This is an application for recalling of the order dated 7.9.2012, whereby the petition was dismissed for want of prosecution.
Perused the averments made in the affidavit filed in support of the restoration application. The cause shown in the affidavit found sufficient. Application is allowed. The order dated 7.9.2012 is recalled.
The case is restored to its original number.
By means of this writ petition, the petitioner is challenging the order of the revisional court dated 22.2. 2000 passed in Civil Revision No. 66 of 1998 .
The case of the petitioner is that there were two Original Suits, namely, O.S. No. 200 of 1991, Girdhari Singh and Kamlesh Singh Vs. Akshay Kumar and O.S. No.392 of 1991 (Pulak Kant Vs. Ali Raja). On 12.4.1991 an application was filed in O.S. No. 200 of 1991 by Pulak Kant Chakarvarti to be impleaded as one of the defendants. On 10.5.1991, the O.S. No. 392 of 1991 was decreed and the decree was passed for amendment of the sale deed dated 2.9.1997 replacing the figure 42 by 38/2.
The contention of the petitioner is that in O.S. No. 392 of 1991, the petitioner was neither impleaded as a party nor he was even present when the decree dated 10.5.1991 was passed against him.
It is further stated that on 11.10.1994, the petitioner and Sri Girdhari Singh filed an application under Section 151 C.P.C. supported by affidavit with the prayer that the said decree dated 10.5.1991, had been obtained by fraud, as they were not impleaded in the suit at any stage. The application under Section 151 C.P.C. was registered as a Misc. Case No. 18 of 1994. The contention of the petitioner in his application was that the plot no. 38/2 was recorded in the name of Rojan Ali and Rajjab Ali sons of Asad Ali as co-tenure holders. It was also stated that on 30.7.1990, Rojan Ali had executed a registered sale deed in favour of the petitioner and Girdhari Singh (proforma respondent). This sale deed was in respect of land measuring 0-2-0 biswa. In pursuance of the sale deed dated 30.7.1990, the petitioner and Girdhari Singh (proforma respondent) are also in physical possession over the land in question and the same was also enclosed by a brick boundary wall.
On behalf of the petitioner, it was also stated that on 2.9.1987, a sale deed had been executed by Rajjab Ali, co-tenure holder in favour of the plaintiff (petitioner no.2 herein) in favour of land measuring 0-1-0 biswa of plot no. 42. No part of land in plot no. 38/2 was ever purchased by the plaintiff nor did he ever come into possession over the same. The application for rectification of plot No. was filed with dishonest intention and for this very reason, the petitioner was also not made a party to the O.S. No. 392 of 1991. It is stated that the petitioner has acquired knowledge of the decree dated 10.5.1991 obtained by fraud by the plaintiff only on 11.10.1994 when he inspected the records of a O.S. No. 200 of 1991.
On behalf of the petitioner, it was also submitted before the trial court that Sri Ram Surat Lal, an Advocate for the plaintiff had appeared for the plaintiff as well as for the defendant in the O.S. No. 392 of 1991, which also is another pointer towards the fraud played by the plaintiff.
The trial court after hearing the arguments for both the sides, i.e. for the plaintiff as well as the objector i.e. the petitioner, recalled its ex parte decree dated 10.5.1991, by its order dated 4.3.1998. This order was challenged by the plaintiff by filing a Civil Revision No. 66 of 1998. It is submitted that the trial court while not disputing the questions of fact, has allowed the revision only on the ground that the application under Section 151 C.P.C. was not maintainable and that the petitioner had legal remedies in respect of the plot no. 38/2.
I have heard Sri Ramendra Asthana, learned counsel for the petitioner and Sri Ankit Gaur, learned counsel for the respondent no.2. Notices were issued on 15.5.2000 and steps were also taken by the petitioner for service on respondents 3 to 9 and as per office report dated 20.5.2000, the notices for respondents 3 to 9 have neither been received back undelivered, nor the acknowledgement of notices has been received back. The service upon the respondents 3 to 9 therefore shall be deemed to be sufficient. Sri Mata Prasad, learned Additional Chief Standing Counsel appears for the respondent no.1.
