Delhi District Court
Anand Kumar Deepak Kumar vs Haldiram Bhujiawala & Anr on 1 December, 2014
Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11
IN THE COURT OF SHRI MANISH YADUVANSHI
ADDITIONAL DISTRICT JUDGE 06: CENTRAL : DELHI.
TM 02/11
Anand Kumar Deepak Kumar ..... Plaintiffs
Versus
Haldiram Bhujiawala & Anr. ..... Defendants
Date of Reserving Order : 22.11.2014.
Date of Order : 01.12.2014.
ORDER ON APPLICATION
UNDER SECTION 151 CPC
1. The subject matter of this order is an application under Section 151 CPC
dated 9.9.2014 moved at the behest of the defendants urging this Court to
recall its order dated 16.8.2014 and also direct deposition of the second
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plaintiff namely Sh Shiv Kishan Aggarwal (herein after called as PW2)
to be recorded before the Ld. Local Commissioner within the premises of
this Court. Alternatively, prayer for stay of operation of order dated
16.8.2014 had been also made which prayer has since become
infructuous as the order dated 16.8.2014 was operative only till
15.9.2014.
2. The application in hand was filed in this Court on 9.9.2014. On the same
day, notice of this application was issued to the plaintiffs for 16.9.2014.
On the said date, time was sought for filing reply and the matter was
taken up on 27.9.2014 when some more time was sought by the plaintiffs
to file reply. The request was granted and the matter was taken up on
20.10.2014, on which date the plaintiffs jointly filed a detailed reply
dated 14.10.2014 alongwith annexures. Time to file rejoinder was sought
which was also allowed and accordingly, the rejoinder dated 31.10.2014
was filed of which copy was already supplied. On that date, application
was heard from 2.30 p.m to 3.45 p.m as argued by Sh C. Mukund,
Advocate, ld. Counsel for defendants. Subsequently, it was heard on
3.11.2014 from 2.20 p.m to 4 p.m when Sh Mohinder Rana, ld. Counsel
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for plaintiffs no. 1 & 2 and Sh Amarjeet Singh, ld. Counsel for plaintiff
no. 3 presented their arguments. It was thereafter argued on 15.11.2014
between 11.30 a.m to 1.30 p.m. Arguments were finally concluded on
22.11.2014 which were heard from 12 Noon to 1.15 p.m. The need for
enunciating the above facts is to highlight that the parties have argued for
Six hours and 10 minutes of Court time for and against their case. The
same is apparently because this is a hotly contested matter wherein two
branches of a family descending from a common ancestor, are at
loggerheads, not only before this forum but all the judicial forums upto
Hon'ble Apex Court. The litigation has travelled beyond the local limits
of this city into other cities.
RELEVANT HISTORY
3. Regardless to it, before adverting to the subject matter of the application,
a brief outline of past events is necessary. In the instant case, which is at
the stage of recording of evidence of plaintiffs, the Hon'ble Apex Court
in SLP No. 23072/2010 on 6.9.2010 and consequently to those
directions, the Ld. Predecessor of this Court on 19.8.2011 directed the
evidence in this case to be recorded in the Court precincts by Ld. Local
Commissioner namely Sh Vikas Kakkar. So far, some of the witnesses
Result: Application Dismissed Page 3 of 52
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have been examined including PW 1 Sh Manohar Lal Aggarwal. The
order of this Court dated 16.8.2014 disposed off four applications. The
first two applications of the plaintiff under Order 26 Rule 4, 4(A) read
with Section 151 CPC were merged with the last application of similar
nature which was filed on 4.2.2014. The order also disposed off
defendants' application dated 24.8.2013 filed under Section 151 CPC
seeking directions for taking off the documents filed by the plaintiff
alongwith the affidavit of PW 2. The former three applications were
allowed while the last application was dismissed. Certain directions were
also passed in terms of the examination of PW2 Sh Shiv Kishan
Aggarwal by way of commission to be executed at his native place. The
commission was to be executed between 1.9.2014 to 15.9.2014 inclusive
of all days from 10 a.m to 4 p.m.
4. On 27.8.2014, the defendants filed an application under Section 151
CPC dated 27.8.2014 seeking stay of operation of order of this Court
dated 16.8.2014. A notice was issued and after hearing the parties, the
application was dismissed vide a speaking order dated 28.8.2014. As said
earlier, during the pendency of operation of order dated 16.8.2014, on
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9.9.2014 the application in hand was filed.
5. The events occurring in between dates are also important for me to
delineate. The order of this Court dated 28.8.2014 was challenged before
the Hon'ble High Court of Delhi in CM(M) No. 808/2014. The
defendants also challenged the order of this Court dated 16.8.2014 by
filing another CM(M) No. 821/2014. Both the petitions were dismissed
on 8.9.2014 itself by the Hon'ble High Court of Delhi holding that the
present petition does not make out any error in the impugned order dated
16.8.2014 and that there are no grounds to interfere with the said order. I
will state again that on the very next day i.e on 9.9.2014, the application
in hand was filed.
APPLICATION (PLEADINGS).
6. In sum and substance, the application states that the plaintiffs had
produced several medical certificates of Sh Shiv Kishan Aggarwal (PW2)
from time to time prior to disposal of earlier applications for his
examination by way of Local Commissioner. It is submitted that Sh
Sharad Aggarwal, son of late Sh Ravi Shanker Aggarwal (being son of
late Sh Rameshwar Lal Aggarwal and brother of defendant no. 2 Sh
Result: Application Dismissed Page 5 of 52
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Ashok Kr Aggarwal) incidentally met the second defendant and in course
of informal interaction it was revealed that a Ring Ceremony of Sh.
Anand Aggarwal, son of Sh. Hari Aggarwal (first cousin of Sh. Mool
Chand Aggarwal, father of PW2 Sh Shiv Kishan Aggarwal) was held on
27.8.2014 at Bikaner, Rajasthan where Sh Sharad Aggarwal was also
present. He informed the second defendant that PW 2 Sh Shiv Kishan
Aggarwal was present in the Ring Ceremony on the above date at
Bikaner. The defendant was surprised and quoted that Sh Shiv Kishan
Aggarwal could not be at Bikaner as he can not travel outside Nagpur
where he permanently resides. On his asking, Sh Sharad Aggarwal
submitted that he can obtain C.D and photographs of the Ceremony. The
same were given to this defendant on 8.9.2014 around evening. The
claim of Sh Sharad Aggarwal was thus verified as correct. The
defendants have filed photographs and C.D of the event depicting the
presence of Sh Shiv Kishan Aggarwal therein. It is thus averred that the
PW 2 is maintaining perfect health. It is pointed out that the distance
between Bikaner and Nagpur is around 1300 km and there being no
direct flight between Nagpur and Bikaner, it is necessary to first arrive at
Delhi by flight which is about 853 km and then reach Bikaner either by
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train or travel by road which is approximately 446 km. It is thus
considered unimaginable as to why he can not travel to Delhi and to this
Court. It is submitted that plaintiffs have played fraud on this Court and
order dated 16.8.2014 needs to be recalled on the discovery of this new
and important evidence which despite exercise of due diligence was not
within the knowledge of the second defendant. It is further in the
application that the CM(Main) were dismissed on 8.9.2014, by which
time the defendants had not received the photographs and C.D and
therefore, the same could not be pointed out earlier either to this Court or
before the Hon'ble High Court of Delhi. Hence, the prayer in this
application as referred above. The application is supported with the
affidavit of the second defendant.
