Madras High Court
Adit Bafna vs S.Muthulakshmi on 12 August, 2022
CRP.(NPD).No.2246 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 21.07.2022
PRONOUNCED ON : 12.08.2022
CORAM:
THE HONOURABLE MR. JUSTICE SATHI KUMAR SUKUMARA
KURUP
CRP.(NPD).No.2246 of 2021
and
CMP.Nos.17082, 17086 & 17087 of 2021
Adit Bafna ...Petitioner
-Vs-
1.S.Muthulakshmi
2.S.Pavalavannan
3.S.Arul
4.S.Latha
5.S.Banumathi
6.S.Varadharajan
7.S.Srivasan
8.S.Balaji
9.M.Srinivasan ... Respondents
Prayer: Civil Revision Petition filed under Article 227 of Constitution of India, to
allow the above Revision Petition by setting aside the award dated 03.03.2021 in
L.A.C.No.67 of 2021 passed by the Taluk Legal Services Authority, Poonamallee
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https://www.mhc.tn.gov.in/judis
CRP.(NPD).No.2246 of 2021
in the Lok Adalat organized by the District Legal Service Authority, Thiruvallur in
connection with O.S.No.358 of 2018 on the file of the Learned Subordinate Judge,
Poonamallee, recording the term of the Settlement Memo filed between the
parties.
For Petitioner : Mr.M.V.Seshachari
For Respondents : Mr.M.Balasubramanian for R8
R1 to R3, R5 to R7- served not appeared
R4 & R9 notice not ready
ORDER
This petition had been filed to allow the above Revision Petition by setting aside the award dated 03.03.2021 in L.A.C.No.67 of 2021 passed by the Taluk Legal Services Authority, Poonamallee in the Lok Adalat organized by the District Legal Service Authority, Thiruvallur in connection with O.S.No.358 of 2018 on the file of the Learned Subordinate Judge, Poonamallee, recording the term of the Settlement Memo filed between the parties.
2. The Petitioner had filed this Civil Revision Petition seeking to set aside the order passed by the Taluk Legal Services Authority, Poonamallee in the 2/28 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.2246 of 2021 Lok Adalat organized by the District Legal Service Authority, Thiruvallur, on 03.03.2021.
3. It is the submission of the Learned Counsel for the Petitioner that the award passed by the Taluk Legal Services Authority, Poonamallee is a conclusive decree. The 8th Respondent and 9th Respondent had colluded and obtained a decree against the Petitioner behind the back of the Petitioner. The suit was filed by the Plaintiff for specific performance to enforce the agreement of sale dated 20.09.1999 as against 9th Respondent, who was the sole defendant in the suit. The 9th Respondent/Defendant had already sold the property to the third party on 18.08.1999, the Petitioner had purchased the property through registered sale deed dated 18.04.2001 from the third party, viz., Mr.B.N.Govardhan, to whom the 9th Respondent/Defendant executed a sale deed on 18.08.1999. Suppressing those facts, the Respondents 1 to 9 had collusively filed a joint compromise memo and obtained a decree for specific performance for the property situated at Virugambakkam. The sale deed also executed by the 9th Respondent/ Defendant in favour of the 8th Respondent/9th Plaintiff as per the registered sale deed dated 08.06.2001. The Petitioner herein was not a party to the said suit. The 9th 3/28 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.2246 of 2021 Respondent/Defendant had conveyed the suit property in favour of one Mr.B.N.Govardhan, as per the sale deed dated 18.09.1999, registered as Doc.No.4593 of 1999 on the file of the Sub-Registrar, Virugambakkam. The said Mr.B.N.Govardhan had appointed Mr.Dinesh Jain as his Power of Attorney Agent, as per Power of Attorney Deed dated 13.12.1999, registered as Doc.No.1842 of 1999 with the Sub-Registrar Office, Chennai North. The said Power of Attorney Agent Mr.Dinesh Jain had executed a sale deed in favour of the Revision Petitioner, as per registered sale deed dated 18.04.2001 registered as Doc.No.1817 of 2001 on the file of the Sub-Registrar Office, Virugambakkam.
