Bombay High Court
Vali Mohamed Jamal Mansuri vs Vali Mohamed Suleman on 26 February, 1987
Equivalent citations: AIR1988BOM64, AIR 1988 BOMBAY 64, 1988 BOM RC 185, (1987) MAH LJ 415, (1987) MAHLR 954, (1988) 1 RENCJ 12, (1988) 2 RENTLR 203
ORDER
1. Short question, though of considerable importance, that has arisen for my determination is whether a suit for a declaration that an order of eviction obtained under Section 41 of the Presidency Small Cause Courts Act is null and void on the ground that the same has been obtained by practising fraud, is maintainable in view of the provisions of Section 49 of that Act as it stood prior to its amendment by Maharashtra Act No. 19 of 1976.
2. The petitioner filed the present Rent Act Declaratory Suit against the respondent for a declaration that he was the tenant in respect of the suit premises entitled to protection of the Bombay Rent Act, and for a further declaration that the order of eviction obtained by the respondent in ejectment application under Section 41 of the Presidency Small Cause Courts Act, (hereinafter referred to as the said Act) was a nullity as the samehad been obtained by practising fraud. The petitioner inter alia averred that the respondent in the aforesaid ejectment application had fraudulently procured evidence in order to show that the petitioner had been served in that application and had obtained an ex parte order of eviction under Section 41 of the said Act. It was further averred that the petitioner had been inducted in the suit premises on or about 24th November, 1951 in consideration of the petitioner paying monthly rent of Rs. 8.25 which rent was subsequently increased to Rs. 13 per month. The respondent issued rent receipts in favour of the petitioner though the respondent had in the ejectment application styled the petitioner as a licensee. Even on that basis the petitioner was a protected licensee as defined under Section 5(4A) of the Bombay Rent Act. The said licence was subsisting on 1st February, 1973 but the respondent had falsely alleged that he had given a notice to the petitioner in July, 1973 alleging that the said licence had been duly revoked orally in November, 1972. The falsity of the aforesaid claim was apparent by virtue of the petitioner having paid rent to the respondent up to 31st' July, 1973. The rent receipt for the period ending July, 1973 did not contain any reference to the alleged oral revocation of the licence. On the aforesaid averments the petitioner inter alia prayed that he should be restored back to possession, which possession was lost in execution of the ex parte order of eviction obtained by the respondent under Section 41 of the said Act.
3. The aforesaid suit was resisted by the respondent on the grounds inter alia that such a suit was not maintainable and was barred under the provisions of Section 49 of the said Act. It was also contended on behalf of the respondent that the petitioner had made, an application for setting aside the ex parte order of eviction passed under Section 41 of the said Act on the ground that a fraud had been practised and the petitioner had not been duly served in the proceedings under Section 41 of the said Act. That application came to be rejected right up to this Court. It was therefore not open to the petitioner to reagitate the said question over again. ,
4. The trial Court as also the lower appellate Court have come to the conclusion on the preliminary issue raised, that the present suit of the petitioner is barred by the provisions of Section 49 of the said Act and the said judgments and decrees are challenged in the present petition.
5. Mr. Advani, learned Counsel appearing in support of the petition has submitted that the present suit of the petitioner cannot be barred by the provisions of Section 49 of the said Act, as the petitioner has sought to have the ex parte order of eviction declared a nullity on the ground that the same has been obtained by fraud. According to him the right of a party to have a decree set aside on the ground of fraud is common law right and the same cannot be taken away by the provisions of the said Act, which are essentially procedural laws. If the petitioner has come to the Court with the allegations that fraud has been practised, both on the Court as also on the petitioner for obtaining an order of eviction under Section 41 of the said Act, such a suit could not be thrown away at its threshold on any of the provisions of the said Act. The allegations of fraud must be gone into and in case the petitioner proves his allegations of fraud, then any order, or decree passed by the Court whether under Section 41 of the said Act or for that matter under any law for the time being in force must be set aside and it is immaterial whether the order or decree, which is sought to be set aside as a nullity is ex parte or on merits after contest. In support of his aforesaid contention Mr. Advani has relied upon the decisions of the Privy Council in the case of Khagendra Nath Mahata v. Pran Nath Roy reported in (1902) 29 Ind App 99 and Choksi Bhidarbhai Mathurbhai v. Purushottamdas Bhogilal Shah . He lastly submitted that a Regular Suit may not lie to set aside an ex parte decree merely on the ground of non-service of summons but where the ex parte decree is alleged to have been obtained by the respondent by fraud, petitioner is entitled to institute a regular suit to set aside the decree on the ground of fraud, and such a suit would be maintainable even though petitioner was unsuccessful in his application under Order IX, Rule 13 of the Code of Civil Procedure, to set aside the ex parte order.
