Madras High Court
P. Subramani vs A. Periyasamy on 21 October, 2013
Author: B. Rajendran
Bench: B. Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21-10-2013 CORAM: THE HONOURABLE MR.JUSTICE B. RAJENDRAN C.R.P. (NPD) No. 3402 of 2013 and M.P. No. 1 of 2013 P. Subramani .. Petitioner Versus A. Periyasamy .. Respondent Civil Revision Petition filed under Article 227 of The Constitution of India praying to strike off the R.C.A. No. 392 of 2013 pending on the file of the Rent Control Appellate Authority and VIII Judge, Court of Small Causes, Chennai. For Petitioner : Mr. N. Anand Venkatesh For Respondent : Mr. M. Kumarasamy ORDER
The question involved in this Civil Revision is as to whether this Court, in exercise of its power under Article 227 of The Constitution of India, can order for striking of the proceedings pending before the Courts, which are subordinates to it, when fraud was committed by a party to such proceedings to deceive the Court and obtain orders in his favour to dispossess the person who was in lawful possession of a property.
2. The striking facts, which are relevant and germane for disposal of this Civil Revision Petition is that the respondent herein has filed R.C.O.P. No. 1881 of 2003 before the learned IX Judge, Small Causes Court at Chennai under Section 10 (2) (i) of the Tamil Nadu Buildings (Lease and Rent Control) Act against the revision petitioner herein for eviction of the respondent herein on the ground of wilful default in payment of rent. In this Original Petition, an exparte order was passed on 10.02.2004 against the revision petitioner herein. On coming to know about the said order, the respondent herein filed M.P. No. 612 of 2004 in RCOP No. 1881 of 2003 for condonation of delay of 125 days in filing an application to set aside the exparte order dated 10.02.2004. The learned Rent Controller, after hearing both sides, condoned the delay and allowed M.P. No. 612 of 2004 on 06.10.2004. Subsequently, the petition filed by the respondent for setting aside the exparte order was also allowed on 14.10.2004. Therefore, the Rent Control Original Petition was taken up for final disposal. The learned Rent Controller, after hearing both sides, dismissed the RCOP No. 1881 of 2003 on 28.10.2004 on the ground that the revision petitioner failed to prove his title to the petition mentioned property and that there was no landlord-tenant relationship between the parties to the Original Petition. In the order dated 28.10.2004, the learned Rent Controller also observed that the respondent herein has given a written complaint to the Police against the revision petitioner herein complaining that the revision petitioner is compelling and coercing him to sell the petition mentioned property. The learned Rent Controller further observed that the respondent herein has not produced any document to prove that he is the owner of the Petition Mentioned Property. As against the Order dated 28.10.2004 passed in RCOP No. 1881 of 2003, the revision petitioner has not preferred any appeal. Thus the Rent Control Original Proceedings initiated by the respondent herein has reached a finality.
3. While so, after about 9 years from the date of dismissal of the Rent Control Original Petition on 28.10.2004, the respondent herein has filed E.P. No. 250 of 2013 on 06.07.2013 to execute the exparte decree dated 10.02.2004, which was subsequently set aside and the Rent Control Original Petition itself was dismissed on 28.10.2004. In this Execution Petition, the respondent herein has stated that an exparte decree was passed in RCOP No. 1881 of 2003 against which no appeal has been filed. In the Execution Petition, notice was taken to the revision petitioner herein through Court as well as privately. The notice sent through the Court was returned as served and an Affidavit of Service was filed to show that the private notice sent to the revision petitioner was received by him. Based on the alleged service of notice, the learned Rent Controller, by order dated 19.07.2013, ordered for delivery and batta was ordered to be paid on 30.07.2013. Thereafter, at the instance of the respondent herein, a petition for advance hearing was filed and the Execution Petition was taken up for hearing on 02.08.2013. On 02.08.2013, the respondent filed Petitions for Police Aid and Break Open and they were also allowed and fresh delivery was ordered returnable by 07.08.2013. On the same day, possession was taken by the respondent herein and after taking possession, the warrant was returned with an endorsement "possession taken". On the same day i.e., on 07.08.2013, the Execution Petition was ordered to be terminated in view of the fact that possession was taken by the respondent herein.