The Revision Petitioner is in absolute possession and enjoyment of the suit property and he had been issued patta as patta No.5940. The plaint in O.S.No.261 of 2016, filed by the Plaintiff states that he had filed the suit only for permanent injunction. The said Plaintiff in O.S.No.261 of 2016 had claimed right over the property on the basis of unregistered sale agreement deed dated 20.09.1999 entered with the 9th Respondent/Defendant, who was the sole Defendant in the suit. The trial Court failed to consider that the plaint in O.S.No.261 of 2016 was rejected under Order 7 Rule 11 CPC, pursuant to the order passed in I.A.No.826 of 2016 dated 07.08.2017. The said order had attained finality. The trial Court 4/28 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.2246 of 2021 ought to have seen that though the plaint in O.S.No.261 of 2016 was rejected on 07.08.2017 itself, the Plaintiff in O.S.No.358 of 2018 had deliberately failed to disclose the same in O.S.No.358 of 2018. The Revision Petitioner had also filed a suit in O.S.No.399 of 2017 as against the Plaintiff in O.S.No.358 of 2018 and had obtained ad-interim injunction against the Plaintiff in O.S.No.358 of 2018. During pendency of the two suits, the Defendant in O.S.No.399 of 2017 had passed away.
The Revision Petitioner had filed an application to implead the 8th Respondent herein as party to the said suit. The said application with I.A.No.1096 of 2018 to implead the 8th Respondent was allowed on 05.03.2019. The agreement for sale is dated 20.09.1999. The suit for specific performance filed in the year 2018 is hopelessly barred by limitation. The said suit ought not to have been taken on file.
The trial Court ought to have seen that there is an obligation cast under Section 3 of the Limitation Act, not to take the suits which are hopelessly barred by limitation. The trial Court ought to have seen that the agreement of sale is dated 20.09.1999 and the time limit was fixed for four months. Therefore, the suit for specific performance can be filed only after up to three years. After a lapse of time fixed for performance, the trial Court ought to have seen that the pre suit purchasers are proper and necessary party to the suit for specific performance and 5/28 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.2246 of 2021 the suit is not maintainable in the absence of necessary party. The trial Court ought to have seen that the Respondents have deliberately colluded together and obtained an award before the Lok Adalat in a clandestine and illegal manner and by misusing the award by Lok Adalat, the Respondents are attempting to grab at the property in an illegal manner. The trial Court ought to have seen that the Respondents are trying to snatch away the valuable property for paltry sum of Rs.5,00,000/-. The Respondents had deliberately committed fraud upon the Court and Lok Adalat with a view to obtain an award behind the back of the Petitioner, who is in enjoyment and possession of the property. The Respondents were aware of the purchase of suit property by the Petitioner herein. When all the parties to the suit have not signed the award form, the Hon'ble Lok Adalat has no jurisdiction to pass the impugned award dated 03.03.2021. The Respondents had illegally registered the Lok Adalat award before the Sub Registrar Office, Virugambakkam, on 07.06.2021 as Doc.No.3150 of 2021. Subsequently, the 9th Respondent had executed a sale deed dated 08.06.2021, registered as Doc.No.3161 of 2021. Therefore, the Learned Counsel for the Petitioner seeks to set aside the award dated 03.03.2021 in LAC.No.67 of 2021 passed by the Taluk Legal Services Authority, Poonamallee in the Lok Adalat organized by the 6/28 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.2246 of 2021 District Legal Services Authority, Thiruvallur in connection with O.S.No.358 of 2018 on the file of the Learned Sub-Judge, Poonamallee.
4. The Learned Counsel for the Respondents vehemently objects to the same stating that this is not a fit case. The Respondents had genuinely filed the case against Mr.B.N.Govardhan. Subsequently, it was referred to the Lok Adalat, therefore, the Lok Adalat decree is maintainable. It is not collusive decree as contended by the Petitioner, at the same time, it was referred to Lok Adalat and based on the compromise arrived in between the parties, the award was passed by the Lok Adalat which cannot be set aside. This petition is not maintainable and is to be dismissed.
