Madras High Court
R.S.Sornam vs ) Rathinam on 18 October, 2019
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
C.R.P.(MD)No.1318 of 2012(PD)
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.10.2019
CORAM :
THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH
C.R.P.(MD)No.1318 of 2012(PD)
and
C.M.P.(MD) Nos.9909 to 9914 of 2016, 7455 of 2018
& M.P.(MD) No.2 of 2012
R.S.Sornam ... Petitioner/ 3rd party
vs.
1) Rathinam ... Respondent/ Plaintiff
2) Medai Thalavoi K.Thirumalaiappan ... Respondent/ Defendant
3) Skylimit Developers Pvt. Ltd.,
No.16/8-Ground Floor,
1st Cross-Gupta Layout,
Sounth End Circle near,
Basavangudi, Bangalore.
Rep. by its Authorised Signatory,
N.Thivagaran
4) M/s.Silver Bell Developers Pvt. Ltd.,
No.9/5-Nandhanam Extn, 1st Street,
Nandhanam, Chennai.
Rep. by its Authorised Signatory,
N.Thivagaran
5) M/s.Greyia Realtors Pvt. Ltd.,
No.9/5-Nandhanam Extn, 1st Street,
Nandhanam, Chennai.
Rep. by its Authorised Signatory,
N.Thivagaran
6) M/s.Nervosa Builders Pvt Ltd., Chennai,
No.9/5-Nandhanam Extn, 1st Street,
Nandhanam, Chennai.
Rep. by its Authorised Signatory,
N.Thivagaran
http://www.judis.nic.in
C.R.P.(MD)No.1318 of 2012(PD)
2
7) Velvet Developers Pvt. Ltd.,
No.16/8-Ground Floor,
1st Cross-Gupta layout,
Sounth End Circle near
Basavangudi, Bangalore.
Rep. by its Authorised Signatory,
N.Thivagaran
8) Fernhill Shelters Pvt Ltd.,
III Floor, Selva Towers,
No.320/1-Avinashi Road,
Coimbatore 641 004
Rep. by its Authorised Signatory,
N.Thivagaran ... RR 3 to 8/Impleaded
respondents
* RR3 to 7 were impleaded by Court order dated 18.10.2019 vide C.M.P.(MD) Nos.
9909 to 9914 of 2016
PRAYER: Petition filed under Article 227 of the Constitution of India,
against the Judgment and Decree passed in O.S.No.87 of 2009 on the
file of the Sub Court, Tuticorin dated 18.09.2009.
For Petitioner : Mr.T.Selvan
For R1 : Mr.R.Manimaran
For Impleaded : Mr.M.Muthugeethayan
Respondents
******
ORDER
The present Civil Revision Petition has been filed challenging the judgment and decree passed by the Sub Court, Thoothukudi in O.S.No. 87 of 2009.
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2. The petitioner is the third party and he has filed this Civil Revision petition challenging the judgment, after seeking the leave of this Court and this Court had granted leave by an order dated 26.06.2012, made in M.P.No.1 of 2012.
3. It is seen from the records that the first respondent/ plaintiff had filed a suit for specific performance against the second respondent/ defendant. A careful reading of the plaint shows that the suit for specific performance was filed in the year 2009 based on the alleged agreement of sale dated 27.06.1986. In other words, a sale agreement is sought to be acted upon after nearly 23 years by filing the present suit. The plaint does not any where give any details as to how the plaintiff is justifying this enormous delay. A notice was served on the second respondent/ defendant and he comes before the Court and files a memo on 18.09.2019, submitting himself to the decree.
4. It is seen that the property has already been dealt with by the defendant with various third parties and concealing the same, he has proceeded to submit himself to the decree in the suit filed by the first respondent/ plaintiff.
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5. It is even more shocking to see the judgment passed by the Court below. The Court below has allowed the suit without assigning any reason and it is seen that not even the agreement of sale has been marked, before the judgment and decree was passed. This judgment and decree is now been put to challenge before this Court.
6. The impleading petitions have been filed by nearly six companies on the ground that they are also the owners of several portions of the property that was sold out to them by the co-sharers of the second defendant.