7. I have already pointed out the chain of events that led to filing of reply
and rejoinder and lengthy arguments as addressed by the arguing
counsels.
REPLY (PLEADINGS)
8. The reply is detailed and gives narration of each and every fact including
the efforts which the plaintiffs apparently made to coordinate between
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the lawyers of defendants and Ld. Local Commissioner for
implementation of directions given by this Court in order dated
16.8.2014 in its right ernest. All the communication in respect thereof
has been annexed with a view to portray as to how defendants on one
pretext or the other tried and eventually succeeded in frustrating the
order dated 16.8.2014, the time limit of which was made to deliberately
expire by efflux of time. It shall not be necessary for this Court to dwell
into larger details of said communications as the annexures speak
volumes about the attempts of plaintiffs to coordinate and the attempts
of the defendants to either obtain an order of this Court regarding stay of
order dated 16.8.2014 or to have the same relief and/or have the order set
aside by challenging it before the superior Courts. Suffice is to say that
this Court shall not be expressing any opinion in respect of the
genuineness of the above described respective attempts of the parties.
The defendants does have a right to challenge the order if they feel
aggrieved by it. To reassert this fact, the present defendants have
already invoked the jurisdiction of this Court on one occasion i.e on
28.8.2014 leading into failure and that they had also invoked the
jurisdiction of Hon'ble High Court of Delhi under Article 227 of
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Constitution of India where too, they failed. This is the second attempt
out of the total three on the part of the defendants to invoke the
jurisdiction of this Court by filing the present application which is
primarily an urge of the defendants for this Court to invoke its inherent
powers under Section 151 CPC and recall its own order dated 16.8.2014
which has been otherwise affirmed by the Hon'ble High Court of Delhi.
The application is premised on the ground of discovery of new and
important matter and evidence.
9. Reverting back to the contents of the reply, it is stated that in the latest
medical certificate dated 12.6.2014, the doctor had advised PW 2 to
abstain from strenuous physical activity and avoid mental stress and
travelling. The second plaintiff/PW 2 is said to be a spiritual and
religious man and their families have been traditionally assembling in
their house at Bikaner for last many decades on the occasion of
performing Pooja of Kulmata also known as Sati Mata at the historic
temple situated at Bikaner. The customary tradition in this Marwari
community requires whole family consisting of elders, married,
unmarried and grand children and their families to perform Pooja
collectively. It is stated that this Pooja falls in Bhadwa Baddi Amawas
Result: Application Dismissed Page 9 of 52
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and is performed at temple located at Nathusar Gate, Bikaner. This year
it fell on 25.8.2014. It is performed by descendants belonging to one
lineage since many decades and considered to be very auspiciuos and
mostly one of the members of the different families of the same lineage
participate in it. It is performed by one branch of the ancestral family at a
time. It is said to be so auspicious that family members bring their newly
born sons and daughters for blessings or newly married couples who
make offerings and pray for fulfillment of some wish. Thereafter, they
also visit the cemetery (Shamshanghat) adjoining the campus of the
temple to perform Pooja. The families of Sh Mool Chand and Sh.
Rameshwar Lal are said to be falling under one Kul/lineage.
9.1. PW2/plaintiff no. 2 is the eldest in the family of late Sh. Ganga
Bishan and was unable to participate in this Pooja and it was his desire to
join the entire family for this Pooja this year keeping in view his
deteriorating health for a long period of time. His family members
reluctantly agreed and accompanied him under the medical supervision
to Bikaner where he went from Delhi by a Luxury car having special
arrangements for his comfort. While there, PW2/Plaintiff no. 2 was
requested by his uncle Sh Hari Aggarwal to stay back for two days to
Result: Application Dismissed Page 10 of 52
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bless his son Sh. Anand Aggarwal on his Ring Ceremony scheduled for
27.8.2014. As PW 2 was advised to take rest for 45 days in Bikaner
before his return journey, he agreed and went to Ring Ceremony only for
a few minutes from where he returned back to his brother's house at
Bikaner.
9.2. It is sought to be asserted that the defendants are now trying to
misuse the already acquired knowledge of this fact and are wielding it as
a sword at this belated stage after having exhausted all other remedies.
To assert it the reply narrates that Sh. Sharad Aggarwal and Smt. Kamla
Devi (who is plaintiff in a cross suit titled Kamla Devi Aggarwal v Shiv
Kishan Aggarwal & Ors bearing number TM 03/11) and Smt.
Archana, wife of defendant no. 2 herein were also present and attended
the Pooja on 25.8.14 at Bikaner. They knew about the presence of PW 2
there. They also knew that Sh. Hari Aggarwal had requested PW2 to stay
back for ring ceremony. It is averred that this fact has not been
mentioned till date either in this court in the application for grant of stay
on the operation of order dt. 16.8.2014 or before the Hon'ble High Court
of Delhi.
9.3.The application is also said to be a petition for 'Review in disguise'
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which is said to be not maintainable as the order dt. 16.8.2014 has
attained finality. It is said to be an attempt to reagitate the issues finally
decided raising 'doctrine of issue estopple' & 'estopple by conduct'. The
reply is supported with the affidavit of one Sh Manohar Lal Aggarwal,
PW1/director of plaintiff no. 3. It is also supported with the affidavit of
PW2/second plaintiff himself.
