# Sahab Deen v. Keshav Prasasd & Ors

- **Citation:** Second Appeal No. 187 of 2017
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-06
- **Case number:** Second Appeal No. 187 of 2017
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sahab-deen-v-keshav-prasasd-ors-46338
- **Pages:** 10

## Headnote

A. Civil Law-Civil Procedure Code - Order
XIV, Rule 1(1) and 1(6) - Framing of Issue -
Need
- Issues arise when a material
proposition of fact or law is affirmed by the
one party and denied by the other party and
in case the defendant makes no defence the
court need not frame and record issues - Suit
may be decided without framing issues, if the
case comes under exception, but it cannot be
decided without considering the evidence.
(Para 15 and 16)
B. Civil Law-Civil Procedure Code -
Order VIII, Rule 10 - Written Statement -
Failure to file within time - Court's proceeding
- Need of consideration of Evidence - Where
any party from whom a written statement is
required under Rule 1 or Rule 9 fails to
present the same within the time permitted or
fixed by the Court, as the case may be, the
Court shall pronounce judgment against him -
If the trial court was of the view that the
judgment could not be pronounced and exparte evidence was filed, then it should have
considered the evidence adduced before it for
making such order in relation to the suit as it
thinks fit. (Para 20 and 22)
C. Contract Law- Indian Contract Act,
1872 - Section 13, 14, 16 and 19 - Free
Consent - Undue Influence - Effect on
validity of contract - A contract, made by
undue influence without free consent and
consideration, is voidable at the option of the
party whose consent was so caused. (Para
27)
Appeal allowed (E-1)
Cases relied on :-

## Text

3-5 All. Sahab Deen Vs. Keshav Prasad & Ors.
1415
absolute perversity, it would not be
appropriate for the High Courts to interfere
in a question of fact just because two views
are possible; in such circumstances the
High Courts should restrain itself from
exercising the jurisdiction on a question of
fact.

83. On the basis of exposition of law
propounded by the Apex Court, the
exposition of law relied upon by learned
counsel for appellant does not extend any
benefit to the appellant and these are not
applicable to the facts and circumstances of
this case.

84. The impugned judgment and order
dated 26.3.2010 cannot be termed as
perverse or against the evidence available
on record.

85. On the basis of above discussions,
present
second
appeal
lacks
merits,
impugned judgment and order dated
26.3.2010 is liable to be upheld and it is
upheld.

86. A copy of judgment along with
record of first appellate court as well as
trial court be transmitted to the trial court
for
information
and
further
action/compliance.
----------
(2020)03-05ILR A1415
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.03.2020

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Second Appeal No. 187 of 2017

