Punjab-Haryana High Court
Rashpal Singh Bahia And Ors. vs Surinder Kaur And Ors. on 6 November, 2007
Equivalent citations: (2008)2PLR375
JUDGMENT Vinod K. Sharma, J.
1. The plaintiff-appellants by way of this Regular Second Appeal have challenged the judgments and decrees passed by the learned Courts below, vide which the suit filed by the plaintiffs for declaration and permanent and mandatory injunction has been ordered to be dismissed. ,
2. The plaintiff Jaswinder Singh (since deceased through' his L.Rs.) filed a suit claiming that he was owner of Plot No. 223 of Scheme No. 3 of Improvement Trust, Phagwara, having purchased the same in open auction and the transfer of the said plot by defendant Nos. 2 and 3 in favour of defendant No. 1, was illegal, unlawful, without consideration and was a sham transaction and without the jurisdiction of defendant No. 3 and was a result of collusion between defendant Nos. 2 and 3 inter se.
3. It was claimed that the said transfer did not affect the proprietory rights of the plaintiff. It was further claimed that compromise dated 25.6.1999 effected by the attorney of the plaintiff namely Jit Kaur was a result of fraud, misrepresentation, and undue influence practiced on her and compromise entered without the permission of the plaintiff. Injunction was also sought restraining the defendants from executing the sale deed, conveyance deed in respect of the said plot in favour of defendant No. 1 or in favour of any other person. The possession was also sought by way of mandatory injunction.
4. The plaintiff also claimed that plot No. 223 was purchased in the year 1980 and the sale consideration was paid in installments by way of separate receipts and the last installment was not accepted on account of litigation with owners whose land was acquired under the scheme. The case of the plaintiff was that he had appointed defendant No. 2 as his Attorney by way of power of attorney dated 12th March,. 1993 which was returned by defendant No. 2 as the same was not accepted by defendant No. 3. A power of attorney was again sent on 3rd November, 1993 along with last installment with an intention to get the requisite formalities done in favour of the plaintiff. It was also claimed that the plaintiff never intended that defendant No. 2 should alienate the plot to any one. According to the plaintiff, he was informed that the possession of the said plot would be handed over to him soon.
5. It was also the case of the plaintiff that in the year 1996 when he came to India alongwith his wife, he approached defendant No. 3 for obtaining possession of the aforesaid plot when he was informed that the said plot has been transferred in the name of defendant No. 1 on the request of defendant No. 2 being his attorney. It was claimed by the plaintiff that at no stage defendant No. 2 was authorised to transfer the said plot in favour of defendant No. 1, who was the wife of defendant No. 2. It was pleaded that transfer of the said plot without consideration was null and void. The transfer of the plot in favour of defendant No. l was challenged on the following grounds:
a) That the plaintiff never authorised defendant No. 2 to alienate the plot. The powers given and conferred by the plaintiff on defendant No. 2 were to complete the requisite formalities regarding the transfer of the plot in the name of the plaintiff and ' get possession.
b) That the defendant No. 2 was only to look after and mange the plot in the absence of the plaintiff who in abroad.
c) That the defendant have acted malafidely in collusion with each other. Defendant No. l is the wife of defendant No. 2 living with him in the same house but the defendant in order to defeat the plaintiff gave the address of her parents house to show her a different lady. Further the defendant No. 2 was fully aware of all these facts and limit of authority conferred upon defendant No. 2 by the plaintiff and there has been a collusion between defendant No. l and 2 and defendant No. 3 inter se.
d) That transfer is not permissible under the rules of the Improvement Trust. The plaintiff being the owner of plot No. 223 had interest in the immovable property and the transfer by defendant No. 3 and 2 in favour of defendant No. l of the said plot was transfer of interest in the immovable property exceeding Rs. 100/- therefore the transfer could only be done by a registered document. There is no registered sale deed in favour of defendant No. l and any transfer effected without a registered document is null and void, illegal, moreover a transfer is without consideration and the whole transaction is the result of fraud played by the defendant Nos. l, 2 in collusion with defendant No. 3 as such no title is conferred on defendant No. 1, nor it can take away the title of the plaintiff in the way and manner as has been done by the defendants.
