THE HONOURABLE JUSTICE G. SRI DEVI
CIVIL REVISION PETITION No. 4866 of 2018
ORDER:
The present Civil Revision Petition is filed under Section 115 of C.P.C., aggrieved by the order, dated 07.06.2018 passed in I.A.No.30 of 2016 in O.S.No.1144 of 1988 on the file of the V-Senior Civil Judge, City Civil Court, Hyderabad, wherein and whereunder the application filed by the petitioner/2nd defendant under Section 5 of Limitation Act to condone the delay of 5767 days in filing the petition to set aside the ex parte decree, dated 15.02.1999, passed in O.S.No.1144 of 1988, was dismissed.
The 1st respondent/plaintiff filed O.S.No.1144 of 1988 against the petitioner/2nd defendant and 2nd respondent/1st defendant for specific performance of contract dated 26.04.1985 in respect of the suit schedule property i.e., the land admeasuring Ac.2.00 out of Ac.16.09 guntas, covered by Sy.No.129/68 Paiki, situated at Shaikpet Village, Hyderabad. The said suit was decreed ex parte on 15.02.1999. The petitioner/2nd defendant filed a petition under Order IX Rule 13 of the C.P.C. for setting aside the said ex parte decree along with the present petition to condone the delay caused in filing said the petition to set aside the ex parte decree. In the affidavit filed in support of the petition, it is stated by the petitioner/2nd defendant that the suit was field for specific performance based on the document styled as "Memorandum of 2 Composition and Settlement Deed", dated 26.04.1985, which was alleged to have been signed by the petitioner/2nd defendant along with the 1st defendant and one Mrs. Qamarunnissa Begum. It is further stated said document is a created and fabricated document and that one P.Hanumantha Rao, Notary, who stated to have authenticated the said document is not in existence at all and that the alleged document is in the nature of relinquishment deed, which requires stamp duty and registration, but, the same is an unregistered one and written on a plain paper and, therefore, the same is not admissible in evidence. It is also stated that she is a pardanashin lady and an illiterate and she cannot put her signature and she only affixes the thumb impression and that she did not appear before any advocate and affixed her signature on any vakalatnama and that the 2nd respondent/defendant No.1, who was her brother, had participated in the case for about ten years, but, it appears that his palms have been greased subsequently and, therefore, he remained ex parte and allowed the suit to be decreed. It is further stated that on 17.12.2015, some persons approached the petitioner/2nd defendant and offered to give Rs.10,00,000/- if she executes a sale deed in their favour and when she refused, the said persons declared that they have succeeded in a suit and challenged her to get the same verified by giving the suit number written on a piece of paper; that on the same day, she directed her son to verify about the genuineness of the claim made by the said strangers and 3 that her son immediately contacted Mr.K.S.Kumar, Advocate, on 18.12.2015 and after verifying the record by the said advocate, she was informed that in the vakalat below the name of respondent No.1/defendant No.1, there is another signature allegedly affixed by her and then she could realise that a systematic fraud has been played not only on her but also on the Court. It is further stated that the suit schedule property costs several Crores of rupees in the market and since the delay is an outcome of fraud and rank forgery, no prejudice would be caused to the 2nd respondent herein, who is the fulcrum of fraud, if the delay is condoned and that there are several aspects of fraud involved in the case and, therefore, the delay caused in filing the petition to set aside the ex parte decree may be condoned and she may be given an opportunity to get the dispute adjudicated on merits.
