Madras High Court
R.Chandrasekaran vs Ganesan on 24 June, 2025
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
C.R.P.No.1602 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24..06..2025
CORAM
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
C.R.P.No.1602 of 2025
and C.M.P.No.9253 of 2025
1.R.Chandrasekaran
2.Sekar ..... Petitioners
-Versus-
1.Ganesan
2.Madhu
3.The Sub Registrar,
Sub Registrar's Office,
Pennagaram Taluk, Dharmapuri District.
4.The District Registrar,
District Registrar Office,
Dharmapuri Town, Dharmapuri Taluk,
Dharmapuri District.
5.The State of Tamilnadu,
Rep. by the District Collector,
Collectorate Dharmapuri,
Dharmapuri Taluk, Dharmapuri District. ..... Respondents
Petition praying to set aside the judgement and decree dated 26.09.2023
passed in O.S.No.16 of 2023 on the file of the learned District Munsif cum
Judicial Magistrate, Pennagaram, by allowing this Civil Prevision Petition in
exercise the powers conferred under Article 226 of the Constitution of India.
For Petitioner : Mr.N.Manokaran
For Respondent : Mr.S.Mukunth,Senior Counsel for
Mr.R.Vasudevan for R1
Mr.T.Arunkumar,
Additional Government Pleader for R3 to R5
Mr.E.Kannadasan for R2
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C.R.P.No.1602 of 2025
ORDER
This Civil Revision Petition is filed under Article 227 of the Constitution
of India, seeking to set aside (i) the ex parte decree dated 29.09.2023 passed in
O.S.No.16 of 2023 on the file of the learned District Munsif, Pennagaram and
(ii) the sale deed dated 15.11.2024, executed in favour of the 1st respondent-
Ganesan by the learned District Munsif, Pennagaram, pursuant to the orders
passed in the execution proceedings in E.P.No.1 of 2024 initiated on the basis
of the said ex parte decree for specific performance of an agreement for sale.
2.0 The brief facts leading to the filing of this Civil Revision Petition are
as follows:
2.1 The 2nd respondent-A.Madhu purchased a property measuring an
extent of 1.99 Acres of land comprised in S.NO.679/1 situated at Sunjalnatham
village, by virtue of sale deed dated 27.03.1987 vide Doc.No.346 of 1987; so
also he purchased two other properties measuring an extent of 1.37 ½ Acres of
land comprised in S.NO.679/8 and another extent of 42 cents comprised
S.No.679/4 at Sunjalnatham village by virtue of registered sale deed dated
18.01.1991 vide Doc. No.17 of 1991. After having purchased, on 26.07.2013,
the 2nd respondent-A.Madhu sold the property measuring an extent of 1.36
Acres of land comprised in S.No.679/8B; 1.99 Acres of land comprised in
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S.No.679/1 and 0.42 cents of land comprised in S.No.679/4 situated at
Sunjalnatham village to one D.Maddhaiyan, G.Rajendran and P.K.Duraisamy
vide Doc.No.361 of 2013. Subsequently, the 2nd respondent-A.Madhu, the
original owner executed a rectification deed dated 31.08.2015 vide Doc.
No.3035/2015 in favour of the said D.Maddhaiyan, G.Rajendran and
P.K.Duraisamy to rectify the mistake in respect of the survey number for 1.36
acres of land. According to the rectification deed, instead of S.NO.679/8A, it
was wrongly typed out as S.No.679/8B.
2.2 Thereafter, one I.Veerasamy, a practising Advocate as plaintiff, filed
a suit in O.S. No. 21 of 2020 against his own brother-A.Madhu, the
2nd respondent herein, and his other family members for partition and also for
a declaration, declaring the sale deed dated 26.07.2013 executed by the
2nd respondent in favour of D.Maddhaiyan, G.Rajendran and P.K.Duraisamy
as null and void and for permanent injunction which suit was taken on file as
O.S. No. 21 of 2020.
2.3 In the said suit, an interim application was filed by Advocate Mr. I.
Veerasamy, which was numbered as I.A. No. 131 of 2021, seeking an order of
interim injunction. The above-said application was heard and dismissed by the
District Munsif by order dated 29.10.2021 on merits. Pursuant to the dismissal
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of the interim application for ad-interim injunction, Advocate Mr. I.
Veerasamy, who was the plaintiff in the suit in O.S.No.21 of 2020 and also
appeared in person, filed a memo dated 15.11.2021 seeking leave of the Court
to withdraw the suit in O.S.No.21 of 2020. The learned District Munsif,
acceding to the request of the plaintiff-Advocate-I.Veerasamy, dismissed the
suit in O.S.No.21 of 2020 as not pressed.
