Orissa High Court
Bhikari Charan Samantray (Dead) vs Gajendra Kumar Samantray on 6 September, 2024
A.F.R
IN THE HIGH COURT OF ORISSA AT CUTTACK
SA No.72 of 1996
(In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908)
Bhikari Charan Samantray (dead) .... Appellants
& Others
-versus-
Gajendra Kumar Samantray .... Respondents
(dead) & Others Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):
For Appellants - Mr. N.K. Sahu, Advocate.
For Respondents - Mr. G. Mukherji, Senior Advocate
Assisted by
Mr. A. Mishra, Advocate.
CORAM:
MR. JUSTICE A.C.BEHERA
Date of Hearing :10.07.2024:: Date of Judgment :06.09.2024 A.C. Behera, J. This 2nd Appeal has been preferred against the reversing Judgment.
2. The original appellant in this 2nd Appeal i.e. Bhikari Charan Samantaray was the defendant before the Trial Court in the suit vide T.S. No.17 of 1985-I and respondent before the 1st Appellate Court in the 1st Appeal vide T.A. No.60 of 1993.
Page 1 of 40 SA No.72 of 1996
{{ 2 }} When during pendency of this 2nd Appeal, the original appellant Bhikari Charan Samantaray expired, then, the appellant Nos.1 to 8 were substituted as appellants in his place.
Likewise, Gajendra Kumar Samantaray and his mother Kamala Dei were the original respondents in this 2nd Appeal and plaintiffs before the trial court in the suit vide T.S No 17 of 1985-I and appellants before the 1st Appellate Court in the 1st Appeal vide T. A. No.60 of 1993.
When, during the pendency of this second appeal, they (original respondents i.e. Gajendra Kumar Samantaray and Kamala Dei) expired, then respondent Nos.- 1(a) to (c) were substituted as respondents in their places.
3. The suit vide T.S No.17 of 1985-I filed by the plaintiffs i.e. Gajendra Kumar Samantaray and his mother Kamala Dei (original respondents in this 2nd Appeal) against the defendant Bhikari Charan Samantaray (original appellant in this 2nd Appeal) was a suit for setting aside the ex parte judgment and decree passed against them on dated 24.09.1977 in O.S No.58 of 1976-I by the learned Munsif, Khordha and to declare that, the said ex parte Judgment and Decree dated 24.09.1977 passed in O.S No.58 of 1976-I is illegal, void and not binding upon them (plaintiffs) and to declare that, the plaintiff No.1 (Gagendra Kumar Page 2 of 40 SA No.72 of 1996 {{ 3 }} Samantaray) is the son of the defendant (Bhikari Charan Samanatray) and plaintiff No.2 (Smt. Kamala Dei) is the mistress of the defendant i.e. Bhikari Charan Samantaray and to direct the defendant Bhikari Charan Samantaray to pay Rs.300/- as monthly maintenance to the plaintiff No.2 (Smt. Kamala Dei).
4. The case of the plaintiffs in the suit vide T.S. No.17 of 1985-I against the defendant as per their pleadings was that, the plaintiff No.1 has born from his mother (plaintiff No.2, Kamala Dei) through his father Bhikari Charan Samantaray (defendant).
In the year 1958, while the mother of the plaintiff No.1 i.e. the plaintiff No.2 was young and unmarried, at that time, the brother of the plaintiff No.2 and the defendant had a joint timber business. For which, the defendant had free access to the parent's house of the plaintiff No.2 and during that time, relationship between the plaintiff No.2 and the defendant developed and during the course of such relationship between them, the defendant promised for keeping her (plaintiff No.2) as his mistress and giving such promise/assurance to the plaintiff No.2, the defendant brought the unmarried plaintiff No.2 from her parent's house to Puri and kept her (plaintiff No.2) with him in a rented house at Puri and they (plaintiff No.2 & defendant) consummated their lives in the said Page 3 of 40 SA No.72 of 1996 {{ 4 }} rented house at Puri as husband and wife and out of their such consummation, the plaintiff No.1 had borne at Puri and accordingly, the name of the defendant was entered in the birth certificate of the plaintiff No.1 as the father of the plaintiff No.1. Three months after the birth of the plaintiff No.1, the defendant abandoned the plaintiffs i.e. son and mother both at Puri in a helpless condition and came to his native village and did not take their any care. So, the plaintiff No.2 could not able to maintain herself and her minor son i.e. plaintiff no-1 at puri in the rented house, for which, without getting any way, she (plaintiff No.2) came from puri to her parent's house and took shelter there with her minor son (plaintiff No.1). Then, the plaintiff No.2 filed a case under section 488 of Old Cr.P.C against the defendant praying for maintenance, but, due to her financial incapability, she (plaintiff No.2) could not able to prosecute that case till its final hearing, for which, her said maintenance case was dismissed for default due to non-prosecution.
5. Thereafter, the defendant Bhikari Charan Samanataray being plaintiff, mischievously filed a suit vide O.S No.58 of 1976-I secretly without the knowledge of the plaintiffs arraying Smt. Kamala Dei as Defendant No.1 and minor Gajendra as defendant No.2 without their correct status and ages praying for a declaration that, the defendant No.1 Page 4 of 40 SA No.72 of 1996 {{ 5 }} (Kamala Dei) is not his legally married wife or his mistress and the minor defendant no-2 (Gajendra) is not his son. The mischievous plaintiff Bhikari Charan Samantaray of O.S No.58 of 1976-I managed to obtain the ex-parte decree in that suit vide O.S. No.58 of 1976-I against the defendants of that suit i.e. against Kamala Dei and minor Gajendra behind their back and without their knowledge by practising fraud and through suppression of notices/summons of that suit vide O.S. No.58 of 1976-I from its service upon them. Although, during the pendency of that suit vide O.S. No.58 of 1976-I, the minor defendant No.2 (Gajendra) attained his majority and as per law, it was mandatorily required for service of notices/summons on the minor defendant No.2 who attained majority during the pendency of the suit, but without complying such mandatory requirements/provisions of law, the plaintiff in O.S. No.58 of 1976-I i.e. Bhikari Charana Samantaray managed to obtain an ex parte Judgment and Decree on dated 24.09.1977 in that suit vide O.S. No.58 of 1976-I against the defendants thereof i.e. against Kamala & Gajendra illegally by adopting unlawful means and procedures abusing the process of the Court behind their back and without their knowledge.
6. They (defendants of O.S. No.58 of 1976-I) came to know about the said ex parte Judgment and Decree passed in O.S. No.58 of 1976-I Page 5 of 40 SA No.72 of 1996 {{ 6 }} against them for the first time on dated 14.05.1982, when the certified copy of that ex-parte judgment and decree of O.S No.58 of 1976-I was filed in an another suit vide O.S No.24/60-I of 1979-I by Bhikari Charan Samantaray in the court of Munsif, Banpur. Then, after knowing about the same, they (defendants in O.S No.58 of 1976-I i.e. Gajendra and Kamala) being the plaintiffs No.1 & 2 respectively filed the suit vide T.S No.17 of 1985-I against the plaintiff of O.S. No 58 of 1976-I i.e. against Bhikari Charan Samantaray arraying him as defendant praying for setting aside the ex-parte judgment and decree dated 24.09.1977 passed in O.S No.58 of 1976-I against them (Gajendra & Kamala), to declare that, the said ex-parte judgment and decree dated 24.09.1977 passed in O.S No.58 of 1976-I is illegal, void and not binding upon them (plaintiffs), to declare that, he (plaintiff No.1) is the son of the defendant and the plaintiff No.2 is the mistress of the defendant, to direct the defendant (Bhikari Charan Samantaray) to pay Rs.300/- as monthly maintenance to the plaintiff No.2 (Smt. Kamala Dei) and for partition of the properties.
