Jharkhand High Court
Satan Mali vs Manoj Sao Soni on 26 September, 2022
S.A.No.148 of 2007
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.148 of 2007
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(Against the judgment dated 01.06.2007 passed by learned 1st
Additional District Judge, Garhwa in Title Appeal No.13 of 2006)
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Satan Mali, son of Sukhdeo Mali, resident of Village- Gaurgada, PO:
Tamgey, Kallan, PS: Ranka, District- Garhwa At present Mohalla
Tandawa (Near Reliance Petrol Pump) P.O./P.S./Dist. Garhwa
.... .... .... Defendant / Respondent /Appellant
Versus
Manoj Sao Soni, son of Radhin Sao Soni, resident of Village-
Gaurgada, PO: Tamgey Kallan, PS: Ranka District- Garhwa
.... .... .... Plaintiff / Appellant / Respondent
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For the Appellant : Mr. Mukesh Kumar, Advocate
For the Respondent : Mr. Sanjay Kumar Tiwari, Advocate
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court:- Heard the parties.
2. This Second Appeal, under Section 100 of the Code of Civil
Procedure, has been filed against the judgment and decree dated
01.06.2007 passed by learned 1st Additional District Judge, Garhwa in Title
Appeal No.13 of 2006 whereby and where under by the judgment of
reversal, the learned First Appellate Court has allowed the appeal and set
aside the judgment and decree passed by the Munsif, Garhwa in Title Suit
No.03 of 2001 by which the learned Munsif, Garhwa dismissed the suit of
the plaintiff on contest.
3. The case of the plaintiff in brief is that the plaintiff took Rs.23,000/-
from the defendant on 24.06.1998 with a promise to return the money by
15.07.1998. In the meanwhile, the plaintiff returned some money to the
defendant and when the question for returning the remaining money
arose, the defendant adjusted the money paid by the plaintiff to him
towards the interest and again demanded Rs.23,000/- to settle the dispute
S.A.No.148 of 2007
between the plaintiff and the defendant. In this respect, Panches were
nominated and the parties became ready to refer the matter before
Panches. It is further the case of the plaintiff that on 13.09.1998, the Panches
for both the parties decided that the plaintiff will pay Rs.15,000/- to the
defendant by 05.10.1998 in full and final settlement of the money taken by
him. The said decision of the Panches was jointly accepted by both the
plaintiff and the defendant. The plaintiff, as per the said decision, gave
Rs.15,000/- to the defendant on 05.10.1998 before the Panches and the
defendant acknowledged in writing the receipt of Rs.15,000/-. The
defendant, with malafide intention filed Money Suit No.01 of 1998 in the
Court of Munsif, Garhwa by claiming that he has received only
Rs.15,000/- and filed the said money suit for remaining Rs.8,000/- by
deliberate intention and by committing fraud and by suppressing the fact
that there was a Panchayati regarding the decision in the Panchayati, the
payment of Rs.15,000/- in full and final settlement of amount between the
plaintiff and the defendant. The defendant also suppressed the fact that he
does not have any licence for money lending without which he cannot file
a suit for recovery of money lent by him. After the decree in the said
Money Suit No.01 of 1998, the defendant filed Execution Case No.02/1999
and only then the plaintiff came to know that the defendant has obtained
a money decree of Rs.8,000+ Rs.1,224/- against him which money the
defendant was not entitled to get in view of the decision in the Panchayati
and in this way by committing fraud, the defendant obtained the decree
in Money Suit No.01 of 1998 from the court of Munsif, Garhwa. The
plaintiff filed the suit with a prayer to declare the said decree passed in
Money Suit No.01 of 1998 null and void having been obtained by fraud.
4. In his written statement, the defendant besides challenging the
maintainability of the suit on various technical grounds denied that the
plaintiff and the defendant ever nominated any Panch nor ever any
Panchayati was held and the defendant never demanded any interest over
the money of Rs.23,000/- given by him to the plaintiff. The defendant
further pleaded that as the plaintiff did not return money taken by him,
hence, he sent a notice through his advocate on 30.08.1998 and the
plaintiff received the said notice on 05.10.1998. At a distance of 8
S.A.No.148 of 2007
Kilometre from the house of both the parties; by pressurizing the
defendant of which his men, the plaintiff got prepared wrong documents
in which it was mentioned that the defendant has received Rs.15,000/-
and he has no arrear amount due and payable to him from the plaintiff
and against the wish of the defendant, the defendant was made to sign the
said document. After the said occurrence, the defendant issued notice
through his advocate to the plaintiff intimating the plaintiff that the
defendant was forcibly and under duress was made to sign on wrong
document and to pay the remaining amount of Rs.8,000/- and as the
plaintiff did not pay Rs.8,000/-, the defendant filed Money Suit No.01 of
1998 in the court of Munsif, Garhwa. The defendant pleaded that the
provisions of Money Lending Act is not attracted in this case as the
plaintiff took a friendly loan from him.
