Madras High Court
Sarasa @ Perumayee vs Pappathi on 28 April, 2017
Author: D.Krishnakumar
Bench: D.Krishnakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 13.04.2017
Date of Verdict : 28.04.2017
CORAM
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
CRP.NPD.No.947 of 2017
and
C.M.P.No.4719 of 2017
Thangammal @ Chinnammal (Died)
1. Sarasa @ Perumayee
2. Sangeetha
3. Jayasudha
4. Nithinkumar .. Petitioners
Vs.
1. Pappathi
2. Manimekalai, aged 30 years
Rep.by her mother and natural Guardian .. Respondents
Prayer: Civil Revision Petition is filed under Article 227 of Constitution of India to set aside the Fair and Decreetal Order dated 22.09.2016 passed by the Principal District Munsif, Sankari in E.A.No.14 of 2016 in E.P.No.15 of 2009 in O.S.No.166 of 2004.
For Petitioner : Mr.K.C.Karl Marx
ORDER
The respondents herein filed a suit for partition in O.S.No.166 of 2004 before theDistrict Munsif Court, Sankari (O.S.No.215 of 1999 before the Sub Court, Sankari), Salem District. In the aforesaid suit, preliminary decree was passed on 03.09.2001. The respondents herein filed I.A No.759 of 2004 (I.A.No.11 of 2002 before Sub Court, Sankari) in the aforesaid suit for passing final decree. Subsequently, final decree was passed in I.A.No.759 of 2004 on 18.08.2007. The respondents herein filed E.P.No.15 of 2009 in O.S.No.166 of 2004 for allotment of the respondents' share. The petitioners are also the parties to the aforesaid suit in O.S.No.166 of 2004.
2. The first petitioner herein has filed O.S.No.11 of 2016 before Sub Court, Sankari for declaration and injunction against the respondents herein. The petitioners herein filed E.A.No.14 of 2016 in O.S.No.166 of 2004 to stay the Execution Petition in E.P.No.15 of 2009 till the disposal of O.S.No.11 of 2016. The said application was dismissed on 22.09.2016. Challenging the aforesaid order, the petitioners have preferred the present Civil Revision Petition before this court.
3. The learned counsel for the petitioners would submit that the first petitioner herein filed a suit in O.S.No.11 of 2016 for declaration and permanent injunction, on the basis of the registered Will dated 24.01.1995 executed by her father stating that she is the lawful owner of the said property and she is in possession and enjoyment of the aforesaid property. The petitioners herein filed E.A.No.14 of 2016 in O.S.No.166 of 2004 to stay the execution proceedings pending disposal of O.S.No.11 of 2016. The application filed by the petitioners in E.A.No.14 of 2016 was erroneously dismissed by the court below without considering the pendency of the suit for declaration and injunction. Therefore, the order passed by the court below is liable to be set aside.
4. Heard, the submissions made by the learned counsel for the petitioners and perused the materials on record.
5. The first petitioner herein has filed a suit in O.S.No.11 of 2016 on the file of the Sub-Judge, Sankari, Salem District for declaration and injunction. The aforesaid suit is pending.
6. The petitioners filed the application in E.A.No.14 of 2016 to stay the execution proceedings in E.P.No.15 of 2009 in O.S.No.166 of 2004. The respondents herein filed the suit in O.S.No.166 of 2004 against the first petitioner herein and her mother. The preliminary decree was passed by the District Munsif Court, Sankari.
7. Pursuant to the preliminary decree passed by the District Munsif Court in O.S.No.166 of 2004, the respondents herein filed I.A.No.759 of 2004 for passing of final decree and the final decree was passed in 18.08.2007. Subsequent to the said final decree, the respondents herein filed E.P.No.15 of 2009 for the allotment of the respondent's share. When the aforesaid Execution Petition is pending, the first petitioner herein filed a suit in O.S.No.11 of 2016 before the Sub Court, Sankari for declaration and permanent injunction.
8. On perusal of the records, it is the admitted fact that the first petitioner is a party to the earlier suit in O.S.No.166 of 2004. On perusal of the plaint copy in O.S.No.11 of 2016 filed before Sub Court, Sankari which has been filed in type set of papers, in the aforesaid suit, the plaintiff therein (Viz, Saraswathi) had stated that after the demise of her father, the Will dated 24.01.1995 came into force and she is the absolute owner of the suit property. In the plaint, the plaintiff has not disclosed the earlier proceedings in O.S.No.166 of 2004 and the subsequent preliminary decree and final decree passed by the District Munsif Court, Sankari and the pendency of the Execution Petition in the aforesaid suit. The plaintiff in O.S.No.11 of 2016 has filed the suit at the stage of the orders to be passed in the Execution Petition in E.P.No.15 of 2009 in O.S.No.166 of 2004.
9. The point for consideration in this petition is, whether the petitioners have approached the Court with clean hands by disclosing pendency of the decree passed in earlier suit i.e. O.S.No.166 of 2004 and the subsequent filing of Execution Petition in the same suit, which would amount to suppression of the facts.
10. In the decision of S.P.Chengalvaraya Naidu (Dead) .. Vs Jagannath By L.Rs. And others... reported in AIR 1994 SC 853, the Hon'ble Apex Court has held as follows.
8. The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Exhibit B-1S) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non-mentioning of the release deed at the trial tantamounts to playing fraud on the court. We do not agree with the observations of the High Court that the appellants-defendants could have easily produced the certified registered copy of Exhibit B-15 and non-suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would he guilty of playing fraud on the court as well as the opposite party.
11. In the light of the judgment of the Hon'ble Supreme Court, the facts and circumstances of the case clearly shows that the petitioners played fraud on the court by suppressing the material facts. The parties should approach the court with clean hands. The revision petitioners filed a suit in O.S.No.11 of 2016 suppressing the fact that E.P.No.15 of 2009 is pending before the same court. The petitioners approached the court with unclean hands. Therefore, the court below rightly dismissed the stay petitioner in E.A.No.14 of 2016 in E.P.No.15 of 2009 in OS.No.166 of 2004.
12. In view of the above facts and circumstances as stated supra, no error or illegality in the Order passed in E.A.No.14 of 2016 in E.P.No.15 of 2009 in O.S.No.166 of 2004.
13. The Civil Revision Petition fails and accordingly, the Civil Revision Petition is dismissed. Consequently, the connected Miscellaneous Petition is closed. No Costs.
28.04.2017 Index : Yes/No Internet: Yes/No lok D.KRISHNAKUMAR,J. lok To The Principal District Munsif Court, Sankari, Salem District Pre-delivery Judgment in CRP.NPD.No.947 of 2017 and C.M.P.No.4719 of 2017 28.04.2017 http://www.judis.nic.in