Sahab Deen ...Appellant
Versus
Keshav Prasasd & Ors. ...Respondents

Counsel for the Appellant:
Angrej Nath Shukla

Counsel for the Respondent:
Mohammad Aslam Khan, Ram Dev Tiwari

A. Civil Law-Civil Procedure Code - Order
XIV, Rule 1(1) and 1(6) - Framing of Issue -
Need
- Issues arise when a material
proposition of fact or law is affirmed by the
one party and denied by the other party and
in case the defendant makes no defence the
court need not frame and record issues - Suit
may be decided without framing issues, if the
case comes under exception, but it cannot be
decided without considering the evidence.
(Para 15 and 16)
B. Civil Law-Civil Procedure Code -
Order VIII, Rule 10 - Written Statement -
Failure to file within time - Court's proceeding
- Need of consideration of Evidence - Where
any party from whom a written statement is
required under Rule 1 or Rule 9 fails to
present the same within the time permitted or
fixed by the Court, as the case may be, the
Court shall pronounce judgment against him -
If the trial court was of the view that the
judgment could not be pronounced and exparte evidence was filed, then it should have
considered the evidence adduced before it for
making such order in relation to the suit as it
thinks fit. (Para 20 and 22)
C. Contract Law- Indian Contract Act,
1872 - Section 13, 14, 16 and 19 - Free
Consent - Undue Influence - Effect on
validity of contract - A contract, made by
undue influence without free consent and
consideration, is voidable at the option of the
party whose consent was so caused. (Para
27)
Appeal allowed (E-1)
Cases relied on :-
1. Sham Lal (Dead) By Lrs. Vs. Atme Nand Jain
Sabha (Regd.) Dal Bazar; (1987) 1 SCC 222
1416 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Alka Gupta Vs. Narendra Kumar Gupta;
(2010) 10 SCC 14
3. Balraj Taneja & anr. Vs. Sunil Madan & anr.,
(1999) 8 SCC 396
4. ShantiLal Gulabchand Mutha Vs. Tata
Engineering and Locomotive Company Ltd. &
anr., (2013) 4 SCC 396
5. Alka Gupta Vs. Narender Kumar Gupta,
(2010) 10 SCC 141
6. Ishwar Dass Jain (Dead) Through LR's Vs.
Sohan Lal (Dead) By LR's; (2000) 1 SCC 434
7. Thulasidhara & anr. Vs. Narayanappa & ors.,
(2019) 6 SCC 409
8. T. Ramalingeswara Rao (Dead) Vs. N.
Madhava Rao; 2019 (37) LCD 1664
9. St. of U.P. & ors. Vs. Ashok Kumar and
Others; 2014 SCC Online All 12789
10. Arjan Singh Vs. Punit Ahluwalia & ors.,
(2008) 8 SCC 348

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard, Shri Angrej Nath Shukla,
learned counsel for the appellant and Shri
Mohammad Arif khan, learned Senior
Advocate assisted by Shri Ram Dev Tiwari,
learned counsel for the respondents.

2. This second appeal has been filed
for setting aside the judgment and decree
dated 27.01.2017 passed in Regular Civil
Appeal No.27 of 2014 by the learned
Additional District Judge / Special Judge
(A.P.) CBI, Lucknow as well as the
judgment and decree dated 18.10.2002
passed in Regular Suit No.64 of 1999
(Sahab Deen Vs. Keshav Prasad and
Others) by the learned Civil Judge, (J.D),
Hawali, Lucknow

3. The brief facts of the case are that
the land in question i.e. gata no.216 having
an area of 9 Bigha, 12 Biswa, 9 Biswansi
situated in Village- Bhaisora, Pargana,
Tehsil
and
District-
Lucknow
was
purchased by the appellant / plaintiff from
his father-in-law on 21.02.1998. Thereafter
he instituted a case for mutation before the
Tehsil.
His
father-in-law,
under
the
influence
of
his
other
son-in-laws,
demanded additional money. When the
appellant / plaintiff showed his inability to
pay the additional money, the brother-inlaws of the appellant / plaintiff i.e. the sonin-laws of his father-in-law namely Ram
Nath, Juggi Lal and Suresh filed a forged
objection putting his thumb impression.
The respondent / defendants no.1 and 2 had
also filed objection in the court of Naib
Tehsildar on the ground that the father-inlaw of the appellant / plaintiff has entered
into an agreement for sale with them. The
appellant / plaintiff has no knowledge
about the alleged agreement. The father-inlaw of the appellant / plaintiff, who is a
member of scheduled tribes, also could not
sell the land in question to the respondent /
defendants no.1 and 2 who are not member
of scheduled tribes under Section 157 (B)
of the Uttar Pradesh Zamindari Abolition
and Land Reforms Act, 1950. The
respondent / defendants no.1 and 2 had also
filed a Regular Suit No.828 of 1998 in the
court of Civil Judge, Junior Division-
Hawali against the father-in-law of the
appellant / plaintiff for cancellation of sale
deed.

