mala fides are required to be pleaded with full particulars so as to obtain an appropriate relief. 207 We may now consider the submissions of Mr.Desai that Appellant 1 herein is guilty of commission of fraud. Application 14 filed by Respondent 1 before the Gujarat High Court does not contain the requisite pleadings in this behalf, the requirements wherefor can neither be denied nor disputed. 208. It is not in dispute that having regard to Rule 6 of the Companies (Court) Rules, the provisions of the Code of Civil Procedure will be applicable in a proceeding under the Companies Act. In terms of Order 6 Rule 4 of the Code of Civil Procedure, the plaintiff is bound to give particulars of the cases where he relies on misrepresentation, fraud, breach of trust, etc. 209. In Chief Engineer, M.S.E.B. v. Suresh Raghunath Bhokare, (2005)10 SCC 465 this Court held: (SCC p.468, para 5) “Thus applying the basic principle of rule of evidence which requires a party alleging fraud to give particulars of the fraud and having found no such particulars, the Industrial Court came to the conclusion that the respondent could not be held guilty of fraud.” It was observed: “In the absence of any such particulars being mentioned in the show cause notice or at the trial, 15 attributing some overt act to the respondent, we do not think the Board can infer that the respondent had a role to play in sending a fraudulent list solely on the basis of the presumption that since the respondent got a job by the said proposal, the said list is a fraudulent one.” 210. In A.C. Ananthaswamy v. Boraiah, (2004)8 SCC 588 this Court held that the level of proof required for proving fraud is extremely high (See also Maharashtra Power Development Corpn. Ltd. V. Dabhol Power Co.(2004)3 Comp LJ 58 (Bom). To similar effect is the decision in Varanaseya Sanskrit Vishwavidyalaya and Another vs. Dr.Rajkishore Tripathi and Another, (1977)1 SCC 279: “8. Although we are not satisfied that circumstances existed which justified the use of emergency powers of the Vice Chancellor under Section 13(7) of the Act, yet, we do not think it possible to enter upon this enquiry as no argument seems to us to have been advanced on this aspect in the High Court or in the District Courts. We, however, think that the first appellate Court had much too lightly believed that the plaintiff-appellant had been a victim of some kind of fraud, when no such particulars of that fraud or collusion were given as would satisfy 16 the requirements of Order VI Rule 4, Civil Procedure Code, which lays down: In all case in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful 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. 9. We do not think it is enough to state in general terms that there was “collusion” without more particulars. This Court said in Bishundeo Narain v. Seogeni Rai, 1951 SCR 548, 556: AIR 1951 SC 280 (at p.556) as under: General allegations are insufficient even to amount to an averment of fraud of which any Court ought to take notice, however, strong the language in which they are couched may be, and the same applies to undue influence and coercion. We have already set out the general allegations of alleged collusion by which the plaintiff-respondent seemed to imply some kind of fraud. He indicated no reason for this and made no specific allegation against any particular person.” In Gayatri Devi and Others vs.Shashi pal Singh,(2005)5 SCC 527, on the plea of the counsel that a decree having been obtained by fraud would vitiate the judgment itself, the Supreme Court held:- 17 “16. In our view these observations aptly apply to the case before us. The learned counsel for the respondent relied upon the judgment of this Court in S.P. Chengalvaraya Naidu v. Jagannath, (1994)1 SCC 1 and United India Insurance Co.Ltd. v. Rajendra Singh, (2000)3 SCC 581 to contend that there was a fraud played upon the court and the fraud unravels everything. As a general proposition, the proposition is right. But fraud must necessarily be pleaded and proved. In the entire history of litigation nothing was pleaded, much less proved, as fraud. We cannot countenance the plea of fraud without any basis.” Ranganayakamma vs. K.s. Prakash, AIR 2005 Karnataka 426 also reiterates this proposition of law. In Kuppuswami Chettiar vs. A.S.P.s. Arumugam Chettiar and another, AIR 1967 SC 1395, the Supreme Court was emphatic in stating that the allegation that a particular deed is vitiated by misrepresentation the onus is on the person making this allegation. In the present case, the learned District Judge refers only to the witnesses related to the defendants and the fact that Kanshi Ram was purportedly suffering from cancer which would vitiate the deed. Evidence of DW-2 ex-facie reveals that it is not worth relying upon as the person is neither a qualified doctor and does not have any record of treatment except 18 for making a general statement that he was treating the deceased. How and under what circumstances his testimony can be believed is unclear. A person not even possessing the basic qualification for practicing medicine, states that he was treating some person for a disease requiring a specialist. This defies all rationality. No normal person can come to the conclusion that the deceased was being treated by him. DW-3 is another witness who can say nothing but deposes about an incident which has occurred about 10 or 15 years back. At the cost of repetition it must be said that it was incumbent upon the District Judge to have considered the evidence of the scribe and the attesting witness which he has not done. The plea of fraud, misrepresentation and undue influence which has been raised, despite an issue having been framed in the absence of material particulars, is not established on the record as there is no evidence substantiating this fact. Surely, if the deceased was receiving medical treatment, the defendant should have been in possession of the medical record. Having withheld such record, if any, an adverse inference needs to be drawn against them. On the question that one document is in Hindi and the second in Urdu all that need be said is that merely because of the fact that documents are in different languages would not make it unworthy of reliance. 19 Learned trial Court also considers the agreement to sell Ex.PW-3/B from another perspective. The Court holds that Nandu Ram, Kanshi Ram and Bansi Lal were three brothers. Nandu Ram being the eldest had constructed shop and building in Solan for himself, his brothers and had purchased vacant land in Khasra No.1397 in the name of