Gujarat High Court
Devshi Gangaji Rabadiya vs Jayantibhai Jerambhai Sureja on 16 September, 2022
Author: A. P. Thaker
Bench: A. P. Thaker
C/SA/143/2016 JUDGMENT DATED: 16/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 143 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DEVSHI GANGAJI RABADIYA
Versus
JAYANTIBHAI JERAMBHAI SUREJA & 2 other(s)
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Appearance:
JENIL M SHAH(7840) for the Appellant(s) No. 1
DECEASED LITIGANT for the Respondent(s) No. 1
MS ARCHANA R ACHARYA(2475) for the Respondent(s) No. 1.1,1.2,1.3,1.4
RULE SERVED for the Respondent(s) No. 3
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 16/09/2022
ORAL JUDGMENT
1. The present Second Appeal under Section 100 of the Civil Procedure Code has been filed by the original plaintiff against the judgment and decree passed by the Page 1 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 4th Additional District Judge, Kachchh@Bhuj in Regular Civil Appeal No. 135 of 2005.
2. For the brevity and convenience, the parties are referred to in this Judgment as per the status assigned to them before the learned trial Court.
3. The present Second Appeal came to be admitted on 8.8.2016 for the following substantial questions of law:
"(1) Whether the judgment and decree passed by the lower Court can be sustained under law, when the mandatory provisions of Order 41, Rule 31 of the Code of Civil Procedure are not complied with by the lower Court? (2) Whether without there being any counter claim by the respondent No.1, the lower Court had the jurisdiction to pass a decree against the present appellant in the suit of the appellant himself?
(3) Whether the relief granted by the lower Court in favour of the respondent No.1 was clearly time barred in the facts of the case?
(4) Whether the lower Court had jurisdiction to go behind the consent decree, Exh.83, which has become final and binding between the parties right from the year 1989? (5) Whether the consent decree can travel beyond the subject matter of the suit or the prayers made therein? (6) Whether without there being any written statement on record by the defendants, any evidence led by the respondent No.1 - defendant No.2 could have been considered by the Court?
(7) Whether the oral evidence of the Power of Attorney holder Page 2 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 of the respondent No.1 at Exh.112 can be considered, particularly, when the alleged copy of Power of Attorney is never exhibited on record?
(8) Whether, in view of the admission by the respondent No.1 at Exh.16 and Exh.112 as regards passing of the consent decree, the decree of the trial Court could have been reversed ?
(9) Whether the decree of the lower Court is vitiated by overlooking the clinching documentary evidences produced on record, showing the physical possession of the land in question with the present appellant?"
4. It appears from the record that the plaintiff has filed the Special Civil Suit No. 41 of 2003 against the defendants for declaration and injunction. The plaintiff is son of defendant No.1 (since deceased) whereas defendant No.2 is the purchaser of the land in question and defendant No.3 is Talati-cum-Mantri of the village Mirzapar. The contention of the plaintiff before the trial Court is that there was dispute between father and son regarding properties and earlier one Civil Suit No. 233/89 was filed wherein consent decree was passed on 23.6.1989 and as per that decree, agricultural land bearing Survey No. 113, Acre-14 and Gunthas-4 of village Mirzapar was given to the plaintiff by his father for consideration of Rs.20,000/-. According to the plaintiff, the decree was already executed and on that basis the said land is of the ownership of the plaintiff and he is doing agricultural Page 3 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 work over that. He has also contended that defendant No.1 i.e. his father is bound to obey the consent decree. He has also stated that on the basis of the decree, the plaintiff got revenue entry No. 3316 in his name against which his father has filed Appeal No. 52/1999 before the Deputy Collector and Deputy Collector has cancelled the said Entry, against which, he had preferred Revision before the Collector, Bhuj, being Revision Appeal No. 108(5) 26/2002and the matter was remanded. It is also contended by the plaintiff that there was Takrari Case No. 11 of 2003 conducted before Mamlatdar Court wherein the objections as well as the Entry itself came to be rejected by the Mamlatdar. He has stated that he has filed Appeal against that Order of the Mamlatdar which is still pending.
4.1 It is contended that though defendant No.1 i.e. his father knowing that he is not the owner of the land in question, defendant No.1 has sold the land in question by registered Sale-deed dated 6.5.2003 for consideration of Rs.14,510/-, which came to be registered at Serial No. 2231. He has stated that as the plaintiff came to know regarding this fact, he filed Police complaint before the Bhuj Taluka Police Station.
4.2 On the aforesaid basis, the plaintiff has filed the aforesaid Suit for the declaration that the defendant Page 4 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 No.1 (his father) is bound to implement consent decree and he himself has become the owner of the property by way of consent decree and the defendants have no right, title over the property and the document is not binding to him and restraining the defendants from interfering with his possession in the land and with direction to the defendant No.2, not to create any encumbrance over the land nor to assign or transfer the suit land in any manner to other third-party and also for directing the defendant No.3 to make Entry on the basis of the consent decree passed in Regular Civil Suit No. 233 of 1989.
4.3 It appears that the defendant No. 1 has filed written statement at Exh-16 wherein he has denied the contention of the plaintiff in toto and has submitted that the land in question belongs to him and stated that no proceedings were initiated for implementation of the alleged consent decree. According to defendant No.1, he is owner of the property and therefore, he has every right to sell it to anybody and, therefore, he has sold it to defendant No.2 by registered Sale-deed No. 2231 dated 6.5.2003. It is also contended by defendant No.1 that the land in question is still mutated in the revenue record. According to him, defendant got some entry in 1997 in the revenue record behind his back bearing Entry No. 3316, against which revenue proceedings are going on. He has denied of having any Page 5 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 right of the plaintiff in the suit land and has stated that he has sold the land in question to defendant No.2 for his livelihood. This fact of Written Statement has been reflected by the trial Court in its judgment at page-5. Of course in another stage, the trial Court has observed that no written statement has been filed but written statement against interim injunction Application was filed.
4.4 It appears that defendant No.2 has filed Written Statement at Exh-20, as stated in the judgment of the trial Court, wherein he has contended that the land in question was never in occupation and possession of the plaintiff and it was with defendant No.1. He has also contended that plaintiff and defendant No.1 are son and father and by virtue of alleged consent decree, passed in Regular Civil Suit No. 233 of 1989, the plaintiff has not become the owner thereof. It is also contended that plaintiff is not doing agricultural work in the land in question, as the land in question has been purchased by him, as he has purchased from defendant No.1. He has also submitted that as per the revenue record the land was in the name of defendant No.1. It is also contended that the plaintiff and defendant No.1 are contesting against each other and there are Criminal and Civil cases against father and son. It is contended that by virtue of filing this Suit, father and Page 6 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 son want to frustrate the rights of the defendant No.2 regarding the land which he has purchased by registered sale-deed by paying consideration to defendant No.1.
5. It appears that defendant No.3 has not filed any reply.
6. On the basis of the pleadings of the parties, the trial Court has framed the following issues in vernacular language at Exh-54, which on translation, would read as under:-
i. Whether the plaintiff proves that the Suit land bearing Revenue Survey No. 133 of sim of village:
Mirzapar is of his own ownership?
ii. Whether plaintiff proves that the registered document No.2231 dated 6.5.2003 entered into between the defendant Nos.1 and 2 is sham, bogus and without consideration?
iii Whether defendant No.1 proves that he has right, title to sell the Suit land?
iv. Whether the plaintiff is entitled for the relief sought for?
v. What order and decree?