5. The Learned Counsel for the Revision Petitioner had invited the attention of this Court to the averments in the plaint copy, which are enclosed in the typed set, particularly at Paragraphs Nos.9 & 10 of the plaint and also para Nos.18 & 20 which are extracted hereunder:
“9. The Plaintiff submits that as per the terms and conditions of the said sale agreement, the said sale transaction shall 7/28 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.2246 of 2021 be completed within three months by receiving the balance sale consideration. The plaintiff submits that after execution and registration of the sale agreement, the Defendant herein failed to comply the terms and conditions of the sale agreement. The Defendant herein failed and neglected to hand over the original titile deeds and income tax clearance certificate as mentioned in para 9 of the said sale agreement.
10. The Plaintiff submits that subsequently, on 25.10.1999, the Defendant herein approached the plaintiff, i.e., the agreement holder and requested to pay a further sum of Rs.1,50,000/- for the purpose of paying the loan with the Airport Authority of India where the Defendant employed. The Plaintiff herein paid a sum of Rs.1,50,000/- in favour of the Defendant for the above said purpose and to that effect the Defendant herein acknowledged the said amount and issued receipt for the amount received by the Defendant.
18. The Plaintiff submits that the Plaintiff informed to the local police about the illegal activities of the said Mr.Adit Bagha alias Adit Bafna and the Plaintiff herein produced the sale agreement, receipt for the subsequent payment made by the 8/28 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.2246 of 2021 Plaintiff, tax, water and drainage receipt stands in the name of the Plaintiff before the Inspector of Police, Valasaravakkam for enquiry. The Inspector of Police verified the documents produced by the Plaintiff. During the course of enquiry, the said Mr.Adit Bagha alias Adit Bafna produced the sale deed bearing document No.1817 of 2001 and also produced encumbrance certificate from 01.01.1987 to 02.05.2001 and also produced encumbrance certificate from 1.1.1987 to 2.5.2016. The Inspector of Police directed the Plaintiff as well as the said Mr.Adit Bagha alias Adit Bafna to get the remedy through Court of law since it is purely civil in nature. At the time of enquiry, the said Mr.Adit Bagha alias Adit Bafna herein admitted that the Plaintiff is in occupation of the schedule mentioned property from the year 1999 onwards.
20. The Plaintiff submits that the said Mr.Adit Bagha alias Adit Bafna is highly influential person in that locality and he may dispossess the Plaintiff from the suit property with the assistance of rowdy elements. In the same manner, the said Mr.Adit Bagha alias Adit Bafna made arrangement to alienate the suit property in favour of any 3rd parties. He also made arrangements to transfer the property tax, water and drainage tax in his favour through the authorities concerned. If he succeeds in his attempt, the Plaintiff will be put much hardship, loss and mental agony. Hence, the Plaintiff herein filed a suit for permanent injunction against the 9/28 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.2246 of 2021 Defendant and others in O.S.No.261 of 2016 on the file of the District Munsif Court, Poonamallee and the said proceedings pending before the Court.”
6. The Learned Counsel for the Petitioner invited the attention of this Court to the Lok Adalat decree and invited the attention of this Court to the compromise recorded by the Learned Sub Judge, copies of which are available in the typed set. Also the Learned Counsel for the Petitioner invited the attention of this Court to the market value of the suit property as furnished in the typed set page No.160.
7. The Learned Counsel for the Petitioner invited the attention of this Court to the rulings in support of his contention in the Judgments:
1) Bharvagi Constructions and Ors. Vs. Kothakapu Muthyam Reddy and Ors. In C.A.No.11345 of 2017 (Arising out of SLP.( C ).No.23605 of 2015) dated 07.09.2017, the relevant portion at para No.27 is extracted hereunder:
“27. In our considered view, the aforesaid law laid down by this Court is binding on all the Courts in the country by 10/28 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.2246 of 2021 virtue of mandate of Article 141 of the Constitution. This Court, in no uncertain terms, has laid down that challenges to the award of Lok Adalat can be done only by filing a writ petition under Article 226 and/or Article 227 of the Constitution of India in the High Court and that too on very limited grounds.”
