Andhra HC (Pre-Telangana)
Sai Baba vs Md. Kareem Khan on 27 September, 2002
Equivalent citations: 2003(3)ALD403
ORDER
1. Civil Revision Petition No.2166 of 2002 is filed against the Order dated 22-4-2002 passed by the Court of II Senior Civil Judge, City Civil Court, Hyderabad dismissing E.A.No.92 of 2002 in E.A.No.65 of 2002 in E.P.No.93 of 1999 in O.S.No.657 of 1998, while Civil Revision Petition No.3423 of 2002 is filed under Article 227 of the Constitution of India against the Order dated 20-3-2002 made in E.P.No.93 of 1999 in O.S.No.657 of 1998 on the file of the Court of II Senior Civil Judge, City Civil Court, Hyderabad.
2. The petitioner in Civil Revision Petition No.3423 of 2002 is the respondent in Civil Revision Petition No.2166 of 2002, while the 1st respondent in Civil Revision Petition No.3423 of 2002 is the petitioner in Civil Revision Petition No.2166 of 2002. I will hereinafter refer the parties as arrayed in Civil Revision Petition No.3423 of 2002 for the sake of convenience.
The petitioner is the 5th defendant in O.S.No.657 of 1998, which was filed by the 1st respondent against his mother, the 2nd respondent (1st defendant) and three sisters (defendants 2 to 4) for specific performance of agreement of sale dated 16-8-1996 in respect of Mulgi bearing No.4-1-380 ad measuring 24 square yards situate at Palace Talkies, Abids, Hyderabad (hereinafter referred to as 'suit mulgi') and also to direct the 1st defendant i.e. 2nd respondent herein, to receive the balance sale consideration of Rs.20,000/- and to register the sale deed in his favour by delivering title, possession and attornment of tenancy of the 5th defendant - petitioner hereinof the suit mulgi and also to cancel the gift deed dated 22-11-1996 executed by the 1st defendant in favour of defendants 2 to 4 by declaring it as null and void. The 1st respondent alleged in the said suit that his mother entered into an agreement of sale dated 16-8-1996 agreeing to sell the said property for a sum of Rs.2.00 lakhs and he has paid an amount of Rs.1,80,000/- as earnest money-cum-part sale consideration to the 2nd respondent herein. The 2nd respondent received the said amount. But, the 2nd respondent instead of executing the sale deed in his favour, she has gifted the said property to her daughters - defendants 2 to 4 - in the said suit, vide Gift Deed No.3209/96, dated 22-11-1996. Hence, the plaintiff sought for the consequential relief of cancellation of the said registered gift deed. Insofar as the petitioner i.e. the 5th defendant is concerned, it is stated that he is in occupation of the suit mulgi as a tenant and though the tenancy was attorned to the plaintiff he was acting in collusion with the 1st defendant and as he was paying the rent to defendants 1 to 4, who have no right to receive the same, he was also made a party to the suit. Defendant No.5 paid the rent of Rs.700/- per month till April, 1998 to the plaintiff (1st respondent herein), but, thereafter, he did not pay to anybody. The original rental agreement between defendant No.5 and defendant No.1 is delivered by the 1st defendant to the plaintiff at the time of execution of the agreement. The 1st respondent filed the said suit for the aforementioned reliefs. It appears that defendants 2 to 4 i.e. the daughters of the 1st respondent herein sold away the said property by registered sale deeds dated 9-5-2001 and 14-5-2001 in favour of the sons of the petitioner herein. But, this Court is not concerned with the said sale deeds and it is for the respective parties to agitate their rights before the appropriate forum.
3. It appears for obvious reasons defendants 1 to 4 remained ex parte and did not contest the suit and the suit was decreed on 3-9-1999 to the following effect :
1. That the defendant No.1 is directed to execute the sale deed in respect of suit schedule property in favour of the plaintiff upon receipt of the balance sale consideration of Rs.20,000/- within 2 months from the date of this Judgment and Decree.
2. That the Suit against the defendant No.5 is dismissed as not pressed.
3. That it is further ordered and decreed that the Gift Deed dated 22-11-1996 executed by D.1 in favour of D2 to D4 is cancelled and is not binding on the plaintiff.
