Gujarat High Court
Ratilaxmiben vs Manjulaben on 3 August, 2011
Author: Ks Jhaveri
Bench: Ks Jhaveri
FA/236/1987 21/ 21 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 236 of 1987 With FIRST APPEAL No. 237 of 1987 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= RATILAXMIBEN SHANTILAL SHAH - Appellant(s) Versus MANJULABEN PRABHUDAS WIFE OF SHANTILAL B AGRAVAT - Defendant(s) ========================================================= Appearance : MS KJ BRAHMBHATT for Appellant(s) : 1, MR ASHISH H SHAH for Defendant(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 03/08/2011 ORAL JUDGMENT
1. By way of this appeal under Section 96 of the Civil Procedure Code, the present appellant - original defendant has challenged the judgement and decree dated 02.02.1987 passed by the City Civil Court, Ahmedabad in Civil Suit No. 4419 & 4420 of 1983 whereby the trial court decreed the suit in favour of the original plaintiffs - present respondents.
2. It is the case of the appellant that two suits being Civil Suit No. 4419 & 4420 of 1983 were filed by the original plaintiffs - present respondents of First Appeals No. 236 & 237 of 1987 respectively seeking declaration about the decree obtained by the original defendant-present appellant in Civil Suit No. 2234 & 2235 of 1978 passed by the City Civil Court, Ahmedabad to be void and nullity. Further relief was sought for a perpetual injunction against the original defendant - present appellant for perpetually restraining the original defendant from executing the said decree in any manner for taking over possession of the suit premises or for taking over possession of the suit premises forcibly.
3. The facts as per the original plaintiffs which led to the filing of the suit before the trial court was that the plaintiff of Civil Suit No. 4420 of 1983 was serving as a Class-I Officer in Ayurvedic Research Department of Civil Hospital, Ahmedabad since 1972. He was in search of a suitable premises to carry on private practice and at that time one Shri Ambalal alias Ambubhai Patel informed him that Shop No. 31 in B. Jadhav Chambers, Near Income Tax Office, Ashram Road was available for rent. When the plaintiff contacted the original defendant, he was informed that the rent of the shop shall be Rs. 500/- per month and in addition Rs. 200/- per month shall be payable towards municipal tax and education cess.
3.1 It is the say of the plaintiff of Civil Suit No. 4420 of 1983 before the City Civil Court that the original defendant further told that the rent receipt shall be given in two parts- one being for the rent of the shop at Rs. 300/- per month plus Rs. 150/- as Municipal tax and education cess. The other receipt would be given for the loft which is part and parcel of the shop at Rs. 200/- per month as rent and Rs. 50/- per month towards Municipal tax and Education Cess. It was agreed that the receipt for the shop shall be issued in the name of the plaintiff of Civil Suit No. 4420 of 1983 whereas the receipt for the loft will be issued in the name of his wife- Manjulaben who is the plaintiff of Civil Suit No. 4419 of 1983.
3.2 It was the case of the original plaintiffs that as he was in extreme need of premises he was compelled to agree to the conditions put forward by the defendant including signing certain documents by going to Court in connection with the lease of the suit shop. The original plaintiffs were given assurance that the signed writings were not to be acted upon but were being done only as a formality. According to the plaintiffs, the writings were made on 12.07.1978 but false dates were written on them. The defendant collected three months' rent and municipal tax and education cess from both the plaintiffs. According to the plaintiffs the rent is paid for the period upto 30.11.1982 but the receipts were passed purporting to be for mesne profits as per decrees passed in the suits no. 2334 & 2335 of 1978 which were overlooked by him.
3.3 The plaintiffs therefore filed Civil Suits No. 4419 & 4420 of 1983 as the decrees obtained by the defendant in the suits 2234 & 2235 of 1978 were by fraud. The trial court allowed the suits and passed a decree in favour of the plaintiffs. Being aggrieved by the said orders, the present appellant-original defendant has approached this court by way of present appeals.