REJOINDER (PLEADINGS)
10.In the rejoinder, the defendants are seen to be in denial mode. Though, it
is pointed out that the plaintiffs have candidly admitted that PW 2 did
travel to Nagpur yet it is submitted that he took 4 weeks to file reply to
the application in hand and now taking shield of family gathering. It is
pointed out that efforts of plaintiffs to procure medical certificate dated
12.6.2014 from which 'bed rest' is missing exposes the ingenuineness of
the last certificate, which certificate is said to be plaintiffs' premeditated
plan and hence a fraud on this Court. It is submitted that as such an
order is obtained by playing fraud on Court, the Court has inherent
power to set such order aside. It is in the rejoinder that the reply does not
disclose as to how PW 2 came from Nagpur to Delhi and went back. The
aspect of worshipping Deity is claimed as afterthought as PW 2 had not
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visited Bikaner with his wife or children or grand children. It is again
submitted that PW 2 has been attending his shop at Nagpur. It is pointed
out that when application dated 27.8.2014 was filed in this Court, the
plaintiffs did not disclose that PW 2 is at Bikaner and withholding such
fact tentamounts to misleading the Court. It is again asserted that PW 2 is
aware that Deed of Dissolution is false and as such he wants his cross
examination at Nagpur so that his statement can be translated by his
advocate as per his desire. It is in the rejoinder that PW 2 came to Delhi
by flight and went back to Nagpur from Delhi by flight. That the PW 2
has been performing the Pooja since many decades is stated to be
misleading. It is in the rejoinder that if the photographs and C.D are
seen, it would be clear that he was all alone and was roaming around
during the function alone meeting other people. It is denied that Sh
Sharad Aggarwal, Smt. Kamla and Smt. Archana knew about the
presence of PW 2 for his participation in Pooja on 25.8.2014. It is further
submitted in the rejoinder that merely because few family members
attended the said function, it would not mean that the second defendant
was bound to know that PW 2 was also present at Bikaner. It is further
pointed out in the rejoinder itself that the presence of said three persons
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at Bikaner has no relevance at all. The defendants denied to have had any
knowledge on 25.8.2014 itself about the presence of PW 2 in Bikaner. It
is further in the rejoinder that there is no reason for the defendants to
suppress or conceal the fact that Smt. Kamla Devi Aggarwal and Smt.
Archana Aggarwal were present at Bikaner. It is further in the rejoinder
that the presence of said persons at Bikaner is not the subject matter of
this case. It is further in the rejoinder that merely because the wife,
mother and nephew of second defendant went to Bikaner for their own
purposes can not mean that the second defendant should know about the
presence of PW 2. Hence, there is a categorical admission on the part of
the defendants in the rejoinder that the wife, mother and nephew of
second defendant were present at Bikaner. It is also noted by this Court
and brought as a component of this order at this juncture itself that a
comprehensive rejoinder to the contents of para 3, para 3.1 to para 3.5 of
the reply has been given wherein there is no specific denial to the
contents of para 3.4 of reply which is in context of request made by Sh
Hari Aggarwal to PW 2 to stay back for two days to bless his son Sh
Anand Aggarwal for his Ring Ceremony scheduled to be held on
27.8.2014. Similar is the position with respect to the submission made in
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para 4 of the reply wherein the plaintiffs said that the defendants had
known about close relationship of the family with the family of Sh. Hari
Aggarwal and also the fact that Sh Hari Aggarwal made humble request
to PW 2 to stay back for Ring Ceremony aforestated.
11.I shall now come to the arguments presented by the parties. The case was
opened by Sh C. Mukund, Advocate on behalf of the defendants who
perforce argued that the plaintiffs, in connivance with each other, played
fraud on this Court deliberately and thus obtained order dated 16.8.2014
after having filed a manipulated medical certificate dated 12.6.2014. For
the sake of convenience, the contents of it are reproduced here under;viz
Radiance
HOSPITAL PVT LTD.
AN ISO 9001:2008 CERTIFIED HOSPITAL
Date: 12062014
This is to certify that I have examined Mr. Shivkishanji
Agrawal, aged about 73Y/M & is a known case of Syst.
Hypertension with Ischemic heart disease (Post PTCA
status) is suffering from unstable angina. He has been
advised further Cardiac Evaluation in the form of CAG.
He is advised to abstain from strenuous physical
Result: Application Dismissed Page 15 of 52
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activities and avoid mental stress and trevelling till
15/09/2014.
Hence this certificate.
Sd/
Dr. Manoj Purohit."
12. In the previous medical certificates, PW 2 remained patient of same
ailments and was advised 'bed rest'. The major difference that was
earlier also noted by this Court in order dated 16.8.2014 is that in the
certificate dated 12.6.2014 which expired on 15.9.2014, the doctor
also advised PW 2 to "abstain from strenuous physical activities
and avoid mental stress and travelling till 15.09.2014".
12.1. This certificate is said to be procured with the condition of 'bed
rest' missing ostensibly with an objective to travel outside Nagpur
which PW 2 indeed did. It is therefore contended that the attending
doctor needs to be examined. It is pointed out that there is nothing in
the reply that PW 2 obtained a medical opinion before undertaking
travel from Nagpur to Bikaner via Delhi and back.
13. I have pointed out that the arguments of ld. Counsel Sh C. Mukund,
Advocate are in accordance of pleadings. He also laid stress on the
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conduct part of the plaintiffs besides the element of fraud. On the
aspect of fraud, Sh C. Mukund, Advocate, placed reliance on the
following which I will quote here under by extracting various
paragraphs that have been read to the Court, viz;
Reliance by the defendants on fraud
1. Hamza Haji Vs State of Kerala & Anr. (2006) 7 Supreme
Court Cases 416
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.....
Thus, it appears to be clear that if the earlier order from
the Forest Tribunal has been obtained by the appellant
on perjured evidence, that by itself would not enable the
Court in exercise of its power of certiorari or of review
or under Article 215 of the Constitution of India, to set at
naught the earlier order. But if the Court finds that the
appellant had founded his case before the Forest
Tribunal on a false plea or on a claim which he knew to
be false and suppressed documents or transactions which
had relevance in deciding his claim, the same would
amount to fraud............... Therefore, the appellant played
Result: Application Dismissed Page 17 of 52
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a fraud on the Court by holding out that he was the title
holder of the application schedule property and he
intended to cultivate the same, while procuring the order
for exclusion of the application schedule lands. It was not
a case of mere perjured evidence. It was suppression of
the most vital fact and the founding of a claim on a non
existent fact. It was done knowingly and deliberately,
with the intention to deceive. Therefore, the finding of the
High Court in the judgment under appeal that the
appellant had procured the earlier order from the Forest
Tribunal by playing a fraud on it, stands clearly
established. It was not a case of the appellant merely
putting forward a false claim or obtaining a judgment
based on perjured evidence. This was a case where on a
fundamental fact of entitlement to relief, he had
deliberately misled the Court by suppressing vital
information and putting forward a false claim, false to
his knowledge, and a claim which he knew had no basis
either in fact or on law. It is therefore, clear that the
order of the Forest Tribunal was procured by the
appellant by playing a fraud and the said order is
vitiated by fraud. The fact that the High Court on the
earlier occasion declined to interfere either on the
ground of delay in approaching it or on the ground that a
second review was not maintainable, can not deter a
Court moved in that behalf from declaring the earlier
order as vitiated by fraud.
In Hip Foong Hong v H. Neotia and Co. the Privy
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Council held that if a judgment is affected by fraudulent
conduct it must be set aside. In R. v Recorder of Leicester
it was held that a certiorari would lie to quash a
judgment on the ground that it has been obtained by
fraud. The basic principle obviously is that a party who
had secured a judgment by fraud should not be enabled
to enjoy the fruits thereof."
2. Indian Bank v Satyam Fibres (India) Pvt. Ltd (1996) 5
Supreme Court Cases 550 (Before Kuldip Singh and S. Saghir
Ahmad).