2) In the judgment of High Court in M.Antonysamy Vs. S.Mumtaj and Ors. Reported in MANU/TN/7557/2018 in CRP(NPD).No.3868 of 2017 dated 18.12.2018, the relevant portions at para Nos.22 & 23, are extracted hereunder:
“22. The issue as to whether the revision petitioner, who was not a party to the suit, can seek for setting aside an award obtained by fraud or misrepresentation is also no more res-integra in view of the following decisions:
1)1998 (1) CTC 470 [J.Sivasubramanian V. N.Govindarajan], “1. A person who is not a party to the suit, but who is aggrieved by the decree, has come to this Court, under Art.
227 of the Constitution of India, alleging fraud and collusion in obtaining the decree.
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13. I feel that all these decisions will show that a duty is cast on the litigant to plead, pray and get relief by placing all materials before Court. By suppressing facts and without impleading the necessary parties, a collusive decree is obtained. In the case on hand, the collusion is apparent. A person who has no right in the property concedes the right of the plaintiff to get a decree, and that too within 49 hours of filing of the suit. The result of this is getting unfair advantage over the rights of the petitioners and to deprive them of their properties. Both the respondents were aware that the petitioners are in possession on the basis of documents. They themselves (i,e. parties to the suit) admit the possession of the petitioners. But, without disclosing any of these documents, the power of attorney (agent) filed the suit against the principal and gets a decree, by consent. I have already stated as to what is the legal effect, i.e., the second respondent (defendant) himself is the plaintiff and defendant. It will be unjust to accept the contention of the respondents. Such a collusive decree also cannot http://www.judis.nic.in be allowed to stand. After coming to know of these facts, if any Court shuts its eyes to realities, it will cease to be a Court of Justice. By invoking the judicial supervisory jurisdiction, I declare that the decree in O.S.No.7631 of 1997, on the file of XV Assistant Judge, City Civil Court at Madras is a nullity 12/28 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.2246 of 2021 and on the basis of the said decree, possession of the petitioners shall not be disturbed. I further find that since the suit is filed fraudulently, the same is liable to be quashed, and I do so. O.S.No.7631 of 1997 is struck off from the file of the lower Court. The Civil Revision Petition is allowed with costs. Advocate's fee Rs. 2,500 (Rupees Two thousand five hundred). CMP. No. 17556 of 1997 for stay is closed.”
2)Manu/AP/0554/2009 [Batchu Subba Lakshmi V. Sannidhi Srinivasualu] “7. Under Section 21(1) of the Act an award of Lok Adalat shall be deemed to be decree of a Civil Court and under Section 21(2) of the Act every award made by Lok Adalat shall be final and binding on all the parties. No appeal shall lie to any Court against the award, and therefore, ordinarily a writ petition challenging award is also barred. But there may be situations http://www.judis.nic.in where there being no compromise or settlement as envisaged under Section 20(3) and (5) of the Act, Lok Adalat may have passed an award. In other words, what would be the position if Lok Adalat passes an order even without parties arriving at a compromise or settlement among themselves. In such a situation, it cannot be said that there is an award of Lok Adalat, which can be enforced by a Civil Court as a decree. There may be yet another situation where in the absence of the parties to the lis or in the absence of one of the parties to the lis, award of Lok Adalat may have been obtained by impersonation, 13/28 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.2246 of 2021 misrepresentation or fraud. Even in such cases, there being no valid award, Section 21(1) of the Act is not attracted. Having regard to the language of Article 226(1) of Constitution of India, which empowers the High Court of a State to issue writs, orders or directions against any public authority or against authorities discharging public functions, the High Court can entertain a writ petition against an award of Lok Adalat. The phrase 'for any other purpose' appearing in Article 226(1) of Constitution, in our opinion, is broad enough to take within its purview the situations where a statute contains 'no Certiorari clause'. It is well settled that 'no Certiorari clause' in a statute does not bar the Constitutional Court from entertaining a petition for redressal of grievance http://www.judis.nic.in and issue an appropriate order ex debito justitiae. Therefore, in either of the situations or any such other situations, a writ petition would lie.