2.4 While so, D.Maddhaiyan, G.Rajendran and P.K.Duraisamy, who
originally purchased the properties described in the suit schedule measuring an
extent of 1.30 acres of land in S.No.679/8A; 1.99 Acres of land in S.No.679/1
and 42 cents of land in S.No.679/4 after having retained 0.06 cents in
S.No.679/8A by way of sale deed dated 13.12.2021 vide Doc.No.5687 of 2021
from the 2nd respondent-A.Madhu, in turn, sold the same on 13.12.2021 to the
revision petitioners by virtue of a registered sale deed bearing Document No.
5687 of 2021. Pursuant to the said purchase, the revenue records were
mutated in their name.
2.5 When the matter stood thus, Ganesan, the 1st respondent herein
engaged Mr. I. Veerasamy, Advocate, to file a suit for specific performance
against the 2nd respondent in O.S. No. 16 of 2023 on the file of the learned
District Munsif, Pennagaram, based on a bogus and fraudulent agreement of
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sale said to have been executed on 05.05.2011. The said suit was filed on
09.03.2023 by Ganesan, the 1st respondent herein against the 2nd respondent-
A.Madhu (who was arrayed as 1st defendant in the suit) and 4 others. The 2nd
respondent - A.Madhu who was the 1st defendant in the suit had conveniently
remained ex parte in the said suit, and let the suit decreed ex parte on
29.09.2023. Thereafter, the 1st respondent—Ganesan filed an execution
petition, and pursuant to the orders passed therein, a sale deed was executed in
his favour through the executing court, based on the ex parte decree obtained in
O.S. No. 16 of 2023.
2.6 According to the revision petitioners, the decree obtained in
O.S.NO.16 of 2023 was nothing but an outcome of fraud and collusion
between the 1strespondent’s Advocate - I.Veerasamy who was plaintiff in
O.S.No.21 of 2020 on the file of the learned District Munsif, Pennagaram and
incidentally, he was the Advocate who represented the plaintiff-Ganesan in the
in the suit in O.S.No.16 of 2023, the 1st respondent herein.
2.7 The vendors of the revision petitioners lawfully purchased the
property on 26.07.2013 under a registered sale deed, which is duly recorded in
the encumbrance register maintained by the Registration Department.
2.8 The suit for specific performance was filed at the instance of Mr. I.
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Veerasamy, Advocate, who is the mastermind behind the creation of the
alleged sale agreement dated 05.05.2011. The 1st respondent was only a name
lender. Hence, the decree dated 29.09.2023 passed in O.S. No.16 of 2023 on
the file of the learned District Munsif, Pennagaram is nothing but a product of
fraud and is a nullity in the eyes of law. As the decree was obtained by
practising fraud upon the Court, it is rendered void ab initio and can be
challenged under Article 227 of the Constitution of India. The learned counsel
for the revision petitioners submitted that it is highly improbable for a person,
who had allegedly entered into an agreement for sale in the year 2011, to
remain silent for more than twelve years and then abruptly file a suit for
specific performance in the year 2023. Such prolonged and unexplained
inaction, according to the learned counsel, raises grave doubts about the
authenticity of the alleged agreement. It is further contended that the said
agreement appears to have been fabricated solely with the intention of
defeating and nullifying the valid sale deed already executed by A.Madhu, the
2nd respondent herein who is the brother of Advocate – I.Veerasamy in favour
of D.Maddhaiyan, G.Rajendran and P.K.Duraisamy.
3. This court has heard Mr.N.Manokaran, learned counsel for the
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revision petitioners, Mr.S.Mukunth, learned senior counsel on behalf of
Mr.R.Vasudevan, counsel on record for the 1st respondent and
Mr.T.Arunkumar, learned Additional Government Pleader for the 2nd
respondent.
4.1 The learned counsel for the revision petitioners summarised the
background of the facts leading to the filing of the revisionpetition in detail
which read as follows:
(i) Earlier, one Advocate, I. Veerasamy, a practising Advocate,
instituted a suit in O.S. No. 21 of 2020 against his brother, the 2nd respondent,
A. Madhu (2nd defendant), mother Kunjammal and other family members,
besides the District Collector, Pennagaram, and a few other officials of the
Registration, Revenue, and Survey Departments, a decree and judgement for
partition of the family properties; a declaration declaring that the sale deed
executed in favour of defendants 7 and 8 as null and void; a permanent
injunction and for mesne profits.
(ii) Along with the suit, Advocate I. Veerasamy, who was the
plaintiff in O.S. No. 21 of 2020, also filed an application for interim injunction.
However, the trial court, by a reasoned order dated 29.10.2021 in I.A. No. 131
of 2021, dismissed the said application on merits. Subsequently, the plaintiff—
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Advocate I. Veerasamy, chose to withdraw the entire suit.
