1. Heard Sri R.C. Singh, Advocate, for petitioner; and Sri Raj Kumar, Advocate, for respondents 1 and 2.
2. Writ petition is directed against the revisional order dated 23.2.2010 passed by Addl. District Judge, Varanasi, preferred against the Rent Control and Eviction Officer's (hereinafter referred to as "RCEO") orders dated 1.10.2004, 13.4.2005 and 30.7.2005. The revisional Court has allowed the revision and setting aside the order dated 30.7.2005, has directed the RCEO to proceed afresh on the mater of release of accommodation to the owner of the premises in question.
3. Learned counsel for petitioner raised two arguments. Firstly that the revision itself was not maintainable and in this regard placed reliance on a Full Bench judgement of this Court in Gopal Dass and another Vs. 1st Addl. District Judge, Varanasi and others 1987 (1) ARC 281.
4. Secondly he submitted that arguments advanced by petitioner have not been considered by Revisional Court and, therefore, impugned order is liable to be set aside.
5. In my view non of the submissions deserve to sustain. However, to elaborate on the above two aspects, it would first be necessary to have certain relevant facts in brief.
6. The case set up by petitioner is that she is co-owner of House No. D 32/45 situated at Mohalla Deonath Pura, Varanasi. Another co-owner of the property in dispute as alleged by petitioner is Smt. Hiranprabha Mukharjee wife of Rai Bahadur Dev Narain Mukharjee, resident of 81, Allenganj, Allahabad. She filed an application for release of premises in question before the District Magistrate under Section 16 (1) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") alleging that one Smt. Nirupama Rai Chaudhari, without allotment, got possession of first floor of premises in question in 1978 and proceedings under Section 12/ 16(1) of Act, 1972 in this regard are pending before Rent Control and Eviction Officer (hereinafter referred to as "RCEO"). She got possession of three rooms and a verandah at first floor of the aforesaid house. Smt. Nirupma Rai Chaudhari died in 1992. Her daughter Smt. Manisha Rai Chaudhari was residing with her in-laws. Without permission of landlords, Smt. Manisha Rai Chaudhari gave possession of premises in question to one Nitai Mukharjee on 20.1.1993. Hence there is a deemed vacancy in the premises in question since 20.1.1993. Since the petitioner required property in question for her personal need, the same be released in her favour. This application is dated 28.11.1993 and copy thereof has been filed as Annexure -1 to writ petition. Followings were impleaded as opposite parties in the said application:
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7. Neither Smt. Manisha Chaudhari against whom the allegations were made nor Sri Nitai Mukharjee to whom it was alleged that possession was given were made party. The application registered as Case No. 15 of 1993 was allowed on 1.10.1994 by RCEO declaring the vacancy observing that he sent notice to Sri Nitai Mukharjee but it could not be served upon him due to non availability at the premises in question and. By order dated 13.4.2005, RCEO released the premises in question in favour of petitioner. It may be worthy to notice at this stage that initially after declaring vacancy on 1.10.1994, the application for release of accommodation in favour of petitioner was dismissed by RCEO by order dated 26.7.1996 whereagainst petitioner filed Rent Revision No. 353 of 1996 which was allowed by the Revisional Court on 20.10.2004 and matter was remanded to RCEO whereafter the order releasing the accommodation in question was passed on 13.4.2005.
8. Against orders of deemed vacancy and release, respondents 1 and 2 filed Revision No. 690 of 2005 alleging that by misleading the Courts below and in a fraudulent manner, release order has been obtained to dispossess the co-owner i.e. Revisionist despite the fact that there was no tenant in the premises in question. It is said that Manisha Rai Chaudhari or Nitai Mukharjee are fictitious names as there were no such tenants in the premises in question. The revisionists i.e. respondents no. 1 and 2 being co-owners of premises in dispute were in use and occupation of the said premises. There was no question of vacation of premises by the tenant namely Manisha Rai Chaudhari or Nitai Mukharjee since it was never occupied by any of such tenant. It is also pointed out that Sri Tarun Kumar Mukharjee, son of Late Surya Narain Mukharjee is the father of revisionists no. 1 and husband of revisionist no. 2 who was impleaded as respondent no. 6 in release application no. 15 of 1993. He died when the application was pending but his legal heirs were never brought on record by way of substitution. This itself would have resulted in abating the proceeding of Rent Case No. 15 of 1993 but this fact was also concealed. A collusive and fraudulent order has been obtained by petitioner. The revisionists for the first time came to know about the aforesaid case when Police visited for local inspection in furtherance of execution of order dated 13.4.2005.
9. Petitioner filed objection that revision was not maintainable at the instance of respondents no. 1 and 2.
10. The revision was allowed by order dated 23.2.2010 remanding the matter to RECO to re-consider the question of alleged deemed vacancy and pass a fresh order in accordance with law thereafter on the release application.
11. Learned counsel for petitioner submitted that revisionists claimed co-owner. If that be so, no revision at their instance against the order of deemed vacancy and release would be maintainable. He placed reliance on a Full Bench decision of this Court in Gopal Dass (surpa).
12. Counter affidavit, which has been filed by respondents 1 and 2, reiterates the facts as were stated in the memo of revision and therefore need not be repeated.
13. Learned counsel for respondents, opposing the writ petition and refuting the arguments advanced by learned counsel for petitioner, stated that entire proceedings initiated by petitioner amounts to complete fraud and misrepresentation in obtaining the orders which were impugned in the revision and, therefore, have rightly been set aside by Revisional Court.