4. At this stage, the revision petitioner herein, who is shown as Judgment Debtor in E.P. No. 250 of 2013, filed a Memo before the Executing Court to the effect that the Execution Petition is not maintainable in law inasmuch as the Rent Control Original Petition itself was dismissed on 28.10.2004, after contest and that the Execution Petition was filed only on the basis of the Exparte Order passed in the RCOP No. 1881 of 2003 on 10.02.2004. On the basis of the memo filed by the revision petitioner, the Executing Court posted EP No. 250 of 2013 for clarification and the respondent was directed to file an objection. In the Objection, the respondent only stated that the Memo filed by the revision petitioner is not maintainable and for re-delivery or re-possession of the petition mentioned property and that he has to only file a petition seeking such prayer.
5. The learned Rent Controller, after hearing both sides, passed an order dated 12.08.2013 directing the respondent herein to re-deliver possession of the petition mentioned property to the revision petitioner herein within 3 days. As against this order, the respondent herein filed R.C.A. No. 392 of 2013 before the Rent Control Appellate Authority on 13.08.2013 and obtained an interim order on the same day. Aggrieved by the order dated 13.08.2013, the revision petitioner has filed the present Civil Revision Petition invoking Article 227 of The Constitution of India.
6. The learned counsel appearing for the revision petitioner would contend that when it is established by the revision petitioner that possession of the property was taken from him by adopting deceitful means and by playing fraud on the Court, this Court, under Article 227 of The Constitution of India, has wide and sweeping powers to set at naught the illegality committed by the respondent and order for re-delivery of possession of the property. The learned counsel for the revision petitioner would further contend that under Article 227 of The Constitution of India, this Court has got unfettered powers for ordering re-delivery of possession especially when it is established that the possession was taken by the respondent by playing fraud on the Court.
7. In this context, the learned counsel for the revision petitioner relied on several decisions of this Court as well as the Honourable Supreme Court of India namely (i) (J. Sivasubramanian and another vs. N. Govindarajan and another) 1998 1 CTC 470 (ii) (Renuka Devi vs. D. Manoharan) 1997 (III) CTC 567 (iii) (Roshan Deen vs. Preeti Lal) 2002 1 CTC 183 and prayed this Court to restore possession of the Petition Mentioned Property in favour of the revision petitioner herein.
8. Per contra, the learned counsel for the respondent would contend that the present prayer of the revision petitioner for re-delivery of possession cannot be considered by this Court while exercising jurisdiction under Article 227 of The Constitution of India. According to the learned counsel for the respondent, Section 2 (2) of the Code of Civil Procedure, which defines the term 'decree' and any decree passed in terms of Section 2 (2) of CPC can be deemed to include the rejection of a plaint and the same can be questioned only by filing an appeal and a Revision under Article 227 of The Constitution of India is not maintainable. Further, the respondent herein has already filed R.C.A. No. 392 of 2013 before the Appellate Authority and the same is pending, therefore also, the present Civil Revision Petition is not maintainable. The learned counsel further argued that this Court has no jurisdiction to entertain this Civil Revision Petition and for passing an order thereof for re-delivery of possession.
9. In support of his argument, the learned counsel for the respondent relied on the decision of this Court reported in (M/s. Mahaveer Electric Corporation vs. D. Ashok Kumar and 2 others) 1997 2 CTC 107 to contend that power of re-delivery or restitution can be exercised by Rent Controller in terms of Section 144 of Code of Civil Procedure and a Civil Revision Petition is not maintainable. The learned counsel for the respondent also relied on the decision of this Court reported in (Balakrishnan vs. Rathinam) 1988 Madras 379 to argue that there is a bar under Section 18 (2) of the Act in respect of restitution provided under Section 144 of CPC and therefore only an appeal will lie and the Civil Revision Petition is not maintainable.
10. I heard the counsel for both sides and perused the materials placed on record. At the outset, it must be stated that the respondent herein has filed the Execution Petition before the learned Rent Controller with unclean hands by adopting deceitful means and taken delivery of possession on the basis of an exparte order dated 10.02.2004 passed in RCOP No. 1881 of 2003 which was subsequently set aside on 06.07.2004 at the instance of the revision petitioner herein after condoning the delay in filing the petition to set aside the exparte order dated 10.02.2004.
