Patna High Court - Orders
Md.Saidullah @ Sikandar vs The State Of Bihar & Ors on 29 April, 2011
IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.2768 of 2010
1. MD.SAIDULLAH @ SIKANDAR S/O MOHAMADDIN MIAN R/O BELWATIYA SHUKUL PAKAD, P.S-
SUGAULI, DISTT- EAST CHAMPARAN
Versus
1. THE STATE OF BIHAR
2. PRESIDING OFFICER, PERMANENT LOK ADALAT, MOTIHARI, WEST CHAMPARAN
3. MD. KALEEMULLAH S/O MOHAMDEEN MIAN R/O BELWATIYA SHUKUL PAKAD, P.S SUGAULEE,
DISTT- EAST CHAMAPRAN
4. MOHAMDEEN MIAN S/O LATE MAULA MIAN R/O BELWATIYA SHUKUL PAKAD, P.S SUGAULEE,
DISTT- EAST CHAMAPRAN
5. MD. SAFEEULLAH S/O LATE MOHAMDDEEN MIAN R/O BELWATIYA SHUKUL PAKAD, P.S
SUGAULEE, DISTT- EAST CHAMAPRAN
6. MD. AJEEJULLAH S/O MOHAMDEEN MIAN R/O BELWATIYA SHUKUL PAKAD, P.S SUGAULEE,
DISTT- EAST CHAMAPRAN
7. MD. OBAIDULLAH S/O MOHAMDEEN MIAN R/O BELWATIYA SHUKUL PAKAD, P.S SUGAULEE,
DISTT- EAST CHAMAPRAN
8. MD. NOOR ALAM S/O MD. KALEEMULLAH R/O BELWATIYA SHUKUL PAKAD, P.S SUGAULEE,
DISTT- EAST CHAMAPRAN
9. MD. MURAD ALAM S/O MD. KALEEMULLAH R/O BELWATIYA SHUKUL PAKAD, P.S SUGAULEE,
DISTT- EAST CHAMAPRAN
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2/ 29/04/2011Heard learned counsel for the petitioner and learned counsel for the State.
The petitioner questions the award of the permanent Lok Adalat dated 24.7.2008 in Case No.215/08 for a partition in the family of the petitioner and Respondent Nos.3 to 9 alleged to have been made on basis of a forged compromise petition.
Learned counsel for the petitioner submits that no sooner that he became aware of the fraud he filed an application before the Lok Adalat which has declined to entertain the matter on the ground that it was functus officio by order dated 3.12.2009. From the recitals of the order dated 3.12.2009 it appears that the petitioner has raised issues of an imposter appearing on his behalf and forging signature on the compromise petition. The 2 submission is of an order obtained allegedly by fraud. Whether fraud has actually been committed or not is an entirely different matter which shall have to be considered by proper application of mind. If the Lok Adalat arrives at the finding that no fraud was committed, the matter shall end there and the Lok Adalat shall be functus officio. The reasoning of the Lok Adalat that it had become functus officio merely by reason of the award irrespective of the question of fraud is unsustainable. Any order obtained by fraud, much less an order of a Court of Law or an adjudicatory authority shall unravel everything including the award. Every court possesses inherent powers when allegations of fraud are made to examine that factual aspect.
The principle of fraud and the right to move the same Court where fraud was practiced to obtain an order has been considered in (2006) 7 SCC 416 (Hamza Haji v. State of Kerala) at paragraph 27:-429:-
"27. The order of the Forest Tribunal in the case on hand had merged in the decision in MFA No.328 of 1981 rendered by the High Court. The governing decision, therefore, was the decision of the High Court. When seeking to question the decision as being vitiated by fraud, the proper course to adopt was to move the court that had rendered the decision, by an application. In a case where 3 an appeal is possible, an appeal could be filed. The House of Lords indicated in Kinch v. Walcott that it will be in the power of the party to the decision complaining of fraud to apply directly to the court which pronounced the judgment to vacate it. The Full Bench of the Bombay High Court in Guddappa Chikkappa Kurbar v. Valaji Ramji Dange observed that:
" No court will allow itself to be used as an instrument of fraud ,and no court, by the application of rules of evidence or procedure, can allow its eyes to be closed to the fact that it is being used as an instrument of fraud."
The Court therefore holds that the Lok Adalat does not stand divested of its powers to examine the aspect of fraud and if satisfied to take appropriate action in accordance with law. Needless to state that if the Lok Adalat is not satisfied of any fraud having been committed, quite obviously the impugned order dated 3.12.2009 shall require no interference. Needless to state that while examining such issues of fraud the parties concerned have to be heard with equal opportunity of defence.
The writ application stands disposed with the aforesaid observations.
KC ( Navin Sinha, J.)