(iii) Thereafter, the very same Advocate filed another suit, which
was taken on file as O.S. No. 16 of 2023, this time in the name of the 1st
respondent herein – Ganesan, seeking specific performance of an agreement
allegedly dated 05.05.2011.
(iv) The very nature of the non-judicial stamp paper used for
engrossment of the alleged agreement of sale would sufficiently indicate that it
was created solely for the purpose of fabricating an agreement of sale. The
appropriate stamp duty for engrossing an agreement of sale is twenty rupees, as
prescribed under Article 5(j) of the Schedule to the Indian Stamp Act, as
amended by the Tamil Nadu Act 9 of 2001. However, in the present case, the
alleged agreement has been engrossed on a non-judicial stamp paper of only
ten rupees, which is insufficient and improper for such a document. This
discrepancy, according to the learned counsel, categorically establish that the
agreement was not executed contemporaneously in 2011 as claimed, but was
instead created later to suit the convenience of the first respondent.
(v) The very same Advocate — Mr. I. Veerasamy — who had
earlier instituted a comprehensive suit seeking a judgment and decree for
partition of the suit properties into six equal shares, allotment of one such share
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to the plaintiff, and for separate possession, had also sought a declaration that
the sale deed dated 26.07.2013 executed by the 2nd defendant in favour of
defendants 7, 8, and 9 was fraudulent, dishonest, null and void. In addition, he
prayed for a permanent injunction restraining defendants 7 and 8 from entering
upon or encroaching upon the suit properties and from measuring the same, as
well as an enquiry into mesne profits. It is this very same Advocate who has
now filed the present suit in O.S. No. 16 of 2023, seeking specific performance
on the basis of an alleged agreement of sale dated 05.05.2011, thereby giving
rise to serious concerns regarding the bona fides and consistency of the legal
claims advanced. However, in doing so, the said Advocate has deliberately
failed to implead the purchasers of the property,who are necessary parties to
the suit. Instead, Mr. I. Periyasamy, who instituted the suit on behalf of
Ganesan, the 1st respondent herein, chose to implead his own brother, Mr. A.
Madhu, and four public officials including those from the Registration
Department and the District Collector, Dharmapuri, without impleading the
actual purchasers, who are just and necessary parties to the suit.
(vi) Such selective impleadment, omitting necessary parties without
whom the matter could not have been adjudicated effectively, enabled the 1st
respondent to obtain an ex parte decree. This sequence of events, coupled with
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the procedural omissions, would clearly establish that the decree was obtained
by playing fraud upon the Court.
(vii) Advocate I. Veerasamy, as plaintiff, filed a suit in the year 2020,
which was taken on file as O.S. No. 21 of 2020 on the file of the learned
District Munsif, Pennagaram, seeking partition and other reliefs. In that suit, he
was fully aware of the earlier sale transaction and, in fact, specifically sought a
declaration that the sale deed dated 26.07.2013, executed by the 2nd
respondent herein (who was arrayed as the 1st defendant in that suit) in favour
of D. Madhaiyan and two others, was fraudulent, dishonest, and null and void.
(viii) However, subsequently, the same Advocate filed another suit in the
name of Ganesan, the 1st respondent herein, based on an alleged agreement of
sale dated 05.11.2011, seeking specific performance, while purportedly
suppressing all the previous transactions concerning the sale of the property by
the 2nd respondent to D. Madhaiyan and others.
(ix) Such deliberate concealment of material facts and earlier
proceedings would, by itself, be sufficient to constitute fraud played upon the
Court.
4.2 In essence, the learned counsel for the revision petitioners submitted
that
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(i) The suit in O.S. No. 16 of 2023 was a fraudulent and collusive
action filed by Advocate I. Veerasamy in the name of the 1st respondent –
Ganesan, after having withdrawn an earlier suit (O.S. No. 21 of 2020) in which
he himself had challenged the same sale deed dated 26.07.2013. In the present
suit, the said Advocate deliberately suppressed the earlier transactions and
failed to implead the bona fide purchasers of the property, despite being fully
aware of their interest. The agreement of sale dated 05.05.2011, alleged in
support of the suit, was not only suspiciously delayed in enforcement but also
improperly stamped, indicating fabrication. The suit was thus engineered to
secure an ex parte decree by deceit.
(ii) Such deliberate concealment and procedural manipulation
amount to fraud on the Court, warranting exercise of powers under Article 227
of the Constitution to set aside the decree and the sale deed executed pursuant
to it as null and void.