11. After restoration of RCOP No. 1881 of 2003, the learned Rent Controller heard the argument of both sides and dismissed RCOP No. 1881 of 2003 on 28.10.2004 holding that the respondent has not proved and established his ownership over the property in question and that there is no proof to show that the relationship of landlord-tenant exist between the parties to the lis. The best part of the order dated 28.10.2004 is that there was no existence of landlord-tenant relationship between the respondent and revision petitioner herein. Thus, even on 28.10.2004, the Rent Control Original Petition filed by the respondent was dismissed and it reached a finality inasmuch as it was not appealed against.
12. While facts are so as stated above, after 9 years from the date of dismissal of RCOP No. 1881 of 2003 on 28.10.2004, the respondent herein has filed E.P. No. 250 of 2013 on the basis of the exparte order dated 10.02.2004 passed in RCOP No. 1881 of 2003. Inasmuch as the exparte decree dated 10.02.2004 was subsequently set aside and the Rent Control Original Petition itself was dismissed on 28.10.2004, I hold that the Execution Petition itself is not maintainable as it was filed by playing fraud on the Court. The respondent has filed the Execution Petition by claiming himself to be a decree holder by tracing his position on the basis of the exparte order dated 10.02.2004 which was subsequently set aside. Therefore, the respondent ought not to have filed the Execution Petition and the Execution Petition itself is non-est in the eye of law.
13. It is alleged by the respondent that notice was served on the revision petitioner herein in the Execution Petition No. 250 of 2013, which averment has been denied by the revision petitioner. Be that as it may, first of all, the question arise is as to whether the Execution Petition is maintainable in the eye of law when there is no decree at all in existence to be executed. Curiously, when the revision petitioner filed a memo before the learned Rent Controller after delivery was taken, the Execution Petition was posted for clarification and the respondent herein was directed to file his objections. In the objection filed by the respondent herein, he only states that the memo filed by the revision petitioner is not maintainable and that the revision petitioner must be directed to file a Petition seeking re-delivery of possession, in which event, the respondent should be given an opportunity to defend the same legally. No where in the objection, the respondent stated that he was not aware of the order of dismissal passed in RCOP No. 1881 of 2003 on 28.10.2004.
14. The learned Rent Controller, after considering the memo filed by the revision petitioner and the objections filed thereof by the respondent, passed an order dated 12.08.2013, as follows:-
"On perusal of records, it is seen that an exparte decree was passed in the RCOP on Feb 10, 2004. Subsequently, the same has been set aside and a contested decree was passed on 28.10.2004 dismissing the RCOP. The present E.P. Was filed by the Petitioner/D.H. On the basis of exparte decree obtained on 10th Feb 2004 which is per se non-est in the eye of law."
15. It is evident that the learned Rent Controller categorically held, on perusal of the records that the Execution Petition filed on the basis of exparte order dated 10.02.2004 is non-est in the eye of law and this would only indicate that the respondent herein has taken delivery of possession by adopting deceitful means and by playing fraud on the Court. The respondent has not approached the Executing Court with clean hands.
16. The further fallacy committed by the respondent notwithstanding the fact that he has committed fraud on the Court is that he has filed an appeal in R.C.A. No. 392 of 2013 against the order dated 12.08.2013 of the learned Rent Controller, ordering re-delivery. Unfortunately, the appellate authority entertained the appeal filed by the respondent and also granted interim stay on 13.08.2013. The order dated 13.08.2013 reads as follows:-
"MP No. 633 of 2013 in RCA No. 392 of 2013 Heard the counsel for the petitioner. The learned counsel for the petitioner submit that the learned Rent Controller without adverting to the facts of the petitioner's case has passed an order which is totally unsustainable. Aggrieved by the order of the learned Rent Controller the petitioner has filed the present appeal in which the petitioner has a fair chance of success. It is further submitted that if an order of interim stay is not granted, the petitioner will be put to irreparable loss. Having considered the submission made by the learned counsel for the petitioner, this Court deem it fit to grant interim stay till 20.08.2013 to serve the ends of justice. Notice to respondent by then. Private step also permitted.