In the additional affidavit filed by the Counsel for the petitioner/defendant No.2, it is stated that right from the date of institution of the suit, fraud has been played inasmuch as the petitioner was not only impersonated, but somebody signed as if being signed by the petitioner and in fact she never signed in her life and that unfortunately the advocate, who filed vakalath for her, is no more now; that in the cause title of the plaint, the petitioner was shown to be a resident of H.No.8-8-478/1, but, the summons were taken out on premises No.8-4-578/1 and that even the substituted service was taken out on the same address; that there have been 4 several rounds of cases before the Tribunal constituted under the Andhra Pradesh Land Grabbing (Prohibition) Act and batches of Writ petitions and SLPs, but, she did not make her appearance in any of the said matters and put her signature on any vakalat or paper and, therefore, the question of her engaging Sri M.S.Narayancharyulu, Advocate, in the suit and giving vakalat to him does not arise and that the 1st respondent/plaintiff filed E.P.No.34 of 2011 against the 2nd respondent herein in the year 2011, but in fact, the 2nd respondent died in the year 2004 itself, and, therefore, the very institution of said E.P. is nullity.
The 1st respondent/plaintiff filed counter affidavit resisting the said petition. It is stated that the petitioner/2nd defendant, 2nd respondent herein and one Mrs.Qamarunnisa Begum have executed the Memorandum of Composition and Settlement Deed, dated 26.04.1985 having understood the terms and conditions thereof and since they did not come forward to discharge their obligation under the said deed, the 1st respondent/plaintiff has filed O.S.No.1144 of 1988, for specific performance of the said deed and in response to the process issued, the petitioner and the 2nd respondent herein have engaged Sri M.S.Narayanacharyulu, Advocate, and the 2nd respondent herein filed written statement and the petitioner/2nd defendant filed a memo adopting the same, but, thereafter they did not turn up and, therefore, the Court set them ex parte and decreed the suit on 15.02.1999 having considered the evidence and the 5 material available on record and even thereafter also the petitioner/2nd defendant and the 2nd respondent did not perform their obligation and, therefore, he has filed E.P.No.34 of 2011 for enforcement of the said decree and it is at that stage, the petitioner has filed the petition with false allegations only to avoid the execution of the decree. It is further stated by him that the petitioner will sign in Urdu and the same is evident from the plaint in O.S.No.909 of 1980 filed by her and also from the written statement filed by her in O.S.No.97 of 1981 and, therefore, the contention of the petitioner that she is an illiterate and she cannot put her signature and she will only put thumb impression is not a true and correct one. It was also stated by him that the petition lacks the ingredients envisaged under Section 5 of the Limitation Act and that the petitioner did not assign any cogent reason to condone the delay caused and that the petitioner without assigning any reason for the delay caused has been focusing mainly on the proceedings of the suit, which is irrelevant for deciding this application and prayed to dismiss the petition.
During the course of enquiry, on behalf of petitioner/2nd defendant, P.Ws.1 and 2 were examined and Exs.P1 to P6 were marked initially and thereafter they were eschewed. On behalf of the 1st respondent/plaintiff, no oral evidence was adduced, but Exs.R1 to R5 were marked.
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Upon considering the oral and documentary evidence, the trial Court dismissed the said petition. The learned Judge of the trial Court confined to adjudicate upon the application on the ground of fraud and declined to go into further aspects.
Against the dismissal of the application, the revision petitioner has taken several grounds, more particularly the ground of fraud not only played on the petitioner, but also on the Court:
(i) The petitioner being a Pardanashin woman is not expected to have appeared before the advocate or Notary for signing Vakalat or G.P.A. etc., and therefore, the said documents were manipulated by the 1st respondent and her brother, the 2nd respondent.
(ii) Suit was filed for specific performance of Memorandum of Settlement, the terms of which require registration, interestingly the plaintiff did not file any original document, instead filed the Xerox copy on the pretext that the original was misplaced. No explanation as to how he got the attested copy when the original was misplaced.
Heard learned Counsel for the petitioner/2nd defendant, learned Counsel for the 1st respondent/plaintiff and perused the material documents available on record. None appears on behalf of the 2nd respondent.