5. On the basis of rival pleadings of the parties, learned trial court
settled the nine issues which read as under:-
(i) Is the suit as filed maintainable?
(ii) Whether plaintiff had proper cause of action for filing the suit?
(iii) Whether after receiving the legal notice sent to plaintiff by the defendant the
plaintiff did not answer the notice?
(iv) Whether plaintiff has refused to receive the summon sent in Money suit
no.1/98 sent by the court?
(v) Whether plaintiff has committed conspiracy for terrorising the defendant for
the purpose of returning some money and has not returned the rest money?
(vi) Whether plaintiff has disobeyed the order passed in Money suit No.1/98 and
Execution Case no.2/99?
(vii) Whether in Money suit no.1/98 defendant has procured decree by fraud for
causing damage to plaintiff?
(viii) Whether plaintiff is entitled for the decree as claimed by him?
(ix) Whether plaintiff is entitled for any relief?
6. In support of their case, the plaintiff examined six witnesses and
proved the documents which has been marked Ext.1 series and 2 series.
The defendant, on the other hand, examined five witnesses and proved
various documents which have been marked Ext. A to F. It is pertinent to
mention here that besides the three witnesses namely D.W.1- Arjun
Kumar Mali, D.W.3- Shatrudhan Mali @ Satan Mali and D.W.5- Nand
Kishore Pandey, though the examination-in-chief in shape of affidavit was
filed on behalf of two other witnesses namely Haidar Ali and Krishna
Tiwari as well but as they did not turn up for their cross-examination,
S.A.No.148 of 2007
hence, their deposition was not considered by the trial court.
7. The trial court first took up issue Nos.(iv), (vi) and (vii) together and
considering the evidence in record came to the conclusion that the
plaintiff has failed to establish that the decree in Money Suit No.01 of 1998
was obtained by fraud and no loss has been occasioned to the plaintiff by
the said judgment and the defendant of this suit refused to receive the
summon of Money Suit No.01 of 1998 and he also refused to receive the
notice of Execution Case No.02 of 1999 and never appeared in the Money
Suit and the trial court decided the issue Nos.(iv), (vi) and (vii) against the
plaintiff.
8. Thereafter, the trial court took up issue No.(iii) and came to the
conclusion that the defendant sent the advocate's notice and the plaintiff
did not reply to the same and decided the issue against the plaintiff.
9. The trial court then took up issue No.(v) and came to the conclusion
that the plaintiff failed to establish the same and decided the issue No.(v)
against the plaintiff.
10. Thereafter, the trial court took up issue Nos.(i) and (ii) together and
came to the conclusion that the suit is not maintainable and there is no
cause of action for the suit.
11. Lastly, the trial court took up issue Nos.(viii) and(ix) and basing
upon its finding in respect of issue Nos.(i) to (vii) came to the conclusion
that the plaintiff is not entitled to get any relief and dismissed the suit.
12. Being aggrieved by the judgment and decree passed by the Munsif,
Garhwa in Title Suit No.03 of 2001 dated 29.04.2006, the plaintiff filed
Title Appeal No.13 of 2006 in the court of learned District Judge, Garhwa
which was ultimately heard and disposed of by the learned 1 st Additional
District Judge, Garhwa by the impugned judgment and decree.
13. The learned First Appellate Court framed the following two points
for determination:-
(i) Whether any Panchayati was held for settlement of dispute between the
parties and in Panchayati it was decided that plaintiff/appellant would pay a
sum of Rs.15,000/- only to defendant/respondent and dispute between them
would be finally settled?
(ii) Whether defendant/respondent had placed all facts in this regard before the
court in Money suit no.1/98 and no fraud was played?
S.A.No.148 of 2007
14. The learned First Appellate Court first took up the point for
determination No.(i) and after considering the fact that all the witnesses of
the plaintiff admitted the fact regarding the Panchayati which were
proved on behalf of the plaintiff being Ext. 1 to 2/c and the witnesses of
the defendant have not stated anything about the same and the defendant
himself in his cross-examination has stated that he did not remember
whether any Panchayati was held and he was present in the Panchayati
and in that Panchayati it was decided that for the dispute between the
parties, a sum of Rs.15,000/- will be paid by the plaintiff to end the
dispute and basing upon these portion of the testimony of the defendant
in his cross-examination as a witness in the suit, the learned First
Appellate Court considered that the defendant has concealed the fact in
this regard from the court in Money Suit No.01 of 1998. The learned First
Appellate Court also considered that from the document marked as Ext. 1
to 2/c, it appears that the defendant has signed the said Ext. 1 and 2 and
Ext. 2 is the award of the Panches and a document along with the Ext. 2
was also filed which shows that both the parties consented to the Panches.