Who can file writ petition challenging the Lok Adalat Award
8. The parties to the compromise or settlement, which is the basis for award of Lok Adalat, no doubt entitled to challenge the award on any of the grounds referred to herein above grounds. Ordinarily, a third party cannot challenge the award in a writ petition even if such award causes prejudice. The remedy of such party would be to institute a separate suit or proceeding for necessary redressal and seek appropriate decree of declaration by filing a suit within the period of limitation prescribed under law. Under Section 34 of the Specific Relief Act, 1963, any person entitled to legal character or any right as to any property, may file a suit 14/28 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.2246 of 2021 for declaration. Under this provision, any person can even institute a suit for declaration that the decree passed by Civil Court in an earlier suit is not binding on him. When a civil Court can even declare that an earlier decree of the Court is not binding on the party before it, we do not see any objection for a third party to institute a suit in a civil Court seeking a declaration that the award of Lok Adalat is not binding on him/her subject to the law of limitation. We however hasten to add http://www.judis.nic.in that there may be extraordinary cases where a third party is meted with injustice at the behest of two or more conniving and colluding parties, who may have obtained an award of Lok Adalat by fraud or misrepresentation only to defeat the rights of such third party. In such cases within a reasonable period such third party may maintain a writ petition. But in such cases, there should be prima facie evidence of fraud or misrepresentation or collusion in obtaining the award of Lok Adalat. Even if such allegations are made and the question involves complicated questions of fact requiring voluminous evidence, third party should be left to seek remedy in a civil Court rather than preferring extraordinary remedy under Article 226 of Constitution.
13.Reverting to the facts of this case, there is no dispute that respondents 1, 2 and 4 are partners in 3rd respondent firm. There is also no dispute that respondents 1 and 2 filed O.S. No. 1 of 2004 against third respondent and its Managing Partner, the fourth respondent, for dissolution of firm and rendition of accounts. On 07.2.2004, plaintiffs and defendants therein signed memorandum of compromise and 15/28 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.2246 of 2021 settlement whereunder they agreed to withdraw from the firm and fourth respondent was permitted to continue the business till 31.3.2008, failing which it shall be open to first respondent to execute the decree and recover possession of http://www.judis.nic.in vacant site used as stockyard for the business of third respondent. The award passed by Lok Adalat on 07.2.2004 was signed by respondents 1 and 2. Fourth respondent signed on his behalf and also on behalf of third respondent firm. Either on the date of award of Lok Adalat or during pendency of suit before District Court, Nandyal, allegation of reconstitution of third respondent firm with petitioners and fourth respondent as new partners was not revealed. There is also no dispute nor it can be denied that partnership deed dated 01.4.2003 was executed by petitioners and fourth respondent on the stamp papers which had been produced (sic. purchased) by third respondent firm on 27.3.2001 long prior to disputes arose among respondents 1 to 4. This creates any amount of doubt on the case put up by petitioners. This doubt becomes strong when we realised that the petitioners 1 to 3 are stepmother, wife and grandfather respectively of fourth respondent and they are all living under the same roof. The allegation made by respondents 1 and 2 in their counter affidavit remains uncontroverted. These lend support to the submissions made on behalf of respondents 1 and 2 and we do not see strong reasons to discredit those submissions.”