4. The appellant / plaintiff had filed a
regular suit no.64 of 1999 for cancellation
of sale deed dated 23.11.1998 executed in
favour of the respondent / defendant no.4
namely Sarju on the ground that the
respondent / defendants had kidnapped the
appellant / plaintiff and Shri Raghunandan
Prasad, the witness of the sale deed on
21.11.1998 and kept them in their custody,
beaten, threatened and asked them to
execute the sale deed and in case of default
3-5 All. Sahab Deen Vs. Keshav Prasad & Ors.
1417
they would be implicated in a false criminal
case. They had taken to the appellant /
plaintiff and Raghunandan Prasad to the
office of the Sub Registrar and got the sale
deed executed while the appellant / plaintiff
and Raghunandan Prasad were under
duress which was registered in the office of
Sub Registrar at Sl. No.4516 part 97/98
PU.73/84 on 23.11.1998. The appellant /
plaintiff and the witness were released by
the defendants after execution of the sale
deed without paying the sale consideration
and threatening of implicating in a false
case in case they tell to anybody. On
coming back he came to know that his wife
had given information of his kidnapping to
the State Authorities and had also gone to
the Police Station- Gosainganj but no
action was taken. On receipt of copy of the
sale deed the appellant / plaintiff came to
know that the purchaser is Sarju S/o Sita
Ram resident of Ahibaranpur. He had also
given application to the higher Police
officers on 26.12.1998 for his safety and
lodging FIR against the accuseds but under
the pressure of the respondent / defendants
the FIR could be lodged on 20.01.2001 at
Police Station- Gomti Nagar.

5. On issuance of the notices, the
respondent / defendants had appeared in the
suit but did not file any written statement
therefore the suit was proceeded ex-parte.
The appellant / plaintiff- Sahab Deen was
examined as PW-1, Chameli W/o Shri
Sahab Deen as PW-2 and Raghunandan
Prasad S/o Ram Deen as PW-3. Thereafter
the
suit
was
decided
ex-parte
on
18.02.2002 and dismissed on the ground
that the incident is of 21.11.1998 and the
First Information Report has been lodged
on 20.01.2001 which does not support the
statements of the plaintiff because the FIR
should have been lodged immediately or
within some period while it has been
lodged after a period of about two years.
The regular civil appeal filed by the
appellant / plaintiff against the judgment
and decree dated 18.02.2002 was also
dismissed by the judgment and decree
dated 27.01.2007. Hence, the present
second appeal has been filed under Section
100 of Civil Procedure code, 1908 (here-inafter referred as C.P.C.) which was
admitted on the following substantial
questions of law:-

"1. Whether the dispute can be
decided without framing the issues in the
case.

4. Whether the judgment can be
passed without framing the issues if the
matter relates to cancellation of sale deed.

5. Whether judgment can be
passed without discussing the evidence and
statement
of
the
witnesses
in
the
proceeding.

a. Whether without framing of
issues, evidence of witnesses can be
ignored in the judgment on the mere
strength of probability of a fact which even
does not constitute a part of cause of
action."

6. An application for impleadment
under order 1 Rule 10 of C.P.C. readwith
Section 151 C.P.C. has also been filed to
implead Managing Director of E Squire
Homes as he has purchased the suit
property during pendency of the suit /
appeal which is bard by Section 52 of the
Transfer of Property Act.

7. Submission of learned counsel for
the appellant was that the appellant /
plaintiff was owner of the land in dispute
which was purchased by him from his
father-in-law through registered sale deed
dated
21.02.1998.
The
respondent
/
defendants had kidnapped the appellant /
1418 INDIAN LAW REPORTS ALLAHABAD SERIES
plaintiff and got the sale deed executed
after beating and threatening and this
evidence was also given by the marginal
witness. A telegram was also sent in regard
to kidnapping of appellant / plaintiff by the
wife of the appellant / plaintiff. The
appellant / plaintiff was released by the
respondent / defendants after threatening
him for implicating in a false criminal case.
After release the appellant / plaintiff had
also informed to the higher Police officer
but under the pressure of the respondent /
defendants the FIR could be lodged in
regard to the occurrence on 28.01.2001.
The appellant / plaintiff had specifically
pleaded about his kidnapping, beating and
threatening and execution of sale deed
under duress and the evidence to this effect
was also adduced before the trial court
during the suit proceedings. The respondent
/ defendants though appeared but did not
file any written statement therefore the suit
proceeded ex-parte and the trial court
without framing issues and considering and
appreciating the evidence adduced before it
dismissed the suit merely on the ground of
delay in lodging the FIR and the appeal has
also been dismissed which could not have
been done by the trial court as well as by
the appellate court without considering and
appreciating the evidence on record and
recording any finding on the basis of the
evidence.