4.3 The learned counsel for the revision petitioners in support of his
above contentions placed reliance upon the following judgements:
1. S.P.Chengalvaraya Naidu v. Jagannath, (1994) 1
SCC 1;
2. Satluj Jal Vidyut Nigam v. Raj Kumar Rajinder
Singh, (2019) 14 SCC 449;
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3. K.P.Natarajan and another v. Muthuammal and
others, (2024) 6 CTC 819
4. S.Baskar v. S.Ranjithkumar and others (2021) 1
CTC 539
5. Shanthimalai Trust v. Arunachala Education &
Environmental (2021) 1 CTC 539; and
6. Ayyasamy v. Shanmugam (2024) 6 MLJ 164
5.1 On the other hand, the learned counsel for the 1 st respondent
opposing the revision, submitted that the decree obtained in O.S. No. 16 of
2023 is lawful, valid, and based on a binding agreement of sale dated
05.05.2011. the ex parte decree was passed after service of summons, and no
challenge was raised at the relevant time. The decree was followed by
execution proceedings, culminating in the execution of a sale deed through the
court, thereby transferring valid title to the 1st respondent.
5.2 The learned counsel for the 1st respondent further contended that the
2nd respondent – A. Madhu, as the original owner of the property, had entered
into a valid agreement for sale with the 1st respondent – Ganesan, and that the
entire sale consideration was paid at the time of the agreement. Due to delay on
the part of the vendor in executing the sale deed, the 1st respondent was
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compelled to file the suit for specific performance.
5.3 The learned counsel for the 1st respondent furthermore contended that
the failure to implead subsequent purchasers does not render the decree void,
as they were neither necessary nor proper parties to a suit between the
contracting parties, especially when the purchasers had notice of the prior
agreement. Earlier suit (O.S. No. 21 of 2020) filed by Advocate I. Veerasamy
was entirely independent and unrelated to the agreement in question and was
withdrawn voluntarily. The present suit in O.S. No. 16 of 2023 was based on a
legally enforceable agreement and pursued in accordance with law. The ex
parte nature of the proceedings, by itself, does not constitute fraud, and that the
decree was passed following the normal legal process. Merely because
Advocate I. Veerasamy, who instituted the suit in O.S. No. 16 of 2023 on
behalf of the 1st respondent—Ganesan, and who was himself the plaintiff in
the earlier suit in O.S. No. 21 of 2020, happens to be a close relative of
Ganesan, such a relationship alone cannot form the basis to attribute fraud.
5.4 According to the learned counsel for the 1st respondent, the revision
petitioners cannot invoke the supervisory jurisdiction of this Hon’ble Court
under Article 227 of the Constitution of India to challenge the validity of a
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decree that was legally passed, even if it was an ex parte decree. If the revision
petitioners were truly aggrieved by such decree, the proper course of action
would have been to file an appeal or an application to set aside the ex parte
decree, as provided under the Code of Civil Procedure or to file a separate suit
for declaration under Section 34 of the Specific Relief Act or otherwise to
establish that the decree is not binding on them due to fraud, collusion, or
suppression.
5.5 The learned counsel for the 1st respondent lastly contended that
allegations of fraud, collusion, or suppression of material facts must be
specifically pleaded and proved by evidence. Such serious allegations cannot
be raised casually or for the first time in a revision petition. The revision
petitioners, having failed to challenge the proceedings at the appropriate time,
cannot now, at this belated stage, seek to unsettle a concluded judicial
proceeding by making unsubstantiated claims. Therefore, the learned counsel
prayed that the revision petition be dismissed.
6.1 The learned counsel for the 2nd respondent while adopting the
arguments advanced by the learned senior counsel appearing on behalf of the
1st respondent would additionally contend that the powers of the High Court
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under Article 227 being supervisory, the same has to be exercised sparingly in
cases where errors are apparent on the face of record, occasioning grave
injustice by the court assuming jurisdiction which it does not have, failing to
exercise jurisdiction which it does have, or exercising its jurisdiction in a
perverse manner. Hence, he would contend that essence of the power under
Article 227, being supervisory, it cannot be invoked to usurp the original
jurisdiction of the court which it seeks to supervise.
6.2 In support of his above contention, Mr.S.Mukunth, learned senior
counsel would place much reliance on the very recent judgement of the Hon'ble
Supreme Court in S.L.P.(C) No.21466 of 2024 dated 29.04.2025 (K.Valarmathi
and others v. Kumaresan).
7. In the light of the rival submissions, the point that arises for
consideration in this revision petition is:
Whether the Court, while exercising its power
under Article 227 of the Constitution of India, can set
aside an ex parte decree on the ground of fraud and abuse
of process of law?
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8. It is apposite to refer to the settled legal principles on the subject.