4. That there shall be no order as to costs of this suit."
4. The effect of the decree in O.S.No.657 of 1998 is only that the2nd respondent herein was directed to execute the sale deed in favour of the plaintiff after receiving the balance sale consideration of Rs.20,000/- within two months from the date of the Judgment and Decree and the gift deed dated 22-11-1996 executed by the 2nd respondent herein (1st defendant) in favour of her daughters - defendants 2 to 4 - was cancelled. Insofar as the 5th defendant-petitioner is concerned, the suit was dismissed as not pressed as against him.
5. E.P.No.93 of 1999 in O.S.No.657 of 1998 was filed under Order XXI Rules 11 of the Code of Civil Procedure on 3-11-1999 against defendants 1 to 4 alone stating that the Court directed judgment-debtor Nos.1 to 4 i.e. defendants 1 to 4 - to execute and register the sale deed and deliver the suit schedule property as per the decree. A sum of Rs.20,000/- was deposited vide Challan No.006626 dated 7-9-1999. It is clear from the Execution Petition filed by the 1st respondent-decree holder, that the E.P. was filed against defendants 1 to 4 alone and it was not at all filed against the petitioner-5th defendant as the suit was dismissed against the 5th defendant.
6. As defendant Nos.1 to 4 failed to execute the sale deed as per the decree, the Court executed the sale deed on their behalf on 25-2-2002 in favour of the 1st respondent herein. Thus, the decree, which was only to execute the sale deed in respect of the suit property, has been executed.E.P.No.93 of 1999 should have been closed regarding the execution of the decree and judgment immediately after the execution of the above sale deed.
7. As already stated, E.P.No.93 of 1999 was filed against defendants 1 to 4 alone. But, the II Senior Civil Judge, City Civil Court, Hyderabad issued a warrant to the Bailiff for giving possession of the property in Form No.II in the said E.P. in favour of the decree-holder against the judgment-debtors/defendants including the 5th defendant - Mohd. Kareem Khan (petitioner herein). By the said Warrant, the Bailiff was directed to put the decree-holder in possession of the said property and he was also authorized to remove any person bound by the decree, who may refuse to vacate the same. The Warrant is dated 26-3-2002, which was executed by the Bailiff on 20-3-2002 under the cover of Panchanama and possession receipt dated 20-3-2002.The Panchanama was drafted in the presence of two witnesses, a Police Sub-Inspector namely S. Gangadhar and six Police Constables and also some labourers provided by the decree-holder at that time and the judgment debtor No.5 namely Mohd.Kareem Khan and his sons were present. It is stated in the report of the bailiff that he has shown the warrant and explained the contents thereof to the 5th defendant (petitioner herein) and on that he has agreed to vacate the suit schedule premises as per the Court Order and the Court Bailiff vacated all the moveable articles and handed over them to the petitioner herein in the presence of the decree-holder, two witnesses and also the Police of Abids Police Station.Afterwards, the Bailiff handed over the possession of the suit schedule property to the decree-holder after evicting the petitioner herein and all the movables belonging to the petitioner were handed over to him. Questioning the said action of the decree-holder -1st respondent herein - and the concerned Officials of the Court of II Senior Civil Judge, City Civil Court, Hyderabad, as stated above, Civil Revision Petition No.3423 of 2002 is filed under Article 227 of the Constitution of India stating that under the guise of the Orders dated 20-3-2002 made in E.P.No.93 of 1999 on the file of II Senior Civil Judge, City Civil Court, Hyderabad the petitioner was illegally evicted and that Warrant of Delivery of possession (Form II) was dated 26-3-2002, while the same was executed evicting the petitioner from the suit mulgi on 20-3-2002. The petitioner prayed for the following reliefs:
(1) to set aside the Order dated 20-3-2002 made in E.P.No.93 of 1999 on the file of II Senior Civil Judge, City Civil Court, Hyderabad ordering delivery of possession showing the petitioner as judgment-debtor No.5 and declare the proceedings as against the petitioner as null and void;
(2) to order for restitution of possession of the Mulgi bearing No.4-1-380, Palace Talkies, Abids, Hyderabad to the petitioner forthwith;
(2-A) to call for the records in O.S.No.2062 of 2002 on the file of the Court of X Junior Civil Judgeand dismiss the said suit as the same amounts to abuse of process of Court.
(3) to prosecute the respondents and the Officers of the Court of II Senior Civil Judge, City Civil Court, Hyderabad for the fraud played on the petitioner as well as on the Court and in preparing Form No.II - warrant of delivery of possession - not in accordance with the decree made in O.S.No.657 of 1998 and executing the warrant by Officers of the Court without considering the objections of the petitioner.