7. The learned counsel for the petitioner submitted that the property was sold to the petitioner by the second respondent/ defendant on 18.11.2008. After having sold the property in favour of the petitioner, the second respondent had lost his right over the property and he did not have any right to go and concead or submit himself for any decree before the Court below. The learned counsel submitted that the parties have played a fraud in this case and the fraud vitiates the entire judgment and decree, which has to be necessarily set aside by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India.
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8. In order to substantiate his submission, the learned counsel relied upon the following judgments:
(i) Mohammed Mamu Naina vs. Selvin and others made in C.R.P.(MD) No.1863 of 2002, dated 12.04.2007.
(ii) J.Sivasubramanian and another vs. N.Govindarajan and another reported in 1998 1 CTC 470; and
(iii) P.Subramani vs. A. Periyasamy reported in 2013 (6) CTC 166; and
(iv) G.Selvam vs. Kasthuri (deceased) in C.R.P.(MD) No. 2984 of 2013(PD) reported in 2015 4 CTC 673;
9. The learned counsel appearing on behalf of the first respondent/ plaintiff submitted that since the defendant did not execute the sale deed pursuant to the agreement of sale, a suit for specific performance was filed and the defendant submitted himself to the decree and therefore, this 1st respondent/ plaintiff cannot be found fault and insofar as he is concerned, he has only exercised a right that was available to him under law.
10. The learned counsel appearing on behalf of the impleaded respondents submitted that the so-called judgment and decree is not in line with Order 20 Rule 5 of CPC and such a cryptic judgment is ex facie illegal and requires the interference of this Court.
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11. This Court has carefully considered the submission made on either side and the materials available on record.
12. The first respondent/ plaintiff has filed the suit for specific performance based on the agreement of sale dated 27.06.1986. The cause of action as pleaded in the suit is extracted hereunder:-
“9) The cause of action for the suit arose on 27.06.1986 when the plaintiff and defendant jointly entered into a written sale agreement in respect of the plaint schedule properties, on and from the beginning of January 2009 when the plaintiff is asking the defendant to execute the sale deed and when the defendant was dragging on by saying lame excuses on 17.04.2009 when the plaintiff sent lawyer's notice to the defendant demanding execution of the sale deed, on 23.04.2009 when the defendant received the said notice and kept silence without sending any reply on 27.04.2009 when the plaintiff directly contacted the defendant and asked him to execute the sale deed and the defendant bluntly refused to execute the sale deed and on subsequent dates at Thaivasayalpuram village in Srivaikuntam Taluk where the schedule properties are situated and which are within the jurisdiction of this Honourable Court”.
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13. In the entire plaint, there is absolutely not even a whisper as to what had happened between 1986 to 2009 and why it took such a long time to file the suit. The second respondent / defendant filed a memo before the Court below on 18.09.2009 and submitted himself to the decree. This submission to the decree itself is a fraud played before the Court below, since by then, the second respondent/ defendant had already sold the property to the petitioner and the remaining portion of the property has been purchased from the co-sharers by the impleaded respondents.
14. In this case, this Court is not concerned about the description of the properties or the extent of the properties. This Court is more concerned about the manner in which the judgment and decree has been passed by the Court below. At this point of time, it will be relevant to rely upon the judgments that have been cited before this Court.
(i) In Mohammed Mamu Naina vs. Selvin and others made in C.R.P.(MD) No.1863 of 2002, dated 12.04.2007 referred supra, this Court held as follows:
“7. This Court in a case reported in 2006(5) C.T.C. Page 848 (J.Lili Jabakani and others Vs. T.A.Chandrasekhar) has dealt with the powers of this Court under Article 227 of the Constitution of India. In Para 16 of the said judgment, this Court has held as http://www.judis.nic.in follows:
C.R.P.(MD)No.1318 of 2012(PD) 8 "Para 16. The scope and amplitude of Article 227 of the Constitution of India has been considered by a catena of decisions of the Apex Court and the Apex Court has held that supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step into exercise is supervisory jurisdiction."
