Madhya Pradesh High Court
Kamar Mohammed Khan vs Begum Sabiha Sultan on 16 September, 2015
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR
Civil Revision No. 537/2014.
Kamar Mohammed
Khan.
Versus
Begum Sabiha
Sultan & others.
Smt. June Choudhary, Senior Advocate with Miss. Jaya
Laxshmi Iyer for the appellant.
Shri Rajesh Pancholi, Advocate for the respondents No. 1,
4, 5, 6 & 7.
Shri Kapil Jain, Advocate for the respondent no. 8.
*********
1. O R D E R (16/09/2015) Per S.K. Gangele J This revision petition has been filed against the order dated 06/09/2014 by which the court admitted the first appeal filed by the respondent No. 1 against the judgment and decree dated 28/07/2006 passed in Civil Suit No.585/2006.
2. The present petitioner and respondent No. 2 filed a suit for declaration and permanent injunction. They pleaded that father of the plaintiffs were in possession on the suit land in the year 1943-44 on the basis of an Inayatnama. During life time their father bequeathed the suit property by Hiba on 31st August, 1964 in favour of plaintiffs. The possession of the suit property was also handed over to the plaintiffs, since then the plaintiffs were in possession on the suit property.
3. The plaintiff inspected the revenue record and in the revenue record the name of respondent No. 1 Mehar Taj Smt. Sajida Sultan ruler of Bhopal was recorded as Bhoomiswami and the defendant No. 2. Mohammad Mansoor Ali Khan was the son of respondent No. 1 Mehar Taj Smt. Sajida Sultan.
4. Defendant no. 1 Mohammad Israr in his written statement pleaded that the plaintiffs are the owner of 2.35 acres of land and remaining portion of the land area 0.25 acres is in the possession of defendant No. 1. In the aforesaid suit, defendant No. 2 was ex-parte. On the basis of pleadings of the plaintiffs and the written statement filed by the defendant No. 1, the trial court has held that the suit land was given on Inayatnama to the father of the plaintiffs by Nabab Hameedullah Khan and Mehar Taj Smt. Sajida Sultan consented the said Inayatnama and thereafter father of the plaintiffs Mr. Mumtaz Mohammad Khan by Hibanama had given the suit land to the plaintiff since then they had been in possession on the suit land area 2.35 acres. Consequently, the trial court issued permanent injunction in favour of the plaintiffs and also declared that the plaintiffs are the owner of the suit land.
5. In the aforesaid proceedings, the respondent No. 1 Begum Sabiha Sultan was not a party. When she noticed the judgment and decree passed by the trial court, she filed first appeal. She pleaded that Nawab Mehar Taj Smt. Sajida Sultan expired on 04/09/1995 leaving following heirs:
Mehar Taj Smt. Sajida Sultan ! !!! Late Mansoor Ali Begum Sabiha Sultan Begum Saleha Sultan Khan Patodi (son) (Daughter) (Daughter) ! (appellant) (Respondent No.8) ! !!!! Smt. Sharmila Saif Ali Khan Ku. Sabah Ali Ku. Soha Ali Tagore (Son) (Daughter) (Daughter) (Widow) (Respondent No.4) (Respondent No.5) (Respondent No.6) (Respondent No.7) She was owner and Bhoomiswami of the suit land along with other properties. The plaintiffs by playing fraud on the Court obtained the decree of declaration, title and permanent injunction by suppressing certain facts to the effect that the name of late Nawab Taj Smt. Sajida Sultan was recorded as Bhoomiswami in revenue record and earlier a civil suit No. 106/A/2003 was filed in regard to the same property. It was renumbered as Civil Suit No. 48-A/2004. The suit was instituted against Sabir Ali Asfaq Ali and State of M.P. and subsequently name of Mansoor Ali Khan Patodi was also added as party. The suit was decided vide judgment and decree dated 24/03/2005.