4. Ms. Varsha Brahmbhatt, learned advocate appearing for Ms. K.J. Brahmbhatt for the appellant submitted that the trial court has materially erred in not holding that the plaintiffs have willingly signed the consent terms in the previous suit and the court having passed decree on the basis of the consent terms, there was no question of any fraud having been committed on the court. Considering the consent decree signed by the parties, the suit nos. 4419 & 4420 of 1983 were not maintainable and therefore the trial court committed an error in passing the impugned orders. She submitted that in fact the alleged fraud, if any, was required to be proved by the plaintiffs beyond reasonable doubt by laying cogent evidence which was not done in the present case.
4.1 Ms. Brahmbhatt submitted that the suits were filed by the plaintiffs to escape execution of the decrees passed against the plaintiffs. She submitted that the decrees in previous suits cannot be said to be nullity as they were passed with the consent of the parties by a competent court. She contended that there was no relation of landlord and tenant between the parties as no rent was recovered from the plaintiffs. The recovery was as mesne profit for use and occupation as per the terms of the decrees passed against the plaintiffs.
4.2 Ms. Brahmbhatt further contended that it cannot be said that the provisions of Article 58 of the Limitation Act shall be applicable in the present case as held by the trial court. She submitted that in fact the suits were time barred and therefore the trial court ought not to have entertained them. She submitted that the trial court acted illegally and with material irregularity in not holding that the suit was barred by resjudicata, estoppel and limitation.
4.3 In support of her submissions, Ms. Brahmbhatt relied upon the following decisions of this court and the Apex Court:
(i) In the case of Newton Hickie and Another vs. Official Trustee of West Bengal reported in AIR 1954 Calcutta 506 the Apex Court in paras 24 & 25 held as under:
"24.
In my opinion, that argument ought not to prevail. Were it to be accepted, and the mere fact that the present suit is a declaratory suit by the tenants were held sufficient to exclude the bar of res judicata, the decision in any ejectment suit tried by the Court of Small Causes might be set at naught and the dispute started over again by the institution of a declaratory suit in this Court, even though the former suit might be perfectly and unquestionably within the jurisdiction of the Small Causes Court and even though no fraud might be alleged.
A tenant would only have to ask for a declaration that the decree of the Small Causes Court was illegal and not binding on him which would at once avoid the bar of res judicata, since the Small Causes Court cannot try a declaratory suit or indeed any suit by a tenant. The law cannot be applied in a manner which will lead to so absurd a result, What the applicants have really put in issue in the present suit is the question whether there were two several tenancis or only one and what they are really aiming at is to obtain a fresh decision on that question in their favour.
The question of the jurisdiction of the Small Causes Court to try the former suits is only consequential. The substance of the position is that, on the merits of the case, the appellants have suffered adverse decrees in the previous litigation in three successive Courts and they have now brought a suit on their own account as plaintiffs, hoping to be able to avoid the bar of res judicata by the form of the suit.
25. It was argued at the Ear that the present suit was a combination of two suits, one in respect of the decree in suit No. 318 and another in respect of the decree in suit No. 323 and it was suggested that the two suits should be regarded separately for the purposes of res judicata. Reference was made to the class of decisions in which it had been held that a party could not avoid the bar of res judicata by merely adding causes of action in a subsequent suit and thereby taking such suit out of the jurisdiction of the Court which had tried the previous suit and also that if a portion of the claim in the subsequent suit was finally decided by a competent Court in a previous suit, the subsequent suit would be barred by res judicata to the extent of such portion, particularly when it was severable.
Those decisions rest ultimately on the view that 'suit', as contemplated by Section 11 of the Code, includes a part of a suit based on a distinct cause of action on which a separate suit could be brought. I do not however think that those decisions or the principle laid down in them can be of any assistance in the present case. Even if the appellants had brought two separate suits, one in respect of each of the decrees and even assuming that the suits were not of a declaratory character, the Court of Small Causes would still not be competent to try them, since that Court can try only ejectment suits and no suit at all brought by a tenant.