Therefore, in the case on hand also, if the decree obtained by the respondents 1 to 5 is allowed to be in force it will certainly cause injustice to the petitioner and other general Public who claim that there are two wells in the suit property which are being used by the public.
8. In the above back drop, I have no hesitation to invoke the power under Article 227 of the Constitution of India to set aside the decree and judgment dated 04.10.2001 made in O.S.No.196 of 2001 on the file of the learned Subordinate Judge, Tuticorin.”
(ii) The next judgment that has been cited before this Court is J.Sivasubramanian and another vs. N.Govindarajan and another reported in (1998) 1 CTC 470 referred supra and the relevant portions http://www.judis.nic.in C.R.P.(MD)No.1318 of 2012(PD) 9 of the judgment is extracted hereunder:
3. If the decree is only against the defendant in the suit, I would not have interfered with the matter. The relevant facts which necessitated the filing of the revision petition must be summarised, and then only it could be understood whether there was fraud in obtaining the decree.
....
10. I would not have thought of interfering with the decree of the lower Court, but for the admission of the respondents themselves that petitioners are in possession, and, therefore, defendant (second respondent) wanted recovery of possession of the properties from them. That is clear from the notice issued by the 2nd respondent on 17.4.1997. After giving details of all the properties which are the subject matter of the suit, in para 6, it is said:
"My client states that without any authority or lawful grant from my client you are illegally occupying the above said lands including the said two brick industries. You are in possession of the above said properties by fraud upon my clients in connivance with the said my power of attorney. Though my client demanded you to hand over possession to him, you have failed and neglected to oblige my client's demands with an ulterior motive to grab the above said properties for which you have no manner of right."
In Paragraph 8, it is further reiterated thus:-
"Therefore, on behalf of my client, I hereby call upon both of you to deliver vacant possession of the above said properties, namely, "Aruljothiram Brick Industries and Sakthiraja Brick Industries"
situated in Kollappakkam Village, Sriperumbudur http://www.judis.nic.in C.R.P.(MD)No.1318 of 2012(PD) 10 Taluk, Chengai M.G.R. District, comprised in Survey Nos. (1)331/2(2) 336/2, (3) 336/1 B, (4) 333/2 having total extent of 12-07 acres along with the sum of Rs. 5,00,00,000 (Five crores) and Rs. 10,00,000 (Ten lakhs) towards loss and mental agony within one month from the date of receipt of this notice, failing which my client has no option except initiating legal proceedings both under criminal and civil laws holding both of you liable for all costs and expenses incidental thereto." After having admitted that the petitioners are in possession and also after asking them to hand over possession, second respondent executed the Power of Attorney in favour of the first respondent. A suit is filed on that basis and a decree is obtained. The suit was filed on 3.11.1997. Even before summons were served on the defendant, within 48 hours, second respondent (defendant) enters appearance and makes an endorsement on the plaint that he has no objection for a decree being passed. The Court also, without any application of mind, has passed the decree. No evidence is taken. The trial court also failed to note that the suit itself has been filed by the agent against the principal. An agent is not entitled to file a suit against his principal, preventing the principal from entering into the properties. No interest in land is granted by the agency. By filing the suit through the agent, the person who got advantage is the second respondent who has already admitted that the petitioners are in possession on the basis of documents. Second respondent, though arrayed as defendant in the suit, he is the real plaintiff. He has suppressed the execution of documents by his power of attorney Munuswamy alias P.M.Swamy in the year 1983, and the subsequent purchase by the petitioners. He has also suppressed the issuance of notice dated 17.4.1997. If these facts had been brought to the notice of the trial court, injunction would not have been granted. It would only prove that he was not in possession. If the second respondent was not in possession, naturally his Power of Attorney Agent also, by virtue of the Deed http://www.judis.nic.in of Power, cannot get any possession.