Learned Counsel for the petitioner/2nd defendant would submit that the delay in filing the petition to set aside the ex parte decree is an outcome of fraud and rank forgery and as such no 7 prejudice will be caused to the respondents if the delay is condoned. He further submits that the docket proceedings, dated 23.06.1989, 27.11.1989, 12.07.1995 and 27.08.1998, categorically established that Vakalath was allegedly filed by the petitioner/2nd defendant, even though summons have not been served on her and further the 1st defendant alone filed a written statement, even though vakalath was allegedly filed by both the defendants by a common advocate. He further submits that even though the written statement was not allegedly filed by the petitioner/2nd defendant, she was not set ex parte till 27.08.1998 and, therefore, it is crystal clear that summons have not been served on the petitioner/2nd defendant and that she had not engaged the Counsel. He further submits that the docket proceedings have been manipulated by inserting "petitioner/2nd defendant had adopted the written statement of the 1st defendant" even though there is no such memo was found in the record. He further submits that no relief for specific performance of agreement of sale could have been granted on the basis of Ex.A7, which is a typed document attested by Notary and which does not bear signatures of any of the executants and on this ground alone, the trial Court ought to have condoned the delay and suo motu set aside the ex parte decree. He further submits that one of the alleged executants of Ex.A7 was not made as a party to the suit and as such the suit could have been dismissed on that ground. He further submits that prior to the filing of the suit, no mandatory notice has 8 been given by the plaintiff to the defendants as contemplated by Section 16 of the Specific Relief Act. He further submits that the decree was fraudulently obtained by the 1st respondent/plaintiff on the basis of Ex.A7 which is inadmissible in evidence under Section 49 of the Registration Act and also Section 35 of the Stamps Act since no steps have been taken by the plaintiff to get Ex.A7 impounded by paying deficit stamp duty. He further submits that it is an established proposition of law that the technicalities should not affect the substantive rights of the parties and the delay pleaded could have been condoned on the basis of lapses and element of fraud.
Concluding the above submissions, the learned Counsel for the petitioner/2nd defendant submitted that the cumulative appreciation of all the above facts would manifest a surruptious fraud played by the 1st respondent/plaintiff on the petitioner as well as on the Court and that where the fraud is apparent on the face of the record, the decree is liable to be set aside as the same is vitiated. Lastly, according to the learned Counsel for the petitioner, non-examination of the above circumstances by the learned trial Judge is a material irregularity on the face of record which needs to be rectified by this Court while exercising its jurisdiction under Article 227 of the Constitution of India. Therefore, prayed to allow the revision. In support of his contentions, he relied upon the following citations of the Apex Court and various High Courts. 9
1. Balraj Taneja and another v. Sunil Madan and another1
2. Aziz Ahmed Khan v. I.A.Patel2
3. S.P.Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (Dead) by L.Rs. and others3
4. Meghmala and others v. G.Narasimha Reddy and others4
5. Ramesh Kumar and another v. Furu Ram and another5
6. Ram Prakash Agarwal and another v. Gopi Krishan (Dead through LRs.) and others6
7. T.Arivandandam v. T.V.Satyapal and another7
8. Collector, Land Acquisition, Anantanag and another v. Mst. Katiji and others8
9. N.Balakrishnan v. M.Krishnamurthy9 Learned Counsel for the 1st respondent/plaintiff would submit that the petition lacks the ingredients envisaged under Section 5 of the Limitation Act and that the petitioner/2nd defendant did not assign any cogent reason to condone the abnormal delay and that without assigning any reason for the inordinate delay, she has been focusing mainly on the proceedings of the suit, which are irrelevant for deciding the petition filed under Section 5 of the Limitation Act. He further submits that the trial Court has rightly dismissed the said petition and that there is no illegality or irregularity in the impugned order passed by the trial Court.
After meticulously examining the facts of the case, the point that arises for consideration is whether there was any fraud played 1 (1999) 8 SCC 396 2 1971 SCC Online AP 176 3 (1994) 1 SCC 1 4 (2010) 8 SCC 383 5 (2011) 8 SCC 613 6 (2013) 11 SCC 296 7 (1977) 4 SCC 467 8 (1987) 2 SCC 107 9 (1998) 7 SCC 123 10 on the petitioner/2nd defendant? If so, whether on that ground, the Court is competent to condone the delay?