(4) To direct the respondents to pay damages of Rs.5.00 lakhs to the petitioner and (5) To grant any other relief to which the petitioner is entitled to.
8. Immediately after the eviction of the petitioner, he has filed E.A.Nos.63 to 67 of 2002 in E.P.No.93 of 1999 for award of damages at the rate of Rs.30,000/- per month till the possession is restituted in his favour, to prosecute the 1st respondent herein (decree-holder)and all other persons for the fraud played on him and for dispossessing him illegally and in the interests of justice, to reinduct the petitioner in the suit schedule mulgi and to award damages of Rs.5.00 lakhs to him and also to direct the 1st respondent herein-decree holder not to damage, demolish or alter the suit mulgi and not to induct any third party or parties in it or lease out the same to any third party or parties.
9. It is stated by the petitioner in the affidavit filed in support of the aforesaid Execution Applications that he was the tenant in the suit mulgi from the last 25 years on a monthly rent of Rs.700/-, that there was no dispute with regard to his statutory tenancyship, that the suit was only for the specific performance of the agreement filed by the 1st respondent herein against his mother, that he was paying the rents regularly to the 1st defendant in the suit and thereafter to her daughters, who are defendants 2 to 4 through money order, that the decree-holder did not press the suit against him and the suit was dismissed as not pressed as against him, that all of a sudden the Court Bailiff came in the evening of 20-3-2002 to the mulgi occupied by him along with 40 persons, two Sub-Inspectors and eight Constables and two Mufti police, that the 1st respondent (decree-holder) brought the Warrant in Form No.II in E.P.No.93 of 1999 in O.S.No.657 of 1998 and asked him to vacate the said mulgi by removing the articles, that he protested for the eviction, but in vain, that the 1st respondent was present on the spot, who knows that a fraud has been played on him, that the Court bailiff did not either record his protest or obstruction or reported the matter to the court about his protest and obstruction, that the bailiff and others removed his optical goods, furniture and decorations worth Rs.5.00 lakhs and took his signatures forcibly mentioning that the articles were delivered to him and that the Court Bailiff also personally involved and colluded with the 1st respondent in dispossessing him by illegal methods and played fraud on him.
10. The 1st respondent herein filed a common counter affidavit in all the Execution Applications stating that the petitioner is falsely claiming as a tenant of the suit mulgi on payment of monthly rent of Rs.700/- when in fact he has lost the possession on 20-3-2002. It is stated that as per the Judgment and Decree dated 3-9-1999 in O.S.No.657 of 1998, the gift deed dated 22-11-1996 executed by his mother in favour of defendants 2 to 4 was cancelled and after the said decree, defendants 2 to 4 illegally executed the sale deeds dated 9-5-2001 and 14-5-2001 in favour of the sons of the petitioner herein and therefore, his sons will not get any right and title and the petitioner is bound by the said Judgment and Decree and he was legally evicted under the Warrant of delivery of possession of the suit mulgi and thereafter the possession was handed over to him by the Court bailiff. The petitioner is not entitled for any of the reliefs claimed in the Execution Applications.
11. While all the said E.A.Nos.63 to 67 of 2002 were filed on 26-3-2002, the counter affidavit was filed on 9-4-2002. Thereafter, the 1st respondent herein filed E.A.No.92 of 2002 in E.A.No.65 of 2002 in E.P.No.93 of 1999 under Order VI Rule 17 of C.P.C. to amend the counter-affidavit filed by him in E.A.No.65 of 2002 and to add Paragraph No.8-A to the effect that he has obtained the physical and vacant possession of the suit mulgi on 20-3-2002 and has let out the same to one Ranjeet Singh on a monthly rent and the said tenant is in peaceful possession and enjoyment of the suit mulgi; thus, the claim of the petitioner to reinduct him into the suit mulgi cannot be considered in E.A.No.65 of 2002. But, the said E.A.No.92 of 2002 was dismissed by the Court of II Senior Civil Judge, City Civil Court, Hyderabad by Order dated 22-4-2002. Aggrieved by the said Order, as stated above, the 1st respondent filed Civil Revision Petition No.2166 of 2002 and obtained interim stay of all further proceedings in the said E.A.No.65 of 2002, which was filed for reinduction of the petitioner into the suit mulgi. The other E.As. also could not be taken up for hearing pursuant to the said interim stay dated 7-6-2002.