7. As per the observations made by the learned trial Court in its judgment, it appears that the plaintiff Devshi Gangaji Rabadiya has filed his affidavit in lieu of oral evidence and Page 7 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 has produced documentary evidence, which is at Exh-66 to 88 and 108, which include the various proceedings pending before the revenue authority as well as Criminal complaints filed as well as photographs, copy of the consent decree of the earlier Suit, order of the Collector, the complaint filed by defendant No.1 against one Purbai Dhanji Bhudiya, copy of notice under Section 135(D) issued by Talati-cum-Mantri, Mirzapar and the copy of the document executed between defendant Nos. 1 and 2.
8. It appears that defendant No.1 has not filed any oral or documentary evidence. On behalf of defendant No.2 Power of Attorney Gopalbhai Jerambhai Sureja has filed affidavit in lieu of oral evidence at Exh-112 and the copy of the objection application filed by defendant No.1 dated 10.7.1997 filed by defendant No.1 against the revenue entry No. 3316 at Exh-115.
9. On the basis of the oral and documentary evidence and the submissions made on behalf of both the sides, the learned trial Court vide its judgment and decree dated 29.11.2005 has ultimately decreed the Suit of the plaintiff.
10. Against the said decree, the defendant No.2 i.e. purchaser has preferred Regular Civil Appeal No. 135 of 2005 before the District Court, Bhuj, which came to be heard by learned 4th Additional District Judge, Bhuj. Learned Additional Page 8 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 District Judge raised point of determination in Para-5 of his judgment to the following effect:
1. Whether the present appellant / original defendant No.2 proves that the judgment and decree dated 29.11.2005 passed in Special Civil Suit No. 41/2003 by the Principal Civil Judge, Bhuj is against the law of evidence and the order declaring the registered sale-deed No.2231 dated 6.5.2003 executed by defendant No.1 in favour of appellant is bogus and without consideration, is illegal and same deserves to be interfered with?
2. What order?
11. Learned Appellate Court, after hearing both the sides and considering the evidence on record and on re-appreciation of the evidence, has ultimately allowed the Appeal filed by defendant No.2 and has declared that the land in question is in the possession of defendant No.2 and the plaintiff was also directed to handed over the possession of the land to the defendant No.2 and directed defendant No.3 to make Entry in the Revenue Entry recorded in the name of defendant No.2.
12. Against this judgment and decree of the First Appellate Court dated 24.5.2016, the original plaintiff has preferred the present Second Appeal.
13. Heard Mr. Jenil Shah, learned advocate for the appellant-Page 9 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022
C/SA/143/2016 JUDGMENT DATED: 16/09/2022 original plaintiff and Ms. Archana Acharya, learned advocate for the private defendant. Perused the written submission of private respondent and the material placed on record as well as the decisions cited at bar.
14. Mr. Jenil Shah, learned advocate for the Appellant- plaintiff has vehemently submitted that there was dispute between father and son regarding various properties and in the previous litigation, the consent decree was passed in the year 1989 between father and son and on that basis, plaintiff became the owner of the Suit land and he was in possession of the land. He has submitted that the said consent decree has not been challenged by anyone. Mr. Shah has submitted that though the defendant No.1 i.e. father was not in possession or ownership of the suit land, he has executed sale-deed in favour of the defendant NO.2 (respondent No.1 herein). According to him, therefore, the plaintiff filed the suit before the trial Court for declaration and injunction to the effect that the sale transaction entered into between defendant Nos. 1 and 2 are not binding to him and directed defendant No.3 to make revenue entry in respect of consent decree and preventing the defendants from from interfering with the possession of the plaintiff.
14.1 Mr. Shah, while referring to the judgment of the trial Court, has submitted that before the trial Court, no written Page 10 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 statement was filed by any of the defendants and the reply filed was relating to application for interim injunction. He has submitted that since there was no written statement, the trial Court has decreed the Suit of the plaintiff. Against which, defendant No.2 carried the matter before the first Appellate Court. Mr. Shah has submitted that the lower Appellate Court has set-aside the impugned judgment of the trial Court. He has submitted that before the trial Court, defendant No.1 did not file any written statement nor appeared in witness box nore the defendant No.1 has challenged the consent decree. He has submitted that the trial Court has given proper reasoning for passing decree in favour of the plaintiff. Mr. Shah has read the entire judgment of the trial Court.
14.2 Mr. Shah has, while reading the judgment of the first Appellate Court, submitted that the Appellate Court has set-aside the decree and directed the plaintiff to hand over the possession to the defendant No.2. According to him, there was no counter-claim put forward by the defendant No.2 and yet he tried to get the possession of the Suit land from the plaintiff. He has submitted that there was no any counter suit filed by defendant No.2 for declaration of his ownership and possession over the Suit land and yet the first Appellate Court has passed impugned judgment and decree in favour of the defendant No.2, which, according to Mr. Shah, is not legal and valid.
Page 11 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022C/SA/143/2016 JUDGMENT DATED: 16/09/2022 14.3 Mr. Shah, learned advocate has also submitted that even if in the consent decree, more land has been added then that fact itself cannot affect the consent decree. He has submitted that the consent decree was not challenged by the defendant No.2 and, therefore, the appellate Court ought not to have gone beyond the terms of the consent decree. According to Mr. Shah, the first Appellate Court has exceeded its jurisdiction. He has referred to the consent purshis as well as the receipt and deposition of the plaintiff and cross-examination thereof. He has submitted that as per the consent decree, the plaintiff has already paid consideration to his father and, therefore, consent decree has become final and on the basis of the consent decree, it was incumbent on the part of the revenue authority to make necessary entry in the revenue record pertaining to the Suit land in favour of the plaintiff.
14.4 Mr. Shah has also submitted that even otherwise, the defendant No.2 has no locus-standi to challenge the consent decree as he was not party to the same. He has submitted that when defendant No.2 was not party to the consent decree, how he could say that defendant No.1 has not received remaining amount of consideration from the plaintiff. He has also submitted that there is no pleadings of the defendants to the effect that the consent decree was obtained by fraud. Mr. Shah has also contended that Page 12 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 there was no pleading in this regard and there is also no evidence on record.
14.5 According to Mr. Shah, the defendants have not denied the pleadings of the plaintiff and, therefore, in view of the Order 8 Rule 3 & 5 thereof, it should be held that defendants have admitted the contents of the plaintiff. He has submitted that according to the provisions of Order 8, the denial by the defendants must be specific and if no such denial is made in pleadings, then it must be held to be deemed admission on the part of the defendants. For the proposition he has relied upon the decision in case of Bachhaj Nahar v. Nilima Mandal, reported in AIR 2009 SC 1103 and Prataprai N. Kothari v. John Braganza, reported in AIR 1999 SC 1666.
