Ab vs Smt. Namita Naiya And Others
2023 Latest Caselaw 6126 Cal

06   13.09.                        FMAT 401 of 2023
     2023                          IA No. CAN 1 of 2023
     Ct. No. 04
                               Keshar Chand Padia @ Paria
        Ab                                 Vs.
                              Smt. Namita Naiya and others.

                                           ---------------

Mr. Debjit Mukherjee,, Ms. Susmita Chatterjee, Ms. Dipanwita Ganguly, Mr. S. Chakraborty.

... for the appellant.

Mr. Supratim Dhar, Mr. Dhananjay Nayak, Mr. Sourya Mukherjee.

... for the respondents.

Initially the impugned order, prima facie, appears to us innocuous in relation to a suit for partition where the rights of the parties have been admitted and the respective possession thereof is also not disputed, but the appellant vociferously submits before us that the foundation of the ex parte ad interim order of injunction passed by the trial Court is an outcome of a fraud and forgery played upon the Court as well as the appellant and, therefore, such person should be dealt with iron hands and should not go scot free or merrily walk through the corridors of the Court.

The respondent as plaintiff filed a suit for partition and separation of shares having inherited from one of the co-sharer, namely, Paresh Chandra Sen, who was having undivided 1/4th share in respect of the suit property. A Death Certificate purportedly issued by the Pranganj Gram Panchayat, Bhangar-I, would reveal that the said Paresh Chandra Sen died on 1st January 1985 at Village

- Kalikapur, Post Office - B Narayanpur, Police Station - Narayanpur, District - 24 Parganas (South). The registration number is shown as 'Pran/175/85' and the date of issue as well as the registration is shown as 16th

January 1985.

It is alleged in the said plaint that she being one of the daughters of Paresh Chandra Sen along with her brother and two other sisters inherited the undivided share of the deceased along with other siblings and, therefore, seeks for partition and separation of share.

The trial Court relied upon a purported Death Certificate and going by the statement made in the plaint as well as the application for temporary injunction held that if any disturbances in relation to possession of an undivided share is created, it would hamper her right and if any changes is made to the character or the status of the property, it would cause an immense injury to the plaintiff/respondent.

The appellant produced before us the downloaded copy of the Certificate from the official website of the Kolkata Municipal Corporation annexed at page 64 of the application (CAN 1 of 2023), which indicates that said Paresh Chandra Sen died on 14th December 1964 at MR Bangur Hospital and the factum of death has been recorded by giving a Registration No. 58. Apart from the same, the appellant in a supplementary affidavit, filed before this Court today, annexed the copy of an application under Right to Information Act, 2005, wherein the query was raised as to whether any Death Certificate has been issued in the name of Paresh Chandra Sen of Village - Kalikapur, Post Office - B Narayanpur, Police Station - Narayanpur, District - 24 Parganas (South) vide Registration No. Pran/175/85 dated 16th January 1985 from your office. The reply given by the said Pranganj Gram Panchayat duly signed by the Executive Assistant annexed to the said supplementary affidavit revealed that there is no existence of the Registration No. Pran/175/85 dated 16th January 1985 in their record. The aforesaid reply to an information sought under the Right to Information Act raises a serious doubt over the genuinity, authenticity and the

existence of the Death Certificate relied upon by the plaintiff/respondent.

The Issuing Authority denied the existence of any such death recorded in the record and has also denied the existence of the Death Certificate. Furthermore, it appears from a deed of conveyance dated 30th March 1981 purportedly executed by the heirs of the said Paresh Chandra Sen that they transferred, conveyed and alienated their right, title and interest in favour of the vendors therein; wherein it is indicated in the recital that the said Paresh Chandra Sen left behind him surviving a son, namely, Dilip Kumar Sen and two daughters, namely, Smt. Anima Das Gupta and Smt. Dipti Roy. There is no reflection in the name of plaintiff/respondent as daughter therein.

However, the plaintiff/respondent contend that apart from the aforesaid heirs, who executed the deed of sale, she is also one of the successor to the estate of the said deceased and, therefore, such deed can only be valid to the extent of their shares, which they inherited from their father and not in respect of the entire share.

We are conscious that the scope of an appeal against an ex parte ad interim order of injunction is limited but in the exceptional circumstances the Court may permit the appellant being the defendant, who suffered such order, to bring the facts or the plea of defence before the appellate Court. We are also not unmindful of the proposition that the Court should not ordinarily stay the operation of the impugned order at the time of admission of an appeal as it may tantamount to allowing the appeal at the admission stage, but aforesaid nuances of law is not a rule of rigidity, as in exceptional and extraordinary cases there is no fetter on the part of the Court to suspend the operation of the impugned order at the admission stage pending the appeal.