12. The petitioner to get substantial justice and to prevent the abuse of process of Court and to curb the fraud played by the 1st respondent-decree holder and Officials of the Court of II Senior Civil Judge, City Civil Court, Hyderabad filed Civil Revision Petition No.3423 of 2002 under Article 227 of the Constitution of India for the reliefs mentioned supra. These are the undisputed facts in nutshell.
13. Sri C.V. Mohan Reddy, the learned counsel appearing for the petitioner-judgment debtor No.5 submits that the Executing Court cannot go beyond the scope of the Judgment and Decree and as per the Judgment and Decree in O.S.no.657 of 1998 the only relief granted against the 1st respondent herein is to get the execution of the sale deed in respect of the suit property and it was admitted in the plaint itself that the 5th defendant-petitioner herein is the statutory tenant and the mother of the plaintiff-1st respondent executed a rental agreement in his favour. It is also an admitted fact that the petitioner was in possession and enjoyment of the suit mulgi and he was alone evicted forcibly under the guise of warrant of delivery of possession issued by the Court below contrary to the Judgment and Decree in O.S.No.657 of 1998. He further states that the petitioner has been paying the rents regularly to defendants 1 to 4 and there was no attornment of tenancy. The respondent No.1-plaintiff never issued any notice to the petitioner-Judgment debtor No.5 to vacate the suit mulgi and he is a statutory tenant under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 and he cannot be evicted without due process of law under the said Rent Control Act. The civil Court has no jurisdiction for his eviction and even otherwise there is no decree for the eviction of the petitioner. It is further stated that the petitioner himself alone paying the electricity charges, he was having a Telephone and licence to carry the business and he was a sales-tax and income-tax assessee and he has been unceremoniously evicted forcibly by playing fraud on him. He also submits that the 1st respondent illegally evicted the petitioner on 20-3-2002 by playing fraud under the guise of warrant of delivery dated 26-3-2002 and when the petitioner filed E.A.Nos.63 to 67 of 2002 on 26-3-2002 the 1st respondent with collusion of the 3rd respondent got filed the suit O.S.No.2062 of 2002 on the file of the Court X Junior Civil Judge, City Civil Court, Hyderabad. In fact, the 1st respondent herein filed a caveat in respect of the suit premises and got the said suit filed through the 3rd respondent having inducted him in the suit mulgi. The petitioner was evicted on 20-3-2002 and the 3rd respondent is said to have been inducted into possession of the suit mulgi on 22-3-2002.It is stated in the plaint in O.S.No.2062 of 2002 that the 1st respondent herein is making illegal demands to raise the goodwill amount from Rs.80,000/- to Rs.1,00,000/- and when he refused to pay the same, the 1st respondent with the collusion of the petitioner herein threatened him to illegally dispossess him from the said property. Respondent No.1 herein having filed the Caveat, received the suit notice on the same day on which the suit was filed i.e. on 15-4-2002 and also stated that he has no objection to pass any order. Accordingly, the learned X Junior Civil Judge, made the Order dated 15-4-2002 in I.A.No.624 of 2002 in O.S.No.2062 of 2002 stating that the 3rd respondent herein filed the petition for grant of temporary injunction restraining the petitioner herein and the 1st respondent and their agents from interfering with his peaceful possession and in the circumstances of the case, status-quo was directed to be maintained in respect of the suit property. Thus, the learned counsel submits that the subsequent suit filed by the 3rd respondent is not maintainable and it is a collusive suit as is evident from the endorsement of the 1st respondent that he has no objection for passing any order in the injunction application having filed a caveat. The order of status-quo was granted with his connivance and collusion. He also contended that admittedly the eviction of the petitioner is illegal, contrary to law and, therefore, he is entitled for reinduction into the suit property and for damages and also for prosecution of all the concerned in the said case including the 1st respondent herein.