8. It was also submitted that since no
written statement was filed the averments
of the plaint stands admitted therefore the
suit should have been allowed on this
ground alone. The coercion and unlawful
influence under which the sale deed was
got executed without any sale consideration
was proved before the trial court on which
the contract can be set aside under Section
19(A) of the Indian Contract Act but
without considering it the learned trial
court as well as appellate court dismissed
the suit and the appeal respectively, which
is not sustainable in the eyes of law.

9. Per contra, learned counsel for the
respondent / defendants had submitted that
as alleged by the appellant / plaintiff,
plaintiff and the witness were kidnapped on
21.11.1998 and the sale deed was executed
on 23.11.1998 thereafter they were released
forthwith. But no effort was made for
lodging the FIR after the release and highly
belated FIR was lodged on 21.01.2001. He
had also submitted that the kidnapped
witness can not be made witness and
Section 68 of the Indian Evidence Act deals
with proof of wills. He had also submitted
that there is no proof of coercion etc. which
is clear from the demeanor of witnesses of
the plaintiff. Since no written statement
was filed therefore there was no need of
framing issues. The suit was dismissed in
default and it was restored without notice
therefore no written statement could be
filed but the appellant / plaintiff had to
prove his case even if no written statement
was filed. But he failed to do so. The
appeal
was
decided
complying
the
provisions of Order 41 Rule 31. He had
also submitted that there is no documentary
evidence to show coercion and signature of
Sub Registrar on the registered sale deed
itself is a presumption of execution of valid
sale deed under Section 70 of the Indian
Evidence Act. Lastly, it was submitted that
the concurrent findings of the facts can not
be
interfered
by
re-appreciating
the
evidence
and
substituting
findings.
Accordingly, the present second appeal,
being misconceived, is liable to be
dismissed with cost.

10. In regard to the application for
impleadment he had submitted that Sahab
Deen had executed the sale deed on
3-5 All. Sahab Deen Vs. Keshav Prasad & Ors.
1419
23.11.1998 to Sarju i.e. the respondent /
defendant no.4. He had executed the sale
deed to Rajeshwari Mishra on 11.10.2001.
Rajeshwari Mishra executed various sale
deeds; one on 15.12.2004 to Arvind Singh
Sisodiya for an area of 1-10-0, on
18.05.2016 an area of 1.10 in favour of E
Squire Homes but the application for
impleadment has been filed only to implead
the Managing Director of E Squire Homes
who has purchased only a part of the land
therefore the same is liable to be dismissed.

11. I have considered the submissions
of learned counsel for the parties and
perused the record.

12. The land in dispute was purchased
by the appellant / plaintiff from his fatherin-law on 21.02.1998. Thereafter he had
filed a case for mutation before the Tehsil,
in which the objections were filed. It
appears that a suit for cancellation of sale
deed was filed by the respondent /
defendants no.1 and 2 on the ground that
the father-in-law of the appellant / plaintiff
had entered into an agreement for sale with
them but the same was dismissed as
informed.

13. It appears that the appellant /
plaintiff alongwith Raghunandan Prasad
was
kidnapped
on
21.11.1998.
An
information in this regard was sent by his
wife on 22.11.1998. On 23.11.1998 a sale
deed was got executed by the appellant /
plaintiff in favour of the respondent /
defendant no.4 namely Sarju S/o Sita Ram.
The suit was filed alleging therein that the
respondent / defendants have got the sale
deed executed by abducting, beating and
threatening to the appellant / plaintiff
without
paying
any
consideration.
Therefore, after release from the custody of
the respondent / defendants, he had filed
the suit for cancellation of sale deed. The
respondent / defendants appeared in the suit
but they did not file any written statement.
However, it has been argued on their behalf
that since the suit was dismissed in default
and thereafter restored without notice
therefore no written statement could be
filed. Be that as it may, it is not disputed
that no written statement was filed.

