Andhra HC (Pre-Telangana)
Chote Miyan vs Iqbal Begum on 2 July, 1999
Equivalent citations: 1999(4)ALD370, 1999(4)ALT454, 1999 A I H C 3827, (1999) 4 ANDHLD 370 (1999) 4 ANDH LT 454, (1999) 4 ANDH LT 454
Author: V. Bhaskara Rao
Bench: V. Bhaskara Rao
ORDER
1. This is a petition filed under Section 151 of the Code of Civil Procedure for selling aside the order dated 12-11-1998 in CRP No.3230 of 1997. The tenant is the petitioner herein and the parties will be referred to as tenant and landlady.
2. The facts emerging from the affidavit of the tenant which is filed in support of this petition are that the landlady filed RCC No.227 of 1994 on the file of II Additional Rent Controller, Hyderabad, seeking his eviction on the ground of wilful default in payment of monthly rents. After elaborate enquiry, the Rent Controller dismissed the petition holding that there was no wilful default in payment of monthly rents. Her appeal to the appellate authority RA No.562 of 1995 on the file of Additional Chief Judge, City Small Causes Court, Hyderabad also met with the same fate. The landlady preferred CRP No.3230 of 1997 assailing the same.
3. The tenant was represented by one Sri Fariduddin, Advocate in this Court. On 12-11-1998, the CRP came up for hearing before a learned single Judge. According to the tenant, Sri Fariduddin, Advocate was not authorised by him to represent that he would vacate the premises without demanding any amenities, but he came to know that Sri Fariduddin, Advocate represented that he would vacate the premises without demanding amenities and thereupon an eviction order has been passed on 12-11-1998. It is asserted in the affidavit of the tenant that he received a postal cover from this Court in the first week of March, 1999 and thereupon he approached his Advocate to know the nature and contents of the postal cover and he was informed that it was a show-cause notice in CC No.273 of 1999 and that the revision petition filed by the landlady was allowed long back with a direction to file an undertaking before the Court that he would vacate the premises within six months and that the landlady filed a Contempt Application as he failed to comply with that direction. The tenant further asserted that he was shocked to hear the same as he was not aware of the order allowing the CRP and he has not informed by his Advocate (reference to Sri Fariduddin) about the same. Thus he appears to have taken back his file and entrusted the same to one Sri Rajesh Kumar Singh, Advocate, who verified the records and informed him about the eviction order passed against him. He alleged that Sri Fariduddin, Advocate has played fraud upon him and he was gained over by the other side and that the same is in violation of mandatory provisions of Order XXIII, Rule 3 CPC. He sought for setting aside the order on the ground that he would suffer irreparable loss and damage if the same is not set aside and he would become shelterless.
4. The petition is resisted by the landlady by filing a counter with the following averments:
All the material averments of the petitioner are denied and it is stated that the CMP is filed with a view to drag on the proceedings. The tenant is fully aware of the proceedings from the beginning that this Court has heard CRP No.3230 of 1997 on various dates and after hearing the matter at length, time was granted to his Advocate to seek instructions from the tenant and on the date of hearing the said Advocate tried faintly to justify the orders of the Court below, but he has chosen to seek time for vacating the premises when the learned Judge was about to dictate the order. A reading of the order itself indicates that it is only after considering various aspects and pleas of the parties and the evidence on record, the Counsel for the tenant instead of pressing the same, requested for six months time for vacating the premises. Accordingly six months time was granted to the tenant to vacate the premises and the tenant is directed to pay a monthly rent of Rs.250/- without amenities like electricity and water. This Court also directed the petitioner to give an undertaking that he would vacate the premises within six months. When he failed to give an undertaking, the landlady filed Contempt Case on 2-12-1998 and during the pendency of the Contempt Case, the tenant has withdrawn the petition for amenities i.e., RC No.496/1998. The above facts indicate that the tenant was fully aware of all the proceedings and his contentions lhat he has come to know about the order in CMP only in the first week of March, 1999. When he went to his Advocate Sri Fariduddin and then he came to know about the order etc. are not true. The allegation of fraud being played upon the Court by him is totally baseless much less any allegation of connivance with the Advocate (reference to Sri Fariduddin).