9. In S.P.Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1, the
Hon'ble Supreme Court has held that fraud avoids all judicial acts,
ecclesiastical or temporal. The 1st paragraph of the judgement reads as follows:
“Fraud avoids all judicial acts, ecclesiastical or
temporal” observed Chief Justice Edward Coke of England
about three centuries ago. It is the settled 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.”
10. In Satluj Jal Vidyut Nigam v. Raj Kumar Rajinder Singh, (2019)
14 SCC 449, the Hon'ble Supreme Court has held as follows:
“68. Fraud vitiates every solemn proceeding and no right
can be claimed by a fraudster on the ground of
technicalities. On behalf of the appellants, reliance has
been placed on the definition of “fraud” as defined
in Black's Law Dictionary, which is as under:
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“Fraud : (1) A knowing misrepresentation of the
truth or concealment of a material fact to induce another
to act to his or her detriment. Fraud is usually a tort, but in
some cases (esp. when the conduct is wilful) it may be a
crime. … (2) A misrepresentation made recklessly
without belief in its truth to induce another person to act.
(3) A tort arising from a knowing misrepresentation,
concealment of material fact, or reckless
misrepresentation made to induce another to act to his or
her detriment. (4) Unconscionable dealing; esp., in
contract law, the unconscientious use of the power arising
out of the parties' relative positions and resulting in an
unconscionable bargain.”
69.Halsbury's Laws of England has defined “fraud”
as follows:
“Whenever a person makes a false statement which he
does not actually and honestly believe to be true, for
purpose of civil liability, the statement is as fraudulent as
if he had stated that which he did know to be true, or
know or believed to be false. Proof of absence of actual
and honest belief is all that is necessary to satisfy the
requirement of the law, whether the representation has
been made recklessly or deliberately, indifference or
recklessness on the part of the representor as to the truth
or falsity of the representation affords merely an instance
of absence of such a belief.”
70. In Kerr on the Law of Fraud and Mistake,
“fraud” has been defined thus:
“It is not easy to give a definition of what
constitutes fraud in the extensive significance in which
that term is understood by Civil Courts of Justice. The
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courts have always avoided hampering themselves by
defining or laying down as a general proposition what
shall be held to constitute fraud. Fraud is infinite in
variety… Courts have always declined to define it, …
reserving to themselves the liberty to deal with it under
whatever form it may present itself. Fraud … may be said
to include property (sic properly) all acts, omissions, and
concealments which involve a breach of legal or equitable
duty, trust or confidence, justly reposed, and are injurious
to another, or by which an undue or unconscientious
advantage is taken of another. All surprise, trick, cunning,
dissembling and other unfair way that is used to cheat
anyone is considered as fraud. Fraud in all cases implies a
wilful act on the part of anyone, whereby another is
sought to be deprived, by illegal or inequitable means, of
what he is entitled to.”
71. In Ram Chandra Singh v. Savitri Devi [Ram Chandra
Singh v. Savitri Devi, (2003) 8 SCC 319] , it was
observed that fraud vitiates every solemn act. Fraud and
justice never dwell together and it cannot be perpetuated
or saved by the application of any equitable doctrine
including res judicata. This Court observed as under :
(SCC pp. 327-29, paras 15-18, 23 & 25)
“15. Commission of fraud on court and suppression of
material facts are the core issues involved in these
matters. Fraud, as is well known, vitiates every solemn
act. Fraud and justice never dwell together.
16.Fraud is a conduct either by letter or words, which
induces the other person or authority to take a definite
determinative stand as a response to the conduct of the
former either by word or letter.
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17.It is also well settled that misrepresentation itself
amounts to fraud. Indeed, innocent misrepresentation may
also give reason to claim relief against fraud.
18.A fraudulent misrepresentation is called deceit and
consists in leading a man into damage by wilfully or
recklessly causing him to believe and act on falsehood. It
is a fraud in law if a party makes representations which he
knows to be false, and injury ensues therefrom although
the motive from which the representations proceeded may
not have been bad.
*** *** *** *** ***
23. 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.