The submission of the learned counsel for the petitioner is that the ex parte decree dated 10.5.1991, passed in O.S. No. 392 of 1991 had been obtained by the plaintiff (respondent no.2 herein) by amendment of the sale deed dated 2.9.1987 by replacing the figure 42 by 38/2.
The contention of the learned counsel for the petitioner is that the plot no. 38/2 had been purchased by him from Rojan Ali brother of Rajjab Ali, who was the co-tenure holder along with Rojan Ali, of the plot in question. Subsequently, he came to know that already there was a sale deed dated 2.9.1987 in respect of the same plot. It is also submitted that the O.S. No. 392 of 1991 was filed without making him a party to that suit and that when the ex parte decree dated 10.5.1991 was passed, Sri Ram Surat Lal had appeared as counsel for the plaintiff as well as counsel for the defendant which clearly demonstrates collusion between the plaintiff and the defendant in the said suit.
There was another suit filed by Girdhari Lal (proforma respondent in this writ petition) being O. S. No. 200/1991 and it was in the course of inspection of the records of the said suit that the plaintiff on 11.10.1994, acquired knowledge of the ex parte decree dated 10.5.1991 and along with Girdhari Lal they filed an application under Section 151 C.P.C. supported by affidavit for recall of the order of the ex parte decree.
Learned counsel further submits that the trial court after hearing both the parties, the trial court by a detailed order dated 4.3.1998 has recalled the ex parte decree dated 10.5.1991.
A perusal of the order dated 4.3.1998, which is filed as annexure 3 to the writ petition, will show that in the suit no date was fixed but through overwriting the date of 9.5.1991 was shown in the ordersheet. The trial court also recorded a finding that in the suit the counsel for the plaintiff had also appeared as counsel for the defendant and the overwriting as well as production of witnesses and appearance of the parties was all done within 7 days, which clearly points to the fact that there was some fraud and the ex parte decree has been obtained by practising fraud.
The trial court has further held that if the decree has been obtained by fraud, the same can be set aside even by an application filed under Section 151 C.P.C. or under Order 9, Rule 9 or Order 7, Rule 13 or order 47, Rule 1. Accordingly, the trial court has set aside the ex parte decree on 10.5.1991 by the order dated 4.3.1998.
On the facts, the trial court has also recorded a findings that the plaintiff had purchased the plot no. 42 and his name had also been recorded in the revenue records over plot no. 42. Therefore, it is difficult to accept that he had mentioned plot no. 38/2 in place of plot no.42 over which the petitioner claims to be in possession in pursuance of the sale deed dated 30.7.1990.
Aggrieved by the order dated 4.3.1998, the respondent no.2 plaintiff filed revision no. 66 of 1998. The revisional court in the impugned order dated 22.2.2000, has noted the objections of the petitioner namely that he was in possession over the plot no. 38/2, over which the name of Rajjab Ali and Rojan Ali sons of Asad Ali has been recorded as Bhumidhar with non-transferable right and also that Chauhaddi of plot no.42 is adjacent to plot no. 38/2. The revisional court has also noted that the revisionist/plaintiff (respondent no.2 herein) had purchased plot no. 38/2, measuring 01-1-10 through a sale deed dated 2.9.1987 for a sum of Rs. 1,35,000/-, but the revisional court has completely ignored the reference of the application filed subsequently for rectification of the plot no.42. The revisional court in fact held that the only question is whether application under Section 151 C.P.C. was maintainable or not and held that it was maintainable on the ground that the petitioner had other legal remedies in respect of his plot no. 38/2.
Sri Ankit Gaur, learned counsel for the respondent no.2 also submits that the petitioner could have filed a suit for partition or avail other remedies and in any case the application under Section 151 C.P.C. for recall of the ex parte decree dated 10.5.1991, was not maintainable.
Learned counsel for the petitioner has referred to two judgments of the Supreme Court in support of his case that any act based upon fraud or any order obtained by fraud cannot be sustained and can be set aside through an application under Section 151 C.P.C.