14.6 Mr. Shah, learned advocate has also submitted that in absence of counter-claim/ Suit for eviction, no order for eviction could have been passed by the first Appellate Court. He has submitted that in the present case, there is no compliance of Order 8 Rule 6(A) and Order 8 Rule 6(B). According to him, therefore, even on this ground, the impugned judgment and decree of the first Appellate Court is liable to be set-aside. For this proposition, he has relied upon the decision in case of M. Ventataramana Hebbar (Dead) by Lrs. v. M. Rajagopal Hebbar and others, reported in (2007) 6 SCC 401 and Jaspal Kaur Cheema v.
Page 13 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022C/SA/143/2016 JUDGMENT DATED: 16/09/2022 Industrial Trade Links, reported in AIR 2017 SC 3995.
14.7 Mr. Shah, while referring to Order 23 Rule 3 of CPC, has submitted that the Court has power to pass consent decree in relation to other properties also. He has submitted that due to the consent decree of the year 1989, there was no title in favour of the defendant No.1 in the year 2003. He has submitted that before purchasing the Suit land, defendant No.2 has not issued any public notice nor gotr any title clearance Certificate before execution of the sale- deed and, therefore, in view of the provisions of the Transfer of the Properties Act, defendant No.2 cannot be deemed to be bonafide purchase. He has submitted that the name of the plaintiff was reflected in the revenue record and this fact ought to have been known by the defendant No.2. He has also submitted that the alleged sale-deed is silent in respect of receipt of the consideration by the defendant No.1.
14.8 Mr. Shah has also submitted that even the first Appellate Court has not properly raised the point of determination in the First Appeal and, therefore, there is a breach of mandatory provision of Order 41 R 31 of CPC and, therefore, on that count, the present Second Appeal deserves to be allowed.
14.9 On the aforesaid submissions, Mr. Shah has vehemently Page 14 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 submitted to allow the present Second Appeal and to set- aside the impugned judgment and decree passed by the first Appellate Court and to restore the judgment and decree passed by the trial Court.
15. Per contra, learned advocate Ms. Archana Acharya for the private respondent has vehemently submitted that the defendant No.2 is a bonafide purchaser of the land. Ms. Acharya, while referring to the previous proceedings, has submitted that the fraud has been acted by the plaintiff upon his father deceased-defendant No.1, who has filed affidavit to that effect in the proceedings and the same has been Exhibited. She has also submitted that the defendant No.2 was not party to the consent decree nor the party in the earlier Suit between father and son. She has submitted that plaintiff fraudulently got his name entered into the the revenue Entry No. 3316 which came to be cancelled due to the appeal filed by the deceased-defendant No.1. She has submitted that the defendant No.2 has purchased the Suit land on 6.5.2003 and on that day, the Entry No. 3316 was already cancelled from the revenue record. She has submitted that the defendant No.2 has after examining the revenue record and actual possession of land with defendant No.1, has purchased the land and has paid the consideration to the deceased - defendant No.1. She has submitted that the defendant No.1 has not denied the factum of receipt of consideration from the defendant Page 15 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 No.2 for execution of the registered Sale-deed. She has submitted that for the period from 1989 till 1997, there were various civil litigation filed between father and son. She has submitted that if there was really a consent decree passed in 1989 in favour of the plaintiff then why there was other civil litigation between father and son during the period from 1989 to 1997. She has also submitted that if the version of the plaintiff regarding passing of the consent decree in his favour in the year 1989 was true then why the plaintiff did not take any action till 1997 for mutating his name in the revenue record on the basis of the consent decree, that too after 8 years of the consent decree. She has, while referring to the oral evidence produced before the trial Court by defendant No.2 and the affidavit filed by the defendant No1, denying the ownership and possession of the plaintiff over the suit property, has submitted that the first Appellate Court has considered all these aspects in its proper perspective and has not committed any error of facts and law in setting aside the judgment and decree of the trial Court.
15.1 Ms. Acharya has also submitted that justice be done not on technicality. She has submitted that in terms of provisions of Order 23 Rule -3 of the CPC, the defendant No.2 could not file any counter- claim before the lower Court challenging the consent decree alleged to be passed in earlier Regular Suit No. 233 of 1989. Therefore, according Page 16 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 to her, the Appellate Court has not erred in setting aside the decree without there being any counter-claim by defendant No.2. For this proposition, she has relied upon decision in case of Triloki Nath Singh v. Anirudh Singh, reported in (2020) 6 SCC 629 especially Paras-21 to 23.
15.2 Ms. Acharya has submitted that on the basis of the material placed on record, the first Appellate Court has come to the conclusion that the consent decree dated 22.6.1989 is vitiated by fraud, is proper findings. According to her, once a decree is vitiated with fraud, it is nullity from the beginning and, therefore, the same cannot be relied upon by the plaintiff. For this proposition, she has relied upon the decision in case of Badami (Deceased) By her LR v. Bhali, reported in (2012) 11 SCC 574.
15.3 Ms. Acharya has also relied upon Section 44 of the Indian Evidence Act, and has submitted that when there is a fraud in obtaining the judgment, then the Court has ample power to treat such order or decree being nullity. She has submitted that the Appellate Court has properly appreciated these facts. She has also submitted that the first Appellate Court has properly considered the entire facts and properly passed the impugned judgment and decree in favour of the defendant No.2. Regarding not filing of the written statement by the other side, it is submitted by her that it is for the plaintiff to prove his case Page 17 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 upon his own evidence and he cannot take shelter over any defects over the written statement or non-filing of written statement. She has prayed to dismiss the present Second Appeal.
16 In rejoinder, learned advocate Mr. Shah for the plaintiff -
Appellant has vehemently submitted that defendant No.1 has not said as to fraud acted upon him by the plaintiff. He has also submitted that reply against interlocutory application for injunction at Exh-5 filed by defendant No.1 cannot be considered as written statement of the defendants. He has further submitted the deposition of Power of Attorney holder on behalf of defendant No.2 has been recorded, who has no authority as no Power of Attorney has been filed in the Suit by the defendant No.2. He has also submitted that evidence of the Power of Attorney holder cannot be considered. For this proposition, he has relied upon the decision in case of Ajay Kiritkant Ghelani and Ors v. Mathureshnagar Co-operative Housing Society Ltd. and Anr., reported in 2007 (3) GLH
590. He has prayed to allow the present Second Appeal.
17. In the case of Prataprai N. Kothari v. John Braganza, reported in AIR 1999 SC 1666, wherein it is observed in Para-10 as under:
"10. Reliance was sought to be placed on the additional evidence admitted by the learned Single Judge during the Page 18 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 pendency of the appeals to prove that the appellant had title to the property. It is settled law that in the absence of any plea, no evidence is admissible. The Single Judge of the High Court overlooked that when there was no plea or issue on the question of title, no evidence whatever was admissible regarding the same. He acted beyond his jurisdiction in permitting addditional evidence to be filed in appeals."