*** *** *** *** ***
25. 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 res judicata.” (emphasis supplied)
72. In Madhukar Sadbha Shivarkar v. State of
Maharashtra [Madhukar Sadbha Shivarkar v. State of
Maharashtra, (2015) 6 SCC 557 : (2015) 3 SCC (Civ)
368 : (2015) 3 SCC (Cri) 239] , this Court observed that
fraud had been played by showing the records and the
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orders obtained unlawfully by the declarant, would be a
nullity in the eye of the law though such orders have
attained finality. Following observations were made :
(SCC pp. 569-70, para 27)
“27. The said order is passed by the State Government
only to enquire into the landholding records with a view
to find out as to whether original land revenue records
have been destroyed and fabricated to substantiate their
unjustifiable claim by playing fraud upon the Tahsildar
and appellate authorities to obtain the orders unlawfully
in their favour by showing that there is no surplus land
with the Company and its shareholders as the valid sub-
leases are made and they are accepted by them in the
proceedings under Section 21 of the Act, on the basis of
the alleged false declarations filed by the shareholders
and sub-lessees under Section 6 of the Act. The plea urged
on behalf of the State Government and the de facto
complainant owners, at whose instance the orders are
passed by the State Government on the alleged ground of
fraud played by the declarants upon the Tahsildar and
appellate authorities to get the illegal orders obtained by
them to come out from the clutches of the land ceiling
provisions of the Act by creating the revenue records,
which is the fraudulent act on their part which unravels
everything and therefore, the question of limitation under
the provisions to exercise power by the State Government
does not arise at all. For this purpose, the Deputy
Commissioner of Pune Division was appointed as the
enquiry officer to hold such an enquiry to enquire into the
matter and submit his report for consideration of the
Government to take further action in the matter. The legal
contentions urged by Mr Naphade, in justification of the
impugned judgment and order prima facie at this stage,
we are satisfied that the allegation of fraud in relation to
getting the landholdings of the villages referred to supra
by the declarants on the alleged ground of destroying
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original revenue records and fabricating revenue records
to show that there are 384 sub-leases of the land involved
in the proceedings to retain the surplus land illegally as
alleged, to the extent of more than 3000 acres of land and
the orders are obtained unlawfully by the declarants in
the land ceiling limits will be nullity in the eye of the law
though such orders have attained finality; if it is found in
the enquiry by the enquiry officer that they are tainted
with fraud, the same can be interfered with by the State
Government and its officers to pass appropriate orders.
The landowners are also aggrieved parties to agitate their
rights to get the orders which are obtained by the
declarants as they are vitiated in law on account of nullity
is the tenable submission and the same is well founded
and therefore, we accept the submission to justify the
impugned judgment and order Babu Maruti
Dukare v. State of Maharashtra [Babu Maruti
Dukare v. State of Maharashtra, 2006 SCC OnLine Bom
1268 : (2007) 2 AIR Bom R 361] of the Division Bench
of the High Court.”
(emphasis supplied)
73. In Jai Narain Parasrampuria v. Pushpa Devi
Saraf [Jai Narain Parasrampuria v. Pushpa Devi Saraf,
(2006) 7 SCC 756] , this Court observed that fraud
vitiates every solemn act. Any order or decree obtained by
practising fraud is a nullity. This Court held as under:
“55. It is now well settled that fraud vitiates all solemn
act. Any order or decree obtained by practising fraud is a
nullity. [See (1) Ram Chandra Singh v. Savitri Devi [Ram
Chandra Singh v. Savitri Devi, (2003) 8 SCC 319]
followed in (2) Kendriya Vidyalaya
Sangathan v. Girdharilal Yadav [Kendriya Vidyalaya
Sangathan v. Girdharilal Yadav, (2004) 6 SCC 325 :
2005 SCC (L&S) 785] ; (3) State of A.P. v. T.
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Suryachandra Rao [State of A.P. v. T. Suryachandra Rao,
(2005) 6 SCC 149] ; (4) Ishwar Dutt v. LAO [Ishwar
Dutt v. LAO, (2005) 7 SCC 190] ;
(5) Lillykutty v. Scrutiny Committee, SC &
ST [Lillykutty v. Scrutiny Committee, SC & ST, (2005) 8
SCC 283] ; (6) Maharashtra SEB v. Suresh Raghunath
Bhokare [Maharashtra SEB v. Suresh Raghunath
Bhokare, (2005) 10 SCC 465 : 2005 SCC (L&S) 765] ;
(7) Satya v. Teja Singh [Satya v. Teja Singh, (1975) 1
SCC 120 : 1975 SCC (Cri) 50] ; (8) Mahboob
Sahab v. Syed Ismail [Mahboob Sahab v. Syed Ismail,
(1995) 3 SCC 693] ; and (9) Asharfi Lal v. Koili [Asharfi
Lal v. Koili, (1995) 4 SCC 163] .]”