It is therefore not possible to bisect the suit and hold that the Small Causes Court would be competent to try either of the two parts and so the previous decrees bar the present suit in respect of both of them. If the appellants are debarred from agitating the questions they have raised in the present suit, it must be for some other reason."
(ii) In the case of Babu Ram Gupta vs. Sudhir Bhasin and another reported in AIR 1979 SC 1528 the Apex Court in para 10 observed as under:
"These are the tests laid down by this Court in order to determine whether a contempt of court has been committed in the case of violation of a prohibitive order. In the instant case, however, as indicated above, there is no application nor any affidavit nor any written undertaking given by the appellant that he would co-operate with the receiver or that he would hand over possession of the Cinema to the receiver. Apart from this, even the consent order does not incorporate expressly or clearly that any such undertaking had been given either by the appellant or by his lawyer before the Court that he would hand over possession of the property to the receiver. In the absence of any express undertaking given by the appellant or any undertaking incorporated in the order impugned, it will be difficult to hold that the appellant wilfully disobeyed or committed breach of such an under taking. What the High Court appears to have done is that it took the consent order passed which was agreed to by the parties and by which a receiver was appointed, to include an undertaking given by the contemner to carry out the directions contained in the order. With due respects, we are unable to agree with this view taken by the High Court. A few examples would show how unsustainable in law the view taken by the High Court is. Take the instance of a suit where the defendant agrees that a decree for Rs. 10,000 may be passed against him and the court accordingly passes the decree. The defendant does not pay the decree. Can it be said in these circumstances that merely because the defendant has failed to pay the decretal amount he is guilty of contempt of court? The answer must necessarily be in the negative. Take another instance where a compromise is arrived at between the parties and a particular property having been allotted to A, he has to be put in possession thereof by B. B does not give possession of this property to A. Can it be said that because the compromise decree has not been implemented by B, he commits the offence of contempt of court? Here also the answer must be in the negative and the remedy of B would be not to pray for drawing up proceedings for contempt of court against B but to approach the executing court for directing a warrant of delivery of possession under the provisions of the Code of Civil Procedure. Indeed, if we were to hold that non compliance of a compromise decree or consent order amount to contempt of court, the provisions of the Code of Civil Procedure relating to execution of decrees may not be resorted to at all. In fact, the reason why a breach of clear undertaking given to the court amounts to contempt of court is that the contemner by making a false representation to the Court obtains a benefit for himself and if he fails to honour the undertaking, he plays a serious fraud on the court itself and thereby obstructs the course of justice and brings into disrepute the judicial institution. The same cannot, however, be said of a consent order or a compromise decree where the fraud, if any, is practised by the person concerned not on the Court but on one of the parties. Thus, the offence committed by the person concerned is qua the party not qua the court, and, therefore, the very foundation for proceeding for contempt of court is completely absent in such cases. In these circumstances, we are satisfied that unless there is an express undertaking given in writing before the court by the contemner or incorporated by the court in its order, there can be no question of wilful disobedience of such an undertaking. In the instant case, we have already held that there is neither any written undertaking filed by the appellant nor was any such undertaking impliedly or expressly incorporated in the order impugned. Thus, there being no undertaking at all the question of breach of such an undertaking does not arise."
(iii) In the Case of BSNL & Others vs. M/s. Subhash Chandra & Another reported in 2006(8) SCC 279 paras 20 & 21 as recorded by the Apex Court read as under :
"20. Furthermore, in terms of Order III, Rule 1 of the Code of Civil Procedure, a litigant is represented by an advocate. A concession made by such an advocate is binding on the party whom he represents. If it is binding on the parties, again subject to just exceptions, they cannot at a later stage resile therefrom. The matter may, however, be different if a concession is made on a question of law. A wrong concession on legal question may not be binding upon his client. Here, however, despite the stand taken by the Appellant in its written statement before the High Court the learned Advocate consented to appointment of a person as an arbitrator by the High Court in exercise of its jurisdiction under Section 11 of the 1996 Act, in our considered view, the same should not be permitted to be resiled from. A person may have a legal right but if the same is waived, enforcement thereof cannot be insisted.