14. Order XIV provides settlement of
issues and determination of suit on issues
of law or on issues agreed upon. Rule 1(1)
provides issues arise when a material
proposition of fact or law is affirmed by the
one party and denied by the other. Rule 1
(6) provides that nothing in this rule
requires the court to frame and record
issues where the defendant at the first
hearing of the suit makes no defence. Rule
3 provides that the Court may frame the
issues from all or any of the materials i.e.
allegations made on oath by the parties, or
by any persons present on their behalf, or
made by the pleaders of such parties;
allegations made in the pleadings or in
answers to interrogatories delivered in the
suit and the contents of documents
produced by either parties. The Hon'ble
Apex Court, in the case of Sham Lal
(Dead) By Lrs. Vs. Atme Nand Jain Sabha
(Regd.) Dal Bazar; (1987) 1 SCC 222, has
held that "at the first hearing of the suit"
would be the day when the Court applies its
mind to the case, which may be the date of
settlement of issues or the date for
preliminarily examination of the parties.

15. In view of above, issues arise
when a material proposition of fact or law
is affirmed by the one party and denied by
the other party and in case the defendant
makes no defence the court need not frame
and record issues. In the present case the
respondent / defendants had not filed any
1420 INDIAN LAW REPORTS ALLAHABAD SERIES
written statement therefore there was no
material proposition of fact or law which
were affirmed by the appellant / plaintiff
and denied by the respondent / defendants.
Therefore, this court is of the view that the
decision of the regular suit filed by the
appellant / plaintiff without framing of the
issues, even though it was the case of
cancellation of sale deed, does not suffer
from any error or illegality and the
substantial question of law nos.1 and 4 are
decided accordingly.

16. The Hon'ble Apex Court in the
case of Alka Gupta Vs. Narendra Kumar
Gupta; (2010) 10 SCC 14, has held that a
civil suit has to be decided after framing
issues and trial permitting the parties to
lead evidence on the issues, except in cases
where the Code or any other law makes an
exception or provides any exemption.
Therefore the suit may be decided without
framing issues, if the case comes under
exception, but it can not be decided without
considering the evidence.

17. Adverting to the substantial
question of law nos.5 and (a) this court
finds that the suit for cancellation of sale
deed was proceeded ex-parte. Thereafter
the evidence was adduced by the appellant /
plaintiff. The appellant / plaintiff- Sahab
Deen was examined as PW-1, Chameli his
wife
was
examined
as
PW-2
and
Raghunandan, the marginal witness of the
sale deed in question as PW-3. Copy of the
sale deed and FIR lodged on 20.01.2001 at
Police
Station-
Gosainganj,
District-
Lucknow were filed.

18. The witnesses examined on behalf
of the appellant / plaintiff have stated in
evidence about kidnapping of the appellant
/ plaintiff, about the purchase of the land in
dispute on 23.02.1998 by the appellant /
plaintiff from his father-in-law, filing of the
case for mutation, objection by the brotherin-laws by putting forged signatures of the
seller, filing of regular suit no.828 of 1998
by the respondent / defendants no.1 and 2
for cancellation of sale deed in favour of
the appellant / plaintiff, kidnapping of the
appellant / plaintiff and Raghunandan
Prasad; the marginal witness, sending
information by the wife of the appellant /
plaintiff to the Senior Superintendent of
Police in regard to the kidnapping of the
appellant / plaintiff, execution of sale deed
under duress and information to the higher
officers. The wife of the appellant /
plaintiff has also given statement in regard
to the kidnapping of the appellant / plaintiff
by the respondent / defendants and about
giving information to the Superintendent of
Police by telegram at Police Station- Gomti
Nagar. The marginal witness of the sale
deed in question has also supported the
evidence of the appellant / plaintiff and
stated
that
he
was
also
kidnapped
alongwith the appellant / plaintiff and kept
near Police Station- Gomti Nagar in a shop
of Patra-Balli where the appellant / plaintiff
was beaten and he was also threatened for
doing what is being said failing which they
will be thrown on railway line. It was also
told to them that S.H.O., Police Station-
Gosainganj is their friend and they may be
implicated in NDPS case. They were taken
to the Sub Registrar's Office where the
thumb impression was got put by the
appellant / plaintiff and signatures by the
witness. No question was asked from them.
They had also not seen the purchaser Sarju
and no money was given to the appellant /
plaintiff. After execution of the sale deed
they were taken to the Khurdahi by a
Maruti and released there after threatening.
Thereafter their wives alongwith the others
went to the Police Station. On being
informed they also went to the Police
3-5 All. Sahab Deen Vs. Keshav Prasad & Ors.
1421
Station where the Deewan, Ram Vriksha
Yadav asked to send them jail under NDPS
and on being assured that they would not
take any action they were released.
Subsequently, the appellant / plaintiff had
given application to the higher officers in
which the Circle Officer- Mohanlalganj had
recorded his statement. He had also stated
that his statement has not been recorded in
any mutation proceeding on the basis of
sale deed.

