Yashoda (Alias Sodhan) Vs. Sukhwinder Singh And Others - Playing fraud and tricks to court and opposite party is material fact.

 “ A Litigant, who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the Court as well as on the opposite party.”

                            

                        

        Kartar Singh (original plaintiff) was grandfather of Sukhwinder Singh. He had  entered into an agreement to sell agriculture lands in January 1993 which was to be executed before march 1994. Plaintiff claims a family settlement took place between him and defendant/appellant in Nov 1993. Plaintiff file a suit for declaration on the basis of family settlement against the defendant/appellant in February 1994. The same was dismissed as withdrawn in May 1994.

        The plaintiff filed another new civil suit for specific performance on the basis of agreement to sell. The appellant/ defendant contended that the second suit of specific performance was not maintainable in view of withdrawal of the first suit. The appellant, in a written statement, denied the existence and/or the execution of any agreement to sell.

          The plaintiff/ respondent in his reply contended that the first suit for declaration was filed only to avoid payment of stamp duty and registration charges.

The trial Court dismissed the suit for specific performance taking into consideration, the conduct of the respondent.  The Court viewed that a person cannot be permitted to assume inconsistent positions in the Court of law to play fast and loose and to blow hot and cold.

        Therefore, being aggrieved, the respondent i.e., the legal representatives of the plaintiff  filed an appeal before the learned Additional District Judge, who allowed the appeal and decreed the appeal decreed the suit of the plaintiff for specific performance.

        The Appellant/respondent then approached the High Court of Punjab and Haryana at Chandigarh who dismissed the appeal on the ground that the learned trial court concluded that agreement to sell and the default on the part of the appellant has been established.

        The appellant being aggrieved  approached the Supreme Court to challenge the judgment of the learned Single Judge of the High Court.

 

    SUBMISSIONS OF THE LEARNED COUNSELS OF BOTH THE PARTIES.

        Learned counsel for appellant/defendant submitted that the plaintiff had suppressed the fact with regard to the earlier suit. He submitted that the learned Additional District Judge erroneously accepted the stand of the plaintiff in reply that the earlier suit was filed only in order to save the stamp duty and registration charges and allowed the appeal.

        The counsel submitted that the plaintiff/respondent had not stated anything regarding the earlier suit in his evidence and all the witness were closely associated with the plaintiff and therefore, their evidence was not trustworthy, which the Appellate Court had failed to take into consideration.

        He also submitted that appellant was a Pardanasheen lady and plaintiff being cousin took advantage of her blind faith in him by taking thumb impression and use it to create an agreement to sell.

        He referred to various judgements of supreme Court to submit that respondents/plaintiffs have suppressed the material fact which amount to fraud.  So he was not entitled to discretionary relief.

        On the other hand learned counsel for Respondents submitted that all the three courts have concurrently found that the execution of the agreement to sell was duly established.

        All the three courts below have found that the Appellant have failed to establish the fact that the agreement to sell is a result of fraud or misrepresentation.

The counsel relied on the judgment of the case, Arunima Baruah vs. Union of India and others (2007) 6 SCC 120  to submit that unless the suppression of filing of an earlier suit is material fact, such non-disclosure would not be fatal to the case pf the plaintiff.

        Again the counsel relied on the judgment of  Harjas Rai Makhiya (Dead) Through Legal Reprentatives vs. Pushparani Jain and Another (2017) 2 SCC 797 to submit that a mere concealment or non-disclosure of relevant facts without intent to deceive or a bald allegation of fraud without proof and intent to deceive, would not render a decree obtained by a party as fraudulent.

        He submitted, relying on the judgment of the Union of India vs. M/s Chaturbhai M. Patel and Co.(1976) 1 SCC 747 submits that fraud has to be proved beyond reasonable doubt.

        He further submitted that there is nothing to show that the respondents had any intention to defraud the Appellant/defendant.

        Another senior counsel for Respondents submitted that the trial Court had erred in non-suiting the plaintiff on the trivial ground. The replication, ‘the first suit for declaration was filed only to avoid payment of stamp duty and registration charges’ was allowed by the trial Court, hence it became part of the plaint. As such, the respondents had sufficiently proved as to the circumstances in which the earlier suit was filed.