18. In the case of Bachhaj Nahar v. Nilima Mandal (Supra), wherein it is observed in Para-6, 8 and 9 as under:
"6. Feeling aggrieved, the plaintiffs filed a second appeal before the High Court. The High Court by judgment dated 14.5.2004 allowed the second appeal. The High Court held that the plaintiffs had failed to make out title to the suit property. It however held that plaintiffs had made out a case for grant of relief based on easementary right of passage, in respect of the suit property, as they had claimed in the plaint that they and their vendor had been using the suit property, and the first defendant and DW6 had admitted such user. The High Court was of the view that the case based on an easementary right could be considered even in the absence of any pleading or issue relating to an easementary right, as the evidence available was sufficient to make out easementary right over the suit property. The High Court therefore granted a permanent injunction restraining the first defendant from interfering with the plaintiffs' use and enjoyment of the `right of passage' over the suit property (as also of the persons living on the northern side of the suit property). The High Page 19 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 Court also observed that if there was any encroachment over the said passage by the first defendant, that will have to be got removed by the "process of law". The High Court also issued a permanent injunction restraining the plaintiffs from encroaching upon the suit property (passage) till the plaintiffs got a declaration of their title over the suit property by a competent court. The first defendant sought review of the said judgment. The review petition was dismissed by the High Court by order dated 9.12.2004.
8. The High Court, in this case, in its obvious zeal to cut delay and hardship that may ensue by relegating the plaintiffs to one more round of litigation, has rendered a judgment which violates several fundamental rules of civil procedure. The rules breached are :
(i) No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did arise from the pleadings and which was not the subject matter of an issue, cannot be decided by the court.
(ii) A Court cannot make out a case not pleaded.
The court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint.
(iii) A factual issue cannot be raised or considered for the first time in a second appeal.
Civil Procedure Code is an elaborate codification of the principles of natural justice to be applied to civil litigation. The provisions are so elaborate that Page 20 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 many a time, fulfillment of the procedural requirements of the Code may itself contribute to delay. But any anxiety to cut the delay or further litigation, should not be a ground to float the settled fundamental rules of civil procedure. Be that as it may. We will briefly set out the reasons for the aforesaid conclusions.
9. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. This Court has repeatedly held that the pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties, and to prevent any deviation from the course which litigation on particular causes must take."
19. In the case of Jaspal Kaur Cheema v. Industrial Trade Links (Supra), wherein Para-8 reads as under:
"8. In terms of Order 8 Rule 3 of the Code of Civil Procedure, 1908 (for short 'the Code'), a defendant is required to deny or dispute the statements made in the plaint categorically, as evasive denial would amount to an admission of the allegation made in the plaint in terms of Order 8 Rule 5 of the Code. In other words, the written Page 21 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 statement must specifically deal with each of the allegations of fact made in the plaint. The failure to make specific denial amounts to an admission. This position is clear from the decisions of this Court in Badat and Company v. East India Trading Company (1964) 4 SCR 19, Sushil Kumar v. Rakesh Kumar(2003) 8 SCC 673, and M. Venkataramana Hebbar (dead by LRs) v. M. Rajagopal Hebbar (2007) 6 SCC 401.
20. In the case of M. Ventataramana Hebbar (Dead) by Lrs. v. M. Rajagopal Hebbar and others (Supra), wherein it is observed in Paras-12 and 13 as under:
"12. The contract between the parties, moreover was a contingent contract. It was to have its effect only on payment of the said sum of Rs. 15,000/- by the plaintiff and other respondents by the defendant Nos. 1 to 3. It has been noticed hereinbefore by us that as of fact, it was found that no such payment had been made. Even there had been no denial of the assertions made by the appellant in their written statement in that behalf. The said averments would, therefore, be deemed to be admitted. Order VIII Rule 3 and Order VIII Rule 5 of the Civil Procedure Code read thus:-
"3. Denial to be specific. - It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.
5. Specific denial. (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the Page 22 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 pleading of the defendant, shall be taken to be admitted except as against person under disability. Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.
(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved. (3) In exercising its discretion under the proviso to sub- rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.
(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced."
13. Thus, if a plea which was relevant for the purpose of maintaining a suit had not been specifically traversed, the Court was entitled to draw an inference that the same had been admitted. A fact admitted in terms of Section 58 of the Evidence Act need not be proved.
21. In case of Triloki Nath Singh v. Anirudh Singh (Supra), wherein Paras-21 to 23 read as under:
"21. In the present case, the partition suit was filed in 1978 and after the decision of the trial Court, the matter went in first appeal and eventually, Second Appeal No. 495/86 before the High Court. During the pendency of first appeal being continuation of the suit as stated, one of the parties to the pending proceedings, namely, Sampatiya allegedly entered into a sale deed with the appellant on 6th January, 1984. Indubitably the issue regarding right, title and interest in respect of the land which was the subject matter of sale deed dated 6th January, 1984, was Page 23 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 still inchoate and not finally decided. In that sense, the claim of the appellant was to be governed by the decision in favour of or against Sampatiya in the pending appeal. It must follow that the alleged transaction effected in favour of the appellant by a sale deed dated 6 th January, 1984 ought to abide by the outcome of the said proceedings which culminated with the compromise decree passed by the High Court in Second Appeal No. 495/86 dated 15 th September, 1994.
22. Indeed, the appellant was not a party to the stated compromise decree. He was, however, claiming right, title and interest over the land referred to in the stated sale deed dated 6 th January, 1984, which was purchased by him from Sampatiya-judgment debtor and party to the suit. It is well settled that the compromise decree passed by the High Court in the second appeal would relate back to the date of institution of the suit between the parties thereto. In the suit now instituted by the appellant, at the best, he could seek relief against Sampatiya, but cannot be allowed to question the compromise decree passed by the High Court in the partition suit. In other words, the appellant could file a suit for protection of his right, title or interest devolved on the basis of the stated sale deed dated 6th January, 1984, allegedly executed by one of the party(Sampatiya) to the proceedings in the partition suit, which could be examined independently by the Court on its own merits in accordance with law. The trial Court in any case would not be competent to adjudicate the grievance of the appellant herein in respect of the validity of compromise decree dated 15 th September, 1994 passed by the High Court in the partition suit.Page 24 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022
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23. In other words, the appellant can only claim through his predecessor-Sampatiya, to the extent of rights and remedies available to Sampatiya in reference to the compromise decree. Merely because the appellant was not party to the compromise decree in the facts of the present case, will be of no avail to the appellant, much less give him a cause of action to question the validity of the compromise decree passed by the High Court by way of a substantive suit before the civil Court to declare it as fraudulent, illegal and not binding on him. Assuming, he could agitate about the validity of the compromise entered into by the parties to the partition suit, it is only the High Court, who had accepted the compromise and passed decree on that basis, could examine the same and no other Court under proviso to Rule 3 of Order 23 CPC. It must, therefore, follow that the suit instituted before the civil Court by the appellant was not maintainable in view of specific bar under Rule 3A of Order 23 CPC as held in the impugned judgment."
22. In case of Badami (Deceased) By her LR v. Bhali (Supra) , wherein Paras-19 to 20 and 27 to 29 read as under:
"19. From the evidence brought on record, it is perceptible that Badami was a rustic and an illiterate woman; that she had one daughter who was married and there was no animus between them to exclude her from the whole property; and that the concept of family arrangement is too farfetched to give any kind of credence. That apart, the filing of written statement, the recording of statement and taking the thumb impression in a hurried manner Page 25 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 further nurtures the stance that the defendant was totally unaware as to what had happened.