By filing letter No. 2775 of 2681991 alongwith the
review petition and contending that the other letter,
namely, letter No. 2776 of the even date, was never
written or issued by the respondent, the appellant, in fact,
raised the plea before the Commission that its judgment dated 16111993, which was based on letter No. 2776, was obtained by the respondent by practising fraud not only on the appellant but on the Commission too as letter No. 2776 dated 2681991 was forged by the respondent for the purpose of this case. This plea could not have been legally ignored by the Commission which needs to be reminded that the authorities, be they constitutional, statutory or administrative, (and particularly those who have to decide a lis) possess the power to recall their judgments or orders if they are obtained by fraud as fraud and justice never dwell together. It has been repeatedly said that fraud and deceit defend or excuse no man.
Result: Application Dismissed Page 19 of 52 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 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. The Court has also the inherent power to set aside a sale brought about by fraud practised upon the Court or to set aside the other recording compromise obtained by fraud. It was, thus, apparent to the respondent that there was little hope that the entire amount covering the goods supplied by it to the French Buyer would be paid and, therefore, it acted in dextrous and sophisticated manner to fasten the liability on the appellant by branding it as negligent in not writing specifically to the French Buyer for coacceptance in spite of its letter No. 2776 of 2681991 and to support this plea by evidence, it forged the letter in question forgetting that there existed another letter No. 2775 of that date in which the requirement of coacceptance by a French Bank was not indicated. Indeed, the Persian saying that "Darogh Go Ra Hafiza Na Bashad" (A liar has no memory) is still the time tested truth.
3. S.P. Chengalvaraya Naidu (Dead) by LRs v Jagannath (Dead) by LRs & Ors. (1994) 1 Supreme Court Cases 1.
The High Court, in our view, fell into patent error. The Result: Application Dismissed Page 20 of 52 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 short question before the High Court was whether in the facts and circumstances of this case. Jagannath obtained the preliminary decree by playing fraud on the Court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to Court with a true case and prove it by true evidence". The principle of "finality of litigation" can not be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. 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, who's case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation.
4. Kuldeep Gandotra v Union of India & Ors. 2007 (1994) DRJ 338 (DB).
"Fraud and justice never dwell together (fraus et jus nunquam cohabitant) and fraud and deceit defend or excuse no man (fraus et dolus nemini patrocinari debent) are two doctrines which are applied by the Courts to Result: Application Dismissed Page 21 of 52 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 recall earlier orders/judgments."
Reliance by the defendants on Conduct
1. Haldiram (India) Pvt. Ltd & Ors v M/s Haldiram Bhujiawala & Anr. CM(M) No. 231/2009 & CM No. 3959/09.
This is arising out of the present litigation only. It was a petition under Article 227 of Constitution of India against the order dated 21.2.09 by which two applications of the plaintiffs/petitioners under Order 7 Rule 14 CPC were dismissed. The Hon'ble High Court of Delhi noted relevant observations of the trial Court in its order. This is what is relied from it viz, "Quite strangely enough, the plaintiffs have been gone to the extent of saying that one of the grounds for not filing the documents at an earlier stage is on account of immediate directions of the Apex Court. During the course of arguments at the bar the Ld. Counsel for the plaintiffs has contended that the Hon'ble Supreme Court has passed an order dated 1.10.08 in SLP (c) Nos.
2272822729/2007 Haldiram Bhujiawala & Anr.
Vs. Haldiram (India) Pvt. Ltd in a hurry. When he was asked to explain what did he mean by the words immediate or hurry, he could not give any answer. In my considered opinion, the Ld. Result: Application Dismissed Page 22 of 52 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 Counsel for the plaintiffs was/is not justified in making accusations against the highest Court of the country before this Court.
The Hon'ble Delhi High Court recorded the following while dismissing the petition;
"On a careful perusal of the file, I am also in agreement with Mr. Mukund's argument that the present two applications had been filed by petitioners plaintiffs under Order 7 Rule 14 CPC to overcome and circumvent the orders of trial Court rejecting the petitionersplaintiffs' application under Order 11 Rule 14 CPC and under Section 65 of Indian Evidence Act. I further agree with the trial Court that the intent in filing the present petition was to somehow delay the disposal of suit despite a categorical direction by Hon'ble Supreme Court on 1st October, 2008 to dispose of the same expeditiously preferably within six months".
2. Haldiram (India) Pvt. Ltd & Ors v M/s Haldiram Bhujiawala & Anr. CM(M) No. 146/2009 & CM Nos. 2769/09, 3094/09 & 3333/09.
This is also arising out of the present proceedings only. The judgment was rendered on a petition under Article 227 of the Constitution of India which challenged the order of this Court dated 21.2.09 to the extent the plaintiffs/petitioners prayed to file an Result: Application Dismissed Page 23 of 52 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 amended plaint. It is relied in order to show conduct of the plaintiffs which according to the defendants is objectionable. The following are the extracts of the judgment relied viz:
"Undoubtedly, Article 227 is a discretionary and an equitable remedy. A party which suppresses facts or which does not make a complete disclosure is not entitled any relief from this Court. In the present case, I find that petitioners have mentioned the relevant facts but have done them in a guarded and passing manner. For instance, though order of Hon'ble Supreme Court dated 1st October, 2008 was mentioned but it was not sufficiently highlighted either in the list of dates or on the dates when the matter was heard ex parte. Accordingly, I am of the opinion that though disclosure has been made by petitionersplaintiffs but the same had not been done in a forthright manner. Consequently, in my view, the ends of justice would be met if petitioners are warned to be careful in future and costs are imposed while disposing of present petition".