7. Having been noticed from the trial court in the suit vide T.S No.17 of 1985-I, the defendant Bhikari Charan Samantaray contested the same by filing his written statement denying all the allegations alleged by the plaintiffs against him taking his stands therein that, the suit of the Page 6 of 40 SA No.72 of 1996 {{ 7 }} plaintiffs is malicious in nature. He (defendant) has his own family consisting of his wife, three sons and three unmarried daughters. The specific pleas/stands of the defendant were that, the plaintiff No.2 had married Bhima Naik alias Bhima Dutta of village Arakhakuda under Brahmagiri Police Station in the district of Puri. Her marriage with the said Bhima Naik alias Bhima Dutta is still subsisting and plaintiff No.1 has born from plaintiff No.2 through that Bhima Naik alias Bhima Dutta. The plaintiff No.2 had filed Criminal Misc. Case No.89 of 1959 under Section 488 of old Cr.P.C and Criminal Case No.190 of 1959 under Section 352 of IPC against him in the court of S.D.J.M, Khurda. The said cases of the plaintiff No.2 were dismissed on dated 23.03.1961 and 13.11.1961 respectively. So, the plaintiffs have no cause of action to file the present suit vide T.S. No.17 of 1985-I. Therefore, the plaintiffs have no locus standi to file the suit against him (defendant). In view of the earlier adjudications of Criminal Misc. Case No.89 of 1959 on 23.03.1961 and O.S No.58 of 1976-I on 24.09.1977 against the plaintiffs, they (plaintiffs) are estopped under law to claim themselves as his son and mistress.
The suit of the plaintiffs is barred by the law of limitation for the relief of declaration. Because, the suit has been filed by the plaintiffs after Page 7 of 40 SA No.72 of 1996 {{ 8 }} the statutory period i.e. 3 years after the disposal of Criminal Misc. Case No.89 of 1959 and more than 3 years after attaining the majority of the plaintiff No.1 as well as more than 3 years after the disposal of O.S No.58 of 1976-I. Even if, it is assumed about the knowledge of the plaintiffs from the date of filing of certified copy of the Judgment and Decree of O.S No.58 of 1976-I in O.S No.24/60 of 1979, still then, the suit of the plaintiffs is barred by limitation. Because, the certified copy of the Judgment and Decree in O.S. No.58 of 1976-I was filed in O.S. No.24/60 of 1979 in the year 1980, but the present suit vide T.S. No.17 of 1985-I has been filed more than 3 years after 1980. So, the suit of the plaintiffs is barred by law of limitation and the same is also hit by the principles of Res Judicata due to earlier adjudication of the status of the plaintiffs in criminal Misc. Case No.89 of 1959 under Section 488 of old Cr.P.C as well as in O.S No.58 of 1976-I against the plaintiffs.
There was no suppression of notices/summons in O.S No.58 of 1976-I against the defendants of that suit. So, the decree passed in O.S No.58 of 1976-I against the defendants of that suit is not an invalid decree.
The further case of the defendants was that, the defendant No.1 in O.S. No.58 of 1976-I i.e. Kamala Dei for herself and for her minor son Page 8 of 40 SA No.72 of 1996 {{ 9 }} i.e. defendant No.2 (Gajendra), she had received the Court summons of O.S. No.58 of 1976-I as mother guardian of minor defendant No.2. When after receiving the said summons, she (defendant No.1) did not appear either for herself or for her minor son Gajendra (defendant No.2) as her mother guardian in the suit vide O.S. No.58 of 1976-I, then Guardian ad Litem (GAL) was appointed by the Court in O.S. No.58 of 1976-I for the minor defendant No.2 (Gajendra) and the said GAL was supplied with the copy of plaint. As such, GAL contested the suit vide O.S No.58 of 1976-I on behalf of the minor defendant No.2 (Gajendra). Accordingly, after hearing of the suit vide O.S. No.58 of 1976-I on active participation of the GAL for the minor defendant No.2, that suit vide O.S. No.58 of 1976-I was decreed on dated 24.09.1977 against the defendants of that suit. Therefore, the Judgment and Decree passed on dated 24.09.1977 in O.S No 58 of 1976-I against the defendants (plaintiffs in the present suit vide T.S. No.17 of 1985-I) is valid and binding upon them. Because, the defendants in O.S No.58 of 1976-I (plaintiffs in the present suit) without appearing personally in that suit vide O.S No 58 of 1976-I, they had contested the same through GAL appointed by the court for the minor defendant No.2. The defendant of the present suit vide T.S. No.17 of 1985-I had/has no relationship with the plaintiffs in any manner at any Page 9 of 40 SA No.72 of 1996 {{ 10 }} point of time. He (defendant) and the plaintiff No.2 (Kamala) have not stayed in any house at Puri at any point of time. The plaintiff No.1 is not his son. Therefore, the suit of the plaintiffs is liable to be dismissed against him (defendant) with cost.
8. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 9 numbers of issues were framed by the Trial Court in the suit vide T.S No.17 of 1985-I and the said issues are:
ISSUES i. Is the suit maintainable?
ii. Is the suit barred by limitation? iii. Is there any cause of action to file the suit? iv. Is the suit hit by the principles of res judicata? v. Whether the ex parte Judgment and Decree in O.S. No.58 of 1976-I has been obtained by fraud, suppression of summons against the defendants in the suit vide O.S. No.58 of 1976-I without any notice to the minor defendant No.2, the Court guardian (GAL) was appointed for the minor defendant No.2 to defend the suit?
vi. Whether the Judgment and Decree passed in O.S. No.58 of 1976-I is illegal and void and not binding on the plaintiffs of this suit vide T.S. No.17 of 1985-I (defendants in O.S. No.58 of 1976-I)? vii. Whether the plaintiff No.1 is the son of defendant and plaintiff No.2 is the mistress of the defendant? viii. Whether the defendant is liable to pay maintenance of Rs.300/- per month to the plaintiff No.2? ix. To what other relief, the plaintiffs are entitled for?Page 10 of 40 SA No.72 of 1996
{{ 11 }}
9. In order to substantiate the aforesaid relief(s) sought for by the plaintiffs in T.S. No.17 of 1985-I against the defendant, they (plaintiffs) examined altogether 4 numbers of witnesses from their side including them (plaintiffs) as P.Ws.4 and 3 and relied upon the documents vide Exts.1 to 5.
On the contrary, in order to nullify/ defeat the suit of the plaintiffs vide T.S. No.17 of 1985-I, the defendant examined 3 witnesses on his behalf including him as D.W.2 and exhibited series of documents from his side vide Exts.A to O.