19. In view of above, the witnesses
examined on behalf of appellant / plaintiff
have given evidence in support of the
pleadings of the appellant / plaintiff. But
without considering and recording any
finding in regard to the evidence adduced
before the trial court, the trial court
dismissed the suit merely on the ground
that the FIR has been lodged after about
two years from which the statement of the
appellant / plaintiff does not get strength
and the plaintiff has failed to prove his case
that as to whether the thumb impression
was put by him from his free will or against
his will.

20. Admittedly, no written statement
was filed by the respondent / defendants.
Order VIII, Rule 10 of the C.P.C. provides
that where any party from whom a written
statement is required under rule 1 or rule 9
fails to present the same within the time
permitted or fixed by the Court, as the case
may be, the Court shall pronounce
judgment against him, or make such order
in relation to the suit as it thinks fit and on
the pronouncement of such judgment a
decree shall be drawn up. Therefore in case
no written statement has been filed the
court shall pronounce judgment against the
party who has failed to file the written
statement or may make such order in
relation to the suit as it thinks fit.

21. Balraj Taneja and Another
Vs. Sunil Madan and Another; (1999) 8
SCC 396, in which the Hon'ble Apex Court
has held that there are two separate and
distinct provisions under which the Court
can pronounce judgment on the failure of
the defendant to file Written Statement.
The failure may be either under Order 8
Rule 5(2) under which the Court may either
pronounce judgment on the basis of the
facts set out in the plaint or require the
plaintiff to prove any such fact; or the
failure may be under Order 8 Rule 10
C.P.C. under which the Court is required to
pronounce judgment against the defendant
or to pass such order in relation to the suit
as it thinks fit. It has also held that if the
plaint itself indicates that there are disputed
questions of fact involved in the case
regarding which two different versions are
set out in the plaint itself, it would not be
safe for the Court to pass a judgment
without requiring the plaintiff to prove the
facts so as to settle the factual controversy.
It has also been held that the Court has to
write a judgment which must be in
conformity with the provisions of code or
at least set out the reasoning by which the
controversy is resolved. Therefore if the
Court has proceeded to decide the case
after evidence by the plaintiff then it ought
to have considered the evidence adduced
before it.

22. In the present case since no
written statement was filed the trial court
could have pronounced the judgment
against
the
respondent
/
defendants
admitting the suit of the plaintiff. If the trial
court was of the view that the judgment
could not be pronounced and ex-parte
evidence was filed, then it should have
considered the evidence adduced before it
for making such order in relation to the suit
as it thinks fit. But in the present case the
1422 INDIAN LAW REPORTS ALLAHABAD SERIES
learned trial court has not considered and
recorded any finding on the basis of
evidence adduced before it and dismissed
the suit merely on the ground of delay in
lodging the FIR which does not constitute a
part of cause of action. The cause of action
for the suit for cancellation of sale deed
was alleged execution of the sale deed
under
duress
without
payment
of
consideration.