C.R.P.(MD)No.1318 of 2012(PD) 11
13. I feel that all these decisions will show that a duty is cast on the litigant to plead, pray and get relief by placing all materials before Court. By suppressing facts and without impleading the necessary parties, a collusive decree is obtained. In the case on hand, the collusion is apparent. A person who has no right in the property concedes the right of the plaintiff to get a decree, and that too within 49 hours of filing of the suit. The result of this is getting unfair advantage over the rights of the petitioners and to deprive them of their properties. Both the respondents were aware that the petitioners are in possession on the basis of documents. They themselves (i,e. parties to the suit) admit the possession of the petitioners. But, without disclosing any of these documents, the power of attorney (agent) filed the suit against the principal and gets a decree, by consent. I have already stated as to what is the legal effect, i.e., the second respondent (defendant) himself is the plaintiff and defendant. It will be unjust to accept the contention of the respondents. Such a collusive decree also cannot be allowed to stand. After coming to know of these facts, if any Court shuts its eyes to realities, it will cease to be a Court of Justice. By invoking the judicial supervisory jurisdiction, I declare that the decree in O.S.No.7631 of 1997, on the file of XV Assistant Judge, City Civil Court at Madras is a nullity and on the basis of the said decree, possession of the petitioners shall not be disturbed. I further find that since the suit is filed fraudulently, the same is liable to be quashed, and I do so. O.S.No.7631 http://www.judis.nic.in of 1997 is struck off from the file of the lower Court. The C.R.P.(MD)No.1318 of 2012(PD) 12 Civil Revision Petition is allowed with costs. Advocate's fee Rs. 2,500 (Rupees Two thousand five hundred). CMP. No. 17556 of 1997 for stay is closed.”
(iii) The third judgment that has been relied upon is P.Subramani vs. A. Periyasamy reported in 2013 (6) CTC 166. The relevant portions of the judgment is extracted hereunder:-
“ 22. In the present case, the entire proceedings relating to delivery of possession are vitiated by fraud. When an order is obtained by resorting to fraud, all the subsequent proceedings thereto will also render it vitiated. In this context, I am fortified by the decision of this Court reported in (J. Sivasubramanian and another vs. N. Govindarajan and another) 1998 1 CTC 470 relied on by the learned counsel for the revision petitioner. In that case, this Court took note of the fact that the suit was filed by suppressing material facts and by not impleading the proper and necessary parties. This Court held that fraud and collusion are palpable and that the decree was obtained by power of attorney agent as against his own principal thereby depriving his right over the property, which was purchased by him from the original owner. As the power agent filed the suit by suppressing the material facts, this Court held that "....in such cases, it is the duty of the Court to see that the suit itself is wiped off from the file." It was also held by this Court that in such circumstances the revision petition under Article 227 of the Constitution of India is very http://www.judis.nic.in C.R.P.(MD)No.1318 of 2012(PD) 13 much maintainable. In that case, this Court, relying on the decision of the Honourable Supreme Court reported in S.P. Chengalvaraya Naidu (dead) by Lrs vs. Jagannath (dead) by Lrs and others, 1994 (1) SCC 1 culled out the legal propositions as follows:-
"12. In S.P. Chengalvaraya Naidu (dead) by LRs. v. Jagannath (dead) by LRs. and others, , their Lordships have decided as to what is meant by 'fraud'. In paragraph 6, Their Lordships have held thus:-
"... 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's loss. It is a cheating intended to get an advantage..."
Their Lordships have further said thus:-
"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."
In the earlier portion of that Judgment, their Lordships have held thus:-
"... We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation."
The effect of such a decree obtained in such cases is also stated in that judgment thus:-
"... 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.... A judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. http://www.judis.nic.in C.R.P.(MD)No.1318 of 2012(PD) 14 Such a judgment/decree by the first Court or by the highest 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."
In Mahboob Sahab v. Syed Ismail and others, of the judgment, Their Lordships declared thus:-
"... The reason is that fraud is and extrinsic collateral act, which vitiates the most solemn proceedings of courts of justice. If a party obtains a decree from the Court by practicing fraud or collusion, he cannot be allowed to say that the matter is res judicata and cannot be reopened. There can also be no question of res judicata in a case where signs of fraud or collusion are transparently pregnant or apparent from the facts on record."