5. This petition is not maintainable in law as there is no violation of Order XXIII, Rule 3 of CPC nor any fraud is played by her on the Court by way of misrepresentation. It is once again stated that the efforts of the tenant are only to drag on the proceedings to deprive her of the property.
6. The tenant filed a reply affidavit denying the averments that the CRP was heard on various dates and after hearing the matter at length for a number of days, this Court had given time to the Advocate to get instructions and that his Advocate faintly tried to justify the orders of Court below and ultimately he has chosen to elect to seek time for vacating the premises when the order was about to be dictated. In this context it is stated that he was not present before the Court on any date of hearing nor his Counsel instructed him to be present and hence he has not consented to the proceedings herein.
7. Having regard to the averments of the parties, the following point arises for consideration :
"Whether the aggrieved party, tenant, is entitled to seek setting aside the order on the ground of fraud under Section 151 CPC."
Point:
8. Sri R. Vijayanandan Reddf, learned Counsel for the tenant strenuously contended that a bare reading of the order dated 12-11-1998 discloses that it was not passed on merits inasmuch as the concurrent findings of two Courts below that the tenant has not committed wilful default has not been set aside, but on the contrary it shows that the learned Counsel for the tenant (Sri Fariduddin) did not press his case and sought for six months time for vacating the premises without the amenities like electricity and water and hence the above order is in the nature of a consent order. He then argued that the concerned Advocate had acted without authority in making the above representation and hence it is not a valid order and in such circumstances the only remedy available to the tenant is to seek setting aside the order under Section 151 CPC. In support of the above contentions he cited a catena of decisions which will be referred to in the course of the order. On the other hand Sri Laxma Reddy, learned Counsel for the landlady vehemently argued that the matter was heard on several occasions and on a consideration of the facts and circumstances of the case and evidence on record, the learned Judge was about to dictate the order and at that juncture Sri Fariduddin, learned Counsel for respondent stated that he does not press his case and sought for six months time for vacating the premises and accordingly the learned Judge granted tlie tenant six months time. According to Sri Laxma Reddy there was full hearing of the matter and hence the above order will have to be treated as one on merits. He added that every Hon'ble Judge will have his own method of writing judgment and the opening words 'on considering various aspects of the pleas of the parties and the evidence on record....' would show that the above order was passed on merits. He also argued that it is neither an ex parte order nor a compromise order and in such circumstances there is no provision under A.P. (Lease, Rent and Eviction) Control Act, for short the 'Act', for setting aside such order. He also argued that Section 15 f CPC can be invoked in a pending proceeding, but not in a concluded case and further that fraud if any can be gone into in a civil suit. He lastly contended that this Bench has no jurisdiction to entertain this petition as the provision of this Bench is Criminal Appeals. He too relied upon a good number of authorities which will be referred to in the relevant context.
9. It would be convenient to appreciate the above contentions if the order dated 12-11-1998 is extracted for ready reference:
"Considering various aspects of the pleas of the parties and the evidence on record, learned Counsel for the respondent-tenant fairly, without pressing his case, requested six (6) months time for vacating the premises, and he also did not press for amenities like electricity and water for this period. Considering the above submission, the revision is disposed of without going into the merits of the case granting six months time to the tenant to vacate the premises and to put the landlord in possession of the same in good and proper condition. During this period, he shall pay a monthly rent of Rs.250/- without default. He shall not be entitled for electric power and water facililies. Counsel for the tenant further submits that he would withdraw any application filed by his client for conveniences in the lower Court. The tenant is directed to file an undertaking to vacate the premises after the expiry of six months. It is open to the landlord to seek his own remedy in a Court of Law for recovery of any amounts due to him on account of prior rent or electricity and water charges."
10. I carefully perused the above order. The question is whether the above order is passed on merits. It is noteworthy that it is recorded in so many words that the revision is disposed of without going into the merits (the relevant portion is underlined). The contention of Sri Laxma Reddy that the above order was passed after full hearing of the matter and after weighing the merits of the case cannot be accepted in view of the underlined portion in the order itself. In Stale of Maharashlra v. Ramdas Shrinivas Nayak, , it is held that the Judges record was conclusive and that neither a lawyer nor litigant may claim to contradict it except before the Judge himself. It is further held that the Court is bound to accept the statement of the Judges recorded in their judgments as to what transpired in the Court and it cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. Hence on the basis of the very order where rt is specifically recorded that the revision is disposed of without going into the merits of the case, I hold that it is not an order on merits.