14. First I consider the question of maintainability of revision. Section 18 of Act, 1972 provides that no appeal shall lie from any order under Section 16 or 19 but "any person aggrieved by a final order under any of the said Sections may, within 15 days from the date of such order, prefer a revision to the District Judge." The right to file a revision, therefore, has been conferred upon "any person who is aggrieved by a final order" passed by the authority concerned either under Section 16 or Section 19. It is not in dispute that order whereagainst revision was filed was a final order under Section 16 of Act, 1972. The authority concerned declared deemed vacancy in the premises in question and passed order for release thereof in favour of petitioner and action was taken to execute the said order. Respondents 1 and 2 claimed that they were the actual occupant of premises in question and being co-owner were residing therein. Hence, in the garb of orders passed by competent authority under Section 16 of Act, 1972 against non existing tenants, they could not have been evicted. To execute the orders passed under Section 16 of Act, 1972, the competent authority had passed an order for providing Police help also. This led to a situation of breach of peace and law and order whereupon the Addl. City Magistrate-II had to pass an order on 3.11.2006 under Section 111/112 read with 107/116 Cr.P.C. as to why proceedings under Section 107/116 be not initiated for maintaining peace. Copy of the said notice is Annexure 5 to writ petition which was issued to respondents no. 1 and 2 besides two others. It has not been disputed by learned counsel for petitioner that in furtherance of orders passed by RCEO on 13.4.2005, the petitioner took steps for vacation of premises in question and if the accommodation was occupied by respondents 1 and 2 they also ought to have been evicted therefrom. That being so, it cannot be said that respondents 1 and 2 were not the "persons aggrieved" so as to file a revision under Section 18 of the Act, 1972.
15. In the entire writ petition there is no averment that respondents 1 and 2 were not the co-owners in the property in dispute or that they were/are not in occupation of the said premises. On this aspect, there is a strange but a complete silence in the entire writ petition. When asked, Sri R.C. Singh, learned counsel for petitioner did not give any categorical reply but raised his argument that respondents being co-owners could not have filed a revision against the order passed under Section 16 of Act, 1972. However, in the facts and circumstances as discussed above, this Court finds that petitioner in a clandestine fraudulent manner obtained an order without disclosing full and correct facts before the competent authority and obtained orders dated 1.10.2004, 13.4.2005 and 30.7.2005. Had it been disclosed by the petitioner that possession of premises is with co-owner(s), the very application no. 15 of 1993 filed by petitioner itself would not have been maintainable.
16. Therefore, besides what has been observed above, I am also of the view that here is a case where petitioner played fraud and misrepresentation in order to obtain orders dated 1.10.2004, 13.4.2005 and 30.7.2005 from competent authority under Section 16 of Act, 1972 and being the orders obtained by fraud, the same have rightly been set aside by Revisional Court.
17. Fraud vitiates everything. Though no submission, legal or otherwise, is sustainable in favour of petitioner, but even if, for the sake of argument, it is assumed that the same may prevail, still if the orders obtained by petitioner are result of a fraud or misrepresentation and this Court finds so, it is bound to set at nought the effect of such orders which are result of a fraud and misrepresentation of a party otherwise this Court shall be failing in its duty of judicial review giving substantial justice to the parties.
18. In S.P. Chengalvaraya Naidu (dead) by LRs. V. Jagannath (dead) by LRs. & Ors. (1994) 1 SCC 1, the Apex Court had an occasion to consider the doctrine of fraud and the effect thereof on the order obtained by a party. In that case, one A by a registered deed, relinquished all his rights in the suit property in favour of C who sold the property to B. Without disclosing that fact, A filed a suit for possession against B and obtained preliminary decree. During the pendency of an application for final decree, B came to know about the fact of release deed by A in favour of C. He, therefore, contended that the decree was obtained by playing fraud on the court and was a nullity. The trial court upheld the contention and dismissed the application. The High Court, however, set aside the order of the trial court, observing that "there was no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". B approached the Apex Court. Allowing the appeal, setting aside the judgment of the High Court and describing the observations of the High Court as 'wholly perverse', the Apex Court observed as under:
"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".
19. In United India Insurance Co. Ltd. Vs. Rajendra Singh & others (2000) 3 SCC 581 the Apex Court observed as under:
"3. Fraud and justice never dwell together. (Frans et jus nunquam cohabitant) is a pristine maxim which has never lost its temper over al these centuries. Lord Denning observed in a language without equivocation that "no Judgment of a Court, no order of Minister can be allowed to stand if it has been obtained by fraud, for, fraud unravels everything" (Lazarus Estate Ltd. Vs. Beasley 1956 (1)QB.702."
20. This is what has been referred to and followed by this Court in Civil Misc. Writ Petition No. No. 14824 of 1990 (Shamsuddin and others Vs. Addl. District Judge, Azamgarh) decided on 31.10.2011.
21. The Full Bench judgement relied on by petitioner in Gopal Dass (supra) in the above facts and circumstances has no application at all and reliance placed is wholly misplaced. The issue up for consideration before Full Bench in that case was whether the application filed under Section 15 (2) for release of a premises should be signed by all co-owners or even a single co-owner is competent to maintain an action for eviction of the tenant of entire premises considering him to be the landlord under the meaning of Section 3 (j) of Act, 1972. The Court held that one of the co-owner alone would be competent to sign such an application. The question as to whether revision by a co-owner against whom an order obtained by another co-owner under Section 16 Act, 1972 is sought to be enforced is maintainable under Section 18 Act, 1972 or not was not up for consideration therein particularly in the circumstances when co-owner filing application under Section 16 of Act, 1972 is guilty of playing fraud and misrepresentation.
22. The litigation initiated by petitioner is founded on an apparent fraud and misrepresentation. In my view petitioner is also guilty of gross abuse of process of law and therefore here is not only a case where petitioner has to be non suited but she must be saddled with an exemplary cost.
23. In the result, writ petition is dismissed with cost quantified to Rs. 25,000/-.
Dt. 10.7.2012 PS