3)2013 (6) CTC 166 [P.Subramani V. A.Periyasamy] http://www.judis.nic.in “21.In the present case, the entire proceedings 16/28 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.2246 of 2021 relating to delivery of possession are vitiated by fraud. When an order is obtained by resorting to fraud, all the subsequent proceedings thereto will also render it vitiated. In this context, I am fortified by the decision of this Court reported in (J. Sivasubramanian and another vs. N. Govindarajan and another) 1998 1 CTC 470 relied on by the learned counsel for the revision petitioner. In that case, this Court took note of the fact that the suit was filed by suppressing material facts and by not impleading the proper and necessary parties. This Court held that fraud and collusion are palpable and that the decree was obtained by power of attorney agent as against his own principal thereby depriving his right over the property, which was purchased by him from the original owner. As the power agent filed the suit by suppressing the material facts, this Court held that "....in such cases, it is the duty of the Court to see that the suit itself is wiped off from the file." It was also held by this Court that in such circumstances the revision petition under Article 227 of the Constitution of India is very much maintainable. In that case, this Court, relying on the decision of the Honourable Supreme Court reported in S.P. Chengalvaraya Naidu (dead) by Lrs vs. Jagannath (dead) by Lrs and others, 1994 (1) SCC 1 culled out the legal propositions as follows:-
http://www.judis.nic.in "12. In S.P. Chengalvaraya Naidu (dead) by LRs. v. Jagannath (dead) by LRs. and others, , their Lordships have decided as to what is meant by 'fraud'. In paragraph 6, Their Lordships have held thus:- "... A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage 14 of another. It is a 17/28 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.2246 of 2021 deception in order to gain by another's loss. It is a cheating intended to get an advantage..." Their Lordships have further said thus:- "A litigant who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side, then he would be guilty of playing fraud on the Court as well as on the opposite party." In the earlier portion of that Judgment, their Lordships have held thus:- "... We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation." The effect of such a decree obtained in such cases is also stated in that judgment thus:- "... 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.... A judgment or decree obtained by http://www.judis.nic.in playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree by the first Court or by the highest Court has to be treated as a nullity by every Court, whether superior or inferior. It can be challenged in any court even in collateral proceedings." In Mahboob Sahab v. Syed Ismail and others, of the judgment, Their Lordships declared thus:-18/28
https://www.mhc.tn.gov.in/judis CRP.(NPD).No.2246 of 2021 "... The reason is that fraud is and extrinsic collateral act, which vitiates the most solemn proceedings of courts of justice. If a party obtains a decree from the Court by practicing fraud or collusion, he cannot be allowed to say that the matter is res judicata and cannot be reopened. There can also be no question of res judicata in a case where signs of fraud or collusion are transparently pregnant or apparent from the facts on record." In paragraph 10, Their Lordships further declared thus:-
"... Section 44 of the Evidence Act envisages that any party to a suit or proceeding may show that any judgment, order or decree, which is relevant under Sections 40, 41 or 42 has been obtained by fraud or collusion. Under Section 40, the existence of the judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such court ought to take cognizance of such suit or to hold such trial." In Indian Bank v. Satyam Fibres http://www.judis.nic.in (India) Pvt. Ltd., it was declared thus:- "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 19/28 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.2246 of 2021 never dwell together (Fraud et jus nunquam cohabitant).
Fraud and deceit defend or excuse no man (Fraud et dolus nemini patrocinari debent). The judiciary in India also possesses inherent power, specially under Section 151, CPC., to recall its judgment or order if it is obtained by fraud on court. In the case of fraud on a party to the suit or proceedings, the Court may direct the affected parly to file a separate suit for setting aside the decree obtained by fraud. Inherent powers are powers which are resident in all Courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the tribunals or courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rule, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the Court's business. 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.”
23. On a overall appreciation of the observations in the aforesaid decisions, I am of the view that the award before the Lok Adalat was 20/28 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.2246 of 2021 obtained by fraud and collusion exercised by the parties to the suit and as such, the award itself has no validity and deemed to be non-est. It is a settled law that fraud vitiates all solemn acts and an award obtained by playing fraud is nullity. Hence, this Court would be justified in setting aside the award by exercising its power under Article 227 of the Constitution of India.”