In the first instance, the averment relating to fraud said to have been played by the 1st respondent on the petitioner is taken for consideration. The grounds urged by the petitioner/2nd defendant are that:
(i) She did not engage any counsel and not signed any vakalat, she being an illiterate and marks lady.
(ii) She did not file any memo adopting the written
statement of her brother (2nd respondent/1st
defendant), all the affairs were managed by the 1st defendant in collusion with the 1st respondent/plaintiff.
(iii) Original MOU was suppressed because it is a forged document and to prevent from being referred to the expert. However, the Court below held that in earlier suit proceedings, she has signed the written statement in Urdu. Therefore, she is not marks lady and her claim is false and dismissed the petition. That observation of the learned trial Court is seriously questioned by the petitioner's counsel.
Admittedly, the petitioner/2nd defendant is a Muslim lady.
Muslim women are pardanashin by default and the said presumption was recognized by several Courts. It is presumed that any document executed by pardanashin woman is not within her knowledge and the burden of proving the same lies on the person who relies on the document.
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In the case of K.Varadhan V. Pattammal10 , it was observed by Mohan, J of the Madras High Court as under:
"Courts in India have on the rule of evidence enshrined in Sections 101 and 102 in Chapter VII of the Evidence Act, particularly in cases of women in India who is some parts and some communities are pardanashin and in most parts of the country illiterate, for the reason that they transact their business generally through male folk only, men always dominated women, and women lived a life dominated by men, this being the curse that always surrounded women folk even though law recognized their independent rights, they failed invariably in exercising such rights, accepted that onus lies upon the defendant to show that there has been no fraud, undue influence or coercion in the transaction. One could easily, since the plaintiff alleged mis-representation and fraud, ask her to prove the mis- representation and fraud. But not in a case where a women being an illiterate and unaware of the contents signed the document. Unless fully and faithfully informed about the contents, she cannot be asked to bring evidence to prove her case. Learned Single Judge, in our opinion, is right in holding that the Court will not ask the plaintiff to prove the allegation but demand from the defendant to disprove the allegation of mis-
representation and fraud." (Emphasis laid by me) In the case of Mst.Kharbuja Kuer v. Jangbahadur Rai and others11 , it was observed by the Hon'ble Apex Court that:
"as regards documents taken from pardanashin women, the court has to ascertain that the party executing them had been a free agent and duly informed of what she was about. The reason for the rule is that the ordinary presumption that a person understands the document to which he has affixed his name does not apply in the case of a pardanashin woman. The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardanashin lady to establish that the said document was executed by her after clearly understanding the nature of the transaction."
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(1992) 2 L.W. 209 11 (AIR) 1963 SC 1203 12 Then the next facet of the case is about the fraud played on the Court. The docket proceedings of the trial Court demonstrate that on 23.06.1989 even though there is no report from the office that the petitioner/defendant No.2 was served with the summons, one advocate Sri M.S. Narayana Charyulu was said to have filed vakalat for both the defendants. Though there was no order with regard to filing of any written statement by the petitioner/2nd defendant, surprisingly after about six years, on 12.07.1995, the docket proceedings shows that the written statement of defendant No.1 was adopted by defendant No.2. Another circumstance is that the Court though called for hearing on the admissibility of Memorandum, did not address the said fact in its judgment. However, this Court is not inclined to examine the merits of the case on all these aspects. Prima facie, it is clear that there is some sort of fraud/misrepresentation made to the Court which culminated in the judgment, by setting the petitioner ex parte.
In S.P.Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (Dead) by L.Rs. and others (3 supra) the Apex Court held as under:
"The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to 13 come to court with a true case and prove it by true evidence". 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. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax- evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court - process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's 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 facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Exhibit B-1S) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non- production and even non-mentioning of the release deed at the trial tantamounts to playing fraud on the court. We do not agree with the observations of the High Court that the appellants-defendants could have easily produced the 14 certified registered copy of Exhibit B-15 and non-suited the plaintiff. 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 Meghamala and others v. G.Narasimha Reddy and others (4 supra) the Apex Court held as under:
"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. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including rejudicata. Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false. Suppression of a material document would also amount to a fraud on the Court."
