Calcutta High Court
Taher Ali Khan vs Abdul Hakim And Ors. on 8 April, 2005
Equivalent citations: AIR2006CAL124, (2006)1CALLT496(HC), AIR 2006 CALCUTTA 124, 2006 (5) ABR (NOC) 835 (CAL), 2006 (2) AJHAR (NOC) 600 (CAL), 2006 AIHC 1962
JUDGMENT Arun Kumar Mitra, J.
1. Throwing a challenge to the judgment dated 6th September, 1986 and decree dated 26th September, 1986 passed by the learned 1st Court, Additional District Judge, Midnapore in T.A. No. 240 of 1985 reversing the judgment dated 21st May, 1985 and decree dated 31st May, 1985 passed by the learned Munstf, 2nd Court, Tamluk in Title Suit No. 22 of 1977, this second appeal has been preferred.
2. This second appeal is in connection with a suit for declaration of title in the properties described in the schedule to the plaint to that effect that the lands in dispute are the auction purchased lands of the plaintiff and for permanent injunction.
3. In the plaint the case as has been made out by the plaintiff is inter alia as follows :
The suit properties belong to one Sahajuddin, who took loan of Rs. 1,800/- on 11-9-1966 from the plaintiff and he accordingly executed a hand note in favour of the plaintiff. Sahajuddin paid only Rs. 15/- towards interest to the plaintiff and Sahajuddin endorsed to that effect. It is also the case of the plaintiff that on 29-11-1966 Sahajuddin executed two Nirupan Patras in favour of his sons, daughters and wife without liquidating the loan and when plaintiff asked Sahajuddin about those deeds, he gave those deeds to the plaintiff and told that those deeds are not acted upon and Sahajuddin directed his sons, daughters and wife to pay the dues of the plaintiff, Sahajuddin died on 23rd Chaitra 1376 B. S. leaving two sons namely Matleb and-Arunan, wife Ratifan and three daughters namely Anowara, Nurjahan and Sahidari and after the death of Sahajuddin his heirs got his all lands.
4. The plaintiff demanded the heirs of Sahajuddin to pay of the dues but the universal donees did not agree to liquidate the donor's debt and as such the plaintiff was compelled to file Money Suit No. 23 of 1970. He filed the said Money Suit on 25/4/1970 in the same Court against the universal donee and the plaintiff also filed one petition praying for attachment before judgment insofar as the suit property is concerned and the same was allowed,
5. On 28-4-1970 the writ of attachment before judgment was locally served over the suit properties. It is stated in the plaint that only Abdul Matleb filed written objection against the attachment before judgment and after hearing, the attachment was confirmed and afterwards the heirs of Sahajuddin did not contest the money suit being M.S. No. 23 of 1970 and as such the plaintiff on 21-5-1971 got the ex parte decree. During pendency of J.Mis. Case No. 41 of 1971 Anwara Begum died and as such the defendant Nos. 2 to 4 were substituted as heirs of Anwara Begum and ultimately J. Mis. Case No. 41 of 1971 was dismissed with default.
6. In the plaint it has also been averred that the plaintiff filed Money Execution case No. 13 of 1973 and the suit properties were put into auction sale on 17-6-1974. The suit properties were sold in. auction sale afterwards in accordance with law and the plaintiff purchased the suit properties in auction sale and on 18-7-1974 the sale was confirmed and the plaintiff took delivery of possession on 22-1-1974 through Court and since then the plaintiff has been possessing the suit property. It is alleged in the plaint that afterwards the plaintiff came to learn that the defendant No. 1, knowing fully well of the suit properties being attached during the pendency of the money suit has got executed a deed of sale by the wife of the defendant No. 4 which is ante dated to destroy the claim of the plaintiff and the defendant No. 1 brought T.S. No. 163 of 1972 against the wife of the defendant No. 4 for enforcing her to register the deed and as such the plaintiff on 20-11-1974 filed one petition under Order 1, Rule 10 of the Code of Civil Procedure praying for addition of party but the same was rejected and as such the plaintiff preferred Civil Revision No. 922 of 1975 before this High Court and the Hon'ble High Court directed the plaintiff to file separate suit and the plaintiff has filed the instant suit according to the direction of the Hon'ble High Court. It is alleged in the plaint that there was no contract for sale of the suit properties or any part thereof and the deed dated 24/7-1970 in the name of the defendant No. 1 is illegal, void, collusive, anti-dated and without consideration and the same was not executed in open Majlis and the same is created to destroy the claim of the plaintiff. It is also alleged in the plaint that Anowara Begum had no saleable right to the suit properties and the deed executed by the defendant No. 5 in favour of defendant Nos. 2 and 3 is collusive, fraudulent, void and without consideration.
7. The defendant No. 1 contested the suit by filing written statement. In the written statement the defendant No. 1 contended inter alia that the allegations of the plaintiff are false. The main case as has been made out by the defendant No. 1 is that the properties measuring 39 1/2 decimals described in the schedule to the written statement belonged to Sahajuddin who transferred by executing two Nirupan patras dated 29-11-1966 in respect of 39 1/2 decimals of land along with other land in favour of his son, daughter and wife and by virtue of Nirupan patras Matleb got 39 1/2 decimals of land described in the schedule to the written statement and while Matleb was in possession of the same, he sold 39 1/2 decimals along with other land to the defendant No. 5 (Latifan) by virtue of sale deed dated 20-2-1967 and the defendant No. 5 was in possession of the same. It is alleged in the written statement that after such transfer, Matleb along with his family went to East Pakistan.