11. Sri Laxma Reddy tried to persuade me to accept his contention by referring to the record which appears to disclose that the quantum of rent being Rs.250/- per month inclusive of electricity and water charges is being disputed by the landlady on the ground that the electricity charges themselves go to about Rs.500/-per month as per ground No.5 of the revision petition and that the learned Judge was convinced that the quantum of rent could not have been Rs.250/- per month inclusive of electricity and water charges. In the absence of anything in the order itself, I am unable to agree with him. In fact it is not necessary to go into the merits in this application. Suffice it to say that the order dated 12-11-1998 was not passed on merits.
12. Next question will be as to what is the nature of the order. It is no doubt true that tt is not an ex parte order inasmuch as Sri Fariditddin, learned Counsel for respondent was present and the above order was passed after hearing him. Since the order shows that the learned Counsel without pressing his case, sought for six months time for vacating the premises, 1 am of the view that he consented for such an order being passed and hence it can be called a consent order.
13. The tenant filed this petition for selling aside the above order on the ground that he did not authorise his Advocate to give any such consent and that his Advocate has played fraud upon him in conceding or not pressing his case. It is not the case of the landlady that the tenant had authorised his Advocate to make such a concession. I scanned the counter-affidavit to see whether there is any such averment, but I find that the landlady states that the tenant is fully aware of the proceedings from the beginning. Narrating the events that preceded the order dated 12-11-1998 it is averred that this Court heard the CRP on various dates and after hearing the matter, this Court has granted time to the Advocate to get instri'ctions from his client to elect either immediately vacate or seek time for vacating the premises on the date of hearing he faintly tried to justify the orders of the Courts below and he has chosen to elect to seek time for vacating the premises. This version of the landlady is not borne out by the proceedings of this Court. Be that as it may, the fact remains that the landlady has not pleaded that the tenant gave consent for such an order being passed or authorised hts Advocate not to press his case. Sri Fariduddin, Advocate is not on record and obviously so, since the tenant has terminated his vakalat and engaged another Advocate. Evidently the assertion of the tenant that he has not authorised Sri Fariditddin to make that concession remains uncontroverted.
14. Next aspect for consideration is whether the concession of an Advocate or his conduct in the Court in not pressing the case of his client binds the party and what is its effect on the consent order passed by this Court based on such an unauthorised concession. It is a matter of elementary knowledge that an Advocate is only an agent of a party. He is governed by the terms of vakalat that is filed into Court. A reading ofthe vakalat does not show that an Advocate is entitled to represent that he does not press the case of the party. "Every Advocate is supposed to carry out the instructions of the party and plead his case to the best of his ability, but in any event he cannot make any concession which is detrimental to the interest ofthe party. It is another thing if the parties viz., landlady and tenant enter into a compromise and that would be a different situation. Since this is not a case of compromise, the question whether Sri Fariduddin was empowered to enter into a compromise or not need not be gone into. However, the record shows that Sri Fariduddin, Advocate has not pressed the case of the tenant and sought for six months time for vacating the premises. When the tenant has filed an affidavit swearing to the fact that he has not authorised his Advocate to make any such concession and there is no material to controvert that assertion, I hold that the learned Counsel has exceeded his authority. It follows that the tenant is not bound by the said concession.
15. It may now be seen whether the above concession even if it is to be held to be binding, makes out a ground for eviction of the tenant.