Ext. 1 is the document which was prepared later on, on the date fixed for
payment of money to the defendant and the defendant endorsed on it
regarding the receipt of the money regarding the award of the Panches
and went on to observe that the Ext.1 shows that the defendant accepted
the award of the Panches on 05.10.1998 but later on because of dishonesty,
again claimed the rest amount and decided the point for determination
No.(i) in favour of the appellant.
15. Regarding the point for determination No.(ii), the learned First
Appellate Court considered that as the defendant who was the plaintiff in
Money Suit No.01 of 1998, has not pleaded anything to suggest that he
had also signed other documents which were prepared in the name of
Panchayati being the Ext.1 and 2 of this suit and that the defendant has
put his signature at three places in respect of the Panchayati and the
subsequent event thereof. The learned First Appellate Court also observed
that from the signatures of the defendant on Ext. 1 and 2, it does not
appear that they were taken forcibly. The learned First Appellate Court
also considered that the defendant has concealed the fact in Money Suit
S.A.No.148 of 2007
No.01 of 1998 and held that had the fact being placed before the court
being the court of Munsif, Garhwa, the learned court of Munsif, Garhwa
would not have decreed the Money Suit No.01 of 1998. Hence, the First
Appellate Court came to the conclusion that the defendant has not placed
all the facts before the Munsif, Garhwa in Money Suit No.01 of 1998 and
thus, has played fraud upon it. The learned First Appellate Court in view
of its findings in respect of the second point for determination, allowed
the appeal and set aside the judgment and decree passed by the Munsif,
Garhwa in Title Suit No.03 of 2001 and declared that the judgment in
Money Suit No.01 of 1998 of the court of Munsif, Garhwa has been
obtained by fraud and accordingly set aside the judgment and decree
passed by the Munsif, Garhwa in Money Suit No.01 of 1998.
16. At the time of admission of this appeal, the following points for
determination were formulated vide order No.5 dated 05.05.2009:-
(1) Whether the court of appeal below has committed error of law in reversing
judgment passed by the trial court?
(2) Whether the finding recorded by the trial court is perverse in law in as
much as it is contrary to the evidence available on record?
17. Mr. Mukesh Kumar- learned counsel for the appellant submits that
the learned First Appellate Court failed to consider the evidence in the
record in its proper perspective and committed an error of law in
reversing the judgment by the trial court by passing the impugned
judgment against the weight of the evidence in the record. Hence, the
same be set aside and the judgment and decree passed by the Munsif,
Garhwa in Title Suit No.03 of 2001 dated 29.04.2006 be restored.
18. Mr. Sanjay Kumar Tiwari- learned counsel for the respondent on
the other hand defends the impugned judgment and decree passed by the
learned First Appellate Court and relies upon the judgment of Hon'ble
Supreme Court of India in the case of Bhanu Kumar Jain v. Archana
Kumar & Another reported in (2005) 1 SCC 787 paragraph-26 of which
reads as under:-
"26. When an ex parte decree is passed, the defendant (apart from
filing a review petition and a suit for setting aside the ex parte decree on the
ground of fraud) has two clear options, one, to file an appeal and another to
file an application for setting aside the order in terms of Order 9 Rule 13 of
the Code. He can take recourse to both the proceedings simultaneously but
in the event the appeal is dismissed as a result whereof the ex parte decree
S.A.No.148 of 2007
passed by the trial court merges with the order passed by the appellate court,
having regard to Explanation appended to Order 9 Rule 13 of the Code a
petition under Order 9 Rule 13 would not be maintainable. However,
Explanation I appended to the said provision does not suggest that the
converse is also true."
and submits that where a suit is decreed ex-parte as was the case of
the ex-parte decree passed against the plaintiff who was the defendant in
Money Suit No.01 of 1998, then the aggrieved party can file a review
petition or a suit for setting aside the ex-parte decree on the ground of
fraud besides two other options being either filing an application under
Order IX Rule 13 of the Code of Civil Procedure or to file an appeal and in
this case as the ex-parte order was obtained by the defendant in Money
Suit No.01 of 1998 by practicing fraud, hence, the plaintiff of the suit had
exercised the option of filing an appeal for setting aside the decree on the
ground of fraud, hence, the suit of the plaintiff is maintainable.