20. The averments in the plaint show that the plaintiff was put in possession but as she was going to alienate the property because of record of rights reflected name of Badami, the suit was filed for permanent injunction restraining her from alienating in any manner and the defendant conceded to the same. The averments in the plaint show that the defendant had refused the request of the plaintiff on 11.11.1973 not to interfere with the possession yet she accompanied him to suffer a consent decree. It is worth noting that there is evidence on record that she was brought to the court premises to execute the lease deed for a period of two years and she had faith in Bhali. It is a matter of grave anguish that in the first suit the court had not applied its mind to the real nature of the family arrangement.
21. The learned counsel for the appellant has submitted that there was no need for a family settlement because Badami had got a part of the property in an earlier family arrangement. She had a daughter and a son-in-law and she had no cavil with plaintiff. She had also to support herself. He fairly submitted that the family arrangement need not be construed narrowly and it need not be registered but it must prima facie appear to be genuine which is not so in the case at hand."
27. If the present factual matrix tested on the anvil of the aforesaid decisions, the family arrangement does not remotely appear to be a bona fide. Bhali had not semblance of right in the property. All rights had already been settled and she was the exclusive owner in Page 26 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 possession. It is difficult to visualise such a family settlement. More so, it is absolutely irrational that Badami would give everything to Bhali in lieu of nothing and suffer a consent decree. That apart, there was no reason to exclude the daughter and the son-in-law. Had there been any likely possibility of any future legal cavil between the daughter and Bhali the same is understandable. It is well nigh impossible to perceive any dispute over any property or the possibility of it in future. On the contrary in this so called family settlement the whole property of Badami is given to Bhali. We are unable to accept it to be a bona fide settlement.
28. From the aforesaid analysis it is clear as crystal that the judgment and decree passed in civil suit No. 1422 of 1973 on 27.11.1973 are fundamentally fraudulent. It is a case which depicts a picture that the delineation by the learned Judge was totally ephemeral. The judgement is vitiated by fraud.
29. Presently, we shall refer as to how this Court has dealt with concept of fraud. In S. B. Noronah v. Prem Kumari Khanna[12] while dealing with the concept of estoppel and fraud a two-Judge Bench has stated that it is an old maxim that estoppels are odious, although considerable inroad into this maxim has been made by modern law. Even so, "a judgment obtained by fraud or collusion, even, it seems a judgment of the House of Lords, may be treated as a nullity". (See Halsbury's Laws of England, Vol. 16 Fourth Edition para 1553). The point is that the sanction granted under Section 21, if it has been procured by fraud or collusion, cannot withstand invalidity because, otherwise, high public policy will be given as hostage to Page 27 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 successful collusion."
23. In case of S.P. Chengalvaraya Naidu (dead) by L.Rs v.
Jagannath (dead) by L.Rs. and others, reported in AIR 1994 SC 853, wherein Para-1 reads as under:
"Fraud-avoids all judicial acts, ecclesiastical or temporal"
observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and honest 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."
24. In case of Ram Chandra Singh v. Savitri Devi and Others, reported in (2003) 8 SCC 319, wherein Paras-15 to 18 and Paras-25 to 37 read as under:
"15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well-known vitiates every solemn act. Fraud and justice never dwells together.
16. Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter.Page 28 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022
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17. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentations may also give reason to claim relief against fraud.
18. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad.
25. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application f any equitable doctrine including res-judicata.
26. In Shrisht Dhawan vs. M/s. Shaw Brothers , it has been held that:
"20.Fraud and collusion sitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct."
27. In S.P. Chengalvaraya Naidu vs. Jagannath this Court in no uncertain terms observed:
"...The principles of "finality of litigation" cannot be passed 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.Page 29 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022
C/SA/143/2016 JUDGMENT DATED: 16/09/2022 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 unscrupulous 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....
A fraud is an act of deliberate deception with the design of security 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... 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."
28. In Indian Bank vs. Satyam Fibres (India) Pvt. Ltd. [ 1996 (5) SCC 550 ], this Court after referring to Lazarus Estates (supra) and other cases observed that 'since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court it also amounts to an abuse of the process of the Court, that the Courts have inherent power to set aside an order obtained by practising fraud upon the Court, and that where the Court is misled by a party or the Court itself commits a mistake which Page 30 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 prejudices a party, the Court has the inherent power to recall its order". It was further held:
"22. 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 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."
29. In Chittaranjan Das vs. Durgapore Project Limited & Ors. it has been held:
"57. Suppression of a material document which affects the condition of service of the petitioner, would amount to fraud in such matters. Even the principles of natural justice are not required to be complied within such a situation.
58. It is now well known that a fraud vitiates all solemn acts. Thus, even if the date of birth of the petitioner had been recorded in the service returns Page 31 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 on the basis of the certificate produced by the petitioner, the same is not sacrosanct nor the respondent company would be bound thereby."
30. Keeping in view the aforementioned principles, the questions raised in these appeals are required to be considered. The High Court observed that the application of intervention filed by the appellant purported to be under Order XXVI, Rules 13 and 14(2) and Order XX, Rule 18 was not maintainable as they do not confer any power to court for setting aside a preliminary decree on the ground that it was obtained by practising fraud. But once the principles aforementioned are to be given effect to, indisputably the court must be held to have inherent jurisdiction in relation thereto.
31. In Manohar Lal Chopra vs. Rai Bahadur Rao Raja Seth Hiralal 1962 AIR(SC) 527 ], the law is stated in the following terms:
"43. The Code of Civil Procedure is undoubtedly not exhaustive: it does not lay down rules for guidance in respect of all situations nor does it seek to provide rules for decision of all conceivable cases which may arise. The civil courts are authorized to pass such orders as may be necessary for the ends of justice, or to prevent abuse of the process of court, but where an express provision is made to meet a particular situation the Code must be observed, and departure therefrom is not permissible."Page 32 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022
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32. In Sharda vs. Dharmpal a three-Judge Bench, of which both of us are parties, held that directing a person to undergo a medical test by a matrimonial court is implicit stating:
"52. Even otherwise the Court may issue an appropriate direction so as to satisfy himself as to whether apart from treatment he requires adequate protection inter alia by way of legal aid so that he may not be subject to an unjust order because of his incapacity. Keeping in view of the fact that in a case of mental illness the Court has adequate power to examine the party or get him examined by a qualified doctor, we are of the opinion that in an appropriate case the Court may take recourse to such a procedure even at the instance of the party to the lis.
53. Furthermore, the Court must be held to have the requisite power even under Section 151 of Code of Civil Procedure to issue such direction either suo motu or otherwise which, according to him, would lead to the truth."
33. Once it is held that a judgment and decree has been obtained by practising fraud on the court it is trite that the principles of res- judicata shall not apply. The High Court, therefore, in our opinion committed a serious error in referring to the earlier orders passed by it so as to shut the doors of justice on the face of appellant for all time to come. We, therefore, are of the opinion that the impugned judgment dated 10.12.1998 cannot be sustained.
34. So far as the order dated 10.5.1999 passed in Civil Review No. 245/1998 is concerned, suffice it to say that the High Court Page 33 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 should have considered the question as to whether the right of the auction purchaser could have been set at naught by reason of a consent order passed in his absence. The appellant was not a party in the First Appeal. He was also not a party to the compromise.