6. The suit was instituted by Kamar Mohammad Khan and Smt. Ashiya Sultan for declaration and permanent injunction. It was pleaded by the plaintiffs that the land was gifted to their father Mumtaz Mohammad Khan on 01.08.1944 by the then Nawab of Bhopal. Thereafter, the father of plaintiffs gifted the suit land to them on 31.08.1964. Since then the plaintiffs were in possession on the suit land. In the aforesaid Civil Suit No.48-A/2004 Sabir Ali, Ashfaq Ali, Mohammad Asrar Ali and Mansoor Ali Khan Patodi were the parties. Defendants No.1, 2, 4 and 5 were exparte in the aforesaid civil suit. A photocopy of the judgment dated 24.03.2005 passed in Civil Suit No.48-A/2004 has been filed in this revision as Annexure R/3 by the respondents. The Additional District Judge while deciding the case had held that the recorded Bhoomiswami of the land Mehar Taj Smt. Sajida Sultan was not joined as party in the suit. She was a necessary party. Plaintiffs did not disclose the fact that when the cause of action arose against the recorded Bhoomiswami. The Court further held that unless the recorded Bhoomiswami or her heirs be added as party in the suit, the suit was not maintainable. The trail Judge further held that plaintiffs did not prove the fact that how their father became Bhoomiswami of the land, hence, the claim of the plaintiffs that their father had gifted the suit land to them is not maintainable. The trial Court dismissed the suit in regard to grant of declaration of title and granted only the relief of permanent injunction. The trial Court specifically held that the plaintiffs failed to prove the fact of ownership, Bhoomiswami.
7. The present petitioner and respondent No.2 Begum Ayasha Sultan again filed another suit which is registered as Civil Suit No.585-A/2006 by suppressing the fact that earlier in regard to same land a civil suit was instituted and that was dismissed by the Additional District Judge. In the aforesaid suit the recorded Bhoomiswami late Nawab Mehar Taj Smt. Sajida Sultan was not made party. The suit was decreed by the trial Court.
8. Alongwith the appeal an application under Section 5 and 17 of the Limitation Act read with Section 151 of the C.P.C. was also filed. The appellant pleaded in the application that she is the owner of the suit land. The mother of the appellant late Nawab Mehar Taj Smt. Sajida Sultan was the owner of the disputed land bearing khasra No.15/2 area 2.50 acres. She died on 4 th September, 1995. After her death, the appellant got 1/4th share in the suit land. The civil suit was instituted by the respondents No. 1 & 2 with collusion of respondent No.3 to grab the suit land. The respondents No. 1 & 2 obtained judgment and decree without joining heirs of late Nawab Mehar Taj Smt. Sajida Sultan as defendant. The judgment and decree was obtained by the plaintiffs by playing fraud on the Court because the fact that earlier in regard to same land a suit was dismissed by the Additional District Judge on 24.03.2005 was concealed.
9. The appellant came to know about the judgment and decree on 24.04.2014, when she received the copy of the revision petition alongwith the notice from the Board of Revenue, Gwalior. Thereafter, the appellant applied for certified copies of documents on 25.04.2014. The copies were received on 28.07.2014 and, thereafter, the appeal has been filed. Hence, the appeal is within limitation.
10. The trail Court vide impugned order has held that the appeal filed by the appellant is within limitation because the plaintiffs-respondent No. 2 concealed the fact that earlier in regard to same land a civil suit for declaration of title was dismissed. The appellant is the necessary party because she is the legal heir/ daughter of recorded owner Bhoomiswami of the suit land of Nawab Mehar Taj Smt. Sajida Sultan. The appellant came to know about the exparte judgment and decree on 21.04.2014, thereafter, she filed an application for receiving certified copies on 25.04.2014. She received copies on 28.07.2014 and filed appeal on 12.08.2014. Hence, the appeal is within limitation. The Appellate Court admitted the appeal.
11. Learned Senior counsel appearing on behalf of the petitioner has contended that the impugned order passed by the Appellate Court admitting the appeal without issuing notice to the petitioner on the application of limitation is illegal and against the law. It is further contended by the learned Senior Counsel that Appellate Court had condoned the delay without notice to the petitioner, hence, the order passed by the Appellate Court of admitting appeal and condoning the delay is against the law.