6. Mr. Jahagirdar, learned Advocate appearing in support of the impugned judgments and decrees of both the Courts below, however, contended that the petitioner had in his application for setting aside the ex parte order alleged that there had been suppression of documents on the part of the respondent in regard to the long possession of the petitioner in the suit premises. If he had not pressed the said contention and had not invited a decision in his application for setting aside the order of eviction, present contentions raised in this suit would be barred by constructive res judicata. This Court had accepted the respondent's contention that the licence of the petitioner had been duly revoked with effect from November 1972, which fact had been mentioned by the respondent in his notice of July, 1973.
The respondent was not bound in law to set out any of the possible defences open to the petitioner in the application for eviction under Section 41 of the said Act and if the petitioner had failed to appear and put forth his case in that application, he could not be held to be entitled to file the present suit and have a second round of litigation. Furthermore the present suit was specifically barred under Section 49 of the said Act, which provision had been enacted merely in order to prevent second round of litigation as is being sought by the present suit. He lastly contended that the present suit is not maintainable in the Court of Small Causes by virtue of Section 19(s) of the said Act whereunder a declaratory suit of the present nature is specifically barred from 'the jurisdiction of the Court of Small Causes.
7. In order to appreciate the rival contentions it may be convenient to reproduce Section 49 of the said Act as it existed prior to its amendment by Maharashtra Act 19 of 1976.
"49. Order for recovery of possession bar to suit except on basis of title other than title as tenant: -
An order made for recovery of possession of any immovable property on an application under Section 41 pending in the Small Cause Court immediately before the date of the commencement of the Presidency Small Cause Courts (Maharashtra Amendment) Act, 1963, (Mah. XLI of 1963), or made to it on or after such date, shall (whether possession is taken thereunder or not) bar the institution of a suit in any Court, except a suit in which relief is claimed on the basis of title other than title as the applicant's tenant within the meaning of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bom. LVIIof 1947) to such immovable property."
Prior to the aforesaid provision which was enacted by Maharashtra Amendment Act, 41 of 1963, the said Section 49 read as under :
"49. Recovery of possession no bar to suit to try title :
Recovery of possession of any immovable property under this Chapter shall be no bar to the institution of a suit in the High Court for trying the title thereto."
The present case is governed by Section 49 as amended by Maharashtra Amendment Act 41 of 1963 reproduced herein above. If the aforesaid provision is made applicable to the facts of the present case, then the present suit of the petitioner is undoubtedly not maintainable inasmuch as all that the petitioner is claiming in the present suit is the declaration of his title as a tenant of the respondent within the meaning of the Bombay Rent Act. However, the question to be determined in the present petition is whether the present suit, which seeks to have the said order of eviction declared as a nullity on the ground that the same has been obtained by fraud, can be said to be barred on the ground of the aforesaid provisions of Section 49 and in my judgment the said suit cannot be held to be barred. When a plaintiff comes to the Court with the allegation that any order or decree of a competent Court of law has been procured by practising fraud, that judgment and decree, if the said fraud is established, cannot be permitted to stand and shall have to be declared a nullity. Take a case where A files a suit for a declaration of his title and for possession of property on the strength of his title acquired by virtue of a registered sale deed executed by the father of B, which document being shown to be of more than 30 years old, was admitted in evidence without objection of B and a decree is passed in favour of A. If B thereafter obtains evidence that the said document was not at all a registered document, was not executed by B's father, but had been forged or fabricated only few days prior to the filing of the aforesaid suit, would the right of B to have the said decree set aside on the ground of fraud be defeated on the ground of any procedural provisions and in my judgment the answer will necessarily be in the negative. The provisions of Section 49 of the said Act therefore be necessarily have to be read as applying only to the cases where a right of tenancy has been agitated by a tenant or deemed to have agitated and answered and it is only in such cases that a fresh suit for a declaration of rights of tenancy under the Rent Act can be said to be barred. However, when a party comes to the Court with the allegation that a particular judgment, decree or order has been obtained by practising fraud, the right of that party, to have the said decree set aside on a common law right cannot be circumscribed by any procedural laws such as Section 49 of the said Act. The suit of the plaintiff, therefore, cannot be thrown out at its threshold and an opportunity has to be given to the petitioner to make good his case of fraud.
8. The contention of Mr. Jahagirdar that the present suit of the petitioner is not maintainable by virtue of Clause(s) of Section 19 of the said Act, in my judgment is devoid of any substance inasmuch as the present suit has been filed not under the said Act but under the Bombay Rent Act. '
9. In the result the impugned judgments and orders of both the lower Courts are set aside and it is declared that the suit of the petitioner is not barred by the provisions of Section 49 of the Presidency Small Cause Courts Act, 1882. The matter will now go back to the trial Court with a direction that the trial Court shall hear and dispose of the said suit expeditiously and in accordance with law. Rule made absolute. The Respondent shall pay the costs of the petitioner throughout.