35. The consent order, as is well-known, is an agreement between the parties with the seal of the Court superadded to it. The appellant herein in the Review Application categorically stated that the parties to the appeal had suppressed the auction sale as also the confirmation thereof. The effect of the events appearing subsequent to the filing of First Appeal resulting in creation of a third party right was bound to be taken into consideration by the High Court. A third party right cannot be set at naught by consent. The High Court, therefore was required to consider the contention of the appellant in their proper perspective. The High Court, in our opinion, was obligated to address itself on these questions for the purpose of reviewing its order.
36. In Dwarka Prasad Agarwal (D) By Lrs. and Another vs. B.D. Agarwal and Others, it was observed:
"31. Several issues of grave importance were required to be addressed by the High Court. The High Court sought to take a short cut in holding that the said compromise was not binding upon Dwarka Prasad Agarwal and thereby no writ was issued. The consequence of recording of the said compromise was tell-tale. Not only pursuant thereto or in furtherance thereof the Registrar of Newspapers, New Delhi, passed an order dated 3.9.1992; it was construed to be a judgment of the High Court which had been taken aid of by the Page 34 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 respondents herein for the purpose of withdrawal of suits wherein various disputed questions of facts and law including the genuineness or otherwise of the agreements were n question and required adjudication. The High Court was also required to address itself, more so while disposing of the review application, as to whether the purported settlement on the grounds raised by the appellants herein, was a lawful one. Without any application of mind, the High Court proceeded to hold that the agreement was lawful. It did not pose unto itself the right question so as to enable himself to arrive at a finding of fact resulting in correct answer thereto and, thus, the same would amount to a misdirection in law."
It was further observed:
"37. It is now well-settled that an order passed by a court without jurisdiction is a nullity. Any order passed or action taken pursuant thereto or in furtherance thereof would also be nullities. In the instant case, as the High Court did not have any jurisdiction to record the compromise for the reasons stated hereinbefore and in particular as no writ was required to be issued having regard to the fact that public law remedy could not have been resorted to, the impugned orders must be held to be illegal and without jurisdiction and are liable to be set aside. All orders and actions taken pursuant to or in furtherance thereof must also be declared wholly illegal and without jurisdiction and Page 35 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 consequently are liable to be set aside. They are declared as such."
37. It will bear repetition to state that any order obtained by practising fraud on court is also non-est in the eyes of law."
25. In the case of Horace Kevin Gonsalves v. Prabha Ganpat Borkar (Miss) an another, reported in 2015 (6) Mh. L.J. 208, wherein Paras-103 to 105 are as under:
"103. In so far as judgment relied upon by Mr.Shinde, learned counsel appearing for the respondent no.1 in support of the submission that the petitioner in Writ Petition No.4797 of 2013 being not a party to the suit had no locus to file any application for setting aside the consent decree and the only remedy for setting aside such consent terms was only by filing a suit is concerned, in my view in none of the judgment relied upon by the learned counsel, court was dealing with any allegation of fraud committed upon the court by a party to the suit. In my view, the petitioner in the Writ Petition No.4797 of 2013 was not a stranger in respect of the subject matter of the suit. The petitioner was claiming rights in the suit premises by virtue of a registered agreement for sale and was already made member of the society and was issued share certificate by the society in respect of the suit premises. Once even if such third party having slightest interest in the suit property files an application for setting aside a decree obtained by a party by practicing fraud upon the court, in my view section 151 of the Code of Civil Procedure stands attracted to such application and cannot be dismissed on the ground of locus. It is duty of the court Page 36 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 to look into such allegation of fraud practiced upon the court on merits and may take a different view altogether if so warranted in facts of that case. In my view, none of the judgment relied upon by Mr.Shinde, learned counsel appearing for the respondent no.1 would assist respondent no.1. There is no dispute about the proposition of the law laid down by the Supreme Court in various judgments relied upon by the learned counsel. Said judgments are however clearly distinguishable with the facts of this case.
104. Supreme Court in case of Indian Bank vs. M/s.Satyam Fibres (India) Pvt. Ltd. AIR 1996 SC 2592 has held that judiciary in India possesses inherent power, specially under section 151 of Code of Civil Procedure to recall its judgment or order if it is obtained by practicing fraud upon court. These powers spring not from legislation but from the nature and the Constitution of the tribunal 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 behavior. This power is necessary for the orderly administration of the Court's business. Paragraphs 22 and 23 of the said judgment read thus :-
22. The judiciary in India also possesses inherent power, spe- cially 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 Page 37 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 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 pun- ish unseemly behaviour. This power is necessary for the order- ly 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 Mukerjee v.
Mohanlal Goenka; Gajanand Sha v. Dayanand Thakur4; Krishnakumar v. Jawand Singh5; Deven- dra Nath Sarkar v. Ram Rachpal Singh6; Saiyed Mohd. Raza v. Ram Saroop7; Bankey Behari Lal v. Abdul Rahman8; Lek- shmi Amma Chacki Amma v. Mammen Mammen). The court has also the inherent power to set aside a sale brought about by fraud practised upon the court (Ishwar Mahton v. Sitaram Kumar10) or to set aside the order recording compromise ob- tained by fraud. (Bindeshwari Pd. Chaudhary v. Debendra Pd.Singh11; Tara Bai v. V.S. Krishnaswamy Rao."
26. In the case of Peter John D'Souza & Ors v. Armstrong Page 38 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 Joseph D'Souza, reported in 2014 (3) Mh. L.J. 876 wherein Para- 20 reads as under:
"20. I am not inclined to accept the submission of Mr. Kumbhakoni, learned senior counsel that merely because there was no specific bequest in the Will of the deceased in respect of the plots in which the petitioners claim interest, the petitioners cannot be even allowed to urge and bring to the notice of this sjs MPTG-OJ-69.2012 Court the fact of fraud, fabrication or concealment. In my view, Court can take cognizance of the allegation of fraud, fabrication or concealment even at the instance of a party who claims even a slightest interest in the property of the deceased. Once the allegation of fraud, fabrication or concealment is brought to the notice of the Court, which is alleged to have been committed by the opposite party for obtaining letters of administration from a Court, it becomes the duty of the Court to look into such allegation whether any grant of letters of administration is obtained by a party from the Court by practicing fraud, fabrication or concealment. The Court can take cognizance of such allegation suo moto and if it comes to the conclusion that the grant is obtained fraudulently or by making false suggestion or by concealment of such fact, it is duty of Court to set aside such grant.