19. Mr. Tiwari next relies upon the judgment of Hon'ble Supreme
Court of India in the case of S.P. Chengalvaraya Naidu (Dead) by LRs. v.
Jagannath (Dead) by LRs. & Others reported in (1994) 1 SCC 1
paragraphs-5 and 6 of which read as under:-
"5. The High Court, in our view, fell into patent error. The short
question before the High Court was whether in the facts and circumstances
of this case, Jagannath obtained the preliminary decree by playing fraud on
the court. The High Court, however, went haywire and made observations
which are wholly perverse. We do not agree with the High Court that "there
is no legal duty cast upon the plaintiff to come to court with a true case and
prove it by true evidence". The principle of "finality of litigation" cannot be
pressed to the extent of such an absurdity that it becomes an engine of fraud
in the hands of dishonest litigants. The courts of law are meant for
imparting justice between the parties. One who comes to the court, must
come with clean hands. We are constrained to say that more often than not,
process of the court is being abused. Property-grabbers, tax-evaders, bank-
loan-dodgers and other unscrupulous persons from all walks of life find the
court-process a convenient lever to retain the illegal gains indefinitely. We
have no hesitation to say that a person, who's case is based on falsehood, has
no right to approach the court. He can be summarily thrown out at any
stage of the litigation.
6. The facts of the present case leave no manner of doubt that
Jagannath obtained the preliminary decree by playing fraud on the court. A
fraud is an act of deliberate deception with the design of securing something
by taking unfair advantage of another. It is a deception in order to gain by
another's loss. It is a cheating intended to get an advantage. Jagannath was
working as a clerk with Chunilal Sowcar. He purchased the property in the
court auction on behalf of Chunilal Sowcar. He had, on his own volition,
executed the registered release deed (Ex. B-15) in favour of Chunilal Sowcar
S.A.No.148 of 2007
regarding the property in dispute. He knew that the appellants had paid the
total decretal amount to his master Chunilal Sowcar. Without disclosing all
these facts, he filed the suit for the partition of the property on the ground
that he had purchased the property on his own behalf and not on behalf of
Chunilal Sowcar. Non-production and even non-mentioning of the release
deed at the trial is tantamount to playing fraud on the court. We do not
agree with the observations of the High Court that the appellants-defendants
could have easily produced the certified registered copy of Ex. B-15 and non-
suited the plaintiff. 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." (Emphasis supplied)
20. Mr. Tiwari next submits that non-disclosure of relevant facts and
material documents with a view to obtain advantages amounts to fraud
on court as 'fraud' is an act of deliberate deception with the design of
securing something by taking unfair advantage of another. It is a
deception in order to gain by another's loss. It is a cheating intended to get
an advantage. Hence, a litigant, who approaches the court, is bound to
produce all the documents executed by him which are relevant to the
litigation and 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. Hence, it is submitted that there being no
dispute regarding the signature of defendant at three places in Ext.1 and 2
and the defendant of this suit was the plaintiff of Money Suit No.01 of
1998 has not disclosed about the documents being the Ext.1 and 2
executed by him in the plaint of Money Suit No.01 of 1998, the same
amounts to committing fraud upon the court. Hence, the learned court
below having rightly appreciated the evidence in right perspective, the
finding of facts of the learned First Appellate Court being the final court
of facts ought not be interfered with and both the substantial questions of
law be answered in the negative and this appeal, being without any merit,
be dismissed.
21. Having heard the submissions made at the Bar and after going
through the materials in the record, it is crystal clear that the defendant
has not disputed his signature on Ext. 1 and 2. The defendant did not dare
to dispute the Panchayati which took place between the plaintiff of this
suit and him on 13.09.1998 and subsequent thereto he having received the
S.A.No.148 of 2007
payment of Rs.15,000/- in full and final settlement between the plaintiff
and him on 15.10.1998 and in order to avoid this admission of the truth
which goes against him, he has resorted to the tactics of loss of memory
by saying that he did not remember whether there was a Panchayati and
the details thereof as pleaded and proved by the plaintiff of this suit by
cogent evidence. Under such circumstances, the finding of facts by the
learned First Appellate Court that the defendant of this suit who was the
plaintiff of Money Suit No.01 of 1998 deliberately suppressed the
documents executed by him being the Ext. 1 and 2 which are definitely
relevant to the litigation between the parties in Money Suit No.01 of 1998
in the court of Munsif, Garhwa amounts to fraud. Hence, this Court finds
that no error has been committed by the learned First Appellate Court in
reversing the judgment passed by the trial court. Accordingly, the first
substantial question of law is answered in the negative.