23. The Hon'ble Apex Court in the
case of ShantiLal Gulabchand Mutha Vs.
Tata
Engineering
and
Locomotive
Company Limited and Another; (2013) 4
SCC 396 has held that the court must give
reasons
for
passing
such
judgment,
however, short it be, but by reading the
judgment, a party must understood what
were the facts and circumstances on the
basis of which the court must proceed, and
under what reasoning the suit has been
decreed. The relevant paragraph-9 is
extracted below:-

"9. In view of the above, it
appears to be a settled legal proposition
that the relief under Order VIII Rule 10
CPC is discretionary, and court has to be
more cautious while exercising such power
where defendant fails to file the written
statement. Even in such circumstances, the
court must be satisfied that there is no fact
which need to be proved in spite of deemed
admission by the defendant, and the court
must give reasons for passing such
judgment, however, short it be, but by
reading the judgment, a party must
understood what were the facts and
circumstances on the basis of which the
court must proceed, and under what
reasoning the suit has been decreed."

24. The Hon'ble Apex Court in the
case of Alka Gupta Vs. Narender Kumar
Gupta; (2010) 10 SCC 141 has held that
Code of civil procedure is nothing but an
exhaustive compilation- cum-enumeration
of the principles of natural justice with
reference to a proceeding in a court of law.
The entire object of the Code is to ensure
that an adjudication is conducted by a court
of law with appropriate opportunities at
appropriate stages. A civil proceeding
governed by the Code will have to be
proceeded with and decided in accordance
with law and the provisions of the Code,
and not on the whims of the court. There
are no short-cuts in the trial of suits, unless
they are provided by law.

25. Section 10 of the Indian Contract
Act, 1872 provides that all agreements are
contracts if they are made by the free
consent of parties competent to contract,
for a lawful consideration and with a lawful
object, and are not hereby expressly
declared to be void. Section 13 defines the
consent of two or more persons are said to
consent when they agree upon the same
thing in the same sense. Section 14 defines
free consent which is said to be free when it
is not caused by coercion or undue
influence or fraud or misrepresentation or
mistake subject to the provisions of
sections 20, 21 and 22. Consent is said to
be so caused when it would not have been
given but for the existence of such
coercion,
undue
influence,
fraud,
misrepresentation or mistake.

26. Sub Section-3 of Section 16 of the
Contract Act provides that where a person
who is in a position to dominate the will of
another, enters into a contract with him,
and the transaction appears, on the face of
it or on the evidence adduced, to be
unconscionable, the burden of proving that
such contract was not induced by undue
influence shall be upon the person in a
3-5 All. Sahab Deen Vs. Keshav Prasad & Ors.
1423
position to dominate the will of the other.
Section 19 provides the voidability of
agreements without free consent at the
option of the party whose consent was so
caused. Section 19 (A) provides the power
to set-aside the contract induced by undue
influence at the option of the party whose
consent was so caused.

27. In view of above, a contract, made
by undue influence without free consent
and consideration, is voidable at the option
of the party whose consent was so caused.
In the present case the appellant / plaintiff
has alleged that the sale deed in question
has been got executed under duress by
beating and threatening him and without
paying any consideration. Therefore it is
voidable at his option. If the opposite
parties / defendants were in a position to
dominate the will of plaintiff, the burden
was on them to prove that the sale deed was
not induced by undue influence. But the
trial court, without considering even the
evidence adduced by the appellant /
plaintiff, dismissed the suit for cancellation
of sale-deed merely on the basis of delay in
lodging the FIR which could not have been
done by trial court.

28. So far as the arguments of the
learned counsel for the respondents in
regard to the alleged concurrent findings is
considered, as discussed above in fact no
finding has been recorded by the learned
trial court on the basis of evidence adduced
before it. The learned appellate court has
also, though mentioned the evidence
adduced by the appellant / plaintiff but
without considering and recording any
finding, dismissed the appeal on the ground
that the FIR has been lodged keeping in
mind the subsequent events after about two
years but has not disclosed any alleged
subsequent events. In regard to the
evidence simply it has been stated that the
contents of the plaint does not strengthen
from the documentary / oral evidence but
no reasons have been assigned. Therefore
in fact no finding of facts on the basis of
evidence adduced before the trial court has
been recorded by the court's below.

