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1981 (11) TMI 191

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..... the land in dispute to Chidda Khan, defendant respondent No. 1 for a sale consideration of ₹ 5000/- on Mar. 29. 1968. Plaintiffs stated that Chidda Khan obtained the conveyance in his favour with full knowledge of the fact that a prior agreement executed by Said Mohammad existed and that the plaintiffs were entitled to the conveyance of the said land in accordance with the conditions of the said agreement. According to the plaintiffs Chidda Khan was not a bona fide transferee without knowledge of the agreement in favour of the plaintiffs. In the plaint it was disclosed that the plaintiffs were in possession over the land in dispute. On the basis of these facts, it was prayed that a decree for specific performance may be passed against the two defendants directing them to convey the plots mentioned in the agreement dated Nov. 29, 1967 in favour of the plaintiffs after receiving the sale consideration of ₹ 2,000/- and in case of default, the court may execute a sale deed of the said plots in favour of the plaintiffs. 3. Both the defendants contested the suit. Said Mohammad did not dispute his signatures on the agreement dated 29th Nov. 1967. He, however, stated that h .....

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..... legations are insufficient even to amount to an averment of fraud of which any court ought to take notice howsoever strong the language in which they are couched may be, and the same applies to undue influence and coercion. 7. On behalf of the contesting defendants-respondents, however, it is urged that it was open to the plaintiffs to apply for further and better particulars relating to fraud in accordance with the provisions of Rule 5 of Order 6 of the Civil P. C., and since no application was made by the plaintiffs for further and better particulars of fraud alleged in the written statement the plaintiffs cannot fall back on the provisions of Rule 4 of Order 6 of the Civil P. C. in order to sustain their claim for reversing the decree passed by the court of appeal. An other argument was also raised on behalf of the defendant-respondent in answer to the plaintiff's objection. Learned counsel appearing on behalf of the respondent submitted that since the parties went to trial knowing the alleged particulars of fraud, it is no longer open for the plaintiffs to rely on the technical rule of pleadings to buttress their claim in the suit. In the alternative, it is submitted on .....

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..... of appeal. 9. Rule 4 of Order 6 of the Civil P. C. is based on the principle that a charge of fraud, undue influence etc. is a charge of a quasi criminal nature. Whenever, it is alleged that a transaction is vitiated on account of fraud or undue influence, an insidious and unworthy conduct Is attributed to the person who is said to be guilty of fraud and undue influence. The policy of law, therefore is that the person charged with a fraud or undue influence etc. should be apprised of its particulars so that the said party may be in a position to rebut those particulars. If no particulars are furnished to the party charged with such conduct, he is put at a disadvantage and is unable to meet the case sought to be established by the party making the charge. In the case of Bharat Dharma Syndicate Ltd. v. Harish Chandra It was observed :-- Before parting with this case their Lordships desire to call attention to the great difficulty which is occasioned both to person charged with fraud or other improper conduct, and to the tribunals which are called upon to decide such issues, if the litigant who prefers the charges is not compelled to place on record precise and specific detai .....

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..... re vitiated by fraud. This contention was accepted by the primary court as well as by the court of appeal. In a second appeal preferred by the plaintiffs High Court held that a plea based on fraud was not available to the defendant of the suit as he had not staled any particular concerning the alleged fraud in the written statement filed by him. The defendant took the matter to the Supreme Court by filing a Civil Appeal. It was urged on his behalf that the High Court was not justified in setting aside the finding of the first court of appeal. The pleadings having been entertained by the primary court it was evident that the parties were aware of the controversy which required adjudication. In support of this contention, reliance was placed on behalf of the appellant of that case before the Supreme Court on earlier decisions of that court including the decision in Kunju Kesavan v. M. M. Philip [1964] 3 SCR 634 . With reference to the ratio in Kesavan's case V. Bhargava J. observed (at p. 21821 : Again it is manifest that, in that case, parties had gone to trial consciously on that question and had given evidence, while the only omission was in the pleadings. In the case bef .....

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..... tial defect in the decision of the case upon merits. 16. As already stated, the court of appeal was impressed by the alleged defects in the endorsements made by the Stamp Vendor and this fact coloured its vision in the appreciation of evidence produced by the parties. It rejected the testimony of the scribe of the agreement dated 26-9-1967 merely on the ground that he is unable to give the exact date of the execution of the document. The testimony of the attesting witness was discarded On the solitary ground that he lived in a village which was about 6 miles away from village Rasoolpur where the parties lived. In doing so, the court of appeal, overlooked the fact that, the document dated Nov. 29, 1967 was executed in the compound of the Registration Office at Bulandshahr, A man living at a distance of six miles from the place of residence of the parties and visiting the village as an itinerant vendor could have been on friendly terms with them and may have been invited to attest the agreement as a witness. The fact that the attesting witness lived at a place six miles away from the residence of the parties could not have been made a ground for rejecting his testimony. There shou .....

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..... that merely on the basis of the admission of signatures on the document dated Nov. 29, 1967, it should not be held that Said Mohammad had executed the said document. He contended that there was a distinction between signing a document and executing it in the sense of appending one's signature in token of the correctness of the recitals contained in the document. The proposition of law for which the learned counsel has contended is undoubted and is supported by a number of other authorities which are referred to in the case of Ch. Birbal Singh (supra). However, in order to invoke this principle, some acceptable explanation should be offered by the person signing the document from which it may be reasonably concluded that he intended to append his signatures on a blank document only. In the instant case, no such explanation has been offered by Said Mohammad or by Chidda Khan. The inference that forces itself is that the apparent tenor of the document must be accepted unless there is some impediment in doing so. The burden of proving that impediment was on the defendant-respondent. He has not led any evidence to show the circumstances in which Said Mohammad was led to sign blank s .....

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