COUNTER ARGUMENTS BY THE PLAINTIFFS
14. The plaintiffs' case was opened up by ld. Counsel for third plaintiff Sh Amarjeet Singh, Advocate. He has also argued in accordance of pleadings. According to him, the application in hand is nothing but an attempt to frustrate the order dated 16.8.2014. He also submits Result: Application Dismissed Page 24 of 52 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 that a mere reading of para 13 of the application would crystalise the fact into clarity that the application is nothing but by it, the applicant is seeking 'Review' of the order dated 16.8.2014. It is stated therein that the present application is moved on the discovery of new and important matter in evidence. It is urged that the Review of the said order is not maintainable in view of the fact that it has been already affirmed by the superior Court. It is further argued by him that the pleadings of the case would also reveal that all along it has been a stance of the defendants that PW 2 has been moving around. It would be apparent that this stand was taken by the defendants in their first reply to the plaintiffs' application for examination of PW 2 through Local Commissioner. Said stand was however, abandoned in the second reply while adopted again in third reply. It is urged that this Court has already commented on the authenticity of the medical certificates filed from time to time in its order dated 16.8.2014 which has been maintained so by the superior Court. It is further submitted that the defendants filed two CM(Mains) in Hon'ble High Court of Delhi, both of which have been dismissed. The copy of CM(M) No. 821/14 is available on record for ready reference. It is pointed out Result: Application Dismissed Page 25 of 52 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 that on internal pages no. 76 & 77 of the same, the defendants have again sought to challenge the veracity of the medical certificates as would be evident from para (viii), (x) & (xi). On the strength of it, it is argued that this ground has been already settled by this Court, challenged and pleaded again in higher forum which was pleased not to unsettle the observations of this Court made in order dated 16.8.2014 and therefore, the defendants can not reagitate the same. 14.1. For and on behalf of other plaintiffs including plaintiff no. 2/PW2 , Sh Mohinder Rana, Advocate presented two fold arguments while adopting the arguments advanced at Bar by Sh Amarjeet Singh, Advocate. According to Sh Rana, Advocate, the 'doctrine of issue estopple' and 'estopple by conduct' come in the play before this Court. Apart from it, he argued that the 'doctrine of merger' also applies. On the aspect of issue estoppel, ld. Counsel argued that the defendants' application or for that matter even the rejoinder is silent about the time, place and date when allegedly Sh Sharad Aggarwal met the second defendant. It is given to understand that since it is an averment of the defendants that the second defendant received the C.D and photographs of the Ring Ceremony depicting the presence Result: Application Dismissed Page 26 of 52 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 of PW 2 therein at Bikaner on 27.8.2014, though denied, would imply that the date of such incidental meeting was much prior to 8.9.2014. It is so as Sh Sharad Aggarwal would have taken at least a few days to call for and arrange copies of photographs and C.D. If that be so, then there was nothing stopping the counsel for defendants to mention this fact before the Hon'ble High Court of Delhi just one day prior (to filing application in hand i.e 9.9.2014) i.e on 8.9.2014 that the defendants are in the process of arranging some proof, that would show that not only the PW2 is hale and hearty but also he has travelled to such great distance from his native place. As a second line of defence, it is argued that the application does not provide the time of the evening when the second defendant allegedly received the C.D and copies of photographs on 8.9.2014. It is this date on which the CM(Mains) against the order dated 16.8.2014 were dismissed. The phrase used in para 4 of the application is, "around evening". It is submitted that nothing prevented the counsels from approaching the Hon'ble superior Court to show them the new evidence which according to them tentamount to playing a fraud on this Court which is now their case. It is further argued that Result: Application Dismissed Page 27 of 52 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 admittedly Sh Sharad Aggarwal's wife and mother were present at the Ring Ceremony. Sh Sharad Aggarwal was also present there. They are all members of family and the litigation between the parties is manifold. It is highly unlikely that neither of them is not aware of the litigation and neither of them informed the defendants about the presence of PW 2 at Bikaner on 25.8.2014. It is asserted that the defendants are aware of the presence of PW 2 at Bikaner since 25.8.2014 itself and despite that fact, they did not mention it in their application dated 27.8.2014 or while addressing arguments on the same on 28.8.2014 or before the Hon'ble High Court of Delhi on 8.9.2014. Therefore, the doctrines of issue estopple and estopple by conduct.
14.2. It is also argued that the orders against which no appeals are allowed are subject to the supervisory jurisdiction of Hon'ble High Court of Delhi under Article 227 of Constitution of India. It is argued that the law of 'appeals' and 'revisions' thus applied to such petitions. CM(Mains) have been dismissed by a speaking order and therefore, the orders of this Court dated 16.8.2014 as well as 28.8.2014 stands merged in the order of Hon'ble High Court of Delhi Result: Application Dismissed Page 28 of 52 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 dated 8.9.2014. It being so, the application here, it is argued, is not maintainable. It is also argued that non disclosure of PW 2 being at Bikaner by the plaintiffs is not a deliberate act of fraud as alleged but an act of necessity on part of PW2. In support of his arguments, ld. Counsel for plaintiffs has placed reliance on the following judgments viz:
1. (Raja) Indrajit Pratap Bahadur Sahi v Amar Singh & Ors.
1923 Privy Council 128 : It was held that "Where an appeal has been preferred, a review is out of question and the party's proper course is to apply to the appellate Court."
2. Shankar Ramchandra Abhyankar v Krishnaji Dattatreya Bapat 1969 (2) Supreme Court Cases 74 :
"It would appear that their Lordships of the Privy Council regarded the revisioinal jurisdiction to be a part and parcel of the appellate jurisdiction of the High Court. This is what was said in Nagendra Nath Dey v Suresh Chandra Dey.
There is no definition of appeal in the Code of Civil Procedure, but their Lordships have no doubt that any application by a party to an Appellate Court, asking it to set aside or revise Result: Application Dismissed Page 29 of 52 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 a decision of a subordinate Court, is an appeal within the ordinary acceptation of the term...... Similarly, in Raja of Remnad v Kamid Rowthen and Others, a civil revision petition was considered to be an appropriate form of appeal from the judgment in a suit of small cause nature. A fullbench of the Madras High Court in P.P.P Chidambara Nadar v C.P.A Rama Nadar & Others had to decide whether with reference to Article 182(2) of the Limitation Act 1908, the term "appeal" was used in a restrictive sense so as to exclude revision petitions and the expression "appellate Court" was to be confined to a Court exercising appellate, as opposed to, revisional powers. After an exhaustive examination of the case law including the decisions of the Privy Council mentioned above the full Bench expressed the view that Article 182(2) applied to civil revisions as well and not only to appeals in the narrow sense of that terms as used in the Civil Procedure Code.
It is stated that the essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already instituted and does not create that cause. The appellate jurisdiction may be exercised in a Result: Application Dismissed Page 30 of 52 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 variety of forms and, indeed, in any form in which the Legislature may choose to prescribe. According to Article 1762 the most usual modes of exercising appellate jurisdiction, at least those which are most known in the United States, are by a writ of error, or by an appeal, or by some process of removal of a suit from an inferior tribunal. An appeal is a process of civil law origin and removes a cause, entirely subjecting the fact as well as the law, to a review and a retrial. A writ of error is a process of common law origin, and it removes nothing for reexamination but the law. The former mode is usually adopted in cases of equity and admiralty jurisdiction; the latter, in sits at common law tried by a jury.
Now, when the aid of the High Court is invoked on the revisional side it is done because it is a superior court and it can interfere for the purpose of rectifying the error of the Court below. Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior court. It is only one of the modes of exercising power conferred by the statute; basically and fundamentally it is the appellate jurisdiction of Result: Application Dismissed Page 31 of 52 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 the High Court which is being invoked and exercised in a wider and larger sense. We do not, therefore, consider that the principle of merger of orders of inferior Courts in those of superior Courts would be affected or would become inapplicable by making a distinction between a petition for revision and an appeal.
In the majority judgment it was held, inter alia that a judgment pronounced by the High Court in the exercise of is appellate or revisional jurisdiction after issue of a notice and a full hearing in the presence of both the parties would replace the judgment of the lower Court thus constituting the judgment of the High Court - the only final judgment to be executed in accordance with law by the Court below."