10. After conclusion of hearing and on perusal of the materials, evidence and documents available in the records, the Trial Court answered all the issues against the plaintiffs and in favour of the defendant and basing upon the answers in the issues against the plaintiffs, the Trial Court dismissed the suit of the plaintiffs vide T.S No.17 of 1985-I on contest against the defendant as per its Judgment and Decree dated 21.04.1993 and 06.05.1993 respectively assigning the reasons that, "as it appears from the certified copies of the Order Sheets and summons of O.S. No.58 of 1976-I vide Exts.3 & P that, after service of summons on the minor defendant No.2 (Gajendra) through his mother Guardian Kamala (defendant No.1), the defendant No.1 did not turn up, then, direction was made to the plaintiff by the Court to deposit fee for the appointment of Court guardian for minor defendant No.2 (Gajendra) and accordingly, Page 11 of 40 SA No.72 of 1996 {{ 12 }} Advocate Bishnu Charan Patnaik was appointed as Guardian Ad Litem (GAL) for the minor defendant No.2 in that O.S. No.58 of 1976-I. The said GAL was examined as D.W.1 in that O.S. No.58 of 1976-I and he (GAL, D.W.1) deposed by stating that, he had, issued notices to the minor (defendant No.2) and his mother Kamala (defendant No.1) as per the plaint address through under certificate of posting and accordingly, they (defendants) gave him instructions to proceed with the suit, but, he is not able to produce the receipt of the said under certificate of posting, for which, the above non-filing of the receipt of the under certificate of posting by the DW-1 (GAL) cannot take away the truthfulness of his evidence. Therefore, it cannot be held that, the ex parte Judgment and Decree passed in O.S. No.58 of 1976-I has been obtained by the plaintiff in O.S. No.58 of 1976-I by practising fraud and suppression of service of summons upon the defendants of that O.S. No.58 of 1976-I. So, the Judgment and Decree passed in O.S. No.58 of 1976-I is neither illegal nor void, but the same is lawful and proper and that is binding upon the defendants in O.S. No.58 of 1976-I (those are the plaintiffs in the present suit vide T.S. No.17 of 1985-I). That apart when, the certified copies of the Judgment and Decree passed in O.S. No.58 of 1976-I was filed in O.S. No.24/60 of 1979-I on dated 24.01.1980, but, not on 14.05.1982, then, the present suit vide T.S. No.17 of 1985-I filed by the defendants in O.S. No.58 of 1976-I being the plaintiffs three years after 24.01.1980 is barred by law of limitation, as the same has not been filed within 3 years since 24.01.1980. In addition to that, it was also further held by the Court that, the plaintiff No.1 of the present suit vide T.S. No.17 of 1985-I is not the son of the defendant. The plaintiff No.2 is not the mistress of the defendant. In view of the earlier Judgment and Decree passed in O.S. No.58 of 1967-I, the present suit vide T.S. No.17 of 1985-I is barred by res judicata. For which, the present suit vide T.S. No.17 of 1985-I filed by the plaintiffs (defendants in O.S. No.58 of 1976-I) is not maintainable under law and the same liable to be dismissed." Page 12 of 40 SA No.72 of 1996
{{ 13 }}
11. On being dissatisfied with the aforesaid Judgment and Decree of the dismissal of the suit vide T.S. No.17 of 1985-I of the plaintiffs, they (plaintiffs) challenged the same by preferring the 1 st Appeal vide T.A. No.60 of 1993 being the appellants against the defendant arraying him (defendant) as respondent.
After hearing from both the sides, the First Appellate Court allowed that 1st Appeal vide T.A. No.60 of 1993 of the plaintiffs in part on contest as per its Judgment and Decree dated 21.12.1995 & 12.01.1996 respectively and set aside in part to the Judgment and Decree of the dismissal of the suit vide T.S. No.17 of 1985-I of the plaintiffs passed by the Trial Court and decreed the suit vide T.S. No.17 of 1985-I of the plaintiffs in part on contest against the defendant and allowed all the reliefs prayed for by the plaintiffs in their favour against the defendant except the relief for partition assigning the reasons that, according to the order sheets of O.S. No.58 of 1976-I (Ext.A), no notice either under Sub- rule (4) or Sub-rule (4-A) of Rule 3 under Order 32 of the CPC, 1908 was served on the mother of the minor defendant No.2 i.e. on defendant No.1, or on the minor defendant No.2 inviting objections if any from them for appointment of guardian ad litem for the minor defendant No.2 in order to contest the suit on behalf of the minor defendant No.2. Even after Page 13 of 40 SA No.72 of 1996 {{ 14 }} attainment of majority of the minor defendant No.2 during the pendency of the suit vide O.S. No.58 of 1976-I, no notice was served on the defendant No.2 providing him (defendant No.2) opportunity to contest the suit independently. For which, the procedures adopted for the adjudication of the suit vide O.S. No.58 of 1976-I by the Court i.e. learned Munsif, Khorda were not lawful. Therefore, the Judgment and Decree passed in O.S. No.58 of 1976-I adopting unlawful means/procedures is invalid/void and non-est in the eye of law. So, there is no applicability of Article 59 of the Limitation Act for making the suit barred by Limitation. Therefore, the Judgment and Decree passed in O.S. No.58 of 1976-I is void, non-est and the same is not binding upon the defendants of O.S. No.58 of 1976-I (plaintiffs in T.S. No.17 of 1985-I). The First Appellate Court after declaring the Judgment and Decree of O.S. No.58 of 1976-I as void and non-est as stated above further held that, the plaintiff No.1 (Gajendra) in T.S. No.17 of 1985-I is the son of the defendant and the plaintiff No.2 (Kamala Dei) is the mistress of the defendant and she (plaintiff No.2) is entitled to get Rs.300/- per month as her maintenance from the defendant.
12. On being aggrieved with the aforesaid part Judgment and Decree dated 21.12.1995 and 12.01.1996 respectively passed in T.A. No.60 of Page 14 of 40 SA No.72 of 1996 {{ 15 }} 1993 against the defendant and in favour of the plaintiffs, he (defendant) challenged the same by preferring this 2nd Appeal being the appellant against the plaintiffs arraying them (plaintiffs) as respondents.
This 2nd Appeal was admitted vide Order No.7 dated 02.09.1996 treating the Ground Nos.a,b,c & d of the Memorandum of Appeal as the substantial questions of law, but the said substantial questions of law (those were formulated vide Order No.7 dated 02.09.1996) were substituted by the following two substantial questions of law vide Order No.17 dated 20.12.2022 after hearing from the learned counsels of both the sides and the said two substantial questions of law are:
i. Whether, the finding of the lower appellate court in holding that, the "Ex parte Judgment and Decree in O.S. No.58 of 1976-I was obtained by suppressing summons" suffers from non-consideration of the material evidence on record and as such raises a question of law being vitiated by perversity?
ii. Whether the suit filed by plaintiff- respondent was completely barred by limitation by application of Articles 58 and 59 of the Limitation Act in as much as the suit was not filed within 3 years from the date of the knowledge about the passing of the decree in the previous suit?
13. When, during the pendency of this 2nd Appeal, the appellant (defendant in the suit vide T.S. No.17 of 1985-I i.e. Bhikari Charana Page 15 of 40 SA No.72 of 1996 {{ 16 }} Samantaray) expired on 29.12.2005, then, the appellant Nos.1 to 8 have been substituted in his place as appellant Nos.1 to 8 in this 2nd Appeal.
Likewise, When, during the pendency of this 2nd Appeal, the respondent No.2 (Kamala Dei) died leaving behind her son i.e. respondent No.1 as her LR, then, as per Order dated 30.04.2012, the respondent No.1 (Gajendra) alone was prosecuting the appeal. But, when subsequent thereto, the respondent No.1 (Gajendra) expired, then in his place, his LRs have been substituted as respondent Nos.1(a) to 1(c).
I have already heard from the learned counsel for the appellants and the learned senior counsel for the respondents.