8. It was further contended in the written statement that Latifannessa Bibi, the defendant No. 5 gifted 39 1/2 decimals of land along with other land to Anwara Begum (the mother of the defendant Nos. 2 & 3) by virtue of deed of gift dated 29-4-1969 and Anwara Begum was in possession in and over the same and thereafter Anwara Begum and her husband (defendant No. 4) intended to sale 39 1/2 decimals of land along with other lands and the defendant No. 1 agreed to purchase the same and as such there was contract for sale for Rs. 3,499/- of the land in between Anwara Begum and the defendant No. 1 and on 29-3-1970 the defendant No. 1 gave Rs. 100/- to Anwara Begum for purchasing stamp papers and on 24-7-1970 Anwara Begum executed one sale deed in open Majlis after receiving Rs. 3,499/- and he handed over deed of gift and rent receipt at that time.
9. It was alleged by the defendants that Abdul Mannan, the brother of Anwara Begum knowing fully well of the contract for sale in between the defendant No. 1 and Anwara Begum, in collusion with the plaintiff of this suit has set up the plaintiff of this suit as plaintiff to file M. S. 23 of 1970 in the same Court against the heirs of Sahajuddin, who obtained the order of attachment before judgment and as such Anwara Begum delayed the registration of Kobala dated 24-7-1970 but she registered another deed.
10. It has also been alleged in the defence case that the defendant No. 1 demanded Angara Begum for registration of the deed dated 24-7-1970 but ultimately Anwara Begum died and as such the defendant No. 1 filed T.S. 163 of 1970 against the heirs of Anwara Begum for registration of the deed. It is alleged in the written statement that there is one Bastu over the suit properties and Anwara Begum was residing in that Bastu at the time of the deed dated 24-7-1970. According to the additional written statement, on 28-4-1981 delivery of possession of the land of T. S. 163 of 1972 through Court in Title Execution Case No. 29 of 1980 was made with the knowledge of the plaintiff of this suit.
11. It is alleged in the original written statement that the hand note mentioned in the plaint is forged one and the plaintiff never took delivery of possession over the suit properties through Court and the M.S. 23 of 1970 and its decree are collusive and all the proceedings of Money Execution case are collusive to destroy the Kobala of the defendant No. 1.
12. It is alleged in the defence case that the defendant No. 1 has been possessing the land of Kobala dated 24-7-1970 and the plaintiff has no right, title and interest and possession over the suit properties. The defendant No. 1 prayed for dismissal of the suit with costs.
13. On the above rival pleadings the following issues were framed by the learned trial Judge :
1) Is the suit maintainable in its present form and in law ?
2) Is the suit bad for non-joinder of necessary parties ? I find that additional issue No. 4 is identical with this issue.
3) Is the suit property valued and proper Court fees paid correct ?
4) Has the plaintiff any right, title, interest and possession in the properties in suit?
5) Is the plaintiff entitled to get any decree for declaration as prayed for ?
6) Is the plaintiff entitled to get any decree for permanent injunction as prayed for ?
7) To what relief, if any, is the plaintiff entitled ?
Additional Issues :
8) Is the Kobala dated 10-3-1981 executed by Court in Title Execution Case No. 28 of 1980 a valid one ?
9} Has the plaintiff acquired title in the aforesaid Kobala properties arid got possession through Court ?
14. The learned trial Judge on contest decreed the suit in part against the defendant No. 1 and ex parte without costs against the rest. The right, title and interest and possession of the plaintiffs were declared by the learned trial Judge in respect of the suit properties excepting plot Nos. 1647, 359, 1684, 1685 and 20. The learned trial Judge permanently restrained the defendants from interfering with the peaceful possession of the plaintiff in the suit properties excepting the five plots mentioned above,
15. Being aggrieved by and dissatisfied with the said Judgment and decree passed by the learned trial Judge, the defendant No. 1 preferred appeal and the learned appellate Court below allowed the appeal on contest with costs and the judgment and order dated 21-5-1985 and the decree passed by the learned Munsif, 2nd Court, Tamluk was set aside and the suit was dismissed against the defendant No. 1 with costs and ex parte without costs against the rest.
16. Hence this second appeal has been preferred by the plaintiff/appellant.
17. On consideration of the submissions made by the learned Counsel for the parties and on consideration of the judgment and decree passed by both the Courts below as well as the records of the case I am now to formulate the substantial questions of law on which the learned Counsel for the par-ties are to argue.
18. The said substantial questions of law are formulated which are as follows :
(1) Whether issue, which is not pressed before the trial Court can again be raised before first appellate Court and can be decided there.
(2) Whether failure to implead necessary party is fatal to a suit and whether this question of defeat of party can be raised afresh in the first appellate Court, if not raised In the trial Court.
(3) Whether the learned appellate Court below on reappreciate evidence-on-record adduced before the learned trial Judge and on wrongly appreciated evidence reverse the trial Court's findings.
(4) Whether the judgment and decree passed by the appellate Court below is based on surmise and conjectures and are perverse.
19. Here, the plaintiff is the appellant and the defendant No. 1 Abdul Hakim is the respondent No. 1.
20. The learned Counsel for the appellant submits that as would appear from records, the issue Nos. 1 & 2 which are as follows were not pressed.
(1) Is the suit maintainable in its present form and in law ?
(2) Is the suit bad for non-joinder of necessary parties ? I found that additional issue No. 4 is identical with this issue.
21. Insofar as these issue Nos. 1 and 2, the observation of the learned trial Judge is as follows :
These issues are not pressed at the time of final hearing and as such these issues are decided in favour of the plaintiff.
