Madhya Pradesh High Court
Ramprakash Sharma vs Kusum Sharma on 8 February, 2017
1
M.Cr.C.No.12920/2015
(Ramprakash Sharma v. Kusum Sharma)
08/02/2017
Shri Rajeev Upadhyaya, Counsel for the
applicant.
Shri Anshu Gupta, Counsel for the respondent.
With the consent of the parties, case is finally heard.
This application under Section 482 of Cr.P.C. has been filed against the order dated 23-9-2015 passed by Sessions Judge, Sheopur in Criminal Revision No. 58/2014 by which order dated 19-9- 2014 passed by J.M.F.C., Sheopur in case no. 15/11 has been affirmed.
The necessary facts for the disposal of this application in short are that an application under Section 125 of Cr.P.C. was filed by the respondent against the applicant, in which the applicant did not appear and was proceeded exparte and ultimately the application filed under Section 125 of Cr.P.C. was allowed and it was directed that the applicant shall pay Rs. 2000 per month by way of maintenance.
The applicant filed an application under Section 126(2) of Cr.P.C. for setting aside the exparte order on the ground that as the applicant had fallen ill therefore, he could not appear before the Trial Court. The said application was dismissed by the Magistrate by order dated 19-9-2014. Being aggrieved by the order of the Magistrate, the applicant filed Criminal Revision which too suffered 2 M.Cr.C.No.12920/2015 (Ramprakash Sharma v. Kusum Sharma) dismissal by order dated 23-9-2015.
It is submitted by the Counsel for the applicant that as the applicant had fallen sick therefore, he could not appear before the Trial Court and therefore, he was proceeded exparte and he was directed to pay Rs. 2000 per month by way of maintenance. It is further submitted that there was a sufficient cause for the applicant for not appearing before the Trial Court. It is further submitted by the applicant that in fact the applicant had obtained the order of maintenance by suppressing the fact that earlier also She had filed an application under Section 125 of Cr.P.C. which was dismissed by order dated 5-8-2004 passed by J.M.F.C. Sheopur in M.Cr.C. No. 40/04 and the said order was never challenged by the respondent. It was also submitted that while dismissing the first application, it was held that the respondent is not the legally wedded wife of the applicant and without disclosing the fact of dismissal of the first application filed under Section 125 of Cr.P.C., the subsequent application under Section 125 of Cr.P.C. was filed. Therefore, it was submitted that in fact the respondent has obtained the second order by playing fraud on the Court and on that ground the order dated 26-9- 2011 by which the applicant was directed to pay Rs. 2000 per month by way of maintenance is a nullity.
Per contra, the Counsel for the respondent submitted that the applicant was duly served and in 3 M.Cr.C.No.12920/2015 (Ramprakash Sharma v. Kusum Sharma) fact he had appeared before the Trial Court and on two occasions, he was proceeded exparte and on both the occasions, the order proceeding exparte was set aside. However, when the applicant did not produce any evidence in his support before the Trial Court therefore, his right to lead evidence was closed and therefore, the Courts below did not commit any mistake in rejecting the application filed under Section 126(2) of Cr.P.C. It is further submitted that for the first time, the applicant has raised the question about the dismissal of the first application and this ground was never raised in the application under Section 126(2) of Cr.P.C., therefore, the said ground cannot be taken into consideration. It is further submitted that as the applicant has merely challenged the order dated 19- 9-2014 passed by the J.M.F.C. Sheopur by which his application under Section 126(2) of Cr.P.C. was rejected and the order dated 23-9-2015 by which his criminal revision against the order dated 19-9- 2014 was rejected by the Sessions Judge Sheopur, therefore, he cannot argue the matter on merits.
Heard the learned Counsel for the parties and perused the documents filed along with the application.
So far as the non-appearance of the applicant before the Trial Court is concerned, both the Courts below have given a concurrent finding of fact that the applicant could not make out any good and 4 M.Cr.C.No.12920/2015 (Ramprakash Sharma v. Kusum Sharma) sufficient reason for explaining his non-appearance before the Trial Court and not leading any evidence in his defence, therefore, this Court is of the considered opinion that the findings of fact recorded by the Courts below are not perverse and hence, no interference is called for.
However, there is some substance in the contention raised by the Counsel for the applicant that the respondent had suppressed the rejection of her first application filed under Section 125 of Cr.P.C. on the ground that She is not the legally wedded wife of the applicant. It is settled law that fraud vitiates everything. The Supreme Court in the case of K.D. Sharma v. SAIL, (2008) 12 SCC 481, held as under :
26. It is well settled that "fraud avoids all judicial acts, ecclesiastical or temporal"
proclaimed Chief Justice Edward Coke of England about three centuries before. Reference was made by the counsel to a leading decision of this Court in S.P. Chengalvaraya Naidu v. Jagannath (1994) 1 SCC 1 wherein quoting the above observations, this Court held that a judgment/decree obtained by fraud has to be treated as a nullity by every court.
27. Reference was also made to a recent decision of this Court in A.V. Papayya Sastry v. Govt. of A.P. (2007) 4 SCC 221 Considering English and Indian cases, one of us (C.K. Thakker, J.) stated: (SCC p. 231, para 22) "22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, 5 M.Cr.C.No.12920/2015 (Ramprakash Sharma v. Kusum Sharma) tribunal or authority is a nullity and non est in the eye of the law. Such a judgment, decree or order--by the first court or by the final court--has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings. The Court defined "fraud" as an act of deliberate deception with the design of securing something by taking unfair advantage of another. In fraud one gains at the loss and cost of another. Even the most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam."
From the memo of revision which was filed before the Sessions Court against the order dated 19-9-2014, it is clear that the applicant had taken a specific stand that on earlier occasion the respondent had filed an application under Section 125 of Cr.P.C. and that was dismissed on the ground that she is not the legally wedded wife of the applicant. However, it appears that this ground raised by the applicant before the Revisional Court was not taken note of. It is a well established principle of law that Fraud vitiates everything. If a person has not come to a Court with clean hands, then he or She is not entitled for equitable relief. The allegation is that the respondent had suppressed the rejection of her first application which was filed under Section 125 of Cr.P.C. Thus, 6 M.Cr.C.No.12920/2015 (Ramprakash Sharma v. Kusum Sharma) prima facie it appears that the respondent had also not approached the Trial Court with clean hands. However, this aspect of the matter has not been dealt with by the Revisional Court, therefore, instead of recording any finding in this regard, it would be apposite to remand the case back to the Revisional Court to consider the effect of suppression of rejection of 1st application on the ground that the respondent is not the legally wedded wife of the applicant.
Accordingly, the order dated 23-9-2015 passed by the Sessions Judge, Sheopur in Criminal Revision No. 58/2014 is set aside and the parties are directed to appear before the Revisional Court on 3rd of April, 2017. It is made clear that if the applicant fails to appear before the Revisional Court on 3rd of April 2017, then this order shall loose its effect and the order dated 23-9-2015 passed by the Revisional Court would stand revived and no further opportunity shall be granted to the applicant.
With aforesaid observations, this application is allowed.
(G.S.Ahluwalia)
(ra) Judge