17. It is evident that the Appellate Authority, in the order dated 13.08.2013 has not adverted to any of the findings rendered by the learned Rent Controller relating to fraud committed by the respondent herein and granted interim stay. I am unable to see as to how the appellate authority, could state that the Rent Controller, without adverting to the facts of the case, passed the order dated 12.08.2013. Whereas, the learned Rent Controller, has examined the records and clearly stated that the Execution Petition itself is non-est in the eye of law as there is no decree to be executed. Therefore, the order passed by the appellate authority on 13.08.2013, stating that if interim stay is not granted, the respondent herein will be put to loss is a fallacy. The appellate authority ought not to have entertained the appeal filed by the respondent herein especially when there is no decree to be executed. Therefore, I am of the view that this order passed by the Appellate Authority is per se illegal and cannot be legally sustained.
18. Let me now analyse the position of law required for disposal of the Civil Revision Petition. In the decision relied on by the learned counsel for the respondent reported in (M/s. Mahaveer Electric Corporation vs. D. Ashok Kumar and 2 others) 1997 2 CTC 107 this Court took note of the fact delivery was taken by the respondent after contest, the respondent therein obtained order for demolition and re-construction of a building. In those circumstances, the Bailiff returned the warrant with an endorsement stating that there is no building with the description given in the warrant and that the warrant could not be executed. In para-16, this Court culled out the facts of the case as mentioned below:-
"16. The next question we have to consider is whether under the said inherent power of the Rent Controller, restitution can be granted in the present case. To answer this question some of the facts of the case have to be repeated here. The delivery was taken by the respondent on 10.9.1993. The respondent has obtained permits for demolition and reconstruction on 15.3.1993. The Bailiff returned the warrant on 1.10.1993 with the endorsement stating that the building was not there and the warrant could not be executed. Knowing about the demolition, the petitioner has filed petition on 28.9.1993. The said petition was dismissed on 6.12.1993. Revision petition was filed in the High Court on 17.4.1995. In the mean time, on 28.2.1995 the lands with new building was sold to the respondents 2 and 3. C.M.P.No. 15218 of 1996 is filed by respondents 2 and 3 for reception of additional documents. In para 3 of the affidavit filed in support of the C.M.P.No. 15218 of 1996, the second respondent has stated that they have purchased an extent of 990 sq. feet in No. 7, Thambu Naick Street, Madras (Old No. 5, Bethunaickenpet). After the purchase one Warghees vacated the premises and godown and surrendered vacant possession. After demolition or the portions, he has put up a building as per the construction plan approved by the Corporation of Madras. He has also stated in para 4 that there was no proceedings pending before the Small Cause Court, Madras when they purchased the property on 28.2.1995. The revision petition has been filed by the first respondent in April, 1995 and only subsequently he himself and the third respondent were impleaded. In para 6 it is further stated that after putting up the construction he has sold the shops to various persons under different sale deeds. He has also given particulars about the sales effected by him to eight persons under different sale deeds. Therefore, at the time of purchase by respondents 2 and 3 there was no proceedings pending before the Rent Controller. Therefore, the doctrine of lis pendens will not apply assuming that the said doctrine can also be made applicable to the Rent control Proceedings. The petitioner has kept quiet from 6.12.1993 to 17.4.1995, on the later date only he filed revision before this court. Only on 25.4.1995 notice was ordered in these revisions. The petitioner's explanation that he was furnished with copy of the order dated 6.12.1993, only on 29.3.1995 cannot be an excuse as against the respondent.
19. After appreciating the factual matrix, as mentioned in para-16 above, this Court held that at the time of purchase , there was no proceedings pending before the Rent Controller and therefore, the doctrine of lispendence will not apply. In those circumstances, this Court observed that a new building has been put up and in view of such peculiar circumstances, re-delivery could not be ordered. The relevant paragraphs is extracted hereunder:-
"20. The right granted under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 is not a common law right as enunciated by the Transfer of Property Act. But it is only a statutory right created under the said enactment. The purpose of the said Act is only to give protection from eviction. The said protection from eviction is found in the preamble of the Act itself, which is as follows:-
"Whereas it is expedient to amend and consolidate the law relating to the regulation of the letting of residential and non- residential buildings and the control of rents of such buildings and the prevention of unreasonable eviction of tenants therefrom in the State of Tamil Nadu."