14. Respondent No.1 filed a counter-affidavit and submitted that there is an efficacious alternative remedy available to the petitioner to go before the Court below and to get the relief under Section 6 of the Special Relief Act and this Court cannot grant any relief in exercise of its powers, when there is an efficacious alternative remedy available to the petitioner. It is further stated that when the suit for specific performance was decreed and even though no relief was granted for the delivery of possession, the Court is empowered for the grant of delivery of possession and the petitioner was rightly evicted from the suit mulgi. It is also stated that the suit property was purchased by registered sale deeds dated 9-5-2002 and 14-5-2001 by the sons of the petitioner and, therefore, the petitioner cannot be treated as a statutory tenant as he has stepped into the shoes of a owner and, therefore, the eviction cannot be found fault with. Learned counsel appearing for the 1st respondent submits that the petitioner voluntarily vacated the suit premises and delivered vacant possession of the same to the 1st respondent-landlord through the Bailiff of the Court; therefore, it is not open to the petitioner to contend that the possession was taken forcibly. He also submits that no doubt this Court has got every power to exercise and grant any relief, but the said power cannot be exercised when there is an effective alternative remedy available to the parties. In support of his contention, he relied upon the decision in NIRMA LTD. V. M/S.LURGI LENTJES ENERGIETECHINK GMBH & ANOTHER, 2002(5) Supreme 302 in which it was held that because an efficacious alternative remedy by way of revision to High Court under Section 115 of the Code of Civil Procedure is available, the Special Leave Petition is not maintainable. The said decision has got no bearing to the facts of the present cases.
15. Learned counsel for the 1st respondent brought to my notice the decision in ANIMA MALLICK v. AJOY KUMAR ROY, in which the apex Court held that when the trial Court ordered for restoration of possession and the District Court allowed the revision, the High Court was erred in affirming the Order of the trial Court in a petition under Article 227 of the Constitution of India. In the said case, the possession was purely gratuitous and the appellant was not entitled for restoration of possession and in those circumstances, the apex Court find fault with the interference of the Order of the District Judge by the High Court under Article 227 of the Constitution of India. The said decision has no application to the facts of these cases.
16. Learned counsel for the 1st respondent also relied upon the decision of a learned single Judge of this Court in V. NARASIMHA CHARY v. P. RADHA BAI, and submitted that the Executing Court can grant relief of possession even though such a relief was not claimed in the suit and not granted in the decree. In the said case, the status of the possessor was not that of a tenant, but he was a landlord and, therefore, under those circumstances, this Court held that the tenancy rights of the tenant of the premises extinguished by reason of obtaining a sale deed in respect of the said property and, therefore, his status as tenant merged with his ownership and he became the landlord; as such, the plaintiff therein was entitled for possession as the title of the possessor therein was set aside.
17. Learned counsel for the 1st respondent relied upon several other decisions, which have no relevance to the facts of the present cases.
In Md. ATAUR RAHMAN KHAN v. Md. KAMALUDDIN AHMED, 1987(1) ALT 216 this Court as early as in 1987, held that while exercising the revisional power, this Court can exercise the powers under Articles 226 and 227 of the Constitution of India also.
In M.M. THOMAS v. STATE OF KERALA, the apex Court held that the High Court is a Court of universal jurisdiction and has got superintendency in certain classes of actions, and its ascendancy cannot be deprived by showing that some other Court could have entertained the particular action. It is also held that if the power of correcting either its own record or the record of the Subordinate Court when it notices the apparent errors, is denied to the High Court, its consequence is that the superior status of the High Court will dwindle down, and that, therefore, it is only proper to think that the plenary powers of the High Court would include the power of review relating to errors apparent on the face of the record. In the said decision, the Judgment in M.V. ELISABETH v. HARWAN INVESTMENT & TRADING (P) LIMITED, was referred, in which it was held that the High Court is a superior Court of record and it has original and appellate jurisdiction, that the High Courts have inherent and plenary powers, that unless expressly or impliedly barred, and subject to the appellate or discretionary jurisdiction of the Supreme Court, the High Courts have unlimited jurisdiction.
Respondent No.3 - Ranjeet Singh - also filed a counter affidavit stating that the petitioner herein and the 1st respondent both colluded so as to evict him. It is stated by him that the 1st respondent has collected an amount of Rs.80,000/- towards the goodwill and fixed the rent at Rs.800/- per month and he was inducted into the suit mulgi as a tenant. Thereafter, the 1st respondent started troubling him to pay more amount i.e. Rs.1.00 lakh towards goodwill and also to raise the rent from Rs.800/- to Rs.1,000/- per month and the petitioner and the1st respondent illegally asked him to vacate the premises and, therefore, he was constrained to file O.S.No.2062 of 2002 for perpetual injunction restraining them from interfering with his possession and enjoyment of the said mulgi and in I.A.No.624 of 2002 status-quo with regard to his possession over the said mulgi was directed to be maintained. The petitioner herein is not entitled to different reliefs claimed in E.A.Nos.63 to 67 of 2002 including the relief of getting the possession of the suit mulgi without contesting the said suit filed by him.
