Telangana High Court
Samala Mallikarjun Reddy vs K. Vijaya Laxmi And 11 Others on 9 July, 2024
Author: P.Sree Sudha
Bench: P.Sree Sudha
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
CIVIL REVISION PETITION No.714 of 2021
ORDER:
This Civil Revision Petition is filed against the Order dated 18.03.2021 in I.A.No.265 of 2020 in O.S.No.422 of 2001 passed by the learned II-Additional Senior Civil Judge, Ranga Reddy District.
2. Petitioner herein had filed an application in I.A. No. 265 of 2020, against the respondents under Section 5 of the Limitation Act, to condone the delay of 1159 days in filing the application to set aside the preliminary decree dated 27-11- 2017. The trial Court considering the arguments of both sides, dismissed the application. Aggrieved by the said Order, petitioner therein preferred the present Civil Revision Petition.
3. Admittedly the Petitioner was brought on record as per the order dated 11-09-2019, passed in I.A.No.914 of 2019 filed under Order XXII Rule 4 R/w. Section 151 of CPC only after passing the Preliminary Decree dated 27-11-2017 and Final Decree dated 02-07-2019, the said fact was admitted by the contesting respondent No.1 in the counter filed before the trial court at para No.3.
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4. Though the delay of 1159 days was mentioned in the application under revision, but actual delay is only 111 days i.e. from the date of petitioner brought on record. In that regard the learned Counsel for the petitioner is relying on the judgment the Hon'ble Supreme Court in the case of Raja Harish Chandra Raj Singh Vs.The Deputy Land Acquisition Officer and another, 1 in which it was observed that, "it was held that in a case where an order was not passed in the presence of the parties or after notice to them of the date when the order would be passed the expression "within 30 days after the making of the order" used in the section means within 30 days after the date on which the communication of the order reached the parties affected by it." In this case, admittedly as per the counter affidavit averments, the petitioner was brought on record only on 11-09-2019, therefore the starting point of limitation is 11-09-2019, but not from the date of passing of the preliminary decree dated 27-11-2017.
5. Learned Counsel for the petitioner stated that respondent No. 1 herein had filed the suit for partition and separate possession in respect of suit schedule properties vide O.S.No.422 of 2001 on the file of the learned II-Additional 1 AIR 1961 SC 1500 3 Senior Civil Judge, Ranga Reddy District, at L B. Nagar against the Respondents No 2 to 9. In the said suit, the Respondent No.3 i.e., father of the Revision Petitioner was set ex-parte, as his residential address is wrongly mentioned in the plaint as H.No.1-49, Hakimpet, Secunderabad, in fact the Respondent No.3 is residing in H.No.4-2-215, MB Dargah, Kowkoor, Alwal, Secunderabad, as per Ex.P1-death certificate and Ex-P2 Aadhaar Card. Respondent No.1 by playing fraud on the court, shown the Respondent No.3-father of the Revision Petitioner i.e., S.Sanjeeva Reddy, as a dead person in the fair copy of amended plaint, filed on 19-01-2017 vide S.R.No.288/2017 and so also in the judgment dated 27-11-2017 at para no.4 it is mentioned that "Defendant No.2 was died" if such being the case the question of serving the notice to the father of the Revision Petitioner does not arise, on the face of the record, and thus respondent No.1 played fraud on the court and obtained ex-parte preliminary decree. In support of his arguments, he relied upon the judgment of the Hon'ble Supreme in the case of S.P.Chengalvaraya Naidu Vs.Jagannath, 2 in which it was held as follows:
"1."Fraud avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago. It is the settled 2 (1994) 1 SCC 1 4 proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree by the first court or by the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings...
... 3. One Jagannath was the predecessor-in-interest of the respondents. He was working as a clerk with one Chunilal Sowcar. Jagannath purchased at court auction the properties in dispute which belonged to the appellants. Chunilal Sowcar had obtained a decree and the court sale was made in execution of the said decree. Jagannath had purchased the property in the court auction on behalf of Chunilal Sowcar, the decree-holder. By a registered deed dated November 25, 1945, Jagannath relinquished all his rights in the property in favour of Chunilal Sowcar. Meanwhile, the appellants who were the judgment-debtors had paid the total decretal amount to Chunilal Sowcar. Thereafter, Chunilal Sowcar, having received the decretal amount, was no longer entitled to the property which he had purchased through Jagannath. Without disclosing that he had executed a release deed in favour of Chunilal Sowcar, Jagannath filed a suit for partition of the property and obtained a preliminary decree. During the pendency of the suit, the appellants did not know that Jagannath had no locus standi to file the suit because he had already executed a registered release deed, relinquishing all his rights in respect of the property in dispute, in favour of Chunilal Sowcar. It was only at the hearing of the application for final decree that the appellants came to know about the release deed and, as such, they challenged the application on the ground that non- disclosure on the part of Jagannath that he was left with no right in the property in dispute, vitiated the proceedings and, as such, the preliminary decree obtained by Jagannath by playing fraud on the court was a nullity. The appellants produced the release deed (Ex. B- 1 5) before the trial court. The relevant part of the release deed is as under:
"Out of your accretions and out of trust vested in me, purchased the schedule mentioned properties benami in my name through court auction and had the said sale confirmed. The said properties are in your possession and enjoyment and the said 5 properties should henceforth be held and enjoyed with all rights by you as had been done:
So far if any civil or criminal proceedings have to be conducted in respect of the said properties or instituted by others in respect of the said properties you shall conduct the said proceedings without reference to me and shall be held liable for the profits or losses you incur thereby. All the records pertaining the aforesaid properties are already remaining with you.
