Karnataka High Court
Rudrawwa W/O Chandrayya @ ... vs Nagayya S/O Basavannayya Mathad, on 17 March, 2017
Author: Anand Byrareddy
Bench: Anand Byrareddy
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17TH DAY OF MARCH, 2017
BEFORE
THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY
WRIT PETITION Nos.103813-103814/2015 (GM-CPC)
Between:
1. Smt. Rudrawwa wife of Chandrayya
@ Channaveerayya Mathad,
Age: 80 Years, Occupation: Household,
Resident of Sriramanakoppa,
Taluk: Hirekerur, District: Haveri.
2. Sri.Mallayya @ Puttappa
son of Chandrayya @ Channa,
Veerayya Mathad,
Age:58 Years, Occupation: Agriculture,
Resident of Sriramanakoppa,
Taluk: Hirekerur, District: Haveri. ... Petitioners
(By Shri M.S.Haravi, Advocate)
And:
1. Nagayya son of Basavannayya Mathad,
Age:62 Years, Occupation: Agriculture,
Resident of Sriramanakoppa,
Taluk: Hirekerur, District: Haveri.
2. Smt. Shantavva wife of Basavannayya
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@ Basayya Mathad,
Since deceased by her LRs.
2(a). Smt. Mallavva wife of Shivandayya Fakkirswamymath,
Age: 45 years, Occupation: Hosuehold,
Resident of Housabhavi,
Taluk: Hirekerur, District: Haveri.
2(b). Smt. Iravva wife of Irayya Dasohamath,
Age: 42 years, Occupation: Household,
Resident of Guddadamallapur,
Taluk: Byadagi, District: Haveri.
2(c). Smt. Holabasavva wife of Panditayya
Dasaohamath, Age: 10 years,
Occupation: Household,
Resident of Guddadamallapur,
Taluk: Byadagi, District: Haveri,.
2(d). Smt. Manjavva wife of Irayya
Shankinamath, Age: 38 years,
Occupation: House hold,
Resident of Kabbur,
Taluk and District : Haveri. ... Respondents
(By Shri Vijayendra S Bhimakkanavar, Advocate
for caveat respondent No.1 and 2(A-D))
These petitions are filed under Articles 226 and 227 of the
Constitution of India, praying to quash the order dated 07.03.2015
passed on I.A.No.6 and 7 in F.D.P No.1 of 1996 on the file of
Additional Senior Civil Judge, Ranebennur, as per Annexure-G.
These petitions coming on for hearing in 'B' group, this
day, the Court made the following:
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ORDER
Heard the learned counsel for the petitioners and the learned counsel for the respondents.
2. The petitioners are aggrieved by a common order passed on application Nos.6 and 7 filed in F.D.P.No.1/1996. IA No.6 is an application filed by the defendants under Order III Rule 1 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC' for brevity) seeking a direction to the plaintiff No.1 to appear in person and to produce her latest photographs and in order to ascertain that she is the same person as plaintiff No.4 in a civil suit in O.S.No.97/2014 pending on the file of the Court of Civil Judge, Byadagi. It is alleged that the said plaintiff No.1 was not the wife of one Chandrayya @ Channaveerayya Mathad of Sriramanakoppa but she was the wife of one Channabasayya Attikatti of Tumarikoppa, Byadagi taluk and that this has been admitted by her in O.S.No.97/2014 which is a subsequent suit filed and if it is established that she is one and the same person, it would be apparent that she had played fraud in obtaining the final relief in :4: O.S.No.7/1992. IA No.7 was also filed by the defendants under Order VII Rule 1 (A) (iii) of the CPC seeking to produce additional documents in respect of their case, namely the plaint and the depositions in O.S.No.7/1992 and the plaint copy in O.S.No.97/2014 to further establish the alleged fraud played by plaintiff No.1 in the final decree proceedings. The same having been contested by the present petitioners, the Court below has thought it fit to allow the applications. Notwithstanding, that the Court below was aware of the earlier suit in O.S.No.7/1992 having attained finality before this Court in its appellate jurisdiction in Regular Second Appeal No.102/2004, the trial Court has proceeded on the basis that the applications could be allowed in order to arrive at the truth of the matter, notwithstanding that the proceedings in O.S.No.7/1992 may have attained finality in the second appeal. It is that which is sought to be questioned in the present petitions.