22. Now the first appellate Court observed insofar as these two issues are concerned in the manner as follows :
The learned Munsif took up issue Nos. 1 and 2 together and the remaining issues also together. No submission was made before him regarding issue No. 1 and 2 but here learned lawyer for the appellant has raised the question of maintainability and defect of parties, so these two issues are also taken up together with the remaining issues since these are integrally connected and also for convenience of discussion.
23. The issue Nos. 1 and 2 admittedly were not pressed as it appears from the observations of the learned trial Judge but it is also a fact that the appellate Court below decided these issues along with issue Nos. 4 to 11 and the learned appellate Court below in his conclusive finding observed "the decision of the learned Munsif before whom these issues were not pressed is thus reversed."
24. The learned appellate Court below also observed "all these issues are thus decided accordingly and the decision of the learned Munsif is accordingly reversed, All these issues are disposed of."
25. When before the trial Court it has been stated and/or submitted that issue Nos. 1 and 2 are not pressed then and then only the point of waiver regarding these two issues 1 and 2 comes and in fact right to press those two Issues have been waived. It may be said that legal right can't be waived but the question of pressing or not pressing the issues are not legal questions and those are factual aspects and questions of fact once admitted by both the parties can't be again raised.
26. Insofar as non-Joinder or mis-joinder of necessary parties, the learned Counsel for the appellant relies on the provisions of Order 1 Rule 13 of the Code of Civil Procedure and submits that objection regarding non-joinder or mis-joinder of necessary party is to be taken at the earliest possible opportunity.
27. The provisions of Order 1, Rule 13 of the Code of Civil Procedure is as follows :
Objection as to non-joinder or mis-joinder
13. All objections on the ground of nonjoinder or mis-joinder of parties shall be taken at the earliest possible opportunity and, in all the cases where Issues are settled or before such settlement, unless the ground of objection has subsequently arisen and any such objection not so taken shall be deemed to have been waived.
28. The learned Counsel for the appellants submits that in this case the objection regarding non-Joinder of necessary party was not taken before the learned Munsif and that was waived automatically but the same objection was taken before the first appellate Court. The learned Counsel in this regard relied on a decision (Beharilal v. Bhurl Devi (Smt). The learned Counsel laid emphasis to the observations of the Hon'ble Apex Court in paragraph 9 of this decision which is quoted hereinbelow :
9. Though the respondent has pleaded in the written statement the non-joinder of necessary parties and an issue was raised, the trial Court had negatived it and the same was reiterated and argued before the learned single Judge. The learned single Judge also has held that though the Government may be a proper party to the suit, but since claim for possession is not being sought for against the Government or Mandi Committee they are not necessary parties. The decree for possession granted by the trial Court may not bind the Government on that ground. However, the omission to implead the Government or the Mandi Committee as a co-defendant Is not vitiated by Order 1, Rule 13, CPC. Therefore, the suit need not be dismissed on the ground of their non-joinder. As seen, these findings were allowed to become final, since that aspect of the matter was not argued before the Division Bench. The respondent waived that objection before the Division Bench. Thus, it is not open to the appellants to raise that objection in this appeal. It is accordingly rejected.
29. The learned Counsel submitted that the observations of the appellate Court below is just of reverse or contrary to the principle as laid down by the Hon'ble Apex Court in this regard and decided in this case.
30. The learned Counsel then changed the dimension of his submission and sought to distinguish the minimum difference between a Court sale and private sale. The basic difference is that Section 54 of the Transfer of Property Act is applicable in private sale and there is provision of granting sale certificate in Order 21, Rules 35, 94 and 95 of the CPC. The learned Counsel in this regard relied on a decision (P. Udayani Devi v. V.V. Rajeshwara Prasad Rao). The learned Counsel also submitted that the question as to what was sold in execution of the decree is a question of fact which can't be raised in second appeal. The learned Counsel relied on the observations made in paragraphs 9 and 10 of the instant Apex Court judgment which are quoted hereinbelow :
9. According to respondent No. 1 only property (II) was sold in the auction sale and is covered by the sale certificate. The plain terms of the sale certificate do not lend support to this contention. According to the sale certificate the entire property falling within the boundaries was the subject-matter of the sale. In view of the said description in the sale certificate it is not possible to split up the property into two portions and confine the sale certificate to a part of the property and thereby after the boundaries of the property that has been sold.
10. Moreover, it is settled law that the question as to what was sold in execution of the decree is a question of fact. See : S.M. Jakati v. S.M. Borkar . In the present case, the Subordinate Judge, after an examination of the sale certificate and other documents, has recorded a finding that the entire property falling within the boundaries mentioned in the sale certificate has been sold. That was a finding of fact. The High Court, in exercise of its revisional jurisdiction, was not justified in reopening the finding of fact recorded by the Subordiante Judge. The judgment of the High Court cannot, therefore, be upheld and must be set aside.