The Apex Court in case of Ramrameshwari Devi and others vs. Nirmala Devi and others, reported in

(2011) 8 SCC 249 succinctly observed that a person, who approached the Court with false averments and the forged documents to tire out the true owner and being conscious of the aforesaid fact obtained an interim order based upon the forged and fabricated documents, the Court should viewed such matter more seriously and the person, who is found guilty of committing forgery and fraud upon the Court, should be prosecuted for perjury in the following:

"47. We have to dispel the common impression that a party by obtaining an injunction based on even false averments and forged documents will tire out the true owner and ultimately the true owner will have to give up to the wrongdoer his legitimate profit. It is also a matter of common experience that to achieve clandestine objects, false pleas are often taken and forged documents are filed indiscriminately in our courts because they have hardly any apprehension of being prosecuted for perjury by the courts or even pay heavy costs. In Swaran Singh v. State of Punjab this Court was constrained to observe that perjury has become a way of life in our courts.

48. It is a typical example of how a litigation proceeds and continues and in the end there is a profit for the wrongdoer."

The aforesaid principles of law have further been reiterated and restated in a subsequent decision rendered by the Apex Court in case of Badami (Deceased) by her LR. Vs. Bhali, reported in (2012) 11 SCC 574 in the following:

"31. A person whose case is based on falsehood has no right to approach the court. A litigant who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. If a vital document is withheld in order to gain advantage on the other side he would be guilty of playing fraud on court as well as on the opposite party.

32. In Shrisht Dhawan v. Shaw Bros., it has been opined that the fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It has been defined as an act of trickery or deceit.

The aforesaid principle has been reiterated in Roshan Deen v. Preeti Lal, Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education and Ram Chandra Singh v. Savitri Devi.

34. Yet in another decision Hamza Haji v. State of Kerala it has been held that no court will allow itself to be used as an instrument of fraud and no court, by way of rule of evidence and procedure, can allow its eyes to be closed to the fact it is being used as an instrument of fraud. The basic principle is that a party who secures the judgment by taking recourse to fraud should not be enabled to enjoy the fruits thereof."

Before us two certificates are produced, which appears to be inconsistent and contrary to each other. At this stage, the Court has to balance the rights of the parties until the Court arrived at a firm decision on the forgery and/or the fraud committed by any of the parties to the proceedings and a consequence to follow thereupon. So far as the Death Certificate relied upon by the plaintiff/respondent is concerned, the answers to the queries made under Right to Information Act, 2005 raise a serious doubt on the existence of the aforesaid document, which impliedly raised the doubts on the date of the death or in other words, the entries made therein. On the other hand, the deed of sale being a public document has been produced, which was executed as far back as in the year 1981, wherein it is disclosed that the said Paresh Chandra Sen had one son and two daughters and the name of the plaintiff/respondent is conspicuously absent therein.

Furthermore, the information downloaded from the website of the Kolkata Municipal Corporation discloses the date of death of Paresh Chandra Sen at MR Bangur Hospital on 14th December 1964.

We, therefore, feel that the moment prima facie case relating to forgery and/or fraud having been committed upon the Court is made out, it brings the case within an exception and, therefore, there is no impediment on the part of the Court to stay of the

operation of the order as a wrongdoer cannot reap the benefit of his own wrong.

We, therefore, stay the operation of the impugned order for a period of four weeks from date or until further order/orders of this Court, whichever is earlier.

We, however, direct the plaintiff/respondent, who is represented, to file the original of the purported Death Certificate issued by the Pranganj Gram Panchayat (filed before the trial Court) on the next date of listing of the instant matter.

We also direct the appellant to produce the certified copy of the register maintained for recording the birth and death of the people resided or died within the territorial jurisdiction on the said date. If such application is made in course of this week before the Kolkata Municipal Corporation, the concerned Officer of the Corporation is directed to issue the Death Certificate provided the death of said Paresh Chandra Sen is registered with them, within a week therefrom.

The concerned Officer of the Kolkata Municipal Corporation is also directed to produce the register maintained for recording the death of the persons within the territorial jurisdiction on the next date of listing.

Both the parties or their respective Counsels are directed to communicate this order to the Municipal Commissioner of the Kolkata Municipal Corporation immediately for necessary compliance.

List the matter on 3rd October 2023 under the heading "For Orders".

(Harish Tandon, J.)

(Prasenjit Biswas, J.)