In 2000 (3) SCC 581 (United India Insurance Company Ltd Vs. Rajendra Singh and others) the Supreme Court has held as follows:
"9. Almost immediately after obtaining the above information, the appellant Insurance Company moved the Tribunal with two petitions purportedly under Sections 151, 152 and 153 of the Code of Civil Procedure in which the appellant prayed for recall of the awards dated 15.1.1998 on the revelation of new facts regarding the injuries sustained by the claimants. Those applications were resisted by the claimants solely on the ground that the Tribunal has no power of review except to correct any error in calculating the amount of compensation and hence the Tribunal cannot recall the awards. It appears that the Tribunal accepted the said stand of the claimants and dismissed the application for recalling the awards. It was in the above background that the appellant Insurance Company moved the High Court of Allahabad with a writ petition for quashing the awards as well as the steps taken pursuance thereto.
10. Learned Single Judge of the Allahabad High Court who dismissed the writ petition as per a short order passed by him stated thus:
"Heard learned counsel for the petitioner. The present writ petition has been filed against the order rejecting review application. There is no power of review in the statute. Learned Counsel for the petitioner argues that fraud has been played. It is a question of fact, for which writ jurisdiction is not the proper forum. The petitioner may avail himself of such legal remedy as may be available to him. The writ petition is accordingly dismissed. There will be, however, no order as to costs.
11. Thus the Tribunal refused to open the door to the appellant Company as the High Court declined to exercise its writ jurisdiction which is almost plenary for which no statutory constrictions could possibly be imposed. If a party complaining of fraud having been practised on him as well as on the court by another party resulting in a decree, cannot avail himself of the remedy of review or even the writ jurisdiction of the High Court, what else is the alternative remedy for him? Is he to surrender to the product of the fraud and thereby became a conduit to enrich the impostor unjustly? Learned Single Judge who indicated some other alternative remedy did not unfortunately spell out what is the other remedy which the appellant Insurance Company could peruse.
12. No one can possibly fault the Insurance Company for persistently pursuing the matter up to this Court because they are dealing with public money. If they have discovered that such public fund, in a whopping measure, would be knocked off fraudulently through a fake claim, there is full justification for the Insurance Company in approaching the Tribunal itself first. At any rate the High Court ought not to have refused to consider their grievances. What is the legal remedy when a party to a judgment or order of court later discovered that it was obtained by fraud?
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15. It is unrealistic to expect the appellant Company to resist a claim at the first instance on the basis of the fraud because the appellant Company had at that stage no knowledge about the fraud allegedly played by the claimants. If the Insurance Company comes to know of any dubious concoction having been made with the sinister object of extracting a claim for compensation, and if by that time the award was already passed, it would not be possible for the Company to file a statutory appeal against the award. Not only because of the bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, would be limited to the issues formulated from the pleadings made till then.
16. Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly-discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim."
In 1994 SCC (1) 1(S.P. Chengal Varaya Naidu Vs. Jagannath) the Supreme Court has held as follows:
"5. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence." The principle of "finality of litigation." cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. 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.
6. The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowca. He had, on his own violation, executed the registered released deed (Ex. B-15 in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decreetal amount to his master Chunilal Sawcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non-mentioning of the released deed at the trial is tantamount to playing fraud on the court. We do not agree with the observations of the High Court that the appellants-defendants could have easily produced the certified registered copy of Ex. B- 15 and non-suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.6."
In view of the facts and circumstances of the case and the law laid down by the Supreme Court, the impugned order dated 22.2.2000 deserves to be quashed and is accordingly quashed.
The writ petition is allowed. A direction is given to the trial court to proceed with the O.S. No. 392 of 1991 and take its logical conclusion expeditiously preferably within six months. It is understood that no unnecessary adjournments will be granted.
Order Date :- 9.10.2012 N Tiwari Court No. - 26 Case :- WRIT - C No. - 22139 of 2000 Petitioner :- Kamlesh Singh Respondent :- Special/A.D.J.& Others Petitioner Counsel :- Ramendra Asthana Respondent Counsel :- C.S.C.
Hon'ble B. Amit Sthalekar,J.
Re: Civil Misc. Substitution Application dated 5.10.2000.
Substitution application dated 5.10.2000 has been filed for bringing on record the legal heirs of the sole petitioner Kamlesh Singh.
Learned counsel for the respondent has no objection.
Accordingly, substitution application dated 5.10.2000 is allowed.
Learned counsel for the petitioner is permitted to carry out necessary correction forthwith.
Order Date :- 9.10.2012 N Tiwari