31. The learned Counsel then at the cost of repetition submitted that a Court sale is a compulsory sale conducted by or under Orders of the Court. The title to the property sold does not vest in the purchaser immediately on the sale thereof unlike in the case of a private sale. In the instant case sale certificate was given subsequently and the plaintiff came into possession. The learned Counsel to make the position of Court sale and private sale clear relied on a decision reported in 1997 WBLR (SC) 15 : 1996 AIR SCW 3984 (Pattam Khader Khan v. Pattam Sardar Khan). The learned Counsel also tried to cover up the limitation aspect by relying on this judgment. The learned Counsel laid stress on the provisions of paragraphs 10, 11, 12 and 13 of this judgment which are quoted hereinbelow :
10. Now to the spirit of it. A Court sale is a compulsory sale conducted by or under orders of the Court. The title to the property sold does not vest in the purchaser immediately on the sale thereof unlike in the case of a private sale. The law requires that it does not become absolute until sometime after the sale : a period of at least 30 days must expire from the date of sale before the sale can become absolute. In that while, the sale is susceptible of being set aside at the instance of the judgment-debtor on the ground of irregularity in publication or conduct of the sale or on defalcation as regards deposit of money etc. as envisaged in Rules 89 and 90 of Order 21. Where no such application is made, as is the case here, the Court was required, as indeed it did, to make an order, confirming the sale and it is upon such confirmation that the sale becomes and became absolute in terms of Order 21, Rule 92. After the sale has become absolute, a certificate is required to be granted by the Court to the purchaser, termed as "certificate of sale" in Order 21, Rule 94. Such certificate bears the date as on which the sale became absolute. It is on the sale becoming absolute that the property sold vests in the purchaser. The vesting of the property is thus made to relate back to the date of sale as required under Section 65, CPC.
11. Order 21, Rule 95 providing for the procedure for delivery of property in occupation of the judgment-debtor etc., requires an application being made by the purchaser for delivery of possession of property in respect of which a certificate has been granted under Rule 94 of Order 21. There is nothing in Rule 95 to make it incumbent for the purchaser to file the certificate along with the application. On the sale becoming absolute, it is obligatory on the Court though, to issue the certificate. That may, for any reason, get delayed. Whether there be failure to issue the certificate or delay of action of behalf of the Court or the inaction of the purchaser in completing the legal requirements and formalities, are factors which have no bearing on the limitation prescribed for the application under Article 134. The purchaser cannot seek to extend the limitation on the ground that the certificate has not been issued. It is true though that order for delivery of possession cannot be passed unless sale certificate stands issued. It is manifest therefore that the issue of a sale certificate is not "sine qua non" on the application, since both these matters are with the same Court. The starting point of limitation for the application being the date when the sale becomes absolute i.e. the date on which title passed, the evidence of title, in the form of sale certificate, due from the Court, could always be supplied later to the Court to satisfy the requirements of Order 21, Rule 95. See in this regard Babulal Nathoolal v. Annapurnabai AIR 1953 Nag 215 which is a pointer. It therefore becomes clear that the title of the Court auction-purchaser becomes complete on the confirmation of the sale under Order 21 Rule 92, and by virtue of the thrust of Section 65, CPC, the property vests in the purchaser from the date of sale; the certificate of sale, by itself, not creating any title but merely evidence thereof. The sale certificate rather is a formal acknowledgment of a fact already accomplished, stating as to what stood sold. Such act of the Court is pristinely a ministerial one and not judicial. It is in the nature of a formalisation of the obvious.
12. Such being the state of law on the subject, we fail to see how the High Court could have come to the conclusion that even though the sale becomes absolute on confirmation under Order 21, Rule 92, CPC effectively passing title, the same can only be complete when evidence by a sale certificate issued under Order 21, Rule 94, and that unless the sale certificate is issued, limitation cannot start for the purpose of an application under Order 21, Rule 95, CPC vis-a-vis, Article 134 of the Limitation Act, 1963. The High Court, in our view erred in holding that it is only from the date when a sale certificate is Issued, that the limitation starts running. Such view of the High Court would not only cause violence to the clear provisions of Article 134 of the Limitation Act but have the effect of unsettling the law already settled.
13. There can be a variety of factors conceivable by which delay can be caused in issuing the sale certificate. The period of one year limitation, now prescribed under Article 134 of the Limitation Act, 1973, in substitution of a three-year period prescribed under Article 180 of the Indian Limitation Act of 1908, is reflective of the legislative policy of finalising proceedings in execution as quickly as possible by providing a quick forum to the auction-purchaser to ask delivery of possession of the property purchased within that period from the date of the sale becoming absolute, rather than from the date of Issuance of the sale certificate. On his failure to avail of such quick remedy the law relegates him to the remedy of a suit for possession in a regular way.
32. The learned Counsel for the appellant submitted that his client was in possession and in this regard the learned Counsel sought to rely upon the provisions of Order 21, Rule 96 of the Code of Civil Procedure for the purpose of clarifying distinction between symbolic and paper possession. The learned Counsel in this regard relied on a decision (Pethaperumal Ambalam v. Chidambaram Chettiar, minor through property guardian, P.E. Eapen). The learned Counsel laid emphasis on the observations made in paragraph 10 and 11 of this judgment which are quoted hereinbelow :
10. The next question is whether it makes any difference in legal effect if possession is taken through Court. The Code contemplates no notice to the judgment-debtor at that stage or any objection being raised by him to the delivery of possession under Rule 95 or Rule 96, and as the full title to the property has passed from the judgment-debtor to the auction purchaser, he has no interest in the property to protect. This furnishes the point of distinction between the case dealt with in AIR 1936 Mad 205, vide at p. 214 where emphasis is laid on the continuance of the title in the property in the judgment-debtor. It therefore follows that there is here no question of the proceedings under Order 21, Rule 95 or 96 being rendered "void" at this stage by the death of the judgment-debtor without the legal representatives being impleaded.