11. In K.P. Natarajan and another v. Muthuammal and others,
(2024) 6 CTC 819, the Hon'ble Supreme Court has held that the powers of the
High Court under Article 227 of the Constitution of India are in addition to,
and wider than, the powers under Section 115 of the Code of Civil Procedure,
the Hon’ble Supreme Court held that the High Court can invoke its jurisdiction
under Article 227 to set aside an ex parte decree in a revision arising out of the
dismissal of an application under Section 5 of the Limitation Act, in order to
correct gross errors of jurisdiction committed by a subordinate court. Para 21
of the judgement reads as follows:
“21. The contention that in a revision arising out of
the dismissal of a petition under Section 5 of the
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Limitation Act, 1963, the High Court cannot set aside the
ex parte decree itself, by invoking the power under Article
227, does not appeal to us. It is too well-settled that the
powers of the High Court under Article 227 are in
addition to and wider than the powers under Section 115
of the Code. In Surya Dev Rai v. Ram Chander
Rai [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC
675] , this Court went as far as to hold that even certiorari
under Article 226 can be issued for correcting gross errors
of jurisdiction of a subordinate court. But the correctness
of the said view insofar as it related to Article 226, was
doubted by another Bench, which resulted in a reference
to a three-member Bench. In Radhey Shyam v. Chhabi
Nath [Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423 :
(2015) 3 SCC (Civ) 67] , the three-member Bench, even
while overruling Surya Dev Rai [Surya Dev Rai v. Ram
Chander Rai, (2003) 6 SCC 675] on the question of
jurisdiction under Article 226, pointed out that the
jurisdiction under Article 227 is distinguishable.
Therefore, we do not agree with the contention that the
High Court committed an error of jurisdiction in invoking
Article 227 and setting aside the ex partedecree.”
12. Following the settled legal position, this Court, in S. Baskar v. S.
Ranjithkumar and others, MANU/TN/6545/2024 (C.R.P. No. 4050 of 2024
dated 02.12.2024), has held as follows:
“12. This Court in exercise of its jurisdiction under
Article 227 of the Constitution of India, is exercising
power of superintendence over all the Courts and
tribunals throughout the State. This Court cannot turn a
blind eye when its attention is drawn to an ex-facie illegal
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judgment. This Court has to necessarily interfere with the
same, failing which, there will be failure of justice and it
will amount to perpetuating illegality.”
13. In Shanthimalai Trust v. Arunachala Education &
Environmental, (2021) 1 CTC 539, this court has held as follows:
“36. The Civil Revision Petition is allowed the
exparte decree dated 28.04.2009 is set aside, all the
applications pending before the Trial Court, except the
application in IA No. 37 of 2010 are closed as
unnecessary. The application in IA No.37 of 2010 will be
treated as an application for amendment of the cause title
in the suit filed by the plaintiff and the same shall be
disposed of within 30 days from the date of a receipt of
the copy of the order and the Trial Court shall report such
disposal to this Court.”
14. In Ayyasamy v. Shanmugam, MANU/TN/5582/2023
(C.R.P.No.2672 of 2019 dated 19.09.2023), this court has held that the High
Court under Article 227 has the jurisdiction to set aside a decree while dealing
with a revision under Section 5 of the Limitation Act.
15. All the above precedents make it abundantly clear that a decree
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obtained by playing fraud upon the Court or by abuse of the process of law is a
nullity in the eyes of law. In such cases, the supervisory jurisdiction of the
High Court under Article 227 of the Constitution can rightly be invoked to set
aside such an illegal and void decree, in order to uphold the sanctity of the
judicial process and prevent miscarriage of justice.
16. In K. Valarmathi and others v. Kumaresan [S.L.P. (C) No. 21466
of 2024, dated 29.04.2025], upon which the learned senior counsel for the 1st
respondent placed much reliance, the Hon’ble Supreme Court has held that a
decree cannot be set aside in the exercise of jurisdiction under Article 227 of
the Constitution of India. In the said judgement, the Hon'ble Supreme Court
emphasized that Article 227 confers supervisory jurisdiction, not appellate or
revisional jurisdiction, and cannot be invoked to substitute statutory remedies
or to set aside a decree passed by a competent civil court in the exercise of its
original jurisdiction.
17. On a careful perusal of the recent judgement of the Hon'ble Supreme
Court in K. Valarmathi and Others v. Kumaresan (cited supra), this Court
finds that none of the earlier judgements rendered by the Hon’ble Supreme
Court were brought to the notice of the Court. In particular, the earlier binding
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precedent of the Hon’ble Supreme Court in Natarajan v. Muthuammal, (2021)
15 SCC 817, wherein it was categorically held that the powers of the High
Court under Article 227 of the Constitution of India are in addition to, and
wider than, the power under Section 115 of the Code of Civil Procedure, and
that such power can be exercised even to set aside a decree in exceptional
circumstances, was not considered.
18. In the case of Natarajan v. Muthuammal (supra), the Hon’ble
Supreme Court examined and relied upon several earlier decisions and
reaffirmed the settled legal position regarding the scope of Article 227.