14. In order to assail the impugned Judgment and Decree passed by the First Appellate Court in the 1st Appeal vide T.A. No.60 of 1993 and in support of the Judgment and Decree passed by the Trial Court in the suit vide T.S. No.17 of 1985-I, the learned counsel for the appellants relied upon the following decisions:
i. (2020) 7 SCC 366:Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) (dead) & Others--Limitation Act, 1963--Articles 58 & 59--Suit to obtain declaration or to set aside instrument or decree, or, for rescission of contract--"Right to sue" when accrues--Court must determine when right to sue first accrued--Right to sue accrues only when cause of action arises--Suit must be instituted when right asserted in suit is infringed or there is clear and unequivocal threat of infringement by dependant.Page 16 of 40 SA No.72 of 1996
{{ 17 }} ii. AIR 1979 All. 242: Hazari and Another Vs. Suresh & Other--CPC (5 of 1908), Order 32, Rule 12--Omission to elect either to continue or to abandon suit--Effect of-- Suit held may proceed.
iii. AIR 1968 Orissa 236:Khetrabasi Parida Vs. Chaturbhuja Parida & Others--CPC 1908, Order 32--Though a major described as a minor--Decree and sale in execution not a nullity.(Para No.5) iv. AIR 2001 Supreme Court 965: Santosh Hazari Vs. Purushottam Tiwari (dead) by LRs--CPC, 1908, Section 100--Second Appeal--First Appellate Court did not restate effect of evidence nor gave reasons--Cryptic order passed by Frist Appellate Court, not proper. v. 1950 SCC 714:Sarju Pershad Vs. Raja Jwaleshwari Pratap Narain Singh & Others--CPC, 1908, Section 107--Appreciation of evidence by appellate Court-- Finding of fact based on conflicting evidence, can be reversed.
15. On the contrary in support of the Judgment and Decree passed by the First Appellate Court in T.A. No.60 of 1993, the learned counsel for the respondents relied upon the following decisions:
i. A.F.A.D. No.1268 of 1949 (Patna) decided on 22.02.1957:Ramchandra Singh & Others Vs. B. Gopi Krishna Dass & Others--When the appointment of GAL for the minor defendant would be a nullity and without jurisdiction, then such a guardian-ad-litem cannot legally represent the minor, so as to bind him by his acts. In that case such minor will not be considered to be a party of such a proceeding, notwithstanding that his name appears on the record, therefore, any order passed or any proceeding taken against him will be null and void.
ii. (2018) 2 Supreme Court Cases 504:Nagaiah & Another Vs. Chowdamma (dead) by LRs & Another--In case, if the Court discovers during the pendency of the suit that the minor plaintiff has attained Page 17 of 40 SA No.72 of 1996 {{ 18 }} majority, such plaintiff needs to be called upon by the Court to elect whether he intends to proceed with the suit or not. In other words, the minor who attained during the pendency of the matter must be informed of the pendency of the suit.
16. So far the 1st formulated substantial questions of law i.e. Whether the findings of the lower appellate court in holding that, the "Ex parte Judgment and Decree in O.S. No.58 of 1976-I was obtained by suppressing summons" suffers from non-consideration of the material evidence on record and as such raises a question of law being vitiated by perversity is concerned;
According to the pleadings and evidence of the plaintiffs in T.S. No.17 of 1985-I (defendants in O.S. No.58 of 1976-I), the plaintiff in O.S. No.58 of 1976-I (defendant in T.S. No.17 of 1985-I) has obtained the decree in that suit vide O.S. No.58 of 1976-I in his favour by practising fraud, suppression of notices/summons from its service of the same on them (defendants in O.S. No.58 of 1976-I) and without complying with the mandatory provisions of Order 32, Rule 3, 4 & 12 of the CPC, 1908.
The certified copies of the entire order sheets of the suit vide O.S. No.58 of 1976-I have been marked as Exts.3, A & E by the parties in T.S. No.17 of 1985-I. Page 18 of 40 SA No.72 of 1996 {{ 19 }} In order to bring a clear picture about the compliances or non- compliances of the provisions of Order 32 of the CPC, 1908 during the course of adjudication of the suit vide O.S No.58 of 1976-I, I thought it proper to place it on record to the entire Order Sheets of O.S. No.58 of 1976-I, on the basis of the contents of Exts.3, A & E and the said Order sheets are as follows:
Order Sheets of O.S. No.58 of 1976-I Order No.1 dt.12.05.1976./ Plaintiff presented by Sri. B.D. Mohapatra, Advocate for the plaintiff with Court Fee worth Rs.22.50p. Register and put up on 16.06.1976 with office note.
Sd/-P.N. Patnaik.
Munsif, Khurda.
Order No.2 dt.16.06.1976./ Perused the office note. Plaintiff to file another declaratory Court Fee worth of Rs.22.50 as he has prayed for two declaration and file petition with affidavit for appointment of guardian for minor D.2 and to file requisites by 25.06.1976 and for further Orders.
Sd/-P.N. Patnaik.
Munsif, Khurda.
Order No.3 dt.25.06.1976./ Plaintiff files a petition praying for time to take steps as per the office note. I am indisposed. Put up on 02.07.1976.
Sd/-P.N. Patnaik.
Munsif, Khurda.
Order No.4 dt.02.07.1976./ No steps taken by the plaintiff. Later plaintiff files a petition praying for time to take steps. Heard. Time allowed on 15.07.1976 for steps.
Sd/-P.N. Patnaik.
Munsif, Khurda.
Order No.5 dt.15.07.1976./ Plaintiff files Pl.C.Fee worth of Rs.22-50 & requisites. He has not file the petition and affidavit for appointment of Guardian for the minors. Put up on 17.07.1976 for filing of the same and for further Orders.
Sd/-P.N. Patnaik.
Munsif, Khurda.
Page 19 of 40 SA No.72 of 1996 {{ 20 }} Order No.6 dt.17.07.1976./ Plaintiff files a petition praying for time to take steps for appointment of the minor guardian. Heard. Time allowed. Till 27.07.1976 for steps and for further Orders.
Sd/-P.N. Patnaik.
Munsif, Khurda.
Order No.7 dt.27.07.1976./ A petition supported by an affidavit is filed praying for appointment of the guardian for the minor. The process fee worth of Rs.2/- has been filed. The P. Fee is deficit by Rs.2/-. Let him file the same by 02.08.1976 and for further Orders.
Sd/-P.N. Patnaik.
Munsif, Khurda.
Order No.8 dt.02.08.1976./ The deficit P. Fee has been paid. The requisites are complete. Admit. Issue summons against the defendants and notice against the minor fixing 03.09.1976 for settlement of issue.
Sd/-P.N. Patnaik.
Munsif, Khurda.
Order No.9 dt.03.09.1976./ Plaintiff files hazira S.R. back after service by affixure on refusal. Plaintiff files affidavit in proof of service. Service held sufficient. Defendant No.1 does not appear and takes no step. Hence set ex parte. Plaintiff to take steps and to deposit Rs.20/- towards G.A.L. fee by 06.09.1976.
Sd/-P.N. Patnaik.
Munsif, Khurda.
Order No.10 dt.06.09.1976./ The G.A.L. fees has not been deposited. Put up on 07.09.1976 for filing of the same failing which the suit shall stands dismissed.
Sd/-P.N. Patnaik.
Munsif, Khurda.
Order No.11 dt.07.09.1976./ No steps taken by the plaintiff to deposit the fees of the G.A.L. Later plaintiff files a petition with late fee praying for time to file the G.A.L Fees. Heard time allowed till 21.09.1976 for filing of the same and for further orders.
Sd/-P.N. Patnaik.
Munsif, Khurda.
Order No.12 dt.21.09.1976./ Plaintiff files P.C.R. showing deposit of G.A.L. fees and a petition praying for time to file requisites. Sri. B. Ch. Patnaik, Advocate is appointed as G.A.L. for the minor defendant No.2. Time allowed till 12.10.1976 for filing of the necessary requisites for the G.A.L. Amended the plaint and register accordingly.