27. Regarding Question No.1:
Order 41 Rule 31 provides for the contents of the judgment of the Appellate Court. According to this provision, the said judgment shall state (a) Points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) Page 39 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 whether the decree appealed from his reversed or varied the relief to which the Appellant is entitled and shall be signed and dated by the Judge concerned. This provisions are held to be mandatory by various decisions. It is also settled that where the Appellate Court has considered all the issues and has given reasoning, the provisions of Order 41 Rule 31 are not violated. Further, whether the Appellate Court has framed only one point for determination and has considered all the relevant material evidence then the judgment of the first Appellate Court cannot be termed to be in violation of the provisions of Order 41 Rule 31. At this juncture, it is worthwhile to refer to the decision in case of Nopany Investments (P) Ltd Vs Santokh Singh (HUF) reported in 2007 (0) AIJEL-SC 40204 especially in para 8 which reads as under:-
"8. This takes us to the next issue namely, whether the High Court was right in concluding that the first appellate court had duly dealt with all the issues involved and re-appreciated the evidence as provided under O.41 R.31 of the CPC. The learned senior counsel for the appellant Mr. Gupta sought to argue that the High Court had erred in holding that the first appellate court had acted in due compliance with O.41 of the CPC. It may be noted that the High Court, while concluding as aforesaid, came to the following findings:-
1) The first appellate court has passed a speaking order and it is apparent that it has applied its mind.
2) The First appellate court had to deal with the Page 40 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 arguments which were advanced before it. It had rightly given the short shrift to all those arguments which did not inject some coherence.
3) The learned counsel for the appellant had failed to point out the issues regarding which the First Appellate court had not given its own conclusion.
4) The learned counsel for the appellant had also failed to show as to how the authority cited viz., Santosh Hazari Vs. Purushottam Tiwari (dead) by LRs. [AIR 2001 SC 965] was applicable to the facts of the case. "
In view of the aforesaid decision of the Apex Court, on perusal of the impugned judgment and decree of the first Appellate Court, it transpires that the first Appellate Court has framed the composite Points for determination of the First Appeal wherein it has referred to the factum of the registered sale-deed as well as the various points raised before the trial Court and the points of evidence considered by the trial Court. Therefore, considering the consideration by the first Appellate Court in regard to all the material issues and all the material placed on record, though it has only raised one point, the impugned judgment of the first Appellate Court is not, in any manner, violative of Order 41 Rule 31 of the CPC.
28. Question Nos. 2 to 9: Since all these questions are factual and legally interconnected to avoid repetition of facts and circumstances, they are discussed together.Page 41 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022
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29. Now, heavy reliance has been placed by the plaintiff-
appellant on the point of written statement of defendant side and submission is made that in absence of written statement on behalf of defendant, the pleadings of the plaintiff must be held to be admitted by the other side and no evidence of the defendants could be looked into. At this juncture, it is worthwhile to refer to the judgment of the Hon'ble Supreme Court in the case of Balraj Taneja and another v. Sunil Madan abd Another, reported in (1999) 8 SCC 396, wherein, while dealing with the provision of Order 8 Rule 5(1) and (2) and Order 8 Rule 10 as well as Order 12 Rule 6, the Apex Court has in Paras-7 to 12 has observed as under:
"7. Order 8 Rule 1 provides that the defendant shall file a Written Statement of his defence. It is further provided by Rule 3 of Order 8 that it shall not be sufficient for a defendant in his Written Statement to deny generally the grounds alleged by the plaintiff, but defendant must deal specifically with each allegation of fact of which he does not admit the truth. The further requirement as set out in Rule 4 is that if the allegation made in the plaint is denied by the defendant, the denial must not be evasive. It is, inter alia, provided in Rule 5 of Order 8 that every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the written statement, shall be taken to be admitted.
8. This Rule provides as under :
"5 - Specific denial (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or Page 42 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability :
Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.
(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.
(3) In exercising its discretion under the proviso to sub- rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.
(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced."
9. The scheme of this Rule is largely dependent upon the filing or non-filing of the pleading by the defendant. Sub-rule (1) of Rule 5 provides that any fact stated in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant, shall be treated as admitted. Under Rule 3 of Order 8, it is provided that the denial by the defendant in his written statement must be specific with reference to each allegation of fact made in the plaint. A general denial or an evasive denial is not treated as sufficient denial and, therefore, the denial, if it is not definite, positive and Page 43 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 unambiguous, the allegations of facts made in the plaint shall be treated as admitted under this Rule.
10. The proviso appended to this Rule is important in the sense that though a fact stated in the plaint may be treated as admitted, the Court may, in its discretion, still require such "admitted fact" to be proved otherwise than by such admission. This is an exception to the general rule of evidence that a fact which is admitted need not be proved.
11. Sub-rule (2) provides that if the defendant has not filed his written statement, it would be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint. The rule further proceeds to say that notwithstanding that the facts stated in the plaint are treated as admitted, the Court, though it can lawfully pass the judgment, may before passing the judgment require such fact to be proved. The rule is thus in consonance with the Proviso which also requires the fact, even though treated as admitted, to be proved. Thus, the Proviso and Sub- rule (2) read together indicate that where
(i) an allegation of fact made in the plaint is not denied specifically, or
(ii) by necessary implication, or
(iii) stated to be "not admitted" in the pleading of the defendant, or
(iv) the defendant has not filed the written statement, such allegations of facts shall be treated as admitted. The Court in this situation can either proceed to pronounce judgment on such admitted facts or may require the plaintiff, in spite of such admission, to prove such facts.
12. Sub-rule (2) quoted above is thus an enabling provision which enables the Court to pronounce judgment on the basis of Page 44 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 the facts contained in the plaint, if the defendant has not filed a Written Statement. What is important to note is that even though a Written Statement is not filed by the defendent, the court may still require a fact pleaded in the plaint to be proved."
In Para-29, the Apex Court has observed as under:
29. ..... the Court has not to act blindly upon the admission of a fact made by the defendant in his Written Statement nor the Court should proceed to pass judgment blindly merely because a Written Statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the Court. In a case, specially where a Written Statement has not been filed by the defendant, the Court should be a little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint.
It is a matter of Court's satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the Court can conveniently pass a judgment against the defendant who has not filed the Written Statement....."
29.1 The aforesaid judgment has been referred to by the Apex Court in case of Shantilal Gulabchand Mutha v. Tata Engineering and Locomotive Company Ltd., reported in (2013) 4 SCC 396.
29.2 It is also well settled legal dictum that assertion made in Page 45 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 the plaint is not a proof and hence the burden lay upon the plaintiff to prove the facts and averments made in its plaint even if there is no written statement filed by the defendants to the contrary averments or any evidence or rebuttal. Even in absence of written statement, it is for the plaintiff to prove its case. The plaintiff cannot succeed merely because there is absence of written statement filed by the defendant or there is no rebuttal evidence produced by the other side.
30. Considering the facts of the case, it clearly appears that the plaintiff has based his claim over the Suit property mainly on the consent decree of the year 1989 passed between him and his father. Admittedly, in that proceeding, neither the defendant No.2 nor defendant No.3 were parties. Thus, to challenge the said consent decree is available only to the defendant No.1 i.e. father. Defendant No.2 being a third- party, has no such right whatsoever to challenge the consent decree entered into between father and the son.
31. Now on perusal of the evidence on record, it transpires that though defendant No.1 has not filed any written statement, and defendant No.2 has file written statement, as averred in the judgment by the trial Court, regarding application of the interim injunction, the oral evidence has been led by the defendant No.2 in the nature of evidence of Power of Attorney holder and during his deposition Page 46 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 certain documentary evidences have been produced.