16. It may be borne in mind that the CRP arose out of refusal to pass an eviction order on the ground of wilful default of payment of rent under the provisions of the Rent Act. The Rent Controller as well as the appellate authority have concurrently held that the ground of wilful default has not been made out. It would be beyond the scope of this application to consider whether the above finding is correct or not. Suffice it to say that the Rent Act in this State is a special enactment providing for eviction of tenants and exclusive jurisdiction is conferred upon the Rent Controller. It is needless to say that an eviction order can be passed only on certain limited grounds, one of them being wilful default in payment of rent. \t\Nagindasv. Dalpatram Iccharam Alias Brijram, , the Supreme Court considered the case of a consent decree for possession being passed in a proceeding under Section 28 of Bombay Rents, Hotels and Lodging House Rates Control Act and held that existence of one of the statutory grounds mentioned in Sections 12 and 13 is a sine qua nan for passing a decree for eviction. Likewise in Poshan La! v. Madan Lal, , the Supreme Court held that a decree for eviction can be passed only if it is satisfied that a ground for passing such a decree in accordance with the requirement of the statute has been established. So also in Nai Baku v, Lola Ramanarayan, AIR 1978 SC 226, it is held-
"A decree for eviction of a tenant cannot be passed solely on the basis of a compromise between the parties, The Court is to be satisfied whether a statutory ground for eviction has been pleaded which the tenant has admitted by the compromise. Thus dispensing with further proof, on account of the ( compromise, the Court is to be satisfied about compliance with the statutory requirement on the totality of facts of a particular case bearing in mind the entire circumstances from the stage ofpleadings upto the stage when the compromise is effected."
17. Now turning to the order dated 12-11-1998, there is neither an admission of Sri Fariduddin, Advocate that the tenant committed wilful default even if his concession as it stands is to be accepted nor" there is any finding that the tenant committed wilful default, be it on the concession of the Advocate or available evidence on record. In the absence of the above basic requirement, in my view, it cannot be treated as a valid eviction order passed under the provisions of the Rent Act. I am fortified in my above view by the authorities cited Nagindas v. Dalpatram Iccharam Alias Brijram, Roshan Lal v, Madan Lal and Nai Baku v. Lala Ramnarayan (supra).
18. Lastly it is for consideration whether the tenant can seek redressal under Section 151 of CPC for setting at naught the above order. Sri Laxma Rsddy, learned Counsel for the landlady raised a two-fold objection. He contended firstly that there is no provision in the Rent Act for setting aside such orders and this Court exercising powers of revision under Section 22 of the Act cannot seek recourse to Section 151 of CPC and secondly that only in pending cases, Section 151 CPC can be pressed into service. It is true that there is no specific provision in the Rent Act, but it does not mean that this Court is powerless in such situations. It cannot be forgotten that the Court of Revision under the Act is also a Court which has its inherent powers. Evidently in the absence of an express provision in the Act, it is open to the Court to exercise inherent powers to recall an illegal order. The other limb of his submission that inherent powers can be exercised only in pending proceedings also appears to be devoid of merit. In P. Satyanarayana v. Land Reforms Tribunal, , a Division Bench of this Court had an occasion to consider the scope of Section 151 CPC in the matter of recalling or reviewing its own orders under a special enactment A.P. Land Reforms (Ceiling on Agricultural Holdings) Act and after referring to several judgments of this Court and Supreme Court and also other High Courts, held -
"On a conspectus of case law, it becomes quite evident that a Court or Tribunal cannot review its own order or judgment unless there is a statutory provision providing for the same. However, a Court or Tribunal has inherent powers to recall orders obtained by practising fraud on it. There is no question of the Court becoming fimctus officio, because it retains the jurisdiction to recall such orders. In inheres in a Court or Tribunal to review by recalling the orders on grounds of fraud, misrepresentation or other similar grounds."
The case on hand is also under a special enactment A.P. (Lease, Rent and Eviction Control) Act and hence the above judgment is applicable. That apart there is a direct ruling of another Division Bench of this Court in Soni v. K. Nageswara Rao (DB), , wherein it is held -
"So far as the general question as to whether the provisions of the CPC apply to proceedings before the Rent Controller is concerned, it is sufficient to refer to the guarded language in the Division Bench judgment in Harikishan Singh v. B. Narayana, 1969 (2) APLJ 290, wherein it was observed that the CPC does not apply provided there was adequate provision in the Act or Rules and provided it does not offend the Scheme and Purpose of the Act. Ekbots and Kuppttsivami, JJ., (as they then were) observed as follows:
"We are inclined to agree with the view that the provisions of the CPC would, as far as possible, be applied to the proceedings under the Rent Control Act, in cases where no adequate provision is made in the Act or in the Rules and provided that the provisions sought to be supplied are not inconsistent with any express provisions of the Act or with the scheme and purpose of the enactment."