In paragraph 10, Their Lordships further declared thus:-
"...Section 44 of the Evidence Act envisages that any party to a suit or proceeding may show that any judgment, order or decree, which is relevant under Sections 40, 41 or 42 has been obtained by fraud or collusion. Under Section 40, the existence of the judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such court ought to take cognizance of such suit or to hold such trial."
In Indian Bank v. Satyam Fibres (India) Pvt. Ltd., it was declared thus:-
"The authorities, be they constitutional, statutory or administrative, (and particularly those who have to decide a lis) possess the power to recall their judgments or orders if they are obtained by fraud as fraud and justice never dwell together (Fraud et jus nunquam cohabitant). Fraud and deceit defend or excuse no man (Fraud et dolus nemini patrocinari debent). The judiciary in India also possesses inherent power, specially under Section 151, CPC., to recall its judgment or order if it is obtained by fraud on court. In the case of fraud on a party to the suit http://www.judis.nic.in or proceedings, the Court may direct the affected C.R.P.(MD)No.1318 of 2012(PD) 15 parly to file a separate suit for setting aside the decree obtained by fraud. Inherent powers are powers which are resident in all Courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the tribunals or courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rule, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the Court's business. 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 practised upon that 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."
23. By referring to the above decisions, this Court went to the extent of holding that the suit itself has been filed by committing fraud and therefore it was ordered to be struck off as it was non-est in the eye of law. ....
27. In the decision reported in (Roshan Deen vs. Preeti Lal) 2002 1 CTC 183 which was also relied on by the learned counsel for the Petitioner, the Honourable Supreme Court dealt with the powers that could be exercised by the Courts under Article 227 of The Constitution of India and held that no man should be subjected to injustice by violating the Rule of law. In para Nos. 13, 16, 19, 20 and 21, it was held as follows:-
"13. Here, look at the fallout of the impugned order. The High Court permitted the revival of an absolutely, unjust order, both on facts and on law, http://www.judis.nic.in which deprived a person of his legitimate right to C.R.P.(MD)No.1318 of 2012(PD) 16 have his claim decided in accordance with the provisions of the statute. A reading of Section 17 of the Act would amplify the above position....
16. In the light of the above provisions of the Act, the High Court could have, without any strain, gauged the magnitude of the injustice inflicted on the claimant, if the order of the Commissioner dated 19.03.1999 remained unchanged. Had the Commissioner refused to recall the said order, would the High Court have refused to interfere, if the claimant moved the High Court under Article 227 of The Constitution challenging the said order? It does not require much reasoning that the answer to that question could only be in the negative. If so, learned single Judge of the High Court had facilitated miscarriage of justice to be occasioned by restoring an order passed by the Commissioner on 19.03.199, which is ex-facie illegal apart from being unjust and inequitable. Even on the fact situation the High Court could not have revived the said order because it had recorded that it was the respondent who represented before the Commissioner that both parties had arrived at an agreement. We may point out that the very respondent himself in his reply to the application for restoration of the claim petition had disowned having made any such statement before the Commissioner.
19. Learned single Judge seems to have entertained a notion that once a Commissioner happened to pass an order, however illegal, unjust or inequitable it be, or even if the Commissioner was convinced that the order was wangled from him by playing a fraud on him he would be helpless and the parties thereto would also be helpless except to succumb to such fraud. It was in this context that the decision cited before the learned single Judge of the High Court required consideration by him. In United India Insurance Co. Ltd. vs. Rajendra Singh and ors. (supra) this Court had held thus:
" 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 http://www.judis.nic.in C.R.P.(MD)No.1318 of 2012(PD) 17 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."
20. We cannot allow the order of the Commissioner dated 19.3.1999 to remain alive even for a moment. It is the byproduct of fraud and cheating. We, therefore, set aside the impugned judgment and restore the order passed by the Commissioner on 11.10.1999. As already a long period of six years has been wasted we direct the Commissioner to expedite the proceedings and dispose of the claim without any further delay.
