HIRE KUNWAR Vs. DILKHUSHLAL

JUDGEMENT

(1.) -

(2.) THE respondent Dilkhushlal filed a suit for recovery of Rs. 8537 against Onkarasingh, father of the plaintiffs in the present case, Shivesingh & Balpat Singh on the basis of 'rukka' dated 7. 8. 1954 That suit was registered as Civil Suit No. 73 of 1951 in the court of Additional Civil Judge, Udaipur. Onkarsingh filed his written statement on 6. 5. 57 and resisted the plaintiff's suit on a number of grounds. A copy of this written statement has been placed on record, and marked Ex. 2. He denied the execution of the 'rukka' and in the alternative pleaded that Dilkhushlal who had been his Kamdar some time back may have obtained his signature on the 'rukka' by fraud. He pleaded that in any case the 'rukka' was without consideration. He also pleaded the bar of limitation as well as challenged the maintainability of the suit on the basis of the 'rukka' on the ground that the 'rukka' amounted to only an acknowledgement which could not be made the basis of the suit. Learned Additional Civil Judge framed issues on the points of dispute raised by the parties in their pleadings THE case was fixed for the plaintiff's evidence on 18. 4. 1958 on which date Onkarsingh's another son Jalam Singh to whom the general power of attorney had been given by Onkarsingh contacted Shri Inderlal Govil, counsel for Onkarsingh in that case and told the latter that he may cease pleadings for Onkarsingh and allow a decree to be passed against him. Shri Govil, however, did not agree. On the next date in the case, that is, 22-4 1958 Jalam Singh made application in the Court withdrawing the authority of Shri Govil and his associate Shri Pande to act and plead on behalf of Onkar Singh. A copy of this application has been placed on the record and marked Ex. 5. Shri Govil also filed an application on the same day explaining the situation in which he was placed and sought the guidance of the court whether he should continue to appear for Onkarsingh or should withdraw from the case. A copy of Shri Govil's application has also been placed on the record, and marked Ex. 4. THE learned Additional Civil Judge, however, refused to pass any order on the application of Shri Govil and merely placed the application on the file. THE general power of attorney duly registered in favour of Jalamsingh by Onkarsingh was also produced by Jalamsingh and ordered to be placed on the record. THEreafter the plaintiff examined himself as his witness and then closed his evidence. Jalamsingh then appeared in evidence on behalf of the defendant. He admitted the plaintiff's claim and stated that the suit amount was due from the defendant. Having examined himself, Jalamsingh as general power of attorney holder of the defendant, closed the defendant's evidence. In view of the admission of the plaintiff's claim by Jalam Singh the suit of Dilkhushlal was decreed as prayed, by the learned Additional Civil Judge the same day, that is, 22. 4. 1958.

(3.) COLLUSION has not been defined anywhere but it is now well established that collusion is a deceitful agreement or contract between two or more persons to do some act in order to prejudice a third person or for some improper purpose. It is undoubtedly a secret arrangement for which it is indeed difficult to get direct evidence. The charge of collusion, though easy to make, it is difficult to substantiate it. It is conceded that there is no direct evidence to prove collusion between Dilkhushlal and Jalamsingh. What then are those circumstances which taken together may lead to the conclusion that there was collusion between Dilkhushlal and Jalamsingh for obtaining the impugned decree by improper means? Learned counsel submitted that Dilkhushlal did not examine his evidence in full because there had been a pre-concert between him and Jalamsingh that his claim would be admitted. It is also pointed out that Dilkhushlal had deposed in his statement that Onkarsingh wanted to pay the suit money but had raised contest in the written statement out of sheer fun I am, however, unable to accede to this contention. The defence raised by Onkarsingh regarding the execution of the suit document was rather shaky and Dilkhushlal must have come to know on 22. 4. 1958 by the application moved by Jalamsingh and Shri Govil that the defendant was not going to put up any serious defence in the course of his evidence, and, therefore, he might have thought it fit to close his evidence after examining himself. On a careful consideration of the statement of Dilkhushlal as well as of the circumstances narrated by the learned counsel as detailed above, I find it difficult to hold that there was any agreement between Dilkhushlal and Jalamsingh to manage to obtain a decree to the prejudice of the plaintiffs and to harm their interests. At this juncture I also cannot help observing that the plaintiffs have taken rather inconsistent pleas in the plaint which go to show that they were not clear about their stand. At one place, they threw the blame for the decree on Onkarsingh himself on the ground that he was out to harm the plaintiffs on account of his strained relations with them. In the same breath they have shifted the blame altogether on the head of Jalamsingh by alleging that Onkarsingh was mentally unsound and Jalamsingh played fraud by taking undue advantage of Onkarsingh's illness both physical and mental and it is only the third fact of the plaintiffs' case, namely, that fraud was perpetrated on the Court by Jalamsingh in collusion with Dilkhushlal. I have reproduced these three inconsistent pleas taken by the plaintiffs in the plaint only to illustrate that the plaintiffs themselves were not sure of the grounds on which they wanted to avoid the decree when they filed the suit. That, however, does not stand in their way, and if they had succeeded in substantiating the plea of fraud and/or collusion they have been entitled to get the relief. But in my opinion they have failed in their attempt to do so.