21. In Ramdev Food Products Pvt. Ltd. v. Arvindbhai Rambhai Patel and Ors.
[2006 (8) SCALE 631], this Court observed: "The matter may be considered from another angle. If the first respondent has expressly waived his right on the trade mark registered in the name of the appellant-Company, could he claim the said right indirectly? The answer to the said question must be rendered in the negative. It is well-settled that what cannot be done directly cannot be done indirectly. The term 'Waiver' has been described in the following words: "Waiver is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. A person who is entitled to rely on a stipulation, existing for his benefit alone, in a contract or of a statutory provision may waive it, and allow the contract or transaction to proceed as though the stipulation or provision did not exist. Waiver of this kind depends upon consent, and the fact that the other party has acted upon it is sufficient consideration It seems that, in general, where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, so as to alter his position, the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he has himself so introduced, even though it is not supported in point of law by any consideration. [See 16 Halsbury's Laws (4th edn) para 1471]
75. Waiver may sometimes resemble a form of election, and sometimes be based on ordinary principles of estoppel. [See 45 Halsbury's Laws (4th edn.) para 1269]
76. In Indu Shekhar Singh and Ors. v. State of U.P. and Ors. 2006 (5) SCALE 107, this Court held:
'26. They, therefore, exercised their right of option. Once they obtained entry on the basis of election, they cannot be allowed to turn round and contend that the conditions are illegal.'"
(iv) In the case of Saroj Anand and Others vs. Prahlad Rai Anand and Others reported in 2009(15) SCC 505 paras 19, 20 & 22 as recorded by the Apex Court read as under:
"19. We may notice that Shanti Devi died in December 2003. Appellant in his application filed in November 2002 categorically admitted that Shri Kapoor was engaged as a counsel. If any misunderstanding occurred by and between him and the defendants as regards the instructions given to him, there was no reason as to why an application for rectification thereof could not be filed immediately thereafter. Instructions to that effect could have been given by Shri Amar Nath Anand and his wife also during their life time. It is difficult to accept that Shri Y.K. Kapoor would make appearance on behalf of the defendants without any authority. Again if that was so, the parties who had been appearing before the courts should not have allowed him to represent them. It is unfortunate that with a view to wriggle out of the admission, appellant has now gone to the extent of maligning a counsel who happens to be the son-in-law of the first respondent.
20. A decree can be passed on the basis of a concession of the parties. Such a concession can also be made through a counsel. The parties were present in court on 14.10.1999. They, thus, could instruct their counsel. As on the basis of the statements made by a counsel for all intent and purport, a preliminary decree has been passed and the parties thereafter had been exploring the possibilities of partitioning the property by meets and bounds and/or taking recourse to sale thereof there cannot be any doubt whatsoever that they had knowledge of the said order dated 14.10.1999. The parties acted upon it. It is, therefore, in our opinion, too late in the day to allow the parties to take a stand contra. Having regard to the fact that they were present in court as also having full knowledge about the statement made by their counsel, it was for them to clearly spell out what could be the purported misunderstanding between them and the counsel.
22. It is now a well settled principle of law that a counsel can make not only concession on a question of law but also on facts which would be binding on the parties. A decree can be passed on the basis of such concession in terms of Order XXII, Rule 6 of the Code of Civil Procedure. [ 1975 See Jamilabai Abdul Kadar vs. Shankarlal Gulabchand and Ors. , Pushpa Devi Bhagat v. Rajinder Singh, and BSNL and Others v. Subash Chandra Kanchan)."