21. Before disposing of this appeal we deem it necessary to make one more direction which, in our opinion, is required for completion of the even course of justice. The Bar Council of the State of Haryana should hold an inquiry into the allegations made by the petitioner against the advocate Rajpal Panwar of Jagadhri as to whether he had played a chicanery to defraud the petitioner by obtaining his thumb impression and paying Rs.9,500/-. We restrain ourselves from making any observation on the merits of the allegations made against the aforesaid advocate. We direct the Registry of this Court to forward a copy of this judgment to the Secretary of the Bar Council of the Haryana. This is to enable the said Bar Council to adopt such steps as they deem fit and necessary for disposal of the disciplinary proceedings as against the said Rajpal Panwar, Advocate, Jagadhri.
30. In the present case on hand, the respondent not only cheated the revision petitioner and taken delivery of the property in question but played fraud on the Court by taking advantage of the exparte order initially passed and which was set aside later. Therefore, such an act done by the respondent is per se illegal. Under those circumstances, in exercise of powers conferred http://www.judis.nic.in C.R.P.(MD)No.1318 of 2012(PD) 18 under Article 227 of The Constitution of India, this Court can set at naught the illegality committed by the respondent even by striking off the Execution Petition No. 250 of 2013 from the file of the learned XIV Judge, Small Causes Court at Chennai as the filing of the Execution Petition itself is by resorting to fraud on the Court and it is per se illegal. Consequently, the orders passed in the Execution Petition for delivery of possession in favour of the respondent herein is vitiated and delivery cannot be recorded. The delivery of possession, therefore, is also vitiated by an act of fraud committed by the respondent and the delivery alleged to have been effected has no force of law. Under law, the revision petitioner alone is entitled to remain in possession of the property in question and therefore, this Court is of the view that the order dated 12.08.2013 of the learned Rent Controller for re-delivery of possession is upheld and the order dated 13.08.2013, passed in R.C.A. No. 392 of 2013 by the Rent Control Appellate Authority and VIII Judge, Court of Small Causes, Chennai. which is impugned in this Civil Revision Petition, is set aside. The order passed in the Execution Petition No. 250 of 2013 on the file of the learned Rent Controller (IX Judge, Court of Small Causes, Chennai) for delivery of possession and the R.C.A. No. 392 of 2013 on the file of the learned Rent Control Appellate Authority (VIII Judge, Court of Small Causes, Chenai) are hereby ordered to be struck off from their respective files.
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31. In the result, the Civil Revision Petition is allowed as prayed for. Consequently, connected miscellaneous petition is closed. As the revision petitioner had underwent enormous mental strain and agony for not fault on his part, due to the act of the respondent herein in dispossessing the revision petitioner by playing fraud on the Court, the respondent is liable to compensate the revision petitioner by paying exemplary costs. Accordingly, the respondent is directed to compensate the revision petitioner by paying exemplary costs of Rs.50,000/-. The respondent is also directed to forthwith hand over the possession of the property in question to the revision petitioner, as found in the Execution Petition, namely residential house and ground measuring 300 square feet bearing Old Door No.120, New Door No.9/115, Valluvar Street, Mettukulam, Koyambedu, Chennai 600 092. For reporting compliance, office is directed to post this Civil Revision Petition on 23.10.2013 and if possession is not handed over by the respondent to the revision petitioner herein on or before 22.10.2013, further directions will be issued by this Court on 23.10.2013. The Commissioner of Police, Greater Chennai is hereby directed to give necessary police protection to the revision petitioner to enable him to get peaceful possession of the property in question from the respondent. Office is also directed to place this case before the Honourable Acting Chief Justice, High Court, Madras for passing appropriate orders to take necessary action against the erring http://www.judis.nic.in C.R.P.(MD)No.1318 of 2012(PD) 20 officials for having committed fraud on the Court and this should be separately dealt with.
(iv) The fourth judgment that has been relied upon before this Court is G.Selvam vs. Kasthuri (deceased) in C.R.P.(MD) No.2984 of 2013(PD) reported in 2015 4 CTC 673 and the relevant portions of the judgment is extracted hereunder:-
“25. As per Order 20 Rule 4 of Civil Procedure Code, Judgments of the Courts shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.
26. In the case on hand, all the defendants were set exparte. The trial court did not frame any issue for deciding the suit. The trial court simply examined P.W.1 and found that the claim made by him is proved. The judgment pronounced by the trial court is clearly contrary to the provisions of Order.20 Rule 4 and Rule 5 of Civil Procedure Code.