6. On notice, the suit was contested by defendants. In the written statement filed by defendant Nos. l and 2, it was claimed that the earlier suit filed by the plaintiff was dismissed under Order 9 Rule 8 of the Code of Civil Procedure and, therefore, the present suit was not maintainable. It was further claimed that the suit was barred under Order 2 Rule 2 CPC. The concealment of facts by the plaintiff was also pleaded. It was also claimed that the suit was barred under Order 23 Rule 3 of the Code of Civil Procedure as the matter stood compromised by Jeet Kaur being attorney of the plaintiff. Certain other preliminary objections were also taken and the claim was contested on merit also.
7. The stand of respondent No. 3 in the written statement was that the plot had been transferred in March 1996 according to rules legally on the request of the attorney of the plaintiff. The Improvement Trust denied any collusion of defendant No. 3 with defendant Nos. 1 and 2. On the pleadings of the parties, the following issues were framed:
1. Whether the plaintiff is owner of the plot in dispute 'as alleged in the plaint? OPP
2. Whether the transfer of the plot by defendant ,Nos. 2 and 3 in favour of defendant No. 1 is illegal, null and void and liable to be set aside? OPP
3. Whether the compromise effected by Smt. Jit Kaur attorney of the plaintiff on 25.6.1999 is illegal, unlawful and not binding upon the plaintiff? OPP
4. Whether the plaintiffs entitled to the declaration prayed for ? OPP.
5. Whether the plaintiff is entitled to permanent injunction and mandatory injunction? OPP
6. Whether the suit is not maintainable in the present form? OPD
7. Whether the suit is not properly valued for purposes of court fee and jurisdiction? OPD
8. Whether the suit is barred by limitation.
9. Whether the suit is barred under Order 2 R 2 of CPC? OPD
10. Relief.
8. Issue Nos. l to 6 were taken up together and all these issues were decided in favour of the defendants and against the plaintiff. On Issue No. 8, it was held that the suit was not within limitation as according to the pleadings of the plaintiff he had come to know about the fraud played in the year 1996, whereas the present suit was filed in the year 2000. Thus the suit was held to be time barred.
9. On Issue No. 9, the learned trial Court was pleased to observe that earlier Jaswinder Singh had filed suit No. 19 of 27.01.1998 which was decided on 24th August, 1998, wherein a declaration was sought that the transfer of plot by defendant No. l and 3 in favour of defendant No. 2 was illegal null and void, without consideration and without jurisdiction. The said suit was dismissed in default under Order 9 Rule 8 of the Code of Civil Procedure. It was noticed that an application under Order 9 Rule 4 read with Section 151 C.P.C. was filed for setting aside the order of dismissal and for restoration of the suit was dismissed in default on 10.5.2000 as nobody had appeared on behalf of the plaintiff-appellant. It was held by the learned trial Court that the plaintiff instead of getting the application restored and thereafter getting the application under Order 9 Rule CPC decided for restoration of the suit, chose to file the present suit and, therefore, it was held by the learned trial Court that the suit filed by the plaintiff was barred under Order 2 Rule 2 of the Code of Civil Procedure. In view of this finding, the present suit was dismissed.