18. There is no dispute that the premises in question is a old one and the petitioner is a longstanding tenant and the rent that was being paid by the petitioner was Rs.700/- per month. The suit mulgi is covered by the Rent Control Act. Under Section 10 of the Rent Control Act, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of the Rent Control Act. This Court in N. RAMACHANDRA RAO & OTHERS v. VASANTA RAO, 1985(2) APLJ 136 held that Section 10 of the Rent Control Act postulates that no tenant shall be ejected from a premises, except in accordance with the provisions of the Act and therefore, for ejectment of a tenant in possession of a premises, the exclusive jurisdiction has been conferred in the Rent Controller; thereby, the jurisdiction of the civil Court is expressly ousted. It is also held that even in a suit for declaration of title, the decree-holder cannot automatically get a decree for possession. In the instant case, the decree obtained by the 1st respondent is only for the specific performance of the agreement and to get the sale deed executed in his favour. It is not even for declaration of title and for possession. Under the guise of the so-called sale deed, the 1st respondent cannot evict the petitioner herein contrary to the specific provision of Section 10 of the Rent Control Act. The Civil Court's jurisdiction is ousted by operation of Section 10 of the Act. Insofar as the statutory tenants protected by the Rent Control Act is concerned, the Civil Court has no jurisdiction to evict them.
19. I will now deal with the aspect of fraud. Section 17 of the Indian Contract Act states that fraud means and includes the active concealment of a fact by a party having knowledge or belief of the fact or with his connivance or by his agents with intent to deceive another parry thereto or his agent or to induce him to enter into the contract. Section 44 of the Indian Evidence Act,1872, postulates that any party to a proceeding can establish that any judgment, order or decree, which is relevant under Sections 40, 41 or 42 of the Act, was obtained by fraud or collusion.
20. The apex Court in S.P.CHENGALVARAYA NAIDU v. JAGANNATH, 1994(1) SC 1 held that a judgment or decree obtained by playing fraud on the Court is a nullity and non est in the eyes of law, that 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 and that it can be challenged in any court even in collateral proceedings. It is also observed that more often than not, process of the court is being abused and the 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 and that a person, who's case is based on falsehood has no right to approach the court and he can be summarily thrown out at any stage of the litigation. It is held that a fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another, that it is a deception in order to gain by another's loss, that it is a cheating intended to get an advantage and that a litigant who approached the Court, is bound to produce all the documents executed by him, which are relevant to the litigation and if he withholds a vital document in order to gain advantage on the other side, then he would be guilty of playing fraud on the court as well as on the opposite party.
In A.P.SCHEDULED TRIBES EMPLOYEES ASSOCIATION v. ADITYA PRATAP BHANJ DEV the majority Judges (2:1) of a Full Bench of this Court relying upon several Judgments of the apex Court summarized the principles of law in relation to fraud and misrepresentation as follows:
"1. In judicial proceedings, fraud renders a judgment of a Court a nullity and void. Either superior or inferior Court is bound to treat a judgment obtained by playing fraud on the Court a nullity.
2. In proceedings other than judicial, an order obtained by fraud and misrepresentation and/or a determination as a result of fraud cannot be allowed to stand. Fraud unravels everything, and no person can keep an advantage or benefit or privilege obtained by playing fraud.
3. .......................
4. .......................
5. ........................
6. The principle of "finality of litigation" cannot be pressed when fraud is alleged to be the basis for the decision/determination.
7. Fraud, can be challenged in any Court even in collateral proceedings. The principles of estoppel and doctrine of res judicata have no application when fraud is the basis of judgment sought to be nullified under which right or privilege is claimed.
8. Fraud can either be proved by established facts or inference can be drawn from admitted and/or undisputed facts. When fraud is inferred under Section 44 of the Indian Evidence Act,1872, the Court as well as the authority alleging fraud can ignore a decision obtained by fraud."