29. The Hon'ble Apex Court in the
case of Ishwar Dass Jain (Dead) Through
LR's Vs. Sohan Lal (Dead) By LR's;
(2000) 1 SCC 434 has held that there are
two situations in which interference with
findings of fact is permissible. The first one
is when material or relevant evidence is not
considered which, if considered, would
have led to an opposite conclusion. The
said judgment has been relied by the
Hon'ble Apex Court in the case of
Thulasidhara
and
Another
Vs.
Narayanappa and Others; (2019) 6 SCC
409.

30. The Hon'ble Apex Court in the
case of T. Ramalingeswara Rao (Dead)
Vs. N. Madhava Rao; 2019 (37) LCD 1664
has held in paragraph 12 as under:-

"12. When the two Courts below
have recorded concurrent findings of fact
against the plaintiffs, which are based on
appreciation of facts and evidence, in our
view, such findings being concurrent in
nature are binding on the High Court. It is
only when such findings are found to be
against any provision of law or against the
pleading or evidence or are found to be
wholly perverse, a case for interference
may call for by the High Court in its second
appellate jurisdiction."

31. A coordinate Bench of this Court
in the case of State of U.P. and Others Vs.
Ashok Kumar and Others; 2014 SCC
Online All 12789 has held that under
1424 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 107 C.P.C. the appellate court has
got jurisdiction to exercise all such powers
which is vested in the Courts of original
jurisdiction. Virtually, the appeal is in
continuation of suit.

32. In view of the aforesaid
discussion this court is of the considered
opinion that the suit could not have been
decided without considering, appreciating
and recording any finding on the basis of
evidence adduced before it merely on the
ground of delay in lodging the FIR.
Accordingly, the substantial question of
law nos.5 and (a) are decided in favour of
the appellant / plaintiff and against the
respondent / defendants. Therefore the
judgment and decree passed in Regular Suit
and the Civil Appeal are not tenable in the
eyes of law and liable to be set-aside with
direction to decide the Regular Suit No.64
of 1999 (Sahab Deen Vs. Keshav Prasad
and Others) afresh after considering the
evidence adduced before it in accordance
with law.

33. So far as the application for
impleadment of the appellant / plaintiff is
concerned, the provisions of Section 52 of
the Transfer of Property Act would be
applicable on the subsequent sale deeds.
However and since the second appeal is
being decided considering the substantial
question of laws and being remanded for
fresh disposal, the application stands
disposed of with liberty to the appellant /
plaintiff
to
implead
the
subsequent
purchasers before the trial court, if so
advised.

34. The Hon'ble Apex Court in the
case of Arjan Singh Vs. Punit Ahluwalia
and Others; (2008) 8 SCC 348 has held
that
execution
of
sale
deed
during
pendency of the suit would be hit by the
doctrine of lis pendens as adumbrated
under Section 52 of the Transfer of
Property Act and would not come in the
Court's way in passing a decree in favour of
the appellant. Its validity or otherwise
would not be necessary to be considered as
the appellant is not bound thereby.

35. The second appeal is, accordingly,
allowed. The judgment and decree dated
27.01.2017 passed in Regular Civil Appeal
No.27 of 2014 by the learned Additional
District Judge / Special Judge (A.P.) CBI,
Lucknow and judgment and decree dated
18.10.2002 passed in Regular Suit No.64 of
1999 (Sahab Deen Vs. Keshav Prasad and
Others) passed by learned Civil Judge,
(J.D.) Hawali, Lucknow are hereby setaside. The matter is remanded to the trial
court to decide the Regular Suit No.64 of
1999 (Sahab Deen Vs. Keshav Prasad and
Others) afresh expeditiously and preferably
within six months from the date of receipt
of record. No orders as to costs.

36. The lower court record, alongwith
a copy of this order, shall be remitted to the
trial Court within two weeks from today.
----------

(2020)03-05ILR A1424
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.02.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 460 of 1996

Chandrawati ...Appellant
Versus
Faisal Khan & Ors. ...Respondents

Counsel for the Appellant:
Sri T. Varma, No Name, Sri J.S. Pandey