10. The appeal filed by the legal representatives of Jaswinder Singh, plaintiff, also met with the same fate. Learned lower Appellate Court while dismissing the appeal was pleased to observe as under;
13. Earlier a suit was filed by the plaintiff, on the same cause of action which was dismissed in default of appearance of the parties under Order 9 Rule 4 of the Code of Civil Procedure, on 24.8.1998, and copy of the order is Ex.DW4/4. Ex.DW4/3 is the copy of the plaint, in that suit. An application was admittedly filed for restoration of the suit, but the same was dismissed in default. No efforts were made to get that application restored and, On the other hand, the plaintiff filed a fresh suit on the same cause of action. Out of the decision whereof the instant appeal has arisen. According to Order 9 Rule 4 of the Code of Civil Procedure, if a suit is dismissed in default under Order 9 Rule 3 of the Code of Civil Procedure, the plaintiffs may file a fresh suit, on the same cause of action, subject to limitation or may choose to make an application for restoration of the said suit, dismissed in default. The plaintiff, in my opinion, could not avail of both the remedies, one under Order 9 Rule 4 of the Code of Civil Procedure and at the same time of filing a fresh suit, on the same cause of action. Once he had chosen to avail of the remedy under Order 9 Rule 4 of the Code of Civil Procedure for restoration of the suit, he was required to follow that remedy. In case, after availing of one remedy and being unsuccessful therein, the plaintiff is allowed to avail of the other remedy, there will be multiplicity of litigation. Under these circumstances, due to this reason, a fresh suit was barred. The findings of the trial Court on issue No. 9 are affirmed, but for the reasons stated above.
11. Mr. M.L. Sarin, learned senior counsel appearing on behalf of the appellants, has challenged the judgment and decree passed by the learned trial Court primarily on the ground that transfer of plot was outcome of fraud and, therefore, it was open to the plaintiff-appellants to have challenged the same at any stage. Thus the contention of the learned senior counsel for the appellants was that the learned Courts below were in error in dismissing the suit by holding that the same was barred under Order 9 Rule 8 of the Code of Civil Procedure and under Order 23 Rule 3 read with Order 2 Rule 2 of the Code of Civil Procedure. In support of this contention reliance as placed on the judgments of the Hon'ble Supreme Court in the case of Ram Chandra Singh v. Savitri Devi and in the case of S.P. Chengalvaraya (dead) by L.R.S v. Jagannath (dead) the L.Rs. .
12. On a consideration of the matter, I find no force in the contention raised by the learned senior counsel for the appellants. The authorities relied upon by the learned senior counsel have no application to the facts of the present case. The Hon'ble Supreme Court was pleased to lay down that the Courts of law are meant for imparting justice between the parties. One who comes to the Court must come with clean hands. It can be said without hesitation 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. 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. The Hon'ble Supreme Court in Ram Chandra Singh's case (supra) has been pleased to lay down that a judgment and decree obtained by fraud would not operate as res-judicata in the subsequent suit. however, the said authorities have no application to the present case as the plaintiff Jaswinder Singh, admittedly, came to know about the fraud in the year 1996 and thereafter even chose to file a fresh suit in the year 2000 to challenge the same which was dismissed in default under Order 9 Rule 8 of the Code of Civil Procedure. The plaintiff thereafter chose to move an application for setting aside the order dismissing the suit in default. The said application was also dismissed in default and the plea of the plaintiff-appellant was that the same was on account of compromise entered into between the parties.
13. Thus, in view of the stand of the plaintiff, as taken in the suit, the learned Courts below were right in coming to the conclusion that the suit filed by the plaintiff-appellant was barred under Order 9 Rule 9 of the Code of Civil Procedure and only remedy available to him as to get the same restored. The Hon'ble Supreme Court has nowhere laid down that if there are allegations of fraud a party can repeatedly file a separate suit to challenge the same after getting the earlier suit dismissed. Even if the claim of compromise is accepted, as pleaded, still the present suit would be barred under Order 23 Rule 3(a) of the Code of Civil Procedure. Even if the suit is seen independently, then it was an admitted case of the plaintiff that the fraud came to his knowledge in the year 1996. In that event, no fault can be found with the findings recorded by the learned Courts below holding the suit to be time barred having been filed in the year 2000.
14. No substantial question of law arises for consideration in this appeal as the judgments and decrees passed by the learned courts below are in consonance with the law and the provisions contained in the Code of Civil Procedure. Accordingly, this appeal is dismissed in limine.