Sd/-P.N. Patnaik.
Munsif, Khurda.
Order No.13 dt.12.10.1976./ Plaintiff has not taken steps for service of copy of plaint on the G.A.L. The G.A.L. is present. The Advocate for the plaintiff is present. Let him serve the Page 20 of 40 SA No.72 of 1996 {{ 21 }} copy on the G.A.L. or to cause service of summon on the G.A.L. by 19.10.1976 positively and G.A.L. to file W/S. by the date.
Sd/-P.N. Patnaik.
Munsif, Khurda.
Order No.14 dt.19.10.1976./ Plaintiff files P. Fee and the written processes. Issue summon to the G.A.L. for the minor D.2 fixing 09.11.1976 for filing of W.S. by the G.A.L. Sd/-P.N. Patnaik.
Munsif, Khurda.
Order No.15 dt.09.11.1976./ Summon to the G.A.L. has not been issued. It is issued to-day fixing 17.11.1976 for return.
Sd/-P.N. Patnaik.
Munsif, Khurda.
Order No.16 dt.17.11.1976./ S.R. not back. Put up on 22.11.1976 awaiting S.R. Sd/-P.N. Patnaik.
Munsif, Khurda.
Order No.18 dt.24.11.1976./ Summon to G.A.L. received unserved with a report that returned for want of time. Re-issue the same fixing 03.12.1976 for return.
Sd/-P.N. Patnaik.
Munsif, Khurda.
Order No.19 dt.03.12.1976./ S.R. of summons not back. Await and put up on 15.12.1976.
Sd/-P.N. Patnaik.
Munsif, Khurda.
Order No.20 dt.15.12.1976./ S.R. summons against the G.A.L. is personal. G.A.L. files a memo on 14.12.1976 praying for directing the plaintiff to supply a copy of plaint. Plaintiff is directed to supply a copy of plaint to the G.A.L. by 21.12.1976 and for further orders. Inform the Advocate for the plaintiff.
Sd/-P.N. Patnaik.
Munsif, Khurda.
Order No.21 dt.21.12.1976./ G.A.L. files a memo intimating he could not file his W.S. for want of plaint copy. The learned counsel for the plaintiff has already been informed to supply the same to G.A.L. In case copy of the plaint is not supplied to G.A.L. by 4.30 P.M. today, the suit shall stand dismissed for default of the plaintiff.
Sd/-P.N. Patnaik.
Munsif, Khurda.
Later:-
The copy of plaint has been supplied to the G.A.L. in court and endorses to that effect. Let him file W.S. by 05.01.1977 and for further Orders.Page 21 of 40 SA No.72 of 1996
{{ 22 }} Order No.22 dt.05.01.1977./ The G.A.L. for the minor defendant No.2 filed W/S. Copy served. Put up on 17.01.1977 for settlement of issues and examination of parties. Parties to come ready.
Sd/-P.N. Patnaik.
Munsif, Khurda.
Order No.23 dt.17.01.1977./ Both parties present. Heard. Issues settled. To 27.01.1977 for fixing a date of hearing.
Sd/-P.N. Patnaik.
Munsif, Khurda.
Order No.28 dt.27.01.1977./ Plaintiff and the G.A.L. for minor D.2 files separate haziras. No documents filed. To 02.05.1977 for hearing. Parties to come ready.
Sd/-P.N. Patnaik.
Munsif, Khurda.
Order No.29 dt.02.05.1977./ G.A.L. files hazira. Advocate for the plaintiff files a petition praying for time on the ground stated therein.
Heard. Time allowed till 28.06.1977 for hearing. Parties to come ready.
Sd/-P.N. Patnaik.
Munsif, Khurda.
Order No.30 dt.28.06.1977./ G.A.L. files hazira. Advocate for the plaintiff files a petition praying for time for hearing on the ground stated therein. Copy served. Heard time allowed till 27.07.1977 for hearing when the parties to come ready.
Sd/-P.N. Patnaik.
Munsif, Khurda.
Order No.31 dt.27.07.1977./ Both parties file haziras. P.O. is on C.L. Put up on 23.08.1977 for hearing.
Sd/-G.N. Singh.
Add. Munsif, I/C. Order No.32 dt.23.08.1977./ Advocate for the G.A.L. files hazira. Advocate for the plaintiff files a petition for adjournment of the suit as per reasons stated therein. Copy served. Heard. Time is allowed. Call on 13.09.1977 for hearing when parties to come ready.
Sd/-P.N. Patnaik.
Munsif, Khurda.
Order No.33 dt.13.09.1977./ Plaintiff and G.A.L. file haziras. P.Ws.1 and 2 examined. Exts.1 and 2 marked. To 17.09.1977 for orders.
Sd/-P.N. Patnaik.
Munsif, Khurda.
Order No.34 dt.17.09.1977./ Judgment not ready. Put up on 19.09.1977 for Judgment.
Sd/-P.N. Patnaik.
Munsif, Khurda.
Page 22 of 40 SA No.72 of 1996 {{ 23 }} Order No.35 dt.19.09.1977./ Order not ready. To 24.09.1977 for Order.
Sd/-P.N. Patnaik.
Munsif, Khurda.
17. Sub-rule (1) of Rule 3 of Order 32 of the CPC provides that, where in a suit, the defendant is a minor, the Court shall appoint a proper person to be a guardian in that suit for such minor. Sub-rule (2) of Rule 3 of Order 32 CPC provides that, for the appointment of a person as a guardian of the minor defendant, an application is to be made either by the plaintiff or on behalf of the minor.
Sub-rule (3) of Rule 3 of Order 32 of the CPC provides that, such application for an appointment of a person as a guardian of the minor defendant, must be supported by an affidavit verifying the fact indicating that, the proposed guardian has no adverse interest to that of the minor and he is a fit person to be so appointed. As per sub Rule (4) & (4-A) of Rule 3 of Order 32 of the CPC, 1908, no order shall be made on any such application under Rule 3 for the appointment of a person as a guardian of the minor defendant, except upon notice to the minor and to the guardian of the minor appointed or declared by an authority or to the father or to the mother or to other natural guardian of the minor. Upon such notice to the minor and his guardian, the Court is required to hear objections, if any, which may be made on behalf of any person, served with notice under sub Rule (4) & (4-A) of Rule 3 of Order 32 of the CPC, 1908.
Sub Rule (5) of Rule 3 of Order 32 of the CPC, 1908 lays down that, a guardian of the minor defendant, who is to be appointed only after compliances of Sub-rules-(2),(3),(4) and (4-A) of Rule 3 of Order 32 of the CPC, 1908, he shall continue as such throughout all proceedings arising out of the suit.
Sub Rule (3) of Rule 4 of Order 32 of the CPC, 1908 provides that, no person shall without his consent in writing be appointed as guardian for the minor in the suit.
Sub Rule (4) of Rule 4 of Order 32 of the CPC, 1908 provides that, where there is no other person, obviously meaning, the person mentioned in sub Rule (4) of Rule 3 of Order 32 of the CPC, 1908 who is fit and is willing to act as a guardian for the minor defendant, then only the Court is empowered under law to appoint such person as a guardian of the minor defendant in the suit. Page 23 of 40 SA No.72 of 1996
{{ 24 }} In view of the aforesaid provisions of law envisaged in sub-Rule (4) & (4-A) of Rule 3 of Order 32 of the CPC, 1908 for an appointment of a guardian of the minor defendant, the following two criteria must be complied with i.e. (i) notice to the minor and his guardian, and
(ii) upon service of such notice to hear objections, if any, that may urged, on behalf of either, or both of them, who have been served with such a notice.