21. Now, I will examine whether 'fraud' is played by the 1st respondent on the petitioner.The facts as narrated above are crystal clear that the 1st respondent never filed any Execution Petition against the petitioner and E.P.No.93 of 1999 was filed against Judgment-debtors 1 to 4 (defendants 1 to 4) alone and it is not known how the Warrant was issued to the Court bailiff in Form II for delivery of possession of suit mulgi showing the name of the petitioner-defendant No.5 also, who is not at all a party in E.P.No.93 of 1999 in O.S.No.657 of 1998. It is pertinent to mention that O.S.No.657 of 1998 was dismissed as against the petitioner, who was the 5th defendant in the suit, as not pressed. Therefore, impleading of the petitioner herein in E.P.No.93 of 1999 cannot and does not arise. It cannot be said that the 1st respondent is an ignorant and he does not know any thing about the fraud played by the Officials of the Court. The 1st respondent is well aware that the suit was dismissed as against the petitioner-5th defendant and the suit was filed for specific performance of an agreement of sale alone. Of course, the 1st respondent obtained the decree of cancellation of the gift deed dated 22-11-1996 executed by the 1st defendant in favour of defendants 2 to 4, who are her daughters. The sale deed was executed by the Court on behalf of defendants 1 to 4 on 25-2-2002. The moment the sale deed was executed, the Execution Petition ought to have been closed, as the same is the full satisfaction of the Judgment and Decree in O.S.No.657 of 1998.
22. It is settled law that one who comes to the Court, must come with clean hands and a person whose case is based on falsehood, has no right to approach the Court. Though the 1st respondent is well aware that the suit was decreed only for execution of the sale deed in respect of the suit mulgi as against defendant No.1 alone and the suit was dismissed as not pressed as against the 5th defendant-petitioner herein, he has filed the Execution Petition for delivery of possession also, which was not granted in the said decree. Therefore, it has to be presumed that the 1st respondent has approached the Court with unclean hands. It is not known how the name of the petitioner came on record in the warrant issued to the bailiff for delivery of possession.The petitioner herein is shown as Judgment-debtor No.5 in Form-II (Warrant of delivery of possession).Though the Warrant is dated 26-3-2002, but, in fact, it was executed on 20-3-2002. Thus, it is a clear case of fraud, which is apparent on the face of the record. The said warrant is contrary to the decree and judgment in O.S.No.657 of 1998 and it cannot be acted upon and any actions taken pursuant to the said warrant are non est in law and are accordingly declared as null and void. Therefore, all further proceedings pursuant to the said warrant are illegal, unsustainable and non est in the eye of law. Accordingly, the petitioner is entitled for reinduction into the suit mulgi.
23. Learned counsel appearing for the petitioner submits that the way in which the 1st defendant in the above suit executed and registered the gift deed in favour of her daughters - defendants 2 to 4, the way in which the suit was filed by the 1st respondent thereafter against his mother and sisters for specific performance of the agreement and the way in which defendants 1 to 4 remained ex parte without contesting the suit discloses a clear case of fraud by them on the petitioner herein. I am not concerned with all these contentions as the decree was passed only against defendants 1 to 4, but not against the petitioner, who is the 5th defendant in the above suit and against whom the suit was dismissed as not pressed.
24. As the fraud is apparent on the face of the record i.e. from the Warrant in Form No.II issued by the Court of II Senior Civil Judge, City Civil Court, Hyderabad in E.P.No.93 of 1999 to the bailiff, it is just and necessary to make an enquiry against all the concerned including all the persons who prepared the warrant and signed it.
25. When the fraud played by the 1st respondent with the connivance of the Officials of the Court was brought to the notice of the Court by filing E.A.Nos.63 to 66 of 2002 on 26-3-2002 itself and when the petitioner specifically filed E.A.No.67 of 2002 to direct the respondents herein not to damage or demolish or alter the suit mulgi and not to induct any third party or parties or lease out the said mulgi to anybody, notice was ordered in the said E.A.No.67 of 2002 rather than passing orders curtailing the fraud. This attitude of the learned II Senior Civil Judge, City Civil Court, Hyderabad also shows prima facie that he is also involved in the fraud. Therefore, enquiry needs to be conducted against all the concerned including the person who has signed the warrant, which led to these consequences. It cannot be said that the petitioner has voluntarily vacated and handed over vacant possession of the suit mulgi. The Panchanama clearly shows that a Sub-Inspector of Police, six Constables and some labourers were provided by the decree-holder and the Court bailiff removed all the articles in the suit mulgi and handed over them to the petitioner. Thereafter, he handed over possession of the suit mulgi to the 1st respondent-decree holder. Receipt was drafted by somebody and the signature of the petitioner was taken thereon. On seeing the police and the labourers and apprehending danger from them, the petitioner might have signed on the warrant of delivery. From the said facts, it is reasonable to infer that the petitioner was forcibly evicted from the suit mulgi. Therefore, it cannot be said that the petitioner has voluntarily vacated the said premises. Even otherwise, the issuing of Warrant of Delivery itself is illegal; therefore, the eviction of the petitioner from the suit mulgi is illegal and unsustainable. From the record of the Court below, it is clear that the 1st respondent-decree holder has not filed any petition seeking police protection. When there was no police protection sought for by the decree-holder, it is not known as to why and how the Sub-Inspector and six Constables of Abids Police Station, Hyderabad were present helping the decree-holder and the Court Bailiff to evict the petitioner.Therefore, it is just and necessary that the Commissioner of Police, Hyderabad to make an enquiry as to the police, who have aided and abetted in evicting the petitioner from the suit mulgi by playing a fraud on the Court and take necessary appropriate action against them.