In the light of the above case laws, the substantial question that arises for consideration is whether in the facts and circumstances proved by the petitioner, she could be held to be entitled to this protection?
Interestingly, even though there is specific plea in the affidavit, the Court below did not address to the issue whether the petitioner being a muslim and pardanashin woman had executed 15 the vakalat in the presence of the attesting advocate having been aware of the contents and purpose thereof. This doubt is compounded by the fact that there is no report of the Process Server that, there was any personal service of the suit summons on the petitioner as per rules of the C.P.C. However, the learned trial Court did not examine the point in issue from this perspective.
In the instant case the petitioner/2nd defendant pleaded that while obtaining the ex parte decree, the respondents herein played fraud on her. Admittedly, no summons were served, the petitioner/2nd defendant never signed on the vakalath as she is an illiterate and pardanashin lady and she only affixes her thumb impression and that the Memo alleged to have been filed by the petitioner/2nd defendant in adopting the written statement filed by the 1st defendant was not found in the suit records. Further, there were interpolations in the docket proceedings. It was stated by the petitioner/2nd defendant that she came to know about the passing of the decree on 17.12.2015 when some persons approached her and offered to give Rs.10,00,000/- if she executes a sale deed in their favour and immediately thereafter, she obtained necessary papers and filed petition to set aside the ex parte decree obtained against her. Moreover, fraud is obvious and self evident, every act which is result of such fraud is vitiated. Fraud is a fact which shall be proved by evidence and not in a summary manner. Where a fact is vitiated by fraud, to challenge that fact, limitation starts from the date of 16 knowledge of fraud. Therefore, in this case, even the Limitation Act does not apply because the petitioner categorically asserted that she filed the petition within time after she came to know about the fraud played by the 1st respondent/plaintiff on her as well as upon the Court. In several decisions, the Supreme Court held that even if the delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties and further fraud vitiates everything including a decree obtained by perpetrating fraud on the parties to the suit and also on the Court.
Thus, when the facts and circumstances clearly indicate that there is some sort of fraud appears to have been played by the respondent No.1/plaintiff in obtaining a decree certainly not on merits, the delay in making the application to set aside that decree is not material as the law is that fraud vitiates every solemn act. In such case, merely because the petitioner has filed application under Section 5 of the Limitation Act, it has to be treated as filed with abundant caution and that does not take away the inherent jurisdiction of this Court to pass appropriate order to do complete justice to the parties. This Court is of the considered view that when substantial rights in immovable property are involved, sustaining ex parte decree is not admissible and it is always better to have a decree on merits. The learned trial Court did not exercise its jurisdiction properly for appreciation of the facts in dispute and thereby committed material irregularity. Therefore, taking into consideration 17 the facts and circumstances of the case, I find that there was sufficient cause to condone the delay of 5767 days in filing an application to set aside the ex parte decree passed against the petitioner/2nd defendant on 15.02.1999.
For the aforementioned reasons and having regard to the facts and circumstances of the case, the impugned order is liable to be set aside.
Accordingly, the Civil Revision Petition is allowed and the order, dated 07.06.2018 passed in I.A.No.30 of 2016 in O.S.No.1144 of 1988 on the file of the V-Senior Civil Judge, City Civil Court, Hyderabad, is hereby set aside and the delay of 5767 days in filing a petition set aside the ex parte decree, dated 15.02.1999 is hereby condoned. The trial Court shall dispose of the application under Order 9 Rule 13 C.P.C. and shall complete the trial of the suit expeditiously, preferably within a period of four months from the date of receipt of copy of this order.
As a sequel thereto, Miscellaneous Petitions pending if any, shall stand closed. There shall be no order as to costs.
____________________ JUSTICE G. SRI DEVI 08.01.2021 Gsn.
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