(v) In the case of Maheshbhai S. Vadhvani vs. Jagdishbhai Manilal Bhojani reported in 2010(1) GLR 628 this Court in para 7 observed as under:
"7. Mr.Y.N.Oza, learned Senior Advocate for the petitioner has submitted that the order passed below application at Exh.24 on 16-9-2008 is erroneous as the endorsement made by the learned advocate for the petitioner before the Trial Court is clearly visible on the left hand side of the application and there is no mention of an undertaking in the said endorsement. In fact,the application at Exh.24 contains a prayer to grant an order of status-quo and nowhere is it reflected in the body of the said application, that any undertaking has been given by the learned advocate for the petitioner,before the Trial Court. The said application has been opposed and it is clearly endorsed that an appeal is to be preferred before the High Court and in this situation, the reply/objections are not filed and an appropriate order may be passed for hearing and to file reply/objections. It is emphasised that this endorsement can, in no manner, be construed as a undertaking. The learned Senior Advocate for the petitioner further submitted that the order of the Court wherein the word of "undertaking" has been mentioned does not specify what is the nature of the undertaking, when it was given, and what is the duration for the undertaking, therefore, any order passed on the basis of this order, cannot be permitted to stand. It is further contended that the order below application at Exh.76 has been passed in view of the so-called "undertaking" but no-where has it been mentioned what the nature or content of the undertaking was/is. It is denied that any "undertaking" has been given by the petitioner. It is further urged, on behalf of the petitioner, that the respondent No.2, solely with a view to binding down the petitioner has filed the application at Exh.29, wherein it is declared that an "undertaking" has been given by the learned advocate for the petitioner. It is further submitted that the respondent No.2 (original defendant No.1),who had supported the case of the petitioner before the Trial Court as a co-defendant and was defended by the same learned advocate, has now colluded with the respondent No.1, which is proved by the affidavit-in-reply filed by him before this Court, supporting the stand of the respondent No.1, whereas, such a stand was never taken before the Trial Court. The learned Senior Advocate for the petitioner has relied upon a judgment of the Supreme Court in Babu Ram Gupta v. Sudhir Bhasin, AIR 1979 SC 1528, wherein it has been held that in the absence of any express undertaking in writing given by a party or any undertaking incorporated in the order of the Court, it would be difficult to hold that the appellant (in that case) willfully disobeyed or committed breach of such an undertaking. It is further submitted that the case of the petitioner is squarely covered by the above- mentioned judgment. As there is no express undertaking in writing and nor has the Court recorded the nature or content of the undertaking, (though denied) it cannot be said that the petitioner has committed a breach of any undertaking so as to justify the passing of the impugned order below Exh.76."
5. Mr. Ashish Shah, learned advocate appearing for the opponents- original plaintiffs supported the decrees passed by the trial court in Civil Suits No. 4419 & 4420 of 1983. He submitted that the alleged consent terms were drafted only with an ulterior and illegal motive of escaping from the legal provisions of the Bombay Rent Act. He contended that the original defendant - present appellant obtained signatures of the original plaintiffs in the writings purporting as if the suit shop and the loft were given to them for use and occupation as licencees from 27.06.1978 and 29.06.1978. However the possession of the suit shop was delivered only on 12.07.1978 after the consent terms were signed.
5.1 Mr. Shah submitted that the deposition of one Shri Ambalal who can be said to be an independent witness is amply clear that the signatures of the plaintiffs were taken fraudulently and that the possession of the premises was given after the consent terms were executed. He submitted that the defendant did not enter the witness box and that there is ample evidence on record to show that the Gautamlal - son of the appellant had forcibly tried to take possession of the suit premises.
5.2 Mr. Shah further contended that the cause of action accrues from 01.01.1993 pursuant to the consent decree and the day Gautamlal tried to forcibly take possession from the plaintiffs and therefore the facts of the present case are squarely governed by Article 58 of the Limitation Act.