It is only after compliance with the provisions of sub Rule (4) & (4- A) of Rule 3 of Order 32 of the CPC, 1908, and not otherwise, that, the Court gets jurisdiction to appoint a guardian for the minor under sub Rule (1) of Rule 3 of Order 32 of the CPC, 1908.
18. Order 32 of the CPC, 1908 has been specially enacted for no other reason/purpose, but to protect the interests of the minors in a suit, and, to see that, they are represented in the suit or proceeding by a person, who is qualified to act as such.
In order to achieve the said object, the legislature has laid down in Order 32 Rule 3 (4) & (4-A) of the CPC, 1908 that, the wishes of the minor and his guardian are to be obtained before any guardian for the minor is appointed by the Court. Their wishes can only be ascertained through issuance of notices to them for the same.
Therefore, the object of Order 32 of the CPC, 1908 will be defeated, if without any notice to the minor and his guardian and without ascertaining their wishes, a guardian for the minor is appointed by the Court or a guardian is thus thrust upon him (minor). Page 24 of 40 SA No.72 of 1996
{{ 25 }} Having regard, to the above languages of sub-Rule (4) & (4-A) of Rule 3 of Order 32 of the CPC, 1908 as well as to the policy and object underlying in it, it is reasonably clear that, the said provisions must be taken to be mandatory.
Therefore, the serving of notice upon the minor and his guardian inviting their objections if any, before appointment of guardian for the minor in the suit is mandatory and compulsory.
It is the settled propositions of law that, a provision or a statute, which is vital and goes to the root of the matter, the same cannot be broken, and, its breach cannot be overlooked.
Therefore, a breach and disregard of the mandatory provisions contained in sub-Rule (4) & (4-A) of Rule 3 of Order 32 of the CPC, 1908, in a suit, shall make the appointment of a guardian for the minor in the suit by the Court under sub Rule (1) of Rule 3 of Order 32 of the CPC, 1908 shall become ineffective and useless automatically. For which, the Judgment of the said suit will not have any binding effect on the minor and the same will not be operative against him (minor) at all.
Therefore, in order to establish about the valid (lawful) appointment of a guardian in a suit for a minor (defendant), it is to be established that, (i) notices under sub Rule (4) & (4-A) of Rule 3 of Order Page 25 of 40 SA No.72 of 1996 {{ 26 }} 32 of the CPC, 1908 were duly served upon the minor and his guardian and (ii) upon service of such notice to hear objections if any they may be urged on behalf of either or both and (iii) the written consent of the proposed guardian is to be obtained by the Court to appoint him/her as a guardian-ad-litem for the minor defendant in the suit.
The aforesaid provisions of Order 32 of the CPC, 1908 clearly clarify that, only after compliance with the above mandatory provisions of sub Rule (4) & (4-A) of Rule 3 and Sub-rule (3) of Rule 4 of Order 32 of the CPC, 1908, if a guardian is appointed for a minor in a suit, then in the eye of law, he/she shall be deemed to represent the minor concern lawfully.
If, however, a guardian-ad-litem for the minor (defendant) is appointed upon application made by the plaintiff, without any notice of such an application having been served upon the minor and guardian as required under sub Rule (4) & 4-A of Rule 3 of Order 32 of the CPC, 1908, an order appointing guardian-ad-litem for such a minor defendant by the Court, purporting to act under sub Rule (4) of Order 32 of the CPC, 1908 would be a nullity and without jurisdiction and such a guardian-ad-litem cannot legally represent the minor, so as to bind him by his acts. Such a minor will not be considered to be a party to such a Page 26 of 40 SA No.72 of 1996 {{ 27 }} proceeding, notwithstanding that, his name appears in the record, and as such, any order passed or any proceeding taken against him (minor) shall be null and void.
19. On this aspect, the propositions of law has already been clarified by the Hon'ble Courts in the ratio of the following decisions:
i. A.F.A.D No.1268 of 1949 & AIR 1957 (Patna) 260:Ramchandar Singh & Others Vs. B. Gopi Krishna Dass & Others--CPC 1908, Order 32, Rule 3 & 4--If a Court guardian is appointed upon the application made by the plaintiff, without any notice of such an application having been served upon the minor and on his proposed guardian as required by Sub-rule (4) of Rule 3 of Order 32, the order appointing a guardian-ad-litem for such a minor by the Court, no doubt, purporting to act under Sub-rule (4) of Rule 4 of Order 32 CPC, 1908 would be a nullity and without jurisdiction and such a guardian-ad-litem cannot legally represent the minor, so as to bind him by his acts. Such a minor will not be considered to be a party to such a proceeding, notwithstanding that his name appears on the record, and as such, any order passed or any proceeding taken against him will be null and void.
(Para No.27) ii. 38 (1972) CLT 173:Judhistir Das Vs. Ekamra Choudhury & Others--CPC, 1908--Order 32, Rule 3(4) --Appointment of Court guardian of minor-- Necessary compliance--On application of the plaintiff for appointment of a Court guardian, the Court directed the plaintiff to deposit the guardian-fee and thereafter the guardian was appointed--No prior notice to the natural guardian given--Order improper--Minor is not bound by the decree passed.
The minor's natural guardian, his mother, was alive at the time, but she was not served with, notice of this application. In view of the legal principles the facts Page 27 of 40 SA No.72 of 1996 {{ 28 }} stated above, the decree passed so far as the present plaintiff was concerned was null and void, and therefore, not binding upon him.
(Para No.8)
20. The order sheets of the suit vide O.S. No.58 of 1976-I (Exts.3,A and E) filed and proved by the parties in the suit vide T.S. No.17 of 1985-I do not at all reveal about the service of any notice either on the minor defendant No.2 or on his natural mother guardian (defendant No.1) in that suit vide O.S. No.58 of 1976-I giving them opportunities for filing objections as well as hearing of any objection from them (defendants) for appointment of Guardian-Ad-Litem for the minor defendant No.2, instead of which, without complying with the mandatory provisions of Sub-rule (4) & 4-A of Rule 3 and Sub-rule (3) of Rule 4 of Order 32 of the CPC, 1908, steps for appointment of Guardian-Ad-Litem for the minor defendant No.2 in the suit vide O.S. No.58 of 1976-I were taken illegally by the Court since 16.06.1976 and appointment of Guardian-ad-Litem for the minor defendant No.2 was made on dated 21.09.1976 illegally in contravention with the mandatory provisions of law.
Therefore, in view of the principles of law enunciated in the ratio of the aforesaid two decisions of the Hon'ble Courts reported in AIR 1957 (Patna) (DB) 260 & 38 (1972) CLT 173, the appointment of Sri B. Ch. Pattnaik advocate as Guardian-Ad-Litem for the minor defendant Page 28 of 40 SA No.72 of 1996 {{ 29 }} No.2 in O.S. No.58 of 1976-I was a nullity and without jurisdiction. For which, as per law, Sri. B. Ch. Pattnaik was not in fact GAL for the minor defendant No.2 so as to bind him by his acts. Therefore, he (defendant No.2) is not considered to be a party in that suit vide O.S. No.58 of 1976-I, though his name was indicated as defendant No.2 in that suit. Therefore, the orders passed in that suit vide O.S. No.58 of 1976-I starting from 16.06.1976 onwards are null and void automatically.