"The above view of the Division Bench has been approved by a Full Bench of five Judges in P.N. Rao v. K. Radhakrishnamacharyulu, (FB), by adopting the same words of caution....."
19. A good number of authorities are cited to substantiate the contention that if any order is obtained by playing fraud upon the opposite party or on the Court, the very Court which passed the order has inherent power to deal with the matter and grant relied under Section 151 CPC. Before adverting to the case law, it is necessary to see whether the order dated 12-11-1998 was a result of fraud upon the tenant or/and the Court. I have dealt with this aspect to some extent in the earlier part of the order. To dilate further it is seen that there are; two parties to the alleged fraud. One is Sri Fariduddin, Advocate and the other is' his own client/tenant. If the representation of Sri Fariduddin in the Court is true and in accordance with the instructions of his client,: there is no question, of any fraud, but otherwise, if the representation is false and unauthorised, it amounts to fraud. One of the parties to the transaction is before this Court and he is asserting that he has not consented or authorised Sri Fakmddin to concede the matter and seek time for vacating the premises. The other party to the transaction Sri Fakruddin, Advocate is not here. I have already noticed above that the landlady did not assert in her counter affidavit that the tenant had in fact consented, to such an order or authorised Sri Fakruddin to represent that he was not pressing the case of the tenant etc. In such circumstances there is no other alternative left to this Court except .to accept the assertion of the tenant. The probabilities also lend support to his version because he succeeded in two Courts below and hence there is no reason for him to give up his case and seek a consent order. Evidently fraud has been played upon him by Sri Fakruddin, Advocate. Since this Court has acted upon such a fraudulent representation and passed an order, it goes without saying that fraud has been played upon the Court. Viewing thus I hold that the order dated 12-11-1998 was the result of fraud upon the tenant as well as the Court.
20. In Khaja Hussain v. Nasir Basha, 1964(1) ALT 232, it is held -
"A Court could, in the exercise of its inherent power, vacate the orders passed by it having been misled by the party. In legal parlance, it may amount to playing a fraud on the Court."
21. In Maitnunnisa v, Mohammad Khodabin, , it is held -
"Where the compromise petition filed by the parties to the suit is accepted by the Court and a decree in terms of the compromise is passed and subsequently an application is made by a party for setting aside the decree on the ground that his consent to the terms of the compromise was obtained by fraud, the Court can entertain the application under Section 151 and if it is found that the party had not consented to the terms of the compromise and his consent was obtained by fraud, then the compromise cannot be said to be a lawful compromise and it has to be held that the Court was induced to record the compromise on false representation which shall amount to practising fraud on the Court and not merely a fraud upon the party. In that case the Court has inherent power under Section 151 to ' set aside the compromise decree."
22. In Krishan Lal v. Gulab Rfim, , it is held-
"It is well settled that if one of the parties to the litigation obtains a favourable order from the Court on the basis of compromise which is alleged by the other party to have been obtained by fraud, the wronged party can seek redress by instituting a suit. But if the other party plays a fraud on the Court as well, then the very Court has inherent power to deal with the matter and grant relief on an application by the wronged party under Section 151 of Civil PC and it is not necessary for the said party to institute a suit for getting the wrong undone."
23. In Sri Sri Iswar Jew v. Bhagwandas, AIR 1982 Calcutta 126, it is held-
"Where the Court had passed a consent decree on the basis of an oral agreement between the parties, the decree, would be deemed to be unlawful, as the Court has no jurisdiction to pass a consent decree on basis of an oral agreement under Order 23, Rule 3. Therefore a suit for setting aside such decree would be barred by the provisions of Order 23, Rule 3-A. Only an application under Section 151 or a review would be the proper procedure."
24. On a conspectus of all the above authorities I have no doubt in my mind that an order which has been obtained by playing fraud upon a party or/and the Court can be set aside in exercise of inherent powers under Section 151 of CPC. Sri Laxma Reddy is unable to persuade me to accept the proposition that a civil suit is a proper remedy for setting aside any order or decree on the ground of fraud.