The rights conferred under the statute cannot be extended to a person from whom the building has been recovered. It is also very difficult to extend the benefit of the Act to a new building, which was not at all let out to any tenant. It is worthwhile to remember here that as per Section 30, new buildings are exempted from the purview of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Whatever may be said, as on today, the building stands exempted from the purview of the Act. When the Act itself is not applicable to the building in question, it will not be possible for this Court to make this Act applicable and grant redelivery to the petitioner. The redelivery by itself implies that what is to be redelivered is something which was delivered, when what was delivered is not there, the redelivery is impossible."
20. In the above decision, this Court held that the very Act itself is not applicable as a new building has come up which is exempted under the Act. Therefore, taking into consideration the facts involved in that case, this Court held that the application for restitution will not fall under Section 18 (1) of the Act and the Revision Petition is not maintainable. Above all, the main reason for such conclusion is that the revision petitioner therein has not pursued his remedy within a reasonable time and that he filed the Civil Revision Petition after lapse of time. Therefore, this decision relied on the counsel for the respondent does not apply to the facts of this case especially where in this case, the respondent committed fraud and obtained possession of the property by adopting deceitful means.
21. In the other decision relied on by the learned counsel for the respondent reported in (Balakrishnan vs. Rathinam) 1988 Madras Law Journal 379 this Court took note of the fact that the revision petitioner therein was dispossessed and delivery was taken. Thereafter, the tenant filed a petition for re-delivery. The Rent Controller dismissed it on the ground that the eviction was ordered pursuant to an order passed by contest and not an exparte order. As against the same, the Revision Petition was filed before this Court. In this case, a preliminary question as to maintainability of the Civil Revision Petition was raised before this Court. In those circumstances, this Court held that restitution will not fall under Section 18 (1) of the Act, the revision petition is not maintainable and only a statutory appeal will lie. Therefore, this decision will also not apply to the facts of the case on hand.
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 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. 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 or proceedings, the Court may direct the affected 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.
24. In yet another decision of this Court reported in (Renuka Devi vs. D. Manoharan) 1997 (III) CTC 567 relied on by the counsel for the revision petitioner, this Court took note of the fact that interim order was obtained by a person claiming himself to be a tenant and restrained the original owner from interfering with his possession. This Court held that the interim order was obtained by resorting to fraud and based on forged document. It was further held that when the suit itself was filed by resorting to fraud, the revision under Article 227 of the Constitution of India is maintainable. In that case, ultimately, this Court ordered to struck off the suit from the file, directed the plaintiff to handover possession which he took from the defendant fraudulently. In that case also, this Court referred to the decision of the Honourable Supreme Court reported in P.T. Chengalvaraya. This Court also further relied on the decision of the Honourable Supreme Court wherein the scope and nature of proceedings under Article 227 of the Constitution of India was discussed by the Honourable Supreme Court. In para-13 of the decision, this Court relied on the decision of the Honourable Supreme Court reported in Indian Bank vs. Satyam Fibers (India) Pvt Ltd., 1996 (5) S.C.C. 550 extracted in the earlier paragraph and in the same paragraph, this Court relied upon Para No.23 of the decision of the Honurable Supreme Court wherein it was held as follows:-
"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 committed a mistake, which prejudices a party, the court has the inherent power to recall its order. The court has also the inherent power to et aside a sale brought about by fraud practised upon the court or to set aside the order recording compromise obtained by fraud"
In paragraph 28, their Lordship said that fraud is an essential ingredient of forgery. In paragraphs 24 to 27 of the Judgment, Their Lordships considered whether forgery is a fraud and whether forgery and fraud were proved in that case. In paragraph 25, it is stated as hereunder:--
"Forgery has its origin in the French word "forger" which signifies '.........to frame or fashion a thing as the smith doth his works upon the anvil. And it is used in our law for the fraudulent making and publishing of false writings to the prejudice of another man's right"