12. Contrary to this the learned counsel appearing on behalf of the respondents No.1, 4, 5, 6 and 7, who are the contesting party, has contended that the order passed by the Appellate Court is in accordance with law. The petitioner played a fraud with the Court and obtained the judgment and decree without adding necessary party in the proceedings. The fact that in regard to same land earlier a civil suit was filed has been concealed by the petitioner-plaintiffs, hence, the judgment and decree passed by the trial Court is nullity. The period of limitation will start from the date of knowledge to the appellant-respondent No.1.
13. In support of his contentions learned counsel has relied on the following judgments; (i) S.P. Chengalvaraya Naidu (dead) by L.R's Vs. Jagannath (dead) by L.R's. and Ors reported in (1994) 1 S.C.J. 179, (ii) Dhananjay Sharma vs. State of Haryana reported in AIR 1995 S.C. 1795,
(iii) Afzal vs. State of Haryana reported in 1995 Supp (2) SCC 388, (iv) Hamza Haji vs. State of Kerala and another reported in (2006) 7 SCC 416 and (v) Ram Preeti Yadav Vs. U.P. Board of High School and Intermediate Education & Others reported in [(2003) Supp. 3 SCR 352].
14. The admitted facts of the case are that plaintiffs Kamar Mohammad Khan and Ashiya Sultan filed a suit, which was registered as Civil Suit No.585-A/2006 for declaration and permanent injunction in regard to a land bearing khasra No.15/2 area 2.35 acres situate at Bhopal. The suit was filed against Mohammad Israr and Mohammad Mansoor Ali Khan Patodi. In the said civil suit Mohammad Mansoor Ali Khan Patodi was exparte. The defendant No.1 Mohammad Israr in his written statement admitted the fact that the plaintiffs are the owner of 2.25 acres of land and he is in possession of 0.25 acre of land. The trial Court observed the fact of her Highness Nawab Mehar Taj Smt. Sajida Sultan.
15. The trial Court after appreciation of evidence passed a decree of declaration declaring that the plaintiffs are the owner and in possession on the suit land area 2.35 decimal bearing khasra No.15/2 situate at Bhopal and further passed a decree of permanent injunction restraining the defendants No.1 & 2 from interfering in the possession of the plaintiffs. In the aforesaid suit, the respondent No.1 was not joined as a party although she is the daughter of Nawab Mehar Taj Smt. Sajida Sultan, who was died on 04.09.1995. Nawab Mehar Taj Smt. Sajida Sultan had one son namely late Mohammad Mansoor Ali Khan Patodi and two daughters namely begum Sabiha Sultan and begum Saleha Sultan. When the name of Nawab Mehar Taj Smt. Sajida Sultan was recorded as Bhoomiswami against the suit land, in such circumstances, the respondent No.1 being the legal heir of Nawab Mehar Taj Smt. Sajida Sultan was a necessary party.
16. It is also a fact that earlier a civil suit was filed in regard to same suit land for declaration and permanent injunction by Kamar Mohammad Khan and Ashiya Sultan i.e. the same plaintiffs who filed the Civil Suit No.585-A/2006. It was initially registered as Civil Suit No.106-A/2003. Later on it was re-numbered as Civil Suit No.48-A/2004. In the aforesaid suit the plaintiffs pleaded that they are the owner and in possession on the suit land bearing khasra No.15/2 are 2.50 acres situate at Bhopal. The trial Judge A.D.J. granted a decree of permanent injunction, however, dismissed the claim of the plaintiffs for declaration. The trial Judge specifically observed that plaintiffs failed to prove the fact that they are the owner of the suit land in para 9 of the judgment. The trial Judge further observed that the Bhoomiswami of the suit land is Nawab Mehar Taj Smt. Sajida Sultan, she and her legal heirs were not added as a party. There is no documentary evidence to prove that the plaintiffs were in possession on the suit land.