3. Kunhayammed & Ors v State of Kerala & Anr. (2000) 6 Supreme Court Cases 359 .
Leave granted: Dismissal by non speaking order :
Merger results : It may be that in spite of having granted leave to appeal, the Court may dismiss the appeal on such grounds as may have provided foundation for refusing the grant at the earlier stage. But that will be a dismissal of appeal. The decision of the Supreme Court would result in superseding the decision under appeal attracting Result: Application Dismissed Page 32 of 52 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 doctrine of merger. But if the same reasons had prevailed with the Supreme Court for refusing leave to appeal, the order would not have been an appellate order but only an order refusing to grant leave to appeal.
Once a special leave petition has been granted, the order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non speaking one.
4. State of Kerala & Anr v Kondottyparambanmoosa & Ors (2008) 8 SCC 65. This judgment is also on doctrine of merger wherein it was reiterated that doctrine of merger is not applicable when an appeal is dismissed on the ground that delay in filing the same was not condoned. However, it is applicable when higher forum (in appeal or revision) entertains an appeal/revision and passes an order on merits. Reliance has been made in this case on Kunhayammed's case (Supra).
5. Suryadev Rai v Ram Chander Rai & Ors JT 2003 (6) SC 465. Result: Application Dismissed Page 33 of 52 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 In this judgment scope of the supervisory jurisdiction under Article 227 has been considered in detail. In para 37 of the judgment, the conclusion has been provided. It is held in para 37(4) that, "Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned therebassy, the High Court may step into exercise its supervisory jurisdiction."
6. Punjab National Bank v Iqbal Ahmad & Ors 108 (2003) DLT
378. This judgment is again on the scope of Article 227 which affirms that where the CPC does not provide a remedy of revision or appeal against an interim order, a petition under Article 227 of Constitution of India would lie. The Court made reference to Surya Dev Rai's case (Supra).
7. Meghmala & Ors v Narasimha Reddy & Ors. (2010) 8 SCC
383. This judgment is upon applicability of Res judicata in case of Result: Application Dismissed Page 34 of 52 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 fraud. It also deals on the issue as to filing of review petition when becomes abuse of process of Court. In this judgment two of the defendants' citations have been relied upon i.e Satyadev's case (Supra) and S.P.Chengalvaraya Naidu's case (Supra), the Hon'ble Apex Court referred to Kabari(P) Ltd v Shivnath Shroff (1996)1 SCC 690 wherein the view was taken that Court can not entertain an application for review if before making the same, the superior Court had been moved for getting the self same relief, for the reason that for the self same relief two parallel proceedings before the two forums can not be taken. The judgment also deals with effect of fraud and misrepresentation and also makes reference to Naidu's case and Satyam's case (Supra). It was quoted that fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false. Suppression of a material document would also amount to a fraud on the Court. The Hon'ble Apex Court thus went on to say that, "Thus, detection/discovery of constructive fraud at a much belated stage may not be sufficient to set aside the judgment procured by perjury". Result: Application Dismissed Page 35 of 52 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 REBUTTAL ARGUMENTS BY THE DEFENDNATS.
15. In rebuttal, Sh C. Mukund, Advocate, submitted again that no sound justification has come for presence of PW2 at Bikaner. No certificate was obtained from the doctor. The medical certificate dated 12.6.2014 is planned in that manner so that PW 2 can travel two and half months later on 25.8.2014. It is argued that knowledge of other family members regarding presence of PW 2 at Bikaner is inconsequential as only one member of the family i.e Sh Ashok Aggarwal who is the defendant no. 2 herein and not other members of family is party to this suit. It is reasserted that otherwise also, they had no knowledge of presence of PW 2 at Bikaner on 25.8.2014. It was affirmed only on 8.9.2014. Surprisingly, no rebuttal was made to the arguments of plaintiffs that the absence of date, time and place where the second defendant met Sh Sharad Aggarwal is important as it would show as per their own avement that they had knowledge of this fact prior to said date and were awaiting the evidence. Thus, non mentioning of it either before this Court or before the Hon'ble High Court of Delhi on 8.9.2014 is said to be fatal to the case of the defendants.
Result: Application Dismissed Page 36 of 52 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 15.1. So far as the aspect of doctrine of merger is concerned, ld. Counsel for the defendants submitted that it would not apply in this case. He relied on Allahabad Bank v Mr. Kishore Bhai Zaveri (Deceased) Through LRs and Anr. CM(M) 1111/2013. This judgment was rendered in a petition under Article 227 of the Constitution of India against the order of Rent Controller, Delhi which allowed amendment of a petition filed by the respondents. Preliminary objection was raised by the respondents regarding maintainability of the petition and jurisdiction of the Court on account of availability of alternative remedy of appeal under Section 38 of Delhi Rent Control Act, 1958. Surya Dev Rai's case (Supra) was relied besides the other cases.
16. I may point out at this juncture itself that there is nothing upon perusal of the entire judgment that has even touched upon the doctrine of merger. At the end, the Hon'ble High Court of Delhi had found that in the peculiar facts of that case, there was no bar to the maintainability of the petition as the order impugned did not appear to be a final order. In defendants' favour; what is indicated from the judgment at best is that they could have filed the CM(M) under Result: Application Dismissed Page 37 of 52 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 Article 227 of Constitution of India. As to how it progresses their defence is not clear from the said reliance.
RESULT:
17. I have set out in the preceding paragraphs the entire gamut of pleadings, case laws and arguments as briefly and precisely as could have been possible having regard to voluminosity of the bulky record. I may set out that I have also played and seen the C.D furnished by the defendants in support of their averments. All these arguments that have been described above can be summed up with utmost simplicity. Following points can be summarized viz;
(i) Whether the doctrine of issue estoppel and estoppel by conduct applies and if so, whether this application is not maintainable ?
(ii) Whether any fraud has been perpetrated upon the Court ?
(iii) Whether the present application is a review petition in disguise or filed independent to it on the basis of new material not available earlier i.e prior to 16.8.2014 ?
(iv) Depending on Court's ruling on the above, whether order dated 16.8.2014 requires to be recalled by invoking inherent Result: Application Dismissed Page 38 of 52 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 powers vested in this Court ?
18. The answers of the above points may seem complex in the light of the arguments advanced and the case laws cited. However, on a thorough analysis of all data before me and consequent to my introspection on it, I rather find the answers to be very very simple. It was essential to set out all the arguments but it is not essential to deal with the points already urged and decided and which are being reurged in the present matter which I do not incorporate herein again for the sake of brevity as already set out by me in the preceding parts of this order. I shall now take up the first point for consideration.
(i) Whether the doctrine of issue estoppel and estoppel by conduct applies and if so, whether this application is not maintainable ?