(11) Mr. Viraraghavan had to admit that if in the present case delivery was effected under Order 21, Rule 95 and 'Khas' possession had been obtained by the plaintiff, his suit could not be resisted by the appellant. Does it make any difference that the delivery is effected under Order 21, Rule 96. In our opinion it does not. The characterisation of possession taken under Order 21, Rule 96, as paper possession is hardly justified and runs counter to the principle on which the provision is based. Symbolical possession obtained under Order 21, Rule 96 is quite a different thing from paper possession, which might correctly describe only the possession obtained by a party who being entitled to actual possession, the judgment-debtor himself being in possession obtains delivery of possession on paper without actual possession, or those cases where without complying with the requisites of the statute a false return is made as if they were complied with. Possession obtained by proclamation and affixture under Order 21, Rule 96 is equivalent to real possession to those cases where the Code expressly or impliedly provides that it shall have that effect. On the finding of the lower appellate Court that the statutory requisites under Order 21, Rule 96 have been followed the possession obtained by the plaintiffs predecessor in title was real and was invalidated by the non-impleading of the legal representatives of Alagu.
33. The learned Counsel for the appellant then submitted that judgment and decree obtained by fraud is a nullity and is to be treated non-est by all Courts. The learned Counsel in this regard relied on a judgment (S.P. Chengalvaraya Naidu v. Jagannath). The learned Counsel laid emphasis on paragraphs 5 and 6 (of SCR) : (Paras 7 & 8 of AIR) of this judgment which are quoted hereinbelow.
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 inscrupulous 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, 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.
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's 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 Sowcar. He had, on his own volition, execute the registered release deed (Ex. B-15) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. 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 release 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 nonsuited 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.
34. Then the learned Counsel relied on another decision (Indian Bank v. Satyam Fibres (India) Pvt. Ltd.) and submitted that order obtained by fraud and forgery can be recalled by the Court by exercising its inherent power and even in a writ Court. The learned Counsel relied on the observations made in paragraphs 19, 20, 22, 23, 42 and 43 of this judgment which are quoted hereinbelow :
19. In view of the findings recorded by us that under the ICC Rules, it is the responsibility of the 'principal' to give or send specific and precise instructions to the Bank besides sending the "commercial financial documents", the Commission was under a duty to decide as to whether the respondent had issued the letter containing the requirement of co-acceptance by the French bank. The Commission could not legally avoid to decide this question particularly as the appellant had contended before the Commission that letter No. 2775 of 26-8-1991 was forged and fabricated by the respondent and that the only letter issued by the respondent was letter No. 2775 dated 26-8-1991. The contents of both the letter have already been reproduced by the Commission in its judgment by which the review application has been disposed of which would indicate that in letter No. 2775, there is no requirement to obtain co-acceptance by the French bank whereas in the other letter, namely, letter No. 2776, this condition has been specifically mentioned.
20. By filing letter No. 2775 of 26-8-1991 along with the review petition and contending that the other letter, namely, letter No. 2776 of the even date, was never written or issued by the respondent, the appellant, in fact, raised the plea before the Commission that its judgment dated 16-11-1993, which was based on letter No. 2776, was obtained by the respondent by practising fraud not only on the appellant but on the Commission too as letter No. 2776 dated 26-8-1991 was forged by the respondent for the purpose of this case. This plea could not have been legally ignored by the Commission which needs to be reminded that 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 (Fraus et jus nunquam cohabitant). It has been repeatedly said that fraud and deceit defend or excuse no man (Fraus et dolus nemint patrocinari debent). "22. The judiciary in India also possesses inherent powers, 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 or proceedings, the Court may direct the affected party 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 rules, 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.
23. 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. (See Benoy Krishna Mukherjee v. Mohanlal Goenka AIR 1950 Cal 287, Gajanand Sha v. Dayanand Thakur AIR 1943 Pat 127, Krishnakumar v. Jawand Singh AIR 1947 Nag 236, Devendra Nath Sarkar v. Ram Rachpal Singh AIR 126 Oudh 315, Saiyed Mohd. Raza v. Ram Saroop AIR 1929 Oudh 385, Bankey Behari Lal v. Abdul Rahman AIR 1932 Oudh 63, Lekshmi Amma Chacki Amma. v. Mammen Mamen 155 Ker LT 459. The Court has also the inherent power to set aside a sale brought about by fraud practised upon the Court (Ishwar Mathon v. Sitaram Kumar AIR 1954 Pat 450 or to set aside the order recording compromise obtained by fraud. Bindeshwari Pd. Chaudhary v. Debendra Pd. Singh , Tara Bai v. V.S. Krishnaswamy Rao AIR 1985 Kant 270.