...5. 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 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.
He also relied upon the decision of the Hon'ble Supreme Court in the case of Esha Battacharjee Vs. Managing Committee Ragunathpur Nafar Academy and others, 3 in which it was held that, "it is to be borne in mind but no one gets away with the fraud, misrepresentation or interpolation by taking recourse to the 3 (2013) 12 SCC 649 6 technicalities of law of limitation." preliminary decree cannot withstand on the ground of limitation, as it is obtained by playing a fraud.
6. As on the date of passing the final decree dated 02-07-2019, the father of the Revision Petitioner was no more, he expired as 23-09-2018 as per Ex.P1 death certificate, thus decree passed against dead person is non est in the eye of law, therefore the contesting respondent has no right to say that after passing the final decree the application under revision is not maintainable. It is settled law if an order is bad in its inception, it does not get sanctified at later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that illegality strike at the root of the order. In this case also the preliminary decree is passed by showing the petitioner's father as a dead person, though he was alive, therefore passing of final decree at a later stage cannot validate preliminary decree.
7. The trial Court mainly discarded the case of the Revision Petitioner on the ground that the suit summons were served on respondents No.2 to 9 through registered post in the year 2001, petitioner has not produced any document to show that 7 respondent No.3 was not residing in the address shown in the plaint as on the date of filing of suit. Further the petitioner has not disputed the signature on the acknowledgment card of the respondent No.3 herein. The observation of the trial Court is erroneous for the reasons mentioned below:
(i) In the entire counter and order under revision failed to mention on which date the notice was ordered, on which date notice was served.
(ii) When the Judgment and Decree itself shows that the father of the revision petitioner was no more as on the date of passing of the order, if such being the case, no question arises for service of notice to the dead person.
8. The other finding of the trial Court is that the notice was served to the father of the Petitioner in the final decree petition and he remained ex- parte. There is no explanation as to why respondent No.3 has not challenged the preliminary decree during his lifetime. It is not proper for the reason as mentioned below:
(i) When admittedly as on the date of passing the final decree, the father of the revision Petitioner i.e. Defendant No.2 is died on 23-09-2018, 8
(ii) admittedly the Petitioner was brought on record only after passing the final decree, if such being the case, how could the notice would serve on the dead person and how could the dead person would question either preliminary decree or final decree and hence the petitioner was brought on record only after passing of the final decree.
9. The finding of the trial Court that advocate commissioner's report shows that on 22-12-2008, when the advocate commissioner visited the suit schedule property, petitioner was present and he did not co-operate for the commission. The advocate commissioner submitted his report on 03-05-2019 and thereafter the final decree was passed on 02-07-2019. In that context, the submission of the revision petitioner is that while deciding an application under Order IX Rule 13 of CPC, the sufficient cause for non-appearance refers to the date on which absence was made a ground for proceeding ex-parte and cannot be stretched to rely upon the other circumstances anterior in time. Further, setting aside the ex-parte decree against the respondent No.3, the court cannot see narrow and technical approach and has to allow the respondent No.3 to prove his case within a reasonable time. 9
10. The trial Court recorded the finding that there is no explanation as to why the petitioner kept quiet from 22-12-2018 to 29-01-2020 on which date the petition is filed. In this context the submission of the petitioner is that in his affidavit in Para No.1 it was stated that he was brought on record on 11-01-2019, in Para No.2 of the affidavit stated the address of the father of the revision petitioner was shown wrong, in Para No.3, it was stated that on 31-12-2019, the certified copy of the preliminary decree was delivered to him, then he came to know about the proceedings, but the trial Court failed to see the said explanation and thereby the order under revision is erroneous.
11. The trial Court rejected the application of the petitioner on the ground that petitioner has not explained the delay from 2018 to 2020, further rejected the application on the ground that the Petitioner has failed to substantiate his contention with cogent and reliable proof. The said finding is contrary to the above record for the reasons in above mentioned paragraph. At the time of passing of final decree, the father of the revision petitioner is no more and it is passed against a dead person. The preliminary decree and final decree is passed behind the back of the petitioner and the father of the petitioner, but none of the said reasons either dealt with or considered, but 10 dismissed the application under revision only on assumptions and presumptions. The erstwhile combined High Court of Andhra Pradesh, Hyderabad, in the case of Kavali Narayana and others Vs. Kavali Chennammai, 4 held that when the application filed to condone the delay in setting aside the ex-parte decree, the reasons mentioned in the affidavit filed under section 5 of Limitation Act and reasons mentioned in the affidavit filed under Order IX Rule 13 of CPC are one and the same, then the court has to allow both the applications and permit the person to contest the matter.
12. The amended plaint dated 17.03.2001, shows that S.Sanjeeva Reddy/defendant No.2 as dead person, and thus the question of serving summons to respondent No.3/defendant No.2 does not arise. In fact, there is no whisper in the Judgment regarding service of notice and hence this Court finds it reasonable to give an opportunity to the petitioner to contest the matter on merits to meet the ends of justice.
13. In the result, the Civil Revision Petition is allowed, the delay of 1159 days is condoned and exparte decree dated 27.11.2017 in O.S.No.422 of 2001, is set aside. As the suit is of 4 2005 (1) ALD 672 11 the year 2001, targeted case, the trial Court is directed to dispose of the same in eight months from the date of this Order and learned Counsels on both sides are directed to co-operate with the Court for disposal of the suit within stipulated time.
Miscellaneous petitions pending, if any, shall stand closed.
_________________________ JUSTICE P.SREE SUDHA DATE: 09.07.2024 tri