17. From the admitted facts, it is clear that the petitioner and another plaintiff who filed the suit and obtained the judgment and decree dated 28.07.2014 passed in Civil Suit No.585-A/2006 did not disclose the fact that earlier in regard to same land a civil suit was filed and the trail Court dismissed the claim in regard to declaration. Apart from this the legal heirs of Nawab Mehar Taj Smt. Sajida Sultan, the respondent No.1 who filed the appeal subsequently were not added as party in the aforesaid suit except Mohammad Mansoor Ali Khan Patodi.
18. The Supreme Court in the matter of S. P. Chengavaraya Naidu (dead) by L.R's. vs. Jagannath (dead) by L.R's. & others reported in (1994) 1 S.C.J. 179 has held as under in regard to fraud and its effect :
âFraud-avoids all judicial acts, acclesiastical or temporalâ observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition or law that 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.
19. The same principle in regard to fraud and its effect in judicial proceedings has further been explained by the Apex Court in the matter of Hamza Haji vs State of Kerala and another reported in (2006) 7 SCC 416 the Court has held as under :
10. It is true, as observed by De Grey, C.J., in R. Vs. Duchess of Kingston that:
" 'Fraud' is an extrinsic, collateral act, which vitiates the most solemn proceedings of courts of justice. Lord Coke says it avoids all judicial acts ecclesiastical and temporal".
11. In Kerr on Fraud and Mistake, it is stated that :
"In applying this rule, it matters not whether the judgment impugned has been pronounced by an inferior or by the highest Court of judicature in the realm, but in all cases alike it is competent for every Court, whether superior or inferior, to treat as a nullity any judgment which can be clearly shown to have been obtained by manifest fraud."
12. It is also clear as indicated in Kinch Vs. Walcott that it would be in the power of a party to a decree vitiated by fraud to apply directly to the Court which pronounced it to vacate it. According to Kerr, "In order to sustain an action to impeach a judgment, actual fraud must be shown; mere constructive fraud is not, at all events after long delay, sufficient ⦠but such a judgment will not be set aside upon mere proof that the judgment was obtained by perjury."
(See the Seventh Edition, Pages 416-417)
13. In Corpus Juris Secundum, Volume 49, paragraph 265, it is acknowledged that, "Courts of record or of general jurisdiction have inherent power to vacate or set aside their own judgments".
In paragraph 269, it is further stated:
"Fraud or collusion in obtaining judgment is a sufficient ground for opening or vacating it, even after the term at which it was rendered, provided the fraud was extrinsic and collateral to the matter tried and not a matter actually or potentially in issue in the action.â It is also stated:
"Fraud practiced on the court is always ground for vacating the judgment, as where the court is deceived or misled as to material circumstances, or its process is abused, resulting in the rendition of a judgment which would not have been given if the whole conduct of the case had been fair".
14. In American Jurisprudence, 2nd Edition, Volume 46, paragraph 825, it is stated:
"Indeed, the connection of fraud with a judgment constitutes one of the chief causes for interference by a court of equity with the operation of a judgment. The power of courts of equity in granting such relief is inherent, and frequent applications for equitable relief against judgments on this ground were made in equity before the practice of awarding new trials was introduced into the courts of common law. Where fraud is involved, it has been held, in some cases, that a remedy at law by appeal, error, or certiorari does not preclude relief in equity from the judgment. Nor, it has been said, is there any reason why a judgment obtained by fraud cannot be the subject of a direct attack by an action in equity even though the judgment has been satisfied."