15. In a recent decision of the Supreme Court, this question was considered and the same is reported in Puran Singh and others vs. State of Punjab and others, 1996 (2) S.C.C. 205. In Paragraph 11 of the judgment, their Lordships observed thus:
"When the Constitution has vested extraordinary power in the High Court under Articles 226 and 227 to issue any order, writ or direction and the power of superintendence over all court and tribunals throughout the territories in relation to which such High Court is exercising jurisdiction, the procedure for exercising such power and jurisdiction have to be traced and found in Articles 226 and 227 itself. No useful purpose will be served by limiting the power of the High Court by procedural provisions prescribed in the Code. Of course, on many questions, the provisions and procedures prescribed under the Code can be taken up as guide while exercising the power, for granting relief to persons, who have invoked the jurisdiction of the High Court. Different provisions and procedures under the Code are based on well recognised principles for exercise of discretionary power, and they are reasonable and rational. But at the same time, many procedures prescribed in the said Code are responsible for delaying the delivery of justice and causing delay in securing the remedy available to person who pursues such remedies. The High Court should be left to adopt a procedure which can be held to be not only reasonable but also expeditious. (emphasis supplied)
25. In para-17 of this decision, this Court also referred to the Full Bench decision of this Court reported in (Century Flour Mills Limited vs. S. Suppiah and another) 1975 1 MLJ 64 to hold that the inherent powers of the High Court under Section 151 of the Code of Civil Procedure, are wide and are not subject to any limitation. In para Nos. 18, 19, 20 and 21, this Court held thus:-
"18. Here is a case of fraud, and the person had taken advantage of his own fraud. When these facts are brought to the notice of the Court, can such a person be allowed to remain in possession with immunity and take advantage of his own fraud? If the Court refuses to act on that grievance, it only means, that it abdicates its duty, and it also perpetuates the fraud and injustice.
19. I direct the respondent/plaintiff in O.S. No. 5345 of 1997, on the file of the VII Assistant City Civil Court, Madras to hand over the possession of the building i.e., the first floor of the premises at No.114, Amman Koil Street, Wall Tax Road, Madras 79 forthwith. The same is to be reported on 19.11.1997. If he fails to surrender possession, as directed, further direction will follow, when the case is posted on 19.11.1997.
20. On the basis of the decision reported in S.P. Chengalvaraya Naidu (Dead) by Lrs. v. Jagannath (Dead) by Lrs. And others, 1994 (1) SCC 1, the respondent has no right to approach the Court, and therefore, the suit filed by him is also directed to be struck off from the file. The respondent is also bound to pay the cost of the petitioner so far incurred by her, and is also bound to pay the exemplary costs, which I quantify at Rs.5,000."
26. Ultimately, this Court even directed to surrender possession and to report compliance before this Court and if possession is not surrendered, this Court held that further directions will be issued. Therefore, when fraud is committed before the Court, the power of the Court to pass appropriate orders under Article 227 of The Constitution of India to subserve the interest of justice is unfettered and re-delivery can also be ordered in a Revision Petition by confirming the order passed by the learned Rent Controller and by setting aside the order of the appellate authority.
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, which deprived a person of his legitimate right to 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 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.
28. In the above case, the Honourable Supreme Court issued appropriate direction to the Bar Council of Haryana to take necessary action to subserve the interest of justice.
29. In this context, it is worthwhile to refer to 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 Law Weekly 21 wherein it was held that when a fraud on the Court is committed, the evidence adduced therein was a nullity and fraud avoids all judicial acts, ecclesiastical or temporal. Any decree or order obtained from Court by playing fraud has to be treated as a nullity by every Court, whether superior or inferior.
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 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.
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 handover 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 officials for having committed fraud on the Court and this should be separately dealt with.
21-10-2013 rsh Index : Yes / No Internet : Yes / No To
1. The VIII Judge Court of Small Causes Chennai.
2. The IX Judge Court of Small Causes Chennai
3. The XVI Judge Court of Small Causes Chennai
4. The Commissioner of Police Egmore, Chennai B. RAJENDRAN, J rsh C.R.P. (NPD) No. 3402 of 2013 21.10.2013