In the Judgment and Decree passed in T.S. No.17 of 1985-I, it has been held by the Trial Court that, "even though, the minor defendant No.2 (Gajendra) in O.S. No.58 of 1976-I attained his majority during the pendency of that suit, as he (defendant No.2) himself did not voluntarily come to the Court and did not inform to the Court that he has attained majority, then, no irregularity has been committed by the court in passing the Judgment and Decree of O.S. No.58 of 1976-I against both the defendants including the defendant No.2. Because, the above conduct of the defendant No.2 i.e. non-furnishing intimation to the Court by him (defendant No.2) voluntarily about the attainment of his majority during the pendency of the suit vide O.S. No.58 of 1976-I shall be deemed that, he (defendant No.2) after attaining his majority has accepted the Page 29 of 40 SA No.72 of 1996 {{ 30 }} proceedings of O.S. No.58 of 1976-I. For which, the Judgment and Decree of O.S. No.58 of 1976-I is binding upon him (defendant No.2)".
The entire Order Sheets of O.S. No.58 of 1976-I vide Exts.3, A & E do not reveal about the issuance of any notice to the defendant No.2 by the court after attainment of his majority during the pendency of the suit stating whether he (defendant No.2) intends to proceed with the suit or not.
21. On this aspect, the propositions of law has already been clarified by the Hon'ble Courts and Apex Court in the ratio of the following decisions:
i. (2018) 2 SCC 504:Nagaiah & Another VS.
Chowdamma (dead) by Legal Representatives & Others.
CPC, 1908--Order 32, Rules 1,2,3,6,7,9,12,13 & 14--In case, if the Court discovers during the pendency of the suit that, the minor plaintiff has attained majority, such plaintiff needs to be called upon by the Court to elect whether he intends to proceed with the suit or not. In other words, the minor who attained majority during the pendency of the suit must be informed of the pendency of the suit and in the absence of such a notice, the minor cannot be imputed with the knowledge of the pendency of the suit. So, before any adverse orders are to be made against the minor, who has attained majority, the court has to give notice to such person.
(Para No.18) Page 30 of 40 SA No.72 of 1996 {{ 31 }} ii. AIR 1995 (Rajasthan) 38:Malkiyat Singh & Another Vs. Om Prakash & Others.
CPC, 1908--Order 32, Rules 3 & 4--While invoking the residuary power conferred upon the Courts of law under Section 151 C.P.C, the Court is to see that, for a minor when written statement is already filed by his or her guardian ad litem on attaining majority, he or she can file a fresh written statement on showing "improper contest" or that minor's interest was not sufficiently protected and not otherwise.
(Para No.10)
22. As per the dictums of the Apex Court and Hon'ble Courts in the ratio of the aforesaid decisions, when during the pendency of the suit vide O.S. No.58 of 1976-I, the minor defendant No.2 (Gajendra) attained his majority, then, it was the duty and obligation of the Court to give notice to the said minor defendant No.2 (who attained majority during the pendency of the suit) for providing him an opportunity to contest the suit vide O.S. No.58 of 1976-I properly for protection of his interests in the said suit.
When the entire Order Sheets of the suit vide O.S. No.58 of 1976-I (Exts.3,A & E) do not at all reveal about the sending up of any notice by the Court to the defendant No.2 even after attainment of his majority during the pendency of the suit, then, at this juncture, the proceedings of the suit vide O.S. No.58 of 1976-I starting from 16.06.1976 till its Page 31 of 40 SA No.72 of 1996 {{ 32 }} Judgment and Decree cannot be held as lawful. For which, in other words, it is held that, due to non-compliance with the mandatory provisions of Order 32, Rule 3, 4 & 12 of the CPC, 1908, the proceedings of the suit vide O.S. No.58 of 1976-I starting from Order dated 16.06.1976 till its Judgment and Decree are invalid and non-est in the eye of law.
For which, in other words, it is held that, the plaintiff in O.S. No.58 of 1976-I (defendant in T.S. No.17 of 1985-I) has obtained the decree in O.S. No.58 of 1976-I against the defendants in O.S. No.58 of 1976-I by practising fraud through suppression of notices/summons as well as abuse of the process of the Court.
The acts of a party or parties which shall come within the purview of abuse of the process of the court has already been clarified by the Hon'ble Courts in the ratio of the following decision:
(i) 2024 (3) Civ.L.J. 116 (Mad.):K.R. Andu Gowder and Others Vs. Saroja & Others (Para No.37)--
Abuse of process--Not defined in the Code, 1908-- Circumstances enumerated, when a party is said to be guilty of abuse of process of the Court.
A party to a litigation is said to be guilty of abuse of process of the Court, in any of the following cases:-
(i) Gaining an unfair advantage by the use of a rule of procedure X X X X X
(iii) Fraud or collusion in Court proceedings as between parties.
X X X X X X X Page 32 of 40 SA No.72 of 1996 {{ 33 }}
23. So far as the 2nd formulated substantial questions of law i.e. Whether the suit vide T.S. No.17 of 1985-I filed by plaintiff-respondent was barred by limitation as per Articles 58 and 59 of the Limitation Act, as the suit was not filed within 3 years from the date of the knowledge about the passing of the decree in O.S. No.58 of 1976-I is concerned;
When it has already been held on the basis of the answers given in the foregoing 1st substantial question of law that, the plaintiff in O.S. No.58 of 1976-I (defendant in T.S. No.17 of 1985-I) has obtained the Judgment and Decree in O.S. No.58 of 1976-I in his favour and against the defendants in O.S. No.58 of 1976-I (plaintiffs in T.S. No.17 of 1985-I) by practising fraud through suppression of notices/summons as well as abuse of the process of the Court without complying with the mandatory provisions of Order 32, Rule 3,4 & 12 of the CPC, 1908, then, at this juncture, the suit vide T.S. No.17 of 1985-I filed by the plaintiffs (defendants in O.S. No.58 of 1976-I) for setting aside the Judgment and Decree passed in O.S. No.58 of 1976-I against them on the ground of fraud and suppression of service of notices/summons as well as abuse of the process of the Court for non-compliances with the mandatory provisions of Order 32, Rule 3,4 & 12 of the CPC, 1908 cannot be held as barred by limitation, even though the suit vide T.S. No.17 of 1985-I has Page 33 of 40 SA No.72 of 1996 {{ 34 }} been filed in the year 1985 for setting aside the Judgment and Decree passed in O.S. No.58 of 1976-I on dated 24.09.1977.
On this aspect the propositions of law has already been clarified in the ratio of the following decisions:
I. 2006 (1) Apex Court Judgment 449 (SC): Bank of India & Another Vs. Avinash D. Mandivikar & Others.
When an action is founded on fraud the question of any reasonable period for initiation of action is clearly immaterial.
II. 2019 (1) CLR 748:Subala Tarai & Diriba Swain Vs. Collector Puri & Others--Indian Limitation Act, 1963 Section 22--Action initiated on discovery of fraud is not barred by limitation--Since fraud is a continuous wrong, period of limitation would begin to run at every moment.
III. (2010) 8 SCC 383:Meghmala & Others Vs. G. Narasimha Reddy & Others.
Fraud--An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine, including res judicata.
24. On analysis of the facts in accordance with the law, in the answers of the aforesaid two substantial questions of law, it has been held that, the Judgment and Decree passed in O.S. No.58 of 1976-1 is tainted with fraud and the same has been passed through the abuse of the process of the Court and when as per law, the fraud is a continuing wrong and when, the Page 34 of 40 SA No.72 of 1996 {{ 35 }} period of limitation for challenging (setting aside) the same would begin to run at every moment, then, at this juncture, the filing of the suit vide T.S No.17 of 1985-I by the plaintiffs (defendants in O.S. No.58 of 1976-I) for setting aside the Judgment and Decree of O.S. No.58 of 1976-I is not barred by limitation.