42. We must say immediately that the circumstances, in the instant case, are glaring and the intrinsic evidence available on the record is clinching, so much so, that no other inference is possible except to hold that letter No. 2776 of 26-8-1991 was forged by the respondent in order to obtain a decree from the Commission for a huge amount of French Francs 4,10,000. It will appear that
(i) The respondent does not deny that it had sent an issued letter No. 2775 dated 26-8-1991 to the appellant;
(ii) The respondent does not deny that this letter does not contain any direction to the appellant to obtain co-acceptance from the French bank;
(iii) The respondent says that it had issued letter No. 2776 dated 26-8-1991 in substitution of the letter No. 2775 of the even date;
(iv) The fact that this letter was sent in substitution of letter No. 2775 dated 26-8-1991 is not mentioned in the letter itself;
(v) The respondent does not say that letter No. 2775 dated 26-8-1991 should be treated as cancelled;
(vi) The respondent has corresponded with the appellant and had even given a notice dated 26-3-1992 through its counsel to the appellant claiming the amounts due under the Bill of Exchange on the ground of negligence but nowhere does the respondent say that letter No. 2776 dated 26-8-1991 was in substitution of letter No. 2775 of that date;
(vii) Even in the original complaint filed before the Commission, the respondent does not say anywhere that they had issued letter No. 2776 of 26-8-1991 in substitution of letter No. 2775 of that date;
(viii) The plea that letter No. 2776 was issued in substitution of letter No. 2775 was asserted by the respondent for the first time in review proceedings when the appellant filed this letter before the Commission. The respondent's silence till that stage, becomes eloquent indicating that this letter was not in existence till then;
(ix) What was the mode of payment agreed upon between the respondent and the Buyer in France has not been indicated. Nor has any correspondence, or for that matter, any agreement in writing between the respondent and the Buyer, been filed or brought on record to indicate the terms of contract or agreement or, at least, to indicate the mode of payment. Had there been a clause for co-acceptance by the French bank in the mode of payment agreed upon between the parties, the respondent certainly would have filed that document to bring home its point that co-acceptance being an essential ingredient of the mode of payment, was specifically mentioned by it in its "Collection Order" to the appellant;
(x) The respondent had already come to know that the buyer was under liquidation as the liquidator himself had written to the respondent to file its claim in respect of the goods supplied by it to the Buyer.
(xi) There was some correspondence with the French bank and the French bank wrote to the appellant, which was also brought to the notice of the respondent, that co-acceptance by a French bank was not permitted under French law and that, if insistence for co-acceptance by the French bank meant furnishing of bank guarantee, the French bank would have refused to furnish that guarantee even if it was required of it in the letter accompanying the Bills of Exchange. (This assertion by the French bank is in consonance with the Preamble of ICC Rules which say that "These provisions apply to all Collections...unless contrary to the provisions of a national, state or local law and/or regulation which cannot be departed from".).
It was thus, apparent to the respondent that there was little hope that the entire amount covering the goods supplied by it to the French Buyer would be paid and, therefore, it acted in destrous and sophisticated manner to fasten the liability on the appellant by branding it as negligent in not writing specifically to the French Buyer for co-acceptance in spite of its letter No. 2776 of 26-8-1991 and to support this plea by evidence, it forged the letter in question forgetting that there existed another letter No. 2775 of that date in which the requirement of co-acceptance by a French Bank was not indicated. Indeed, the Persian saying that "Darogh Go Ra Hafiza Na Bashad" (A liar has no memory) is still the time-tested truth.
In the face of overwhelming evidence, the entry in the respondent's record indicating that letter No. 2776 was issued cannot be accepted. Significantly, the copy of the disputed letter bears an endorsement of "Receipt and Rubber Stamp" allegedly of the appellant but the copy of the admitted letter No. 2775 does not bear any endorsement of receipt which speaks volumes of the dextrous manner in which the respondent had acted."
43. In view of the above, and if letter No. 2776 (forged by the respondent) is excluded from the evidence, there remains only letter No. 2775 of 26-8-1991 in which it was not indicated by the respondent to the appellant to write to the French bank to deliver the documents only on co-acceptance by it. The appellant, in the circumstances, was justified in not mentioning co-acceptance by the French bank. The case of the respondent being false and based on fabricated evidence has to be dismissed.
35. On the same principle the learned Counsel placed another decision before this Court , United India Insurance y. Rajendra Singh. The learned Counsel in support of this contention emphasized the observations made in Paragraph 13 to 16 of this judgment which can be said to be the reiteration of the earlier judgment (supra).
36. The learned Counsel then submitted that the appellate Court below trying to scan the judgment and decree passed by the trial Court made wrong appreciation of evidence and based its observations on surmise and conjectures and the judgment is totally perverse and should be set aside and the suit filed by the plaintiff should be decreed.
37. The learned Counsel for the respondent No. 3, who actually contested the suit as defendant No. 1 submitted that the learned appellate Court below found that hand-note dated 11-9-1966 was not filed, no reason for non-filing the same was there and no witness regarding the same corroborated the said factum.
38. The learned Counsel also submitted that the alleged executant deceased Sahajuddin was brother-in-law of Taher Ali Khan and the plaintiff failed to show that he was entitled to recover the amount from the heirs and successors of Sahajuddin.
39. The learned Counsel then submitted that the appellate Court found that Matleb, son of deceased Sahajuddin and a co-sharer was not made a party and he has not made necessary parties whereas regarding nonjoinder of necessary party point was taken in written statement, issue was framed and in the memo of appeal ground was taken and necessary witness was produced to get deposition in this regard.
40. The learned Counsel further submitted that the learned appellate Court found that money suit and money execution case have been decreed behind the back of defendant. Abdul Hakim. The learned Counsel then submitted that the learned Judge discussed everything under the facts and circumstances of the case and found that delivery of possession through money execution case would automatically become nullity.
41. The learned Counsel further submitted that the learned appellate Court below found that Kobala dated 10-3-1981 executed through Court in favour of Abdul Hakim is not a void one and he acquired title of the suit property and got possession through Court.
42. According to the learned Counsel the learned appellate Court below found that defendant submitted that this deed was executed on 24-4-1970 and Taher Ali Khan filed money suit on 25-4-1970 and according to the learned Counsel all these were done to frustrate his deed of purchase from Anwara dated 24-4-1970.
43. The learned Counsel also submitted that in case of Money Execution case being 13 of 1973 alleged delivery of possession was given to Taher Ali but no evidence was adduced to that extent, no witness was examined who were witnesses in the writ of delivery of possession through Court.