25. In tliis context Sri Laxma Reddy placed reliance upon tlie judgment in Raja Soap Factory v. S.P. Shamtharuj, , and argued that ,/.e inherent power may be exercised where there is a lawfully instituted proceeding, but it docs not authorise any Court to invest itself with jurisdiction where it is not conferred by law. Elaborating his contention he pointed out that this Bench (presided by KB./t,-J., ) is now assigned will) final hearing of Criminal Appeals and hence the CMP arising out of CRP cannot be heard. Sri Laxma Reddy canvassed this ground towards the fag end of hearing of the matter. Be that as it may, it is necessary to advert to the circumstances under which this mailer came to be listed before this Bench (V.B.R., J.,). The main CRP was heard by my learned brother N. Sanjeeva Reddy, J., and he disposed of the same on 12-11-1998. Thereafter the landlady filed a petition alleging that the tenant has not filed an undertaking that he would vacate the premises after expiry of six months as per the directions in the said order and hence he is liable to be punished. That petition was numbered as CC No.273 of 1999 and it was also listed before the same learned Judge. Urgent notice was ordered on 26-2-1999 and thereafter he demifted his office on 3-3-1999 and assumed as Vice-Chairman, Central Administrative Tribunal Allahabad. The Hon'ble the Chief Justice assigned the left over cases including CC No.273/1999 to this Bench (VBR, J.,). On 12-3-1999 CC No.273 of 1999 was listed. As the Notice before Admission was served upon the respondent/tenant, office was directed to verify whether any Advocate has entered appearance on his behalf and to post the same on 15-3-1999 by printing his name. It came up for hearing on 16-3-1999 and it has been disposed of by this Bench. Thereafter the tenant filed CMP No.8089 of 1999 for condonation of delay in filing CMP No. 11368 of 1999, a petition for setting aside the order dated 12-11-1998. Since Justice Satijceva Reddy had already demitted officer and thereafter this Bench was seized of the matter, the above CMP came to be listed before this Bench. Tlie tenant went on filing CMP after CMP in the same proceedings and all of them have been listed before this Bench. Thus, the present CMP is listed before this Bench even though in the meantime there is a change in the provision of Criminal Appeals. That is the origin and culmination of the proceedings before this Bench.
26. It is well settled that the assignment i of work among various Benches of the High Court is the prerogative of the Hon'ble the Chief Justice and accordingly the left over cases of NSR, J., on his demitting the office have been listed before this Bench and hence there is no error of jurisdiction in hearing that matter.
27. In the judgment Raja Soap Factory v. S.P. Shantharaj cited (supra), the Supreme Court considered a case where the District Court of Mysore, which had original jurisdiction under Trade and Merchandise Marks Act was closed for" summer vacation and there was no Judge functioning in the District Court and competent to exercise the powers of the District Court on May 5th, 1964. Thereupon the High Court of Mysore, which had no original jurisdiction, entertained the plaint and also an application for interim injunction and granted temporary injunction by an order dated May 29th, 1964. The question that arose was whether tlie High Court which was not invested with original jurisdiction could assume jurisdiction by exercising powers under Section 151 ofCPC. It has been held that the power may be exercised where there is a proceeding lawfully before the High Court and it does not authorise the High Court to invest itself with jurisdiction where it is not conferred by law.
28. The above ratio is not relevant to the facts of this case inasmuch as the earliest proceeding which was listed before this Bench was none other than CC No.273 of 1999 which arose out of the order dated 12-11-1998 and landlady herself is the petitioner therein and no such objection was raised till the fag end of hearing- of this case which is an off-shoot and ancillary to that proceeding.
29. For all the reasons given above, I find that the order dated 12-11-1998 is liable to be set aside under Section 151 of the Code of Civil Procedure. Accordingly, the CMP is allowed.
30. In the result, CMP No.11368 of 1999 is allowed and order dated 12-11-1998 passed by N.S.R., J., is set aside.
31. Post CRP No.3230 of 1997 for final hearing before an appropriate Bench after obtaining necessary orders from the Hon'ble the Chief Justice.