26. So far as Civil Revision Petition No.2166 of 2002 is concerned, the 3rd respondent was inducted into possession of the suit mulgi on 22-3-2002, while the petitioner was evicted on 20-3-2002.The petitioner filed E.A.Nos.63 to 67 of 2002, as stated above, on 26-3-2002 and the 1st respondent herein filed his counter affidavit on 9-4-2002, by which time the 3rd respondent was already inducted into the suit premises. Therefore, the petition - E.A.No.92 of 2002 - filed to amend the counter affidavit on 15-4-2002, was rightly dismissed by the Court below on the ground that it was filed only to drag on the proceedings in E.A.No.65 of 2002. Therefore, the Civil Revision Petition No.2166 of 2002 is dismissed with costs.
27. For the foregoing reasons, Civil Revision Petition No.3423 of 2002 is allowed with costs with the following directions:
(i) The Order dated 20-3-2002 made in E.P.No.93 of 1999 in O.S.No.657 of 1998 on the file of the Court of II Senior Civil Judge, City Civil Court, Hyderabad, ordering delivery of possession showing the petitioner herein as Judgment-debtor No.5 in the said E.P. and all consequential proceedings i.e. eviction of the petitioner from the suit premises and delivery of possession thereof in favour of the 1st respondent and inductment of the 3rd respondent herein in the suit mulgi are hereby set aside;
(ii) Respondents 1 and 3 are hereby directed to vacate and hand over the possession of the suit mulgi to the petitioner, within ten days from the date of receipt of a copy of this order.
(iii) The Order dated 15-4-2002 of the X Junior Civil Judge, City Civil Court, Hyderabad made in I.A.No.624 of 2002 in O.S.No.2062 of 2002 is vacated and the said I.A.No.624 of 2002 shall stand dismissed.
(iv) The Chief Judge, City Civil Court, Hyderabad, is directed to conduct an enquiry against all the concerned including the II Senior Civil Judge, City Civil Court, Hyderabad, who signed the Warrant dated 26-3-2002 made in E.P.No.93 of 1999 and the Bailiff, who delivered the possession of the suit property to the 1st respondent and take appropriate action against the concerned staff and submit a report insofar as the II Senior Civil Judge, City Civil Court, Hyderabad to the High Court for taking appropriate action against him on administrative side.
(v) The Commissioner of Police, Hyderabad is directed to conduct enquiry, which led to giving police assistance by the Abids Police, Hyderabad in evicting the petitioner from the suit schedule property in E.P.No.93 of 1999 in O.S.No.657 of 1998 on the file of the II Senior Civil Judge, City Civil Court, Hyderabad, on 20-3-2002 and take appropriate action against the concerned police in the interests of justice and so as to prevent such police abuse.
(vi) The Chief Judge, City Civil Court, Hyderabad, shall transfer E.P.No.93 of 1999 including all the Execution Applications filed therein from the Court of II Senior Civil Judge, City Civil Court, Hyderabad to any other appropriate Court for early disposal of the said E.A.Nos.63 to 67 of 2002 filed by the petitioner herein for different reliefs as set forth supra.
(vii) It is open to the petitioner to take appropriate action against the concerned Advocate/s of the 1st respondent before the Bar Council, if he so chooses.
28. Immediately after the delivery of Judgment, learned counsel appearing for the 1st respondent made an oral application to give a Certificate for appeal to the Supreme Court under Article 133 of the Constitution of India.
I do not see any substantial question of law of general importance, which needs to be decided by the Honourable Supreme Court in this case.
29. Accordingly, the oral application is rejected.