44. The learned Counsel then submitted that the defendant took delivery of possession through Court in presence of three witnesses in the writ of delivery of possession and they were produced for examination also by the defendant.
45. According to the learned Counsel the plaintiffs witness are interested persons.
46. According to the learned Counsel for the respondent, the appellate Court below disbelieved the possession taken by the plaintiff through Court and found delivery of possession was taken by the defendant through Court.
47. The learned Counsel for the respondent No. 1 then submitted that even in a case of T.S. 163 of 1972 Money Suit case being 23/70 was dealt with in which it was found that right was accrued by the defendant earlier by execution dated 24-7-1970 whereas Money Suit was filed on 25-4-1970 and T.S. No. 163 of 1972 was decreed in favour of the defendant and therefore other appeal being 244 of 1980 was filed and dismissed and thereafter no appeal was filed.
48. The learned Counsel then submitted that the deed in question dated 24-4-1970 was executed keeping the executant Anwara's husband as witness and no diary was lodged against the execution.
49. The learned Counsel then relied on a decision , Arumugham (dead) by LRs. v. Sundarambal. Relying on the judgment the learned Counsel submitted that the first appellate Court failed to advert to the reasons ascribed by the Trial Court. The learned Counsel also submitted that the first appellate Court can consider the evidence adduced by the parties and give its own reasons for accepting for rejecting the evidence of one party or the other. The learned Counsel in this regard referred to the observations made by the Hon'ble Apex Court in paragraphs 14 and 15 of this judgment which are quoted hereinbelow :
14.1 From the aforesaid judgment of the three-Judge Bench in Ramachandra Ayyar case, , it is clear that this Court held that the second appellate Court cannot interfere with the judgment of the first appellate Court on the ground that the first appellate Court had not come to close grips with the reasoning of the trial Court. It is open to the first appellate Court to consider the evidence adduced by the parties and give its own reasons for accepting the evidence on one side or rejecting the evidence on the other side. It is not permissible for the second appellate Court to interfere with such findings of the first appellate Court only on the ground that the first appellate Court had not come to grips with the reasoning given by the appellate trial Court. The aforesaid judgment of this Court in Ramachandra Ayyar case specifically distinguished Rani Hemanta Kumari Debi v. Maharaja Jagadindra Nath Roy Bahadur (1906) 16 Mad LJ 272 (PC) rendered by the Privy Council on the ground that that was a case wherein the High Court was dealing with a first appeal. The observations made by the Privy Council in that context would not be applicable to cases where the second appellate Court was dealing with the correctness of the judgment of the first appellate Court which reversed the trial Court.
15. It is to be noted that in the case S.V.R. Mudaliar v. Rajabu Buhari the two-Judge Bench of the Court took a contrary view without noticing the three-Judge Bench decision of this Court in Ramachandra Ayyar case, where this Court had specifically referred to Rani Hemanta Kumari Debi case (1906) 16 Mad LJ 272 (PC) and distinguished the same. The two-Judge Bench could not have therefore relied upon the Privy Council case of Rani Hemanta Kumari Debi. We therefore, prefer to follow the view of the judgment of the three-Judge Bench of this Court in Ramachandra Ayyar case rather than the judgment of the two-Judge Bench in S.V.R. Mudaliar case.
50. The learned Counsel then relied on another decision , Mohd. Amirullah Khan v. Mohd. Hakummullah Khan and submitted that High Court in second appeal cannot reappreciate the evidence and reverse the finding of fact arrived at by the first appellate Court. The learned Counsel mainly relied on the observations made by the Hon'ble Apex Court in paragraphs 6 and 7 of this judgment which are quoted hereinbelow :
6. In our opinion, the High Court fell in error in not going into the question as to in whom the title vested on the death of Abdullah Khan. It is not in dispute that all the legal heirs of Abdullah Khan were im-pleaded as parties to the suit. The surviving sons and daughters were impleaded as plaintiffs. Once it is found that the plaintiff 1 was merely a benamidar of his father Abdullah Khan, then the question would arise that on the death of Abdullah Khan who would become the owner of the property. It is not disputed, and in our opinion rightly so, that the plaintiffs, namely, the surviving sons and daughters of Abdullah Khan would become the owners of the property in question. This being so, the High Court fell in error in reversing the concurrent judgment of the Courts below which had held that plaintiffs to be the owners of the property.
7. The High Court had also held that the defendants were in possession for a long time and that they had acquiesced to the said possession. This itself is stated to have created a right to possess the property in favour of the defendants and to that extent the defendants could resist the suit for ejectment. We are unable to agree with this conclusion. The Courts below had found that it is the plaintiffs' mother who had permitted the defendants to reside with her as members of the family. This permissive occupation by the defendants could not in law convert into giving them any legal right to possession, they had become the owners of the property. Even though the defendants do not acquire any right in the property, but considering the fact that the said defendants had been residing in the premises in question since 1927, it will be appropriate for this Court to mould the relief in such a way that undue hardship is not caused to them. We would like to make it clear that the High Court while hearing the second appeal ought not to have reappreciated the evidence and reversed the findings of fact arrived at by the lower appellate Court.