15. The law in India is not different. Section 44 of the Evidence Act enables a party otherwise bound by a previous adjudication to show that it was not final or binding because it is vitiated by fraud. The provision therefore gives jurisdiction and authority to a Court to consider and decide the question whether a prior adjudication is vitiated by fraud. In Paranjpe Vs. Kanade it was held that: (ILR p.148) âIt is always competent to any Court to vacate any judgment or order, if it be proved that such judgment or order was obtained by manifest fraud;â
16. In Lakshmi Charan Saha Vs. Nur Ali [ ILR 38 Calcutta 936], it was held that:
â[T]he jurisdiction of the Court in trying a suit [questioning the earlier decision as being vitiated by fraud,] was not limited to an investigation merely as to whether the plaintiff was prevented from placing his case properly at the prior trial by the fraud of the defendant. The Court could and must rip up the whole matter for determining whether there had been fraud in the procurement of the decree.â
17. In Manindra Nath Mittra Vs. Hari Mondal the Court explained the elements to be proved before a plea of a prior decision being vitiated by fraud could be upheld. The Court said: (AIR p.127) "With respect to the question as to what constitutes fraud for which a decree can be set aside, two propositions appear to be well established. The first is that although it is not permitted to show that the Court (in the former suit) was mistaken, it may be shown that it was misled, in other words, where the Court has been intentionally misled by the fraud of a party and a fraud has been committed upon the Court with the intention to procure its judgment, it will vitiate its judgment. The second is that a decree cannot be set aside merely on the ground that it has been procured by perjured evidence:â
18. The position was reiterated by the same High Court in Esmile- Ud-Din Biswas and Anr. Vs. Shajoran Nessa Bewa & Ors. [132 INDIAN CASES 897].
â[I]t was held that it must be shown that fraud was practised in relation to the proceedings in the Court and the decree must be shown to have been procured by practising fraud of some sort, upon the Court:â
19. In Nemchand Tantia Vs. Kishinchand Chellaram (India) Ltd. [63 Calcutta Weekly Notes 740], it was held that:
âA decree can be re-opened by a new action when the court passing it had been misled by fraud, but it cannot be re-opened when the Court is simply mistaken; when the decree was passed by relying on perjured evidence, it cannot be said that the court was misled.â
20. It is not necessary to multiply authorities on this question since the matter has come up for consideration before this Court on earlier occasions. In S.P. Chengalvaraya Naidu (Dead) by LRs. Vs. Jagannath (Dead) by LRs & Ors. [(1993) Supp. 3 SCR 422], this Court stated that, "It is the settled proposition of law that 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." The Court went on to observe that the High Court in that case was totally in error when it stated that there was no legal duty cast upon the plaintiff to come to Court with a true case and prove it by true evidence. Their Lordships stated:
"The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the Court is being abused. Property grabbers, tax evaders, Bank loan dodgers, and other 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".
21. In Ram Preeti Yadav Vs. U.P. Board of High School and Intermediate Education & Others [(2003) Supp. 3 SCR 352], this Court after quoting the relevant passage from Lazarus Estates Ltd. Vs. Beasley [(1956) 1 All ER 341] and after referring to S.P. Chengalvaraya Naidu (Dead) by LRs. Vs. Jagannath (Dead) by LRs & Ors. (supra) reiterated that fraud avoids all judicial acts. In State of A.P. & Anr. Vs. T. Suryachandra Rao [(2005) 6 SCC 149], this Court after referring to the earlier decisions held that suppression of a material document could also amount to a fraud on the Court. It also quoted (at SCC p.155, para 16) the observations of Lord Denning in Lazarus Estates Ltd. Vs. Beasley (supra) that : (All ER p.345 C) "No judgment of a Court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything."
20. The Supreme Court in the matter of Narmada Bachao Andolan vs. State of Madhya Pradesh reported in AIR 2011 SUPREME COURT 1989 further held that a false statement made in the pleadings intentionally to mislead the Court amounts to a criminal contempt. The Court has held as under :
â141. It is a settled proposition of law that a false statement made in the Court or in the pleadings, intentionally to mislead the Court and obtain a favourable order, amounts to criminal contempt, as it tends to impede the administration of justice. It adversely affects the interest of the public in the administration of justice. Every party is under a legal obligation to make truthful statements before the Court, for the reason that causing an obstruction in the due course of justice âundermines and obstructs the very flow of the unsoiled stream of justice, which has to be kept clear and pure, and no one can be permitted to take liberties with it by soiling its purityâ. (Vide: Naraindas v. Government of Madhya Pradesh & others, AIR 1974 SC 1252:(1974 Cri.LJ 924); The Advocate General, state of Bihar v. M/s. Madhya Pradesh Khair Industries & another, AIR 1980 SC 946 :
(1980 Cri LJ 684); and Afzal & another v. State of Haryana & others, (1996) 7 SCC397): (AIR 1996 SC 2326 : 1996 AIR SCW 824 : 1996 Cri LJ 1679).
