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IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
Gundewar S.D., J.
Shankarlal Ganulal Khandelwal since deceased through
L.R. Rameshchandra Shankarlal Khandelwal .... Appellant.
Versus
Balmukund Surajmal Bharuka since deceased through
LRs. Anil Balmukund Bharuka others.... Respondents.
Second A. No. 136 of 1983, decided on 16-10-1998.
Advocates appeared :
Ms. V.A. Naik, for appellant.
S.P. Dharmadhikari, for respondents.
Order VIII, Rule 5-Written statement. - Where denial was made specifically in each para of plaint under this circumstance specific denial of particular fact not necessary.
Order XVIII, Rule IS-Spot inspection-Observations of Judge at the time of inspection can be used only for the purpose of better following and understanding evidence adduced in the case as to test its accuracy -Such inspection cannot be substituted as evidence in case nor Judge can make it foundation of his judgment. AIR 1962 Mysore 17 and AIR 1971 SC 2540-Ref.
Section 92-0ral evidence is admissible to show that document executed was never intended to operate and the document was sham.- The question as to whether the transaction recorded in the document was never intended to be acted upon by the parties and that the document was sham and bogus arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose, oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether not recorded in the document was entered into between the parties.
It was specifically pleaded by the plaintiff in his suit contending that the sale-deed dated 13.11.1972 was nominal and in the nature of simple mortgage. The trial Court, therefore, cancelled the said sale-deed by directing the plaintiff to deposit the amount of Rs. 10,000/with interest at the rate of 6% per annum. As a result, the suit of the plaintiff came to be decreed. In appeal, the lower Appellate Court negatived the aforesaid findings of the trial Court holding that the transaction evidenced by sale-deed dated 23.11.1972 was out and out sale. In the result, the appeal came to be allowed and the judgment and decree of the trial Court were set aside. In second appeal by the plaintiff held, that there were certain circumstances which favoured the plaintiff in this behalf and went against the defendant. Firstly, though the defendant purchased the suit plot from the plaintiff in the year 1972, he did not take any steps to get his name mutated in the municipal record nor he paid the tax of the suit plot at any time. Secondly, the evidence of the plaintiff if read along with the evidence of his witness showed that the market-value of the suit plot in the year 1972 was much more than Rs. 10,000/- which found support from the fact that when the plaintiff offered the amount of Rs. 21,000 / - for reconveyance of the suit plot, the defendant refused for the same. Thirdly, though the defendant contended that he had raised some construction over the suit plot by spending amount of Rs. 2,000/ - , nothing was found there at the time of spot inspection by the trial Judge. From these circumstances, it could be gathered that the intention of the parties was to treat the document as nominal and not to act upon it. Had the parties really intended to act upon the same, the defendant could have certainly got mutated his name in municipal record. The fact that he did not take any steps in this behalf clearly went to support the plaintiffs version that the parties had agreed not to act upon the said document. There was gross mis-appreciation of evidence which went to the root of the matter. The District Judge had not considered the aforesaid oral and documentary evidence in its proper perspective. So also he had not considered the aforesaid circumstances in a way in which they ought to have been considered. The impugned judgment and decree of lower Appellate Court, therefore, needed to be set aside. Where there was a gross mis-appreciation of evidence which goes to the root of the matter, the High Court in second appeal can certainly exercise its jurisdiction. Decree passed by the lower Appellate Court set aside and that of the trial Court restored. 1995 Supp (1) SCC 418, 1982 Mh LJ 1 (SC) : AIR 1982 SC 20-Relied on.
2. At the outset Smt. V.A. Naik, the learned Counsel for the appellant, submitted that the averments made by the plaintiff in paragraphs 2, 3 and 4 of his plaint were not specifically denied by the defendant. The denial of the said facts is not specific but evasive and when the denial of any fact is not specific but evasive, the said fact will have to be taken as admitted. For this she placed reliance on a decision in (Badat and Co. Bombay v. East India Trading Co.)1, reported in A.I.R. 1964 S.C. 538. It is no doubt true that in the aforesaid case, the Apex Court held that every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted. However, in the said case, the Apex Court has observed as under:---
"......But in mofussil Courts in India, where pleadings were not precisely drawn, it was found in practice that if they were strictly construed in terms of the said provisions, grave injustice would be done to parties with genuine claims. To do justice between those parties, for which courts are intended, the rigor of Rule 5 has been modified by the introduction of the proviso thereto. Under that proviso the Court may, in its discretion, require any fact so admitted to be proved otherwise than by such admission. In the matter of mofussil pleadings, courts presumably relying upon the said proviso, tolerated more laxity in the pleadings in the interest of justice........"
In the present case, Shri S.P. Dharmadhikari, the learned Counsel for the respondent, has pointed out from the written statement of the defendant that the defendant has denied the averments made by the plaintiff in each and every paragraph and, therefore, according to him, it cannot be said that there is no specific denial of the facts averred by the plaintiff in his plaint. It is true that the defendant had denied the averments made by the plaintiff in each and every paragraph of his plaint and, therefore, even if there is no specific denial of any particular facts, it cannot be said that the defendant has admitted the same. In this view of the matter, I find no substance in the aforesaid submission made by the learned Counsel for the appellant that as the averments made by the plaintiff in paragraphs 2, 3 and 4 of his plaint were not specifically denied by the defendant the same may be taken as admitted. I, therefore, find that the aforesaid decision of the Apex Court is of no avail to the appellant.
3. Now, the only substantial question of law that arises for consideration in this appeal is whether the plaintiff is barred from leading oral evidence in support of his contention that the sale-deed in question was sham and bogus and it was not to be acted upon by the parties?
4. In this appeal, it is submitted by Smt. V.A. Naik, the learned Counsel for
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