3) In the judgment of High Court in A.Arokiyasamy and another Vs. M.Rangasamy and another, in CRP.(PD).No.2644 of 2019 & CRP.SR.No.90123 of 2019 dated 14.08.2019, the relevant portions at para Nos.6 & 15, are extracted hereunder:
“6. In the Judgment in J.Sivasubramanian and another Vs. V.N.Govindarajan and another, reported in 1998 (1) CTC 470, it is held that while invoking superintending power over the Sub- ordinate Courts under Article 227, the High Court can maintain a revision filed by a person who is not a party to suit to challenge the decree or Judgment obtained by fraud and collusion. In view of the judgment, the Petitioner is entitled to maintain the revision. Hence, leave granted. Registry has rightly numbered the Civil Revision Petition.21/28
https://www.mhc.tn.gov.in/judis CRP.(NPD).No.2246 of 2021
15. At the outset, it is pertinent to note that the suit filed by the first Respondent for specific performance was instituted on 05.03.2012. By that time the sale in favour of Baby Arokiasamy itself was completed i.e., on 21.01.2011. All the entries are found in the registers of the Sub-Registrar, Puliyampatti, where the registration had taken place. The first Respondent must have verified the encumbrance before filing the suit on the basis of unregistered agreement, which was said to have been entered into between parties two years before institution of the suit. The decree passed by the trial Court on 12.04.2014, was on merits refusing to exercise its discretion in favour of the first Respondent, in spite of the absence of the second Respondent, who was the sole Defendant.
The reason for negativing the prayer was that the Defendant therein could not produce documents of title, even after the extended period. Since he failed to prove his title, and the Plaintiff also had not taken efforts, the relief of specific performance was denied and refund of advance amount was ordered. Even thereafter also the Defendant could not produce the documents, as admittedly, they were in possession of the Petitioner. Such being the case, there is no necessity for the Defendant to reopen the suit which was decided on merits and to go for a settlement unless he was compelled by the first Respondent. Even before the Lok-Adalat the documents were not produced, but the Defendant agreed to execute the sale deed within one month.” 22/28 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.2246 of 2021
4) The Hon'ble Supreme Court's Judgment in S.P.Chengalvaraya Naidu Vs. Jagannath (Dead) reported in MANU/SC/0192/1994, in C.A.No.994 of 1972 dated 27.10.1993.
5) In the judgment of the Hon'ble Supreme Court in Durga Prasad and Ors Vs. Deep Chand and Ors, reported in MANU/SC/0008/1953, in C.A.No.86 of 1950 dated 18.11.1953, the relevant portions at para Nos.28, 29 & 30, are extracted hereunder:
“28. First, we reach the position that the title to the property has validly passed from the vendor and resides in the subsequent transferee. The sale to him is not void but only voidable at the option of the earlier "contractor". As the title no longer rests in the vendor it would be illogical from a conveyancing point of view to compel him to convey to the plaintiff unless steps are taken to re-vest the title in him either by cancellation of the subsequent sale or by reconveyance from the subsequent purchaser to him. We do not know of any case in which a reconveyance. To the vendor was ordered but Sulaiman C. adopted the other course in Kali Charan v. Janak Deo(1). He directed cancellation of the subsequent sale and conveyance to the plaintiff by the vendor in accordance with the. Contract of sale of which the plaintiff sought. :specific performance.23/28
https://www.mhc.tn.gov.in/judis CRP.(NPD).No.2246 of 2021 But though this sounds logical the objection to it is that it might bring in its train complications between the vendor and the subsequent purchaser. There may be covenants in the deed between them which it would be inequitable to disturb by cancellation of their deed. Accordingly, we do not think that is a desirable solution.
29. We are not enamoured of the next alternative either, namely, conveyance by the subsequent purchaser alone to the plaintiff. It is true that would have the effect of vesting the title to the property in the plaintiff but it might be inequitable to compel the subsequent transferee to enter into terms and covenants in the vendor's agreement with the plaintiff to which he would never have agreed had he been a free agent; and if the original contract is varied by altering or omitting such terms the court will be remaking the contract, a thing it has no power to do; and in any case it will no longer be specifically enforcing the original contract but another and different one.