32. The Hon'ble Delhi High Court, in the case of Labh Chand Jain v. Sugan Chand Jain & Ors, in Review Petition No. 475/2009 and I.A No.15754/2009 in CS (OS) 2214/1988 dated 2.7.2010 has observed in Para-5 thereof as under:
"5. A person who does not file written statement to a suit is not ousted from the suit. A person may not file written statement in the suit for several reasons like, he may think that the suit was inherently not maintainable and he would convince the Court about non- maintainability of the suit; he may think that the claim of the plaintiff was justified and he need not contest the claim; he may think that the claim of the plaintiff, even if decreed, was not going to affect him, so why should he unnecessarily file written statement; he may think that since other defendants were contesting the suit that was sufficient to protect his interest and he need not separately file a written statement and engage a counsel. These are some of the few possibilities where written statement may not be filed by a person. However, a person who does not file written statement can still participate in the proceedings and lead evidence either supporting the claim saying that he agrees with the plaint or he may argue before the Court that the claim was inherently not maintainable and he can demonstrate this without filing written statement. The Court cannot deny a person the right to participate in the proceedings if a person does not file written statement or has remained ex parte upto some stage."
32.1 The Delhi High Court has also held in the case of Dev Page 47 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 Chander Sood & Ors v. H.L. Sud & Ors, in CS(OS) No. 280 /2011 dated July 21, 2014 that the defendant without filing written statement may cross examine plaintiffs witnesses to demolish version in chief examination. In this decision, the Delhi High Court has relied upon its earlier decision, as referred to hereinabove, in the case of Labh Chand Jain v. Sugan Chand Jain & Ors (Supra).
33. Now, it is well settled principle of law that the plaintiff must succeed or fail on the title he establish and if he fails to do so, he must fail to get the reliefs sought for in a suit irrespective of title of the defendant in the Suit property. (Brahmanand Puri v. Neki Puri, AIR 1965 SC 1506 and Bajranglal Shivchandrai Ruia v. Sashikant Ruia, (2004) 5 SCC
272.
34. Now on perusal of the material placed on record, it appears that as per the version of the plaintiff, he has become owner of the suit land by virtue of consent decree and it has already been acted upon. It is also the case of the plaintiff that on the basis of the consent decree, which is of the year 1989, his name came to be mutated in the revenue record in the year 1997. At this juncture, it is pertinent to note that as per the oral evidence of the Power of Attorney holder of the defendant No.2, wherein it is specifically sated that at the time the defendant No.1 i.e. father of the plaintiff has objected to such entry and has specifically Page 48 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 narrated that there was no implementation of the decree and no possession of the land was handed over to the plaintiff by him. In the said objection, it is also averred by the plaintiff's father that if really consent decree was implemented, then why after 8 years his son has filed the application for mutating his name. On perusal of the cross- examination of this Power of Attorney holder, which has been carried out by learned advocate for the plaintiff , it clearly transpires that this averment was not been challenged in the cross-examination. In the cross- examination, it has been specifically stated by the defendant No.2 that since the date of the execution of the sale-deed, he is in possession of the suit land. At this juncture, it is pertinent to note that had there been really implementation of the consent decree, as alleged by the plaintiff, then the plaintiff would not have asked for declaration to the effect that defendant No.1 is bound to implement the consent decree. The relief claimed by the plaintiff in his suit regarding declaration is to the effect of defendant No.1 i.e. his father is bound to implement the consent decree passed in the RCS No. 233/89. This very factum suggests that on the date of filing of the suit i.e. 27.6.2003, there was no implementation of the consent decree. If really consent decree was executed in the past, as alleged by the plaintiff, then it was not necessary for the plaintiff to ask for the relief against defendant No.1 for declaration that defendant No.1 is bound to implement the Page 49 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 consent decree. Thus, this very fact has not been properly considered by the learned trial Court. Thus, it appears that on the date of the suit, the consent decree was not implemented.
35. It is also revealed from the record that the alleged entry in the revenue record in the name of the plaintiff has been cancelled on the basis of the objection raised by his father before the revenue authority. It also reveals that the sale- deed has been executed between defendant No.1 and 2 in the year 2003 with a consideration and payment of consideration has been accepted by the defendant No.1 in the sale-deed, which is registered one. Of course, it is admitted by the defendant No.2 in his oral evidence that no prior public notice was issued before the purchase of the land in question. However, there is no legal necessity to issue prior notice of intention of purchase of any immovable property. Of course, issuance of notice may be for the benefit of the purchaser so that in future he may not have to fight any litigation, if any, filed by third-party relating to the same property. But, even in absence of the public notice regarding sale and purchase of the immovable property, the sale-deed executed between the seller and purchaser for consideration and which is registered one, cannot be deemed to be illegal one.
36. It also reveals from the record that the RCS No. 233/89 was Page 50 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 filed by the present plaintiff against two defendants, out of which one was his father. A copy of the compromise purshis filed in the matter reveals that it was not signed by two defendants, but only by plaintiff's father and the plaintiff. Moreover, as observed earlier, the question of facts which, first of all, needs to be proved by the plaintiff, by leading evidence as, he himself has sought declaration to the effect that defendant No.1 i.e. his father is bound to implement the consent decree, is that there was really implementation and execution of the consent decree in past. On perusal of the material on record, it clearly reveals that the plaintiff has failed to prove the same. Further, it needs to be observed that if in reality the defendant No.1 has not acted as per consent decree, then, the plaintiff could have filed Execution Petition for implementation of consent decree instead of filing of Suit for declaration to the effect that the defendant No.1 is bound to implement the consent decree.
37. It is pertinent to note that so far as the consent decree is concerned, as observed earlier, the defendant No.2 has no locus-standi to challenge the same, however, the fact remains that since the consent decree was not executed, as observed hereinabove, the sale-deed executed between the defendant Nos. 1 and 2 cannot be termed as illegal one. Even if the consent decree in question is not treated as nullity, the fact remains that the plaintiff has failed to Page 51 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 prove the basic and fundamental fact of execution/ implementation of consent decree in past. Therefore, the observation made by the first Appellate Court in respect to non-binding nature of the consent decree to the defendant No.2, in the peculiar facts of this case, is sustainable in the eyes of law.
38. Considering the facts and circumstance of the entire case it clearly transpires that the learned trial Court has not properly considered all these facts in its proper perspective. The first Appellate Court has considered the facts of the case and the legal point involved regarding registered sale-deed executed between defendant No1. and 2 in its proper perspective. Considering the material placed on record and the facts and circumstances of the case, it appears that the first Appellate Court has not committed any error of law and facts, and therefore, question Nos. 2 to 9 are answered in negative.
39. In view of the aforesaid facts of the case, the present Second Appeal deserves to be dismissed. Accordingly, I pass the following final order in the interest of justice:
ORDER The present Second Appeal stands dismissed.
Considering the facts and circumstances of the case, the parties are hereby directed to bear the respective costs Page 52 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022 C/SA/143/2016 JUDGMENT DATED: 16/09/2022 of this Appeal.
Decree to be drawn accordingly.
Along with copy of this judgment and decree, R&P to be sent back to the trial Court accordingly.
(DR. A. P. THAKER, J) SAJ GEORGE Page 53 of 53 Downloaded on : Fri Sep 16 22:03:22 IST 2022