6. Having heard the arguments and after going through the records, certain facts which emerge are required to be noted down. On 27.06.1987 leave and licence agreement is obtained from the original plaintiff- Shantilal Agrawat for leave and licence of shop for a temporary period of 10 days only for storage of medicines. After two days signature of original plaintiff- Manjulaben Agrawat is obtained on typed copy of such agreement and letter is obtained from her stating that loft portion of the shop was given to her for use and occupation for 8 days only for the purpose of storing articles of business.
6.1 Thereafter, caveat applications were filed on 11.07.1978 & on 12.07.1978 suits were filed by the present appellant against the original plaintiffs being Civil Suit No. 2234 of 1978 & 2235 of 1978. In the said suits, on 12.07.1978 consent terms are filed at Ex. 101 and Ex. 104 respectively.
6.2 The proceedings in the Civil Court for the said suits lasted only for a single day on 12.07.1978 and if the caveat applications are considered the same lasted for two days and decrees are passed. Thereafter, on 14.07.1978 advance three months' rent is recovered from both the plaintiffs and thereafter rent at Rs. 300 was recovered and for the same printed receipts were issued.
7. The trial court while deciding Civil Suits No. 4419 & 4420 of 1983 framed issues at Ex. 26 and Ex. 23 respectively wherein the main issues raised were as to whether the suits were not maintainable on the grounds of res-judicata, estoppel and acquiescence and that whether the trial court had jurisdiction to entertain and try the suits and that whether the plaintiffs prove that signatures in compromise were obtained by the defendant by fraud and misrepresentation and also whether the plaintiffs prove that the decree are nullity.
7.1 As far as the issue of jurisdiction is concerned, the trial court while deciding the said issue observed that when the court has found that the defendant had engineered proceedings in City Civil Court by way of Suits No. 2334 & 2335 of 1978 fraudulently and illegally, the Civil Court had jurisdiction to entertain the suits. The trial court also observed that if it is found by the Court on facts that any party to any proceeding before it maneuvered to use Court's machinery for flouting or evading pious provisions of any benevolent statute it is required for the Court to strike down the order for the decree so obtained.
7.2 In the present case there was no question of relationship of tenant and landlord to be determined between the parties. The original plaintiffs had already approached the rent court for the same by filing HRP Suits No. 23 & 24 of 1983. The plaintiffs before the trial court had sought a declaration that the decrees obtained in Civil Suits No. 4419 & 4420 of 1983 were fraud and illegal. The same did not fall within the exclusive jurisdiction of the Rent Court under the Bombay Rent Act. Hence the trial court was justified in holding that the court was having jurisdiction to decide the suits.
7.3 As regards the issue of limitation and resjudicata, the trial court observed that the time for suits will begin to run for the plaintiffs when the defendant first attempts to act upon the decree obtained in the civil suits and such initial attempt was made to take over the forcible possession of the suit shop by Gautamlal - son of the original defendant and his associates. The trial court also observed that criminal complaint was filed in this regard and the case was tried by Metropolitan Magistrate Court who ultimately vide judgement dated 17.04.1986 acquitted Gautamlal mainly because of pending civil litigation between the parties. The trial court relying on the decisions of the Apex Court and this Court held that the suits are also not barred on the grounds of res-judicata and estoppel.
7.4 Learned advocate for the appellant made an endeavour in submitting that the suit was not filed within three years of the date of passing of decree and that both the suits were filed on 16.12.1983 and therefore were time barred. This court is of the opinion that the suits of the plaintiffs shall be governed by the provisions of Article 58 of the Limitation Act, 1963 as per which the time begins to run when the right to sue first accrues. In the present case, the right to sue first accrued on 01.01.1983 when forcible possession was tried to be taken. Article 58 of the Act accrues only when the right asserted in the suit is infringed or there is at least a clear and unequivocal threat to infringe that right.
Therefore, the suits which were filed on 16.12.1983 cannot be said to be time barred as the same were within a period of three years from 01.01.1983.