19. The case law in this regard has been set out above. Ld. Counsel for defendants also sought to demolish the argument of plaintiffs on the doctrine of merger by also placing reliance on Kunhayammed's case (Supra) which is primarily a reliance by the plaintiffs. Although, it is clear from the said judgment that the merger doctrine and right of review are closely interlinked. If a High Court judgment Result: Application Dismissed Page 39 of 52 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 is before the Hon'ble Apex Court by way of special leave, which is granted and the appeal is then disposed of with or without reasons, by affirmance or otherwise, the High Court order merges with that of the Apex Court, in that event, the High Court can not be petitioned by review. However, when the SLP is dismissed, there would be no merger and the party aggrieved would not be deprived of any statutory right of review,if available.
20. In the case before me, an interlocutory order of this Court dated 16.8.2014 and yet another interlocutory order dated 28.8.2014 were challenged under the supervisory jurisdiction of the Hon'ble High Court of Delhi which accepted the petitions, heard and dismissed them by detailed speaking order. This should be in itself sufficient to apply the common law doctrine of merger. Ld counsel for the defendant read out the following portion of the said judgment which according to him suits him. Same is as under viz:
" The doctrine of merger is neither a doctrine of constitutional law nor a doctrine statutorily recognized. It is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system."Result: Application Dismissed Page 40 of 52
Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 The above extract nowhere implies that common law doctrine of merger is not to apply in the present case.
20.1. Even in (2008) 8 SCC 65 (Supra), the Hon'ble Apex Court held that doctrine of merger is applicable when a higher forum entertains an appeal or revision and passes an order on merit. True, the ratio of Surya Dev Rai's case (Supra) reveal that the Hon'ble High Court of Delhi is empowered under Article 227 with all superintendence powers over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction except the armed forces. The said power is administrative as well as judicial and can be invoked, at the instance of any person aggrieved or even suo motu. It is for paving way of justice and removing any obstacles therein. It is not subject to those technicalities of procedure which are found to be in 'certiorari jurisdiction'. Clause 37(4) of the judgment as extracted above in this order makes clear that the said jurisdiction would be invoked when a subordinate court assumes jurisdiction which it does not have or has failed in exercising jurisdiction which it does have or the jurisdiction though available is being exercised in a manner not permitted by law and failure of Result: Application Dismissed Page 41 of 52 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 justice or grave injustice had occasioned thereby.
21. In the context of it, the ratio of judgment in Allahabad Bank's case (Supra) appears to be in support of the contention of plaintiffs that a petition under Article 227 of the Constitution has traits of appeal/revision. Its para 5 has already been quoted earlier in this judgment. It has been observed by the Hon'ble Apex Court in the said case that their lordships of Privy Council regarded the 'revisional jurisdiction' to be part and parcel of the 'appellate jurisdiction' of High Court. Nagendernath Dey v Sureshchander Dey 59 I.A.283, 287 was relied upon wherein it was held that, "there is no definition of appeal in the Code of Civil Procedure but their lordships have no doubt that any application by a party to an appellate Court, asking it to set aside or revise a decision of a subordinate Court is an appeal within the ordinary exceptation of the term."
22. The other judgments relied on the aspect of merger have been also set out above in this order. However, upon going through all of them, I find that none of them except for judgments in Surya Dev Rai's case (Supra) and Punjab National Bank's case (Supra) deal with Result: Application Dismissed Page 42 of 52 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 the 'supervisory jurisdiction' of the High Court. However, the ratio of Punjab National Bank's case (Supra) as well as Surya Dev Rai's case (Supra) appears to be indeed in support of the contention of ld. Counsel for plaintiffs. In the former case i.e Punjab National Bank's case (Supra) the Hon'ble Delhi High Court has, by way of clarification, stated that where the CPC does not provide a remedy of revision or appeal against an interim order, the petition under Article 227 of the Constitution would lie. By that analogy, doctrine of merger would apply to the present proceedings.
23. The question now arises is whether the application in hand would be therefore, not maintainable ? Though the doctrine of merger may apply, however, the applicants/defendants have approached this Court on a ground of suspected fraud which has been discovered by them subsequent to order dated 16.8.2014 and on 8.9.2014 and therefore, to my mind, they will have a right to file the application in hand. Of course, the principle of issue estoppel and estoppel by conduct would be attracted against the defendants but only qua those matters which have been already agitated and settled by judicial verdict. It can not apply to the prayer of the defendants that they Result: Application Dismissed Page 43 of 52 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 have found new material belying the claim of the plaintiffs and which material they could not have produced despite exercise of due diligence.
24. Section 114(b) CPC 1908 provides that a person aggrieved by a decree or order from which no appeal is allowed by this Code may apply for review of order to the Court who passed it. Order 41 CPC provides the procedure for appeals from original decrees. Order 42 CPC provides procedure for appeals from Appellate decrees. Order 43 CPC provides procedure for appeals from orders. Order 47 CPC pertains to procedure with respect to review petitions. 24.1. Order dated 16.8.2014 or for that matter order dated 28.8.2014 are interlocutory orders. No appeals are provided. I have already observed that though doctrine of merger may apply, however, the defendants herein had not and could not invoke the 'appellate jurisdiction' of the Hon'ble High Court of Delhi by virtue of Order 47 Rule (i)(b) CPC. Order 41 Rule 1 constitutes one of the grounds for applying review which is 'discovery of new and important matter or evidence which after exercise of due diligence was not within the knowledge of the aggrieved or could not be produced by him when Result: Application Dismissed Page 44 of 52 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 the order was made'. This is preciously what the present applicants/defendants have done in the present application and in my considered view, they are not precluded from doing it. It will have to be seen whether in the presence of specific provision of law i.e Order 47 Rule 1 (i), the application in hand ought to be independently preferred under Section 151 CPC or turns out to be a review petition indeed.
(ii) Whether any fraud has been perpetrated upon the Court ?