27. In the judgment reported in 2012 (5) SCC 265 (C.N. Ramappa Gowda vs C.C. Chandregowda (dead) by LRs and another, cited supra, the Hon'ble Supreme Court held that in a suit, where the defendants failed to file their written statement, the non-filing of the written statement should not have any penal consequences and the court should proceed cautiously and exercise its discretion in a just manner and even in the absence of written statement, burden of proof would remain on http://www.judis.nic.in C.R.P.(MD)No.1318 of 2012(PD) 21 plaintiff and his mere assertion in plaint would not be sufficient to discharge the burden.
28. In that case, challenging a cryptic unreasoned judgment and decree, resulting from failure to file a written statement despite repeated opportunities having been given for the same, it has been held that the High Court was justified in remanding the matter to the lower Court for de novo trial by giving fresh opportunity to the defendants to file written statement.
29. Following the ratio laid down in the judgment reported in 2012 (5) SCC 265 (Ramappa Gowda vs C.C. Chandregowda (dead) by LRs and another,) the Division Bench of this Court, reported in 2013 (4) CTC 545 (Chitrakala vs P. Mahesh and others) (cited supra) (wherein, I was a party to the judgment), held that the burden of proof lies on plaintiff, irrespective of there being any Written Statement or evidence of rebuttal, plaintiff to succeed in Suit only on the basis of strength in his case and not on the basis of weakness in Defendant's case.
30. Further, the Division Bench held that the decree cannot be passed solely on the plaint averments, as these averments are not substantiated. Hence the Division Bench remanded the matter back to the trial court for fresh disposal.
31. The ratio laid down by the Hon'ble Supreme Court as well as the Division Bench of this Court squarely http://www.judis.nic.in C.R.P.(MD)No.1318 of 2012(PD) 22 applies to the facts and circumstances of the present case.
32. Hence, I am of the considered view that the judgment passed by the trial court dated 28.1.1998 is not in confirmity with the provisions Order 20 Rule 4 and Rule 5 of Civil Procedure Code.”
15. It is clear from all the above judgments that, when a judgment has been found to be ex facie illegal, in view of the fact that the same is not in consonance with Order 20 Rule 4 & 5 of CPC and the judgment does not reflect any application of mind, this Court has to necessarily interfere with the same in exercise of its jurisdiction under Article 227 of the Constitution of India.
16. In the present case, the agreement that was sought to be acted upon pertains to the year 1986 and the suit is filed in the year 2009. The Court below did not even consider whether the suit itself is maintainable, in view of the law of Limitation. It is seen that even the agreement has not been marked as a document. The Court has merely decreed the suit on the ground that the second respondent/ defendant has submitted himself to the decree. Mere submission to the decree does not take away the duty of the Court to satisfy itself that the first respondent/ plaintiff has fulfilled the minimum requirements in order to get a decree in a suit. This has to be independently considered by the http://www.judis.nic.in C.R.P.(MD)No.1318 of 2012(PD) 23 trial Court while passing a judgment in the suit even where the second respondent/ defendant has been set as ex parte or where the second respondent/ defendant is submitting himself to the decree. If this is not done, the Courts will be used by parties to obtain collusive decrees.
17. This Court has absolutely no hesitation to interfere with the judgment and decree passed by the Sub Court, Thoothudkudi in O.S. No.87 of 2009, since the judgment and decree is ex facie illegal. In the result, the judgment and decree in O.S.No.87 of 2009 dated 18.09.2010 is hereby set aside and accordingly, the Civil Revision Petition is allowed. Consequently, connected miscellaneous petitions are closed.
18.10.2019
Index : Yes
Internet : Yes
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To
1) The Sub Court, Tuticorin
2) The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
http://www.judis.nic.in
C.R.P.(MD)No.1318 of 2012(PD)
24
N.ANAND VENKATESH, J.
sts
Order made in
C.R.P.(MD)No.1318 of 2012(PD)
Dated:
18.10.2019
http://www.judis.nic.in