For which, the decisions relied upon by the learned counsel for the appellants for terming the suit of the plaintiffs vide T.S. No.17 of 1985-I barred by limitation indicated in Para No.14 of this Judgment are not applicable to the suit/appeal at hand on law and facts as discussed above.
When, as per the discussions and observations made above, it has already been held that, the initial actions made in the suit vide O.S. No.58 of 1976-I as per Order dated 16.06.1976 were not in consonance/confirmity with the law, then, all subsequent/consequential proceedings thereof would fall through for the reason that, illegality strikes at the root of the order and the same is based on the legal maxim i.e. SUBLATO FUNDAMENTO CADIT OPUS meaning thereby that, foundation being removed, structure/work falls to the ground.
On this aspect the propositions of law has already been clarified by the Hon'ble Courts & Apex Court in the ratio of the following decisions:
i. (2011) 14 SCC 770:State of Punjab Vs. Davinder Pal Singh Bhullar & Others--If initial action is Page 35 of 40 SA No.72 of 1996 {{ 36 }} not in consonance with law, all subsequent and consequential proceedings would fall through for the reasons that, illegality strikes at the root of the order. In such a fact situation, the legal maxim SUBLATO FUNDAMENTO CADIT OPUS meaning thereby that, foundation being removed structure/work falls come into play.
(Para No.107) ii. (2005) 3 Supreme Court Cases 422:Mangal Prasad Tamoli (dead) by LRs Vs. Narvadeshwar Mishra (dead) by LRs & Others. If an initial Order is bad in law, then all further proceedings consequent thereto would be non-est and have to be necessarily set aside.
(Para No.15) iii. (2006) 1 Supreme Court Cases 228:C. Albert Morris Vs. K. Chandrasekaran & Others. Right--Which can exist only and only where it has lawful origin.
iv. 2008 (1) Civ.C.C. 386 (Raj):Yatendra Swaroop Vs. Smt. Asha Devi--Any order passed, subsequent to an order, which has been held to be non-est is of no consequence.
(Para No.9) v. 2011 (Supp.) OLR (NOC) 545:M/s. Utkal Builders Limited Vs. Union of India & Others If a judgment proceeds without taking note of or ignoring relevant provisions of law, the said Judgment cannot be held to have correctly decided the case.
25. So, by applying the principles of law enunciated in the ratio of the above decisions to the Order Sheets of O.S. No.58 of 1976-I vide Exts.3,A & E it is held that, the Orders of O.S. No.58 of 1976-I starting from 16.06.1976 including the Judgment and Decree of that suit vide O.S. No.58 of 1976-I are void, illegal and non-est in the eye of law.Page 36 of 40 SA No.72 of 1996
{{ 37 }} Even though, it is held that, all the consequential proceedings in the suit vide O.S. No.58 of 1976-I starting from 16.06.1976 including its Judgment and Decree were/are non-est in the eye of law, still then, the learned counsel for the respondents argued that, due to the death of the original plaintiff and defendants in the suit vide O.S. No.58 of 1976-I in the meanwhile, the entire proceedings of O.S. No.58 of 1976-I have become infructuous. For which, instead of setting aside the Judgment and Decree of O.S. No.58 of 1976-I, the Judgment and Decree passed in T.A. No.60 of 1993 arising out of T.S. No.17 of 1985-I are required to be confirmed.
When, it has been held above that, the subsequent/consequential proceedings in the suit vide O.S. No.58 of 1976-I starting from 16.06.1976 including its Judgment and Decree are non-est in the eye of law, then at this juncture, the Orders/proceedings in O.S. No.58 of 1976-I prior to 16.06.1976 cannot be held as non-est or infructuous under law. For which, the suit vide O.S. No.58 of 1976-I is required to be decided afresh (de novo) since the previous stage of Order dated 16.06.1976.
As, all the subsequent/consequential proceedings of O.S. No.58 of 1976-I starting from Order dated 16.06.1976 including its Judgment and Decree are held to be non-est in the eye of law, for which, there is Page 37 of 40 SA No.72 of 1996 {{ 38 }} justification under law for making interreference with the Judgment and Decree passed by the Trial Court in the suit vide T.S. No.17 of 1985-I as well as the Judgment and Decree passed by the First Appellate Court in T.A. No.60 of 1993 through this 2nd Appeal filed by the defendant of T.S. No.17 of 1985-I, because, in the suit vide T.S. No.17 of 1985-I filed by the plaintiffs (defendants in O.S. No.58 of 1976-I), they had prayed for setting aside the Judgment and Decree passed in O.S. No.58 of 1976-I on the grounds i.e. fraud, suppression of notices/summons and non- compliances with the provisions of Order 32, Rule 3,4 & 12 of the CPC, 1908.
26. Therefore, there is some merit in the 2nd Appeal of the appellants (substituted LRs of the defendant). The same is to be allowed in part.
27. In result, the 2nd Appeal filed by the defendant (predecessor of the appellants i.e. Bhikari) is allowed in part on contest against the respondents (substituted LRs of the plaintiffs), but without costs.
The Judgment and Decree i.e. the dismissal of the entire suit of the plaintiffs vide T.S. No.17 of 1985-I passed by the Trial Court is set aside.
The Judgment and Decree passed in T.A. No.60 of 1993 by the First Appellate Court is set aside in part.
Page 38 of 40 SA No.72 of 1996
{{ 39 }}
28. The suit be and the same vide T.S. No.17 of 1985-I filed by the plaintiffs is decreed in part on contest against the defendant, but without costs.
29. The Orders of O.S. No.58 of 1976-I starting from 16.06.1976 along with the Judgment and Decree of that suit vide O.S. No.58 of 1976-I passed by the learned Munsif, Khurda are declared as null/void/non-est and inoperative and the said Orders of O.S. No.58 of 1976-I starting from 16.06.1976 including its Judgment and Decree are set aside.
The Court i.e. the Court of the learned Munsif, Khurda (in which, the suit vide O.S. No.58 of 1976-I was disposed of) is directed to proceed with the suit vide O.S. No.58 of 1976-I afresh (de novo) as per law since the previous stage of the Order No.2 dated 16.06.1976 of that suit vide O.S. No.58 of 1976-I.
30. The parties to this appeal are directed to appear before the Court of the learned Munsif, Khurda in the suit vide O.S. No.58 of 1976-I on dated 27.09.2024 for the purpose of receiving the directions of that Court as to the further proceedings of the said suit vide O.S. No.58 of 1976-I afresh since the previous stage of Order dated 16.06.1976 in that suit. The said court i.e. learned Munsif, Khurda (presently Civil, Judge, Jr. Division, Khurda) is directed to take its best endeavour for disposal of the suit vide Page 39 of 40 SA No.72 of 1996 {{ 40 }} O.S. No.58 of 1976-I as expeditiously as possible as per law, as, the suit is a very old suit of the year, 1976.
31. The Registry is directed to send back the LCRs along with the copies of the Judgment to the Courts concerned within a week positively for proper compliances of the above directions made by this Court in this Judgment.
32. Pending application(s), if any, in this appeal stand disposed of.
(A.C. Behera), Judge.
Orissa High Court, Cuttack.
Rati Ranjan Nayak// Senior Stenographer Date:06.09.2024 Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 06-Sep-2024 16:04:42 Page 40 of 40 SA No.72 of 1996