25. In this context, reference may be made to the language used in the medical certificate dated 12.6.2014 which has been extracted earlier in this order. It is apparent that PW 2 was also advised to abstain from 'strenuous physical activity' and avoid mental stress and travel till 15.9.2014. Still, he admittedly travels from Nagpur to Bikaner via Delhi. This fact is not disclosed by the plaintiffs on 28.8.2014. The point is; does it make a difference and therefore tentamount to 'fraud' or not. The detailed and cogent reasons have been assigned in the reply for the aforestated travelling. There is no specific denial to the averments that the family members do not perform Kul Mata Pooja or that this year it did not fall on 25.8.2014. The averment as Result: Application Dismissed Page 45 of 52 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 to whether PW 2 travelled alone or with his family members is a fact that needs evidence and can not be decided merely on affidavits. Suffice would be to say that he did undertake travelling. It is nowhere specifically denied that he did not attend the said Kul Mata Pooja. Merely because the mode by which he travelled from Nagpur to Delhi and back is not provided is not in itself a sufficient indicator of fraud. The fact that the authenticity of the medical certificates has been established and affirmed by the superior Courts would preclude the defendants from challenging the same again. Still, if a person decides to act against the medical advise, it has to be his/her own volition. If PW 2 was advised to abstain from travelling and he still decides to travel, it at best, is a breach of professional confidence between a patient and his doctor and by no means, fraud. Reference has been made to Meghmala's Case (Supra) wherein the characteristics of fraud has been defined and set out by me above in this order. A fraud is only proved when it is shown in accordance of the three points that have been referred therein. I will not repeat them. However, a 'false representation' is necessary. In this case, there is no iota of false representation. The authenticity of medical Result: Application Dismissed Page 46 of 52 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 certificates can not be now put into question. Thus, the question of fraud does not arise at all. The reliance placed by the respective counsels in this respect can not be over looked but the same is applicable only when the Court comes to the conclusion that there is 'a false representation'. Meghmala's judgment (Supra) also states that detection/discovery of constructive fraud at a much belated stage may not be sufficient to set aside the judgment procured by perjury. 25.1. Having regard to the above, I am not inclined to accept the submission of applicants/defendants in respect of the averments of either fraud or the conduct. Conduct is absolutely irrelevant so far as disposal of present application is concerned and in any case, the same as pointed out by the defence in the judgments passed by the superior Courts in connection with litigation of this case that went up to them are inconsequential.
(iii) Whether the present application is a review petition in disguise or filed independent to it on the basis of new material not available earlier i.e prior to 16.8.2014 ?
26. While expressing my opinion on the above, I must point out that as of now, the order dated 16.8.2014 is not in operation as the time limit Result: Application Dismissed Page 47 of 52 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 therein has ceased to exit by efflux of time. So far, no new medical certificate of PW 2 has been placed on record. The existence of the time limit/time period for recording of evidence of PW 2 by commission at Nagpur is not the issue before this Court in the present proceeds and not also in anticipation until some one applies for revalidation of the conditions imposed in order dated 16.8.2014. The defendants are seeking total recall of the said order. The application is based on the premise that they have 'discovered new and important matter/evidence which they could not procure earlier despite due diligence'. It being so, the question of invocation of inherent powers vested in this Court does not arise at all and Court will have to be governed by the provisions of Section 114 read with order 47 CPC. In the presence of these specific provisions of CPC into which the pleadings made by the defendants in the application in hand are clearly fitting, the Court can not permit them to urge that this Court take recourse to Section 151 CPC and as such I hold that the present application is indeed a review petition in disguise.
27. Having said so, I come down to examine the fact as to whether indeed, there is new material produced before the Court warranting Result: Application Dismissed Page 48 of 52 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 interference with its order dated 16.8.2014 or not. Here I must set out that there is no specific prayer in the application for this Court to also recall its subsequent order dated 28.8.2014 which prayer, the defendants should have made as it justifies their first prayer. It is more so, as both these orders have been affirmed by the superior Court. Thus, this brings me to the necessary corollary that the present applicants/defendants are not only aggrieved of order dated 16.8.2014 but also aggrieved of order dated 28.8.2014. The scrutiny will have to be made keeping in mind both these orders. Of course, the factum of PW 2 travelling to Bikaner could not have been made known on or before 16.8.2014 as the event was subsequent to the said date i.e on 25.8.2014. However, the said event was later in time and is therefore, prior to the two relevant dates i.e 27.8.2014 when application for stay of operation of order dated 16.8.2014 was filed and the next date i.e 28.8.2014 when it was considered and rejected by a speaking order. Here, I shall be guided by principle of 'preponderance of probabilities'. That PW 2 attended the Kul Mata Pooja on 25.8.2014 and the Ring Ceremony on 27.8.2014 stands established by way of evasive denial qua the former and admission Result: Application Dismissed Page 49 of 52 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 qua the latter. That the wife and mother of defendant no. 2 as well as he himself were also present at Bikaner is also established. They say that they had gone there for their own purpose. However, they do not clarify as to what purpose ? Thus, to this extent also, their rejoinder is evasive. The fact remains that they were present there. The fact also remains that even if the defendants are to be believed, they must have got the information regarding the presence of PW 2 at Bikaner w.e.f 25.8.2014 much prior to the date of receiving the C.D/photographs which is 8.9.2014. The fact that there is family litigation pending since decades in the Courts of Delhi and beyond in India has to be, in facts and circumstances of this case, known to all the members of the family. In this scenario, when the parties are so dug deep/entangled in litigations, it would be very unlikely to even expect this Court to believe that Smt Kamla Devi, (mother of defendant no. 2), would not be taken aback on seeing Sh Shiv Kishan Aggarwal/PW 2 at Bikaner. I will pause here for a moment and state that on 29.11.2014, while various contempt petitions pending between the parties were on the board of this Court, Sh Amit Kasera, Advocate, one of the cocounsel appearing for the Result: Application Dismissed Page 50 of 52 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 defendants had, on inquiry by this Court affirmed that said Smt. Kamla Devi is indeed Smt. Kamla Devi Aggarwal who has filed her own suit of Declaration, Injunction & Rendition of accounts against the present plaintiffs which is also pending in this Court.
28. Resuming back to my observations, it would be very unlikely that such like information would not have been immediately disseminated to the second defendant by her. It could have also been communicated to the Advocates of the defendants who also happen to be the Advocates of Smt Kamla Devi Aggarwal. It being so, I will have to impart knowledge of presence of PW 2 at Bikaner on 25.8.2014 itself upon the defendants herein. This factum did not constitute part of the application that was disposed of on 28.8.2014.
29. Thus, it has to be said that the defendants having knowledge of the above factum could have furnished the information to this Court between 25.8.2014 to 28.8.2014. The photographs and C.D could have awaited. The C.D provided to this Court is about 58 minutes of duration in which PW 2, as identifiable from the photographs placed on record, is seen attending the Ceremony on stage for a total period of 62 seconds. No other spotting of PW 2 could be made from the Result: Application Dismissed Page 51 of 52 Anand Kumar Deepak Kumar v Haldiram Bhujiawala TM 02/11 C.D thereby tallying the defendants' claim that he was roaming around in the party and meeting people. On the contrary, it is the sworn statement of PW 2 that after blessing Sh Anand Aggarwal, he immediately left for his brother's house at Bikaner. These facts do not change anything in view of the discussion that I have made above. This application being a review application fails to support the only ground available to the review applicant for seeking review i.e 'discovery of new and important matter' which they could not have obtained as on the dates of the orders aggrieved despite due diligence . I find no force on merits.
(iv) Depending on Court's ruling on the above, whether order dated 16.8.2014 requires to be recalled by invoking inherent powers vested in this Court ?
30. In the light of the ruling of this Court on the above broad points, it has to be necessarily stated that there is no question of invocation of inherent power in the facts of this case and therefore, the application fails. It is accordingly dismissed. No orders as to costs. Announced in open Court. (Manish Yaduvanshi) Dated: 01.12.2014. ADJ06(Central)Delhi Result: Application Dismissed Page 52 of 52