        The respondents had proved the agreement to sell and the appellant had failed to prove that any fraud was played on her and that the issue under Order II Rule 2 of the Civil Procedure Code, 1908 was also in favour of the respondents.

He submitted that the Appellate Court  had rightly corrected the gross error of the trial court in dismissing the suit.

 

FINDINGS

          The plaintiff stated in the plaint ‘there is no litigation pending or decided between the parties with regard to the agreement in question’. The said plaint does not mention the litigation with regard to the land in question. As such there is no suppression of material fact.

        The replication was filed as an after-thought only to cure the lacuna as pointed by the appellant in her written statement. The trial court has rightly reasoned that the respondents have made an attempt to defraud the state of its revenue. The trial Court found that the past litigation has a direct bearing on the merits of the present controversy.

        The trial court relied on the judgment of the Punjab and Haryana High Court in the case of Jaspal Singh vs. Sardul Singh (1993) which held that a party cannot be permitted to approbate and reprobate and resile from that position. The trial court also found that the explanation submitted by the plaintiff with regard to the circumstances under which the earlier suit was file, speaks volumes of the dishonest intention of the plaintiff.

        The said judgment got reversed by the Appellate Court with decision that the non-disclosure of the plaintiff about the earlier litigation in the plaint but clarifying it later in the Replication, was not such crucial point on the basis of which he could be non-suited in toto.

        The Appellant then approached the High Court with grievance on the judgment of the Appellate Court, who too affirmed the decision by observing that the agreement to sell and default on the part of the appellant has been established by the trial court. So therefore the agreement to sell is to be enforced by way of execution of sale deed.

        The Hon’ble Supreme Court rejected the observation of the High Court and opined the High Court has not applied mind and did not even care to refer to the grounds raised with regard to the effect on non-disclosure of filing and withdrawal of the earlier suit.

        While deciding the present case, the Hon’ble Court relied on numbers of judgment. One of such judgment is S.P Chengalvaraya Naidu (Dead) By LRs vs. Jagannath (Dead) By LRs and Others(1994) 1 SCC 1  which was also relied by the trial court. It was held

“ A Litigant, who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the Court as well as on the opposite party.”

        Again the Court relied the earlier observation made in the case of A.V Papayya Sastry and Others vs. Govt. of A.P. and Others (2007) 4 SCC 221. It was observed and held that

“21. Now, it is well settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law.

 

22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye of the law. Such a judgment, decree or order—by the first court or by the final court—has to be treated as nullity by every court, superior or inferior.”

 

Also Read:

Specific Performance: No adverse inference can be drawn, that party was not willing to part of contract, if plaintiff is not called upon to produce passbook either by defendant or by Court.

 

        There is an essential distinction between mistake and trickery. As submitted on behalf of the respondents/plaintiff that the earlier suit was not based on the agreement and as such, there was no suppression amount to trickery so as to obtain the judgment by misleading the Court, viewed Supreme Court.

        The Apex Court referring to the case of Arunima Baruah’s case relied by counsel for respondent has observed that filing the earlier suit and withdrawal thereof without liberty to file another suit was a material fact. Therefore, the respondents/plaintiffs had failed to approach the Court with clean hands and as such judgment is no assistance – Court noted.

        Hence on the above facts, the Supreme Court appreciated the well reasoned judgment of the trial court and termed the judgment of Appellate Court as gross error.

        Therefore the Hon’ble Court quashed and set aside the judgment of Appellate Court and the High Court as they made without application of mind and upheld the judgment of the trial Court which dismissed the suit with no costs.

Also Read:

The object of adoption is to restore family life to a child deprived of his her biological family, mother being the only natural guardian after the death of father can decide to change the surname of her child.

 

Coram:

Justice B.R. Gavai  And Justice C.T. Ravikumar

Case:

Yashoda (Alias Sodhan) Vs. Sukhwinder Singh And Others (Civil Appeal No. 8247 Of 2009)

Date Of Judgment: 12.09.2022.

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