7.5 With regard to the issue as to whether the decrees were obtained fraudulently, the trial court came to the conclusion that the leave and licence agreement between the parties and all the proceedings in the City Civil Court in Civil Suit Nos. 2234 & 2235 of 1978 were not genuine and bonafide but they were engineered by the defendant acting under the expert advice of her learned advocate as a matter of arrangement to suppress the real nature of transaction between the parties in the matter of suit shop. Though in guise of mesne profits under decree of the City Civil Court, the defendant did accept fixed amounts every month from the plaintiffs.
7.6 The deposition of Shri Ambalal who was known to both the sides can be said to be crucial evidence. He has deposed that they were asked to come to the court premises and the plaintiffs were made to sign certain documents. It is required to be noted that the say of the appellant that the suit premises were given prior to the date of filing of the suit prima facie is not corroborated with cogent evidence. From the evidence of Shri Ambalal and the conduct of the parties, it appears that the suit premises were handed over after the consent terms and after decree was passed. It is also relevant to note that the rent receipts mentioned the suit number which was overlooked by the plaintiffs in good faith.
7.7 There is nothing on record to show that the suit premises were in the possession of the original plaintiffs from 27.06.1978. Learned advocate for the appellant is not in a position to show any material on record to take a view contrary to the one taken by the trial court in this aspect. In that view of the matter, the possibility of adoption of a method to evade the applicability of provisions of Bombay Rent Act cannot be ruled out. The original plaintiffs were able to prove malafide intention on the part of the defendant - present appellant. This court is in complete agreement with the reasonings adopted and findings arrived at by the trial court and hence do not find any reason for causing interference in the same.
8. In the case of Newton Hickie (supra) there was no allegation of the other side having engineered any plot or having played fraud on the Court which is not the case in the present appeals. Hence, the said decision shall not be applicable on the facts of the present case.
8.1 In the case of Babu Ram Gupta (supra), the issue involved therein was with regard to Contempt of Court which is not the issue in the present appeal. Hence, the said observations cannot be considered qua the present case.
8.2 In the case of BSNL and Others (supra), the issue of waiver is well discussed by the Apex Court. However, considering the peculiar facts and circumstances of the present case where the signatures on consent terms itself were taken fraudulently the question of resiliency does not arise. The deposition of the independent witness and absence of cogent evidence on the part of the appellant - original defendant rules out the applicability of the said decision on the present case. Similarly, the decisions in the cases of Saroj Anand and Others as well as Maheshbhai S. Vadhvani (supra) shall not be applicable on the facts and circumstances of the present case.
9. It is a settled proposition of law that a judgment or decree obtained by playing fraud on the Court is a nullity and non-est in the eyes of law. Such a Judgment / decree by a Court has to be treated as a nullity by every Court, whether superior or inferior. It can be challenged in any Court even in collateral proceedings. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practiced upon that Court or any Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order.
9.1 Thus looking to the natural course of events and conduct of the parties, the trial court came to the conclusion that the real and genuine nature of transactions between the parties in respect of the suit property was not disclosed. The trial court also was not convinced on the point that just for a short period of 10 and 8 days there would be exhaustive and detailed documentation on stamp paper under the guidance and advise of an advocate and that too without any charges. Learned advocate for the appellant is not in a position to throw any light on this aspect. Under such circumstances, the trial court observed that the facts presented to the City Civil Court by way of caveat application, plaints of civil suits no. 2334 & 2335 of 1978 and the consent terms in particular were not genuine, true or bonafide but were arranged by the defendant under expert legal advice to give a different colour to the transactions between the parties so that the provisions of the Bombay Rent Act may not be attracted. Thus, the trial court was completely justified in setting aside the decrees fraudulently obtained by the present appellant.
10. For the foregoing reasons, appeals are dismissed. The impugned orders passed by the City Civil Court, Ahmedabad in Civil Suit No. 4419 & 4420 of 1983 are hereby confirmed. No costs.
(K.S. JHAVERI, J.) Divya//