30. In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the 24/28 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.2246 of 2021 plaintiff. This was the course followed by the Calcutta High Courtin Kafiladdin v. Samiraddin (I), and appears to be the English practice. See Fry on Specific Performance, 6th edition, page 90, Paragraph 207 ; also Potter v. Sanders( 2 ). We direct accordingly.”
8. The Learned Counsel for the 8th Respondent relied on unregistered sale agreement deed dated 20.09.1999 in support of the Lok Adalat decree.
9. On consideration of the rival submissions and on perusal of the records in the typed set filed along with the Revision Petition, it is found that as on date of filing of the suit, the suit property was already conveyed to the Revision Petitioner and this Petitioner is in possession of the property.
10. As rightly pointed out by the Learned Counsel for the Petitioner that the suit filed for specific performance was filed by the Plaintiff in O.S.No.358 of 2017 in the year 2017 for performance of the sale agreement entered into in the year 1999. Therefore on the date of filing of the suit, limitation has expired.25/28
https://www.mhc.tn.gov.in/judis CRP.(NPD).No.2246 of 2021 Further, there is suppression of facts by the Respondents regarding the sale deed available with the Revision Petitioner. The Revision Petitioner had already obtained ad-interim injunction against the 9th Respondent. In those circumstances, the passing of award by the Lok Adalat in favour of the Respondents 2 to 8 is found to be collusive. Therefore, as rightly contended by the Learned Counsel for the Petitioner and in the light of the reported rulings:- 1) Bhargavi Constructions and others Vs. Kothakapu Muthayam Reddy and others, 2) M.Anthonysamy Vs. S.Mumtaj and others, 3) A.Arokiasamy Vs. M.Rangasamy, 4) S.P.Chengalvaraya Naidu Vs. Jagannath and Durga Prasad and Ors Vs. Deep Chand and Ors, (cited supra), it is found that this is a fit case to exercise discretion under Article 227 of the Constitution of India, to set aside the award passed by the Lok Adalat held on 03.03.2021.
11. The submission of the Learned Counsel for the Respondents that the award cannot be set aside without a prayer for declaration of the award as null and void cannot be accepted, in the light of ruling cited by the Learned Counsel for the Petitioner. When the case is dismissed with the directions to agitate the valuable rights before the trial Court, it will be causing mental torture, the 26/28 https://www.mhc.tn.gov.in/judis CRP.(NPD).No.2246 of 2021 Petitioner herein, who have purchased the property through proper channel legally is forced to face litigation continuously for a period of 30 years up to Second Appeal. Therefore, the said submission of the Counsel for the Respondents is rejected.
12. In the light of settled position of law and in the light of the rulings cited in 1) Bhargavi Constructions and others Vs. Kothakapu Muthayam Reddy and others, 2) M.Anthonysamy Vs. S.Mumtaj and others, 3) A.Arokiasamy Vs. M.Rangasamy, 4) S.P.Chengalvaraya Naidu Vs. Jagannath and Durga Prasad and Ors Vs. Deep Chand and Ors, (cited supra), this Civil Revision Petition is allowed.
In the result, this Civil Revision Petition is allowed.
The award in favour of the Plaintiff in O.S.No.358 of 2018 passed by the Lok Adalat on 03.03.2021 is set aside. No costs. Consequently, connected Miscellaneous Petitions are closed.
12.08.2022
Index : Yes / No
dna
27/28
https://www.mhc.tn.gov.in/judis
CRP.(NPD).No.2246 of 2021
SATHI KUMAR SUKUMARA KURUP.J.,
dna
To
1.The Subordinate Judge, Poonamallee.
2.The Taluk Legal Services Authority, Poonamallee.
3.The District Legal Service Authority, Thiruvallur.
Pre-Delivery Judgment in CRP.(NPD).No.2246 of 2021 and CMP.Nos.17082, 17086 & 17087 of 2021 12.08.2022 28/28 https://www.mhc.tn.gov.in/judis