51. The learned Counsel thereafter, submitted that High Court in exercise of power under Section 100 of the CPC cannot interfere with the finding of fact even if it is erroneous. The learned Counsel mainly relied on the observations of the Hon'ble Apex Court made in Paragraph 2 of the decision , Pakeerappa Rai v. Seethamma Hengsu. For convenience of discussions the above mentioned paragraph is quoted hereinbelow :
2. Learned Counsel appearing on behalf of the appellant urged that the finding recorded by the first appellate Court that the auction-purchaser was not a stranger to the suit is based on no evidence on record and inasmuch as the conclusion arrived at is erroneous and the High Court committed serious mistake of law in not interfering with the said finding. Plaintiff Seethamma in her evidence stated about the nearness of the auction-purchaser with other defendants. It is brought on record that the auction-purchased was near to the husband of Laxmi who was one of the defendants in O.S. No. 133 of 1963 which was tried along with the suit out of which the present appeal arises. The first appellate Court, on the basis of the said evidence, came to the conclusion that the auction-purchaser was not a stranger to the suit. Under such circumstances, it cannot be urged that the conclusion arrived at by the Court below was erroneous. The position would be different in the High Court had the jurisdiction to reappraise the evidence. In such a situation the High Court might have come to a different conclusion. But the High Court in exercise of power under Section 100 CPC cannot interfere with the erroneous finding of fact howsoever gross the error seems to be. We, therefore, do not find any merit in the contention of the learned Counsel for the appellant.
52. The learned Counsel then submitted that non-joinder of a person in question as a party to the suit was fatal defect and on that ground the suit should be dismissed. The learned Counsel in this regard relied on ajudgment of Hon'ble Division Bench of this High Court reported in (1921) 25 CWN 249 : AIR 1921 Cal 622 Haran Sheikh v. Ramesh Chandra Bhattacharjee.
53. The learned Counsel further submitted that where a partition decree is obtained in absence of necessary parties, the decree is ineffective to the parties who were absent and this is a good ground on which a decree-holder can be restrained from giving effect to the decree. The learned Counsel in this regard relied on a judgment delivered by the Hon'ble Division Bench of this High Court and Umapati Chouduri v. Subodh Chandra Choudhuri.
Decision
54. Heard the learned Counsel for the parties, considered their respective submissions and considered the evidence-on-record as well as the judgments and decrees passed by the Courts below.
55. It appears from the record, admittedly the issue Nos. 1 and 2 regarding the maintainability of this suit was raised or rather not pressed before the learned trial Judge but in spite of the fact that the issue was not pressed the same was raised before the appellate Court below and the appellate Court gave its decision on the said two issues.
56. When a party does not press any issue before the trial Court, the party waives his right and he cannot turn around and before the first appellate Court make his submissions on the said non-pressed issue decided by the first appellate Court. The trial Court in the instant case recorded its findings that issue Nos. 1 and 2 are not pressed and neither of the parties raised objection nor it was a case before the appellate Court below that in spite of the submissions made before trial Court, it did not consider the issue and on the other hand denying or defying the submissions of the learned Counsel recorded its finding that the issue is not pressed. Here, it is a clear case of the non-pressing of the issue and the finding of the learned Munsif on those two non-pressed issues is clear, then the question of waiver comes in. In my view, therefore, this question of law goes in favour of the plaintiff/ appellant and in this regard I respectfully agree with the submission of Mr. Sahu, the learned Counsel for the appellant.
57. In case of non-joinder of a party, it is to be decided whether it is fatal or not. From the decisions of the Hon'ble Apex Court as well as the Division Bench of this High Court the point is absolutely settled that non-joinder of necessary party makes a suit fatal when no trial can be made in absence of the party, who has not been joined by the plaintiff. It depends on the facts and circumstances of the case. In a suit for declaration and permanent injunction if a person is not made a party, the decree is not binding upon him and there is no restraint of injunction against him. But the decision will not be invalid in that regard. On this score I also respectfully agree with the submissions made by the learned Counsel for the appellant.
58. Insofar as the reappreciatlon of evidence is concerned, it is settled that the first appellate Court is the last Court of fact and it is a Court of fact and law and in that event the first appellate Court has got jurisdiction to reappreciate evidence and on the other hand in view of the provisions of Section 96 of the CPC it is the duty of the first appellate Court to scan the judgment of the learned trial Judge. But in the instant case the fact is not like that. In this case the appellate Court below did not reappreciate the evidence on record but the appellate Court below made wrong appreciation of evidence on record and came to a decision on that wrongly appreciated evidence. From the submissions made by the learned Counsel for the appellant it will be clear that the appellate Court below did not appreciate the evidence properly and came to a wrong finding by adding certain observations on the basis of surmise and conjectures. I have quoted some portions of the judgment of the appellate Court when considering the submissions of the learned Counsel for the appellant and from the said quotation it will be clear that the appellate Court below went out of the way and made certain observations based on surmise and conjectures.
59. Since the appellate Court below did not reach on a conclusive finding, scanning the evidence on record and or relying on the evidence which were available to it, but made certain findings on surmise and conjectures, the judgment of the appellate Court below can be safely said to be perverse.
60. In view of the discussions made above I have no option but to agree with the submissions of the learned Counsel for the appellant and respectfully disagree with the submissions made by the learned Counsel for the respondents and I, therefore, set aside the judgment and decree passed by the appellate Court below and affirm the judgment and decree passed by the learned Munsif.
61. Let a decree be drawn up accordingly and the defendants be restrained permanently from interfering with the peaceful possession of the plaintiff in and over the suit properties excepting five plots as mentioned in the decree passed by the learned Munsif.
62. In the facts and circumstances of the case the parties are to bear their own costs.
63. Let the records of the Lower Courts below be sent down forthwith.
64. Urgent xerox certified copy, if applied for, be given to the parties as expeditiously as possible.