22. From the authoritative pronouncement of the Apex Court the principle of law is that if a favourable judgment and decree or order obtained from a Court by concealing important facts amounts to playing fraud with the Court and the judgment and decree can be assailed at any stage. In the present case, the petitioner and another plaintiff deliberately concealed the fact that in regard to same land they filed earlier a civil suit for No.48-A/2004 and in the aforesaid proceedings the trial Judge refused to grant relief of declaration. Necessary party the respondent No.1 was not joined as a party in the suit. Hence, the act of the petitioner and another plaintiff i.e. respondent No.2 amounts to playing fraud with the Court.
23. Article 123 of the Limitation Act prescribes limitation for filing of appeal against the exparte judgment and decree which reads as under :
Period of Time from which
Description of appeal
limitation period begins to run
The date of the decree
or where the summons
123. To set aside a decree
or notice was not duly
passed exparte or to re-
Thirty days served, when the
hear an appeal decreed or
applicant had
heard exparte.
knowledge of the
decree.
The Article prescribes that âlimitation runs from the date of knowledge of the decree.â
24. The Supreme Court in the matter of Panna Lal v. Murari Lal (dead) by his legal representatives reported in AIR 1967 SC 1384 has held as under in regard to knowledge of the decree :
âThe decision was followed in Batulan v. S. K. Dwivedi (1954) ILR 33, Pat 1025 at pp.1050-8 and other cases. We agree that the expression "knowledge of the decree"
in art. 164 means knowledge of the particular decree which is sought to be set aside. When the summons was not duly served, limitation under art. 164 does not start running against the defendant because he has received some vague information that some decree has been passed against him. It is a question of fact in each case whether the information conveyed to the defendant is sufficient to impute to him knowledge of the decree within the meaning of art. 164. The test of the sufficiency is not what the information would mean to- a stranger, but what it meant to the defendant in the light of his previous dealings with the plaintiff and the facts and circumstances known to him. If from the information conveyed to him, the defendant has knowledge of the decree sought to be set, aside, time begins to run against him under art. 164. It is not necessary that a copy of the decree should be served on the defendant. It is sufficient that the defendant has knowledge of the material facts concerning the decree, so that he has a clear perception of the injury suffered by him and can take effective steps to set aside the decree.
25. In the present case, the appellant-respondent No.1 pleaded that she received information about passing the judgment and decree by the Civil Court on 21.04.2014 when she received a notice and copy of revision petition from the Board of Revenue, Gwalior. Thereafter, she applied for certified copies of the documents and judgment and decree on 25.04.2014. She received the same on 28.07.2014 and, thereafter, filed the appeal. Hence, the date of knowledge about the judgment and decree to the appellant-respondent No.1 was 21.04.2014. In the impugned judgment and decree appellant was a necessary party. She was not added as a party.
Hence, the impugned judgment and decree was not binding on the appellant. The plaintiffs, petitioner and respondent No.1, can file appeal at any time because the judgment and decree is a nullity. In such circumstances, in my opinion, the Appellate Court has not committed any error of law in admitting the appeal for hearing and holding that the appeal is within limitation without issuing notice to the petitioner.
26. I do not find any merit in this revision petition. It is hereby dismissed. Looking to the facts of the case, it would be just and proper to impose cost of Rs.
10,000/-. Hence, the petition is dismissed with cost of Rs.10,000/- payable to the respondents No.1, 4, 5, 6 & 7.
27. C.C. as per rules.
(S.K. GANGELE) JUDGE vktv