22. Since, the learned First Appellate Court, for cogent reasons, has
appreciated the evidence in its right perspective, this Court do not find
any perversity involved in the impugned judgment passed by the learned
First Appellate Court. Hence, this Court is of the considered view that the
finding recorded by the learned First Appellate Court cannot be termed as
perverse nor the same is contrary to the evidence in the record.
23. So far as the second substantial question of law as to whether the
finding recorded by the trial court is perverse in law is concerned, the
learned First Appellate Court being the final court of facts, is vested under
the obligation to apply its independent mind to the facts and law in the
dispute. So, the perversity of the judgment of the trial court is certainly a
sine qua non for exercise of jurisdiction under Order XLI Rule 31 of the
Code of Civil Procedure by a First Appellate Court. What a First
Appellate Court while rendering a judgment of reversal is required to do
is that it must notice and critically examine the evidence to justify its
judgment being contrary to that of the trial court and it should contain the
reason for a decision to be arrived at independently of the trial court's
judgment.
24. The Hon'ble Supreme Court of India in the case of Narbada Prasad
vs. Chhaganlal and others reported in AIR 1969 SC 395 has enunciated
S.A.No.148 of 2007
the law regarding the powers of the First Appellate Court that the appeal
is open both the action law, by observing as under in paragraphs-10:-
"10. Whether we should believe the witnesses or not involves how
far we should enter into facts. No doubt, an appeal before this Court under
is an appeal as of right and is open both on facts and law; still the practice of
the Courts has uniformly been to give the greatest assurance to the
assessment of evidence made by the Judge who hears the witnesses an
watches their demeanour and judges of their credibility in the first instance.
In an appeal the burden is on the appellant to prove how the judgment
under appeal is wrong. To establish this he must do something more than
merely ask for a re-assessment of the evidence. He must show wherein the
assessment has gone wrong. Where the court of first instance relies upon
probabilities alone, the appellate court may be in as good position as the
court of trial in judging of the probabilities; but where the court of trial
relies upon its own sense of the credibility of a witness the appellate court is
certainly at a disadvantage, because it has not before it the witness but the
dead record of the deposition as recorded. If it was a question only of the
probabilities of the case, we would have undoubtedly gone into the matter
more closely. The matter has however been put before us strictly on the
ground of credibility of the witnesses and it is there we feel that the appellate
court is at a disadvantage, This has been laid down both by this Court and
the Privy Council in cases which are quite familiar and need not be quoted.
25. Now, coming to the facts of the case, the learned First Appellate
Court has enumerated the reasons for reversing the judgment of the trial
court by observing that the trial court failed to consider the fact that
undisputedly the signature of the defendant appearing in the Ext. 1 and 2
and in his cross-examination, the defendant resorted to the tactics of loss
of memory denying the suggestion of the plaintiff and thereby avoiding to
tell a falsehood on oath by saying that he does not remember about the
Panchayati and the subsequent events in respect of which the Ext. 1 and 2
were prepared. Similarly, the learned First Appellate Court has also
considered the justification for reversing the judgment of the trial court on
the ground that the trial court erroneously disbelieved the fact that any
Panchayati was held on the ground that the Panches have not stated in
their evidence before the trial court as to how it came to the finding that
the plaintiff has to pay Rs.15,000/- in full and final settlement of the dues
of the defendant by ignoring the fact that the P.W.1 to P.W.4 have
categorically stated that as neither the plaintiff nor the defendant could
exactly state about the amount which has been paid by the plaintiff to the
defendant. Under such circumstances, the Panches decided the amount
S.A.No.148 of 2007
between the parties to be Rs.15,000/-due and payable by the plaintiff to
the defendant in full and final settlement of the dispute between them.
The trial court also failed to consider that from the evidence of the D.W.3
it appears that there was early monetary transactions between the plaintiff
and the defendant and without considering his relevant evidences, the
trial court has arrived at a wrong conclusion. Under such circumstances,
this Court is also of the considered view that the learned First Appellate
Court has succeeded in discharging the onus to show that the judgment of
the trial court was wrong. The second substantial question of law is
answered accordingly.
26. In view of the discussions made above, this Court is of the
considered view that there is no merit in this appeal. Accordingly, this
appeal is dismissed but under the circumstances without any costs.
27. Let a copy of this judgment along with the lower court records be
sent back to the courts below forthwith.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 26th of September, 2022
AFR/ Animesh
