AJIT MEHROTRA Vs. SHYAM NARAIN MEHROTRA

JUDGEMENT

(1.) Heard Smt. Sunita Agarwal, learned Counsel appearing for the petitioner and Sri Ravi Kant, Senior Advocate, assisted by Sri Abdul Shahid, advocate, appearing for the respondent No. 3, Sri Saurabh Srivastava, advocate filed caveat on behalf of respondent No, 6 ; Anup Mehrotra, assists Sri Shashi Nandan senior advocate, and Sri Ripu Daman Singh, advocate appearing on behalf of the respondent No. 3 Gopalji Mehrotra.

(2.) This writ petition has been filed challenging the judgment and order dated 21,9.2005 passed by the I/C District Judge/Special Judge (S.C./S.T. Act) Kanpur Nagar in Civil Revision No. 577/74 of 2005, Ajit Mehrotra v. Shyam Narain Mehrotra and Ors. and order dated 30.7.2005, passed by the Civil Judge (Senior Division] Kanpur Nagar in Misc. Case No. 128/74 of 2004. By virtue of the impugned orders, an application on behalf of the petitioner under Order XXIII, Rule 3 read with Section 151, C.P.C. has been rejected. Facts giving rise to the dispute as detailed in the writ petition is that H.U.F. known as Kalloo Tapeshwari Prasad originated from common ancestor Sri Phakki Lal. Late Jagat Narain Mehrotra father of the petitioner and respondent Nos. 3 and 4 are first cousin. Respondent No. 1 Shyam Narain Mehrotra s/o late Chandu Lal is uncle of the petitioner who is said to be karta of H.U.F. The H.U.F. had movable and immovable properties, which have been detailed in paragraph No. 11 of the application filed under Order XXIII, Rule 3, C.P.C. The said application has been annexed as Annexure-6 to the writ petition. An Original Suit No. 297 of 2000, Ajit Mehrotra v. Shyam Narain Mehrotra and Ors., was instituted for declaration of shares of respective members of H.U.F., which culminated in a compromise dated 22.5.2000. Subsequently, an application under Order XXIII, Rule 3 read with Section 151, C.P.C. was filed on the ground that compromise was obtained by misrepresentation, concealment and undue influence exerted upon the petitioner and also by committing fraud. This application was numbered as Misc. Case No. 128/74 of 2004. Submission on behalf of the petitioner is that defendant/respondents are closely related to him and, therefore, he had full trust and faith in his family members and accepted their word as gospel truth and also did not doubt their sincerity and was oblivious of the fact that he was being deprived of his claim. It is further stated that the petitioner being coparcener had never prevailed over the decision taken by other family members of H.U.F. The petitioner had shifted and was living since 1990 at Agra and was settled there. He was informed by his family members regarding certain dispute between members of the family/H.U.F. and, therefore suit was instituted. On the basis of assertion given by the respondents, he was under a bona fide impression that respondent will be fair and just and shall not try to take any undue advantage, to the detriment of the petitioner. It is further stated that he came to know about loss caused to him on account of compromise only when certain objections were raised by the Income-tax Officer at the time when returns were submitted. On 31.3.2004, the petitioner appeared before the Income-tax Officer when he was informed that property was not appropriately valued and from that point of time he started making necessary inquiries and it came to his knowledge that defendant/respondents have misused their position and got the compromise signed by the petitioner to his disadvantage. Emphasis on behalf of the petitioner is that perusal of the order sheet of original suit clearly shows that the sequence of the events are such, which makes it all the more obvious that proceeding in the suit was concluded in hot haste even before summons were received by the contesting defendants. The compromise was filed and in a preplanned manner got the suit decided in terms of compromise. The defendant/respondents raised preliminary objection regarding maintainability of the application. This was objected on behalf of the petitioner that before deciding the question of maintainability, certain document is essential to bring on record and also an application for interim injunction must be decided. It has emphatically been argued on behalf of the petitioner that the courts below should have permitted him to lead evidence and also decide the question of interim injunction, before proceeding to decide the question of maintainability. An application was moved for summoning the record from Income-tax Department and also for Advocate Commissioner to go on the spot and submit a report. All these applications were objected on behalf of the defendant/respondents. Perusal of the judgment and order of Civil Judge shows that several opportunities were given to the petitioner to advance his argument on the question of maintainability of the application but the petitioner continuously harped on the old tune that without opportunity to lead evidence, no argument can be advanced on question of maintainability of the application. The learned Civil Judge rejected the application vide judgment and order dated 30.7.2005. Against which a Civil Revision No. 577/74 of 2005 was filed in the court of District Judge, Kanpur Nagar and the same was dismissed with cost on 21.9.2005.

(3.) I have perused the impugned Judgment and orders. Admitted position is that the petitioner is a Chartered Accountant and he was adult at the time when compromise was entered into between the parties. The compromise was examined, which was signed by the petitioner. The Court has recorded a finding that since the petitioner had taken certain loans from U.P. Financial Corporation and had to pay back loan money, therefore, he had expressed his desire that he may be given cash in lieu of the property, which was in occupation of tenant since a very long time. The petitioner tried to overcome this objection by saying that he was not aware about exact area of land of property in question. It was specifically stated before the Civil Judge by the respondents that subsequent to compromise, they got the tenanted accommodation vacated and developed the property and at present valuation of the property, received by the defendants after compromise had increased manifolds. The instant application under Order XXIII, Rule 3, C.P.C. was moved with an ulterior motive only after the valuation of the property received by respondents has considerably increased. While rejecting the application, the Civil Judge has observed that map of the property was annexed along with compromise decree, statements of the respective parties were recorded and each of them including the petitioner had signed on the said compromise. The petitioner was fully competent to take a decision after weighing pros and cons of compromise and, therefore, he cannot take a somersault at a later date. The Court has also held that the application was moved at a very belated stage, therefore, declined to condone the delay and refused to accept claim of the petitioner that date of knowledge to be 31.3.2004, i.e., after three years of the actual compromise. Smt. Sunita Agrawal, learned Counsel appearing for the petitioner has emphasized and tried to persuade this Court that undue influence was exercised by the defendants and there was misrepresentation, undue influence and concealment, which led the petitioner to agree to the compromise. Emphasis is on Sections 16, 17 and 18 of Indian Contract Act, which defines undue influence, fraud and misrepresentation. Since the courts below have refused to give any opportunity to lead evidence to establish undue influence, the orders have been challenged. The decision relied upon by counsel for the petitioner is Ladli Prashad Jaiswal v. Karnal Distillery Company Ltd., Karnal and Ors. AIR1963 SC 1279, [1963]33 CompCas593 (SC), [1964]1 SCR270, where plea of undue influence has been adjudicated. Submission is that on the basis of aforesaid decision, there is presumption under the Law that elder brother or karta of H.U.F. is a person of high respect, whose word has a decisive value, therefore, he is in a position of dominance to his own advantage and it is at that point of time, law of undue influence intervenes. Section 16(2) of Contract Act lays down special presumption. For ready reference paragraph No. 26 of the said decision is quoted below : 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 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-section (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-section (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.