3. The fact that the present petitioner No.1 was indeed the plaintiff along with her son in O.S.No.7/1992 is not in dispute. It transpires that the suit for partition and separate possession was :5: decreed, against which the defendants had filed an appeal and in the appeal, the appellate Court had opined that the very identity of plaintiffs 1 and 2 was in serious dispute and therefore, had framed additional issues and had remanded the matter directing the trial Court to adjudicate on the additional issues as to the very identity of the plaintiffs. That exercise having been carried out, the trial Court had again returned a finding holding that the plaintiffs were not the persons they claimed to be and had therefore dismissed the suit. That having been carried in an appeal, the lower appellate court had reversed the finding of the trial Court and had restored the original preliminary decree for partition and separate possession which was again challenged by way of a second appeal before this Court and this Court having dismissed the second appeal, the judgment in favour of the plaintiffs attained finality. It is thereafter that the present suit is filed after the disposal of the Regular Second Appeal and in the face of the same. It is thereafter the applications are filed in the final decree proceedings by the defendants to claim that the plaintiff in O.S.No.97/2014 appears to be the very plaintiff in the suit in O.S.No.7/1997 and :6: she has committed fraud on the Court and hence, the exercise of calling her to appear before the Court and produce her latest photographs for the Court to ascertain that she was not impersonating and also to substantiate the case, I.A.No.7 having been filed, the Court below has thought it proper to allow the applications to ascertain the truth of the matter.
4. The learned counsel while taking this Court through the material documents which were also produced before the Court in the final decree proceedings has sought to place reliance on two judgments of the Supreme Court namely S.P.CHENGALVARAYA NAIDU VS. JAGANNATH (AIR 1994 SC 853), wherein the Supreme Court has opined that the principle of "finality of litigation" cannot 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 and on the facts of the case before it, the Supreme Court has expressed an opinion that there was indeed apparent fraud played by one of the parties and therefore, even at :7: the stage of final decree proceedings, the matter could be reopened. But, the facts of that case would reveal that there was a preliminary decree obtained and in the final decree proceedings, the findings were sought to be questioned on the basis of prima facie case of fraud. It is in that background the trial Court as well as the High Court having negatived such a challenge in final decree proceedings as Supreme Court has expressed as above. It is not a case where the final decree proceedings had been challenged in appeals and second appeals and thereafter the final decree proceedings were sought to be reopened on the very issue that had been highlighted and agitated earlier to the extent of disputing the identity of the plaintiffs.
5. The learned counsel would also place reliance on the case of SMT.BADAMI (D) BY HER LEGAL REPRESENTATIVES VS. BHALI (AIR 1012 SC 2858) where the Supreme Court has reviewed the entire case law in circumstances where in the face of fraud, the Court has not hesitated to reopen proceedings which had long attained finality and therefore seeks to rely upon the same. :8:
6. As rightly pointed out by the learned counsel for the petitioners, in so far as the petitioners are concerned, their bona fides and identity had been questioned and had been subject matter of long drawn out litigation. It is no longer an area of controversy as they have established their case and have been absolved of any such wrong doing by the judgment in the second appeal before this Court in R.S.A.No.102/2004. It would therefore be a travesty of justice by the respondents adopting a different tack by reference to the civil suit in O.S.No.97/2014, notwithstanding that there is a contention raised as to plaintiff No.4 therein being the very plaintiff No.1 in the previous suit in O.S.No.7/1992. This would be wholly irrelevant in seeking to reopen the final decree proceedings and the Court below was oblivious to the fact that the issue having attained finality in a second appeal before this Court could not be reopened on whatever ground. If there is any such fraud played as sought to be alleged and as it could be very well established in O.S.No.97/2014, the respondents would be free to do so. It would not be available for the respondents to file applications in the final :9: decree proceedings which have merged in the judgment in the second appeal before this Court in R.S.A.No.102/2004. Therefore, the impugned orders cannot be sustained. The Court below was not justified in allowing such applications. This would not however preclude the defendants from agitating any such alleged irregularity or illegality in the pending suit in O.S.No.97.
7. Incidentally, it is noticed that the present respondents were not even parties in O.S.No.97/2014. Therefore, in the matter which is wholly alien to the present petitioners' suit in O.S.No.7/1997, the entire exercise of having allowed such applications at the behest of these respondents was not tenable and therefore, the writ petition is summarily allowed. The impugned order stands quashed.
Sd/-
JUDGE Jm/-