Accordingly, this Court is inclined to consider the facts of the present case
bearing in mind the law laid down in Natarajan's case and the binding
precedents in few other cases which have consistently interpreted the scope and
extent of supervisory jurisdiction of the High Court under Article 227 of the
Constitution.
19. Ordinarily, a challenge to a decree on the ground that it was obtained
by fraud must be raised by way of an appeal or appropriate proceedings
wherein the alleged fraud must be specifically pleaded and established by
evidence. Mere allegations of fraud and collusion are not sufficient and there
must be concrete facts to substantiate the allegations of fraud and collusion.
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However, in cases where the fraud is evident on the face of the judgment and
decree, or discernible from the conduct of the parties, it may not be necessary
to await a full-fledged trial for determination. In such exceptional
circumstances, where the decree itself is a product of fraud and amounts to an
abuse of the process of court, the High Court, in exercise of its supervisory
jurisdiction under Article 227 of the Constitution of India, is empowered to
intervene and set aside such decree. The jurisdiction of the High Court under
Article 227 is not ousted in cases where the decree is a nullity in law owing to
fraud perpetrated upon the court itself.
20. Let this Court now advert to the facts of the present case, wherein the
decree dated 29.09.2023 is sought to be assailed, in the light of the settled legal
position discussed above.
21. On a careful perusal of the judgment and decree dated 29.09.2023
made in O.S. No. 16 of 2023 on the file of the learned District Munsif,
Pennagaram, it is seen that the 1st respondent filed the suit on the basis of an
unregistered agreement of sale dated 05.05.2011, allegedly entered into
between the 1st respondent (purchaser) and the 2nd respondent (vendor). It is
pertinent to note that although the agreement is dated 05.05.2011, the suit came
to be filed only in the year 2023.
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22. The pleadings in the plaint reveal that no steps were taken by the
plaintiff from the date of the alleged agreement, despite claiming that the entire
sale consideration of Rs. 80,000/- for the purchase of 3.77 acres was paid in
full on the date of execution of agreement of sale itself. It is pleaded in the
plaint that the 1st respondent herein issued a legal notice to his vendor, the 2nd
respondent herein only on 01.03.2023, nearly twelve years later, calling upon
him to appear before the Sub-Registrar for execution of the sale deed.
23. A photocopy of the so-called agreement of sale dated 05.05.2011 has
been placed before this Court for perusal. On a careful examination of the
same, it is seen that the said agreement was typed on a non-judicial stamp paper
of Rs.10/-, which appears to have been purchased in the name of the 1st
respondent – Ganesan.
24. It is relevant to place on record that, as per Article 5(j) of Schedule-I
to the Indian Stamp Act, 1899, as amended by the Tamil Nadu Act 9 of 2001,
the stamp duty for an agreement for sale was prescribed as Rs. 20/-, with effect
from 11.07.2002. Therefore, the fact that the alleged agreement of sale dated
05.05.2011 was executed on a non-judicial stamp paper of only Rs. 10/-,
instead of the statutorily required Rs. 20/-, raises a serious doubt about the
genuineness and authenticity of the document.
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25. Be that as it may, though the agreement of sale dated 05.05.2011
states that the entire sale consideration of Rs. 80,000/- for the sale of 3.77 acres
of land had been paid in full, there is no recital in the agreement regarding
delivery of possession of the subject properties to the purchaser. Furthermore,
the agreement does not stipulate any specific time frame within which the sale
transaction was to be completed by execution and registration of the sale deed.
26. This Court is of the view that the absence of a specific time limit
prescribed in the agreement of sale clearly indicates that such omission was
deliberate, with the apparent intention of bringing the suit within the period of
limitation as contemplated under Part II of Article 54 of the Limitation Act,
1963.
27. It is relevant to note that the conduct of a person who claims to have
parted with the entire sale consideration, yet remains silent for more than
twelve years without initiating any action, is wholly inconsistent with the
conduct expected of a prudent person. The prolonged inaction on the part of the
1st respondent, including the failure to issue even a legal notice during this
entire period demanding execution of the sale deed, assumes considerable
significance when viewed in the context of the other attending circumstances
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of the case. Such unexplained delay raises serious doubts about the bona fides
of the alleged agreement and the claim arising therefrom.
28. It is also relevant to note that the suit properties were sold by the 2nd
respondent by way of a registered sale deed dated 26.07.2013, vide Document
No. 361 of 2013, in favour of D. Maddhaiyan, G. Rajendran, and P.K.
Duraisamy. Subsequently, the 2nd respondent executed a rectification deed on
31.08.2015, vide Document No. 3035 of 2015, to correct an error in the survey
number mentioned in the original sale deed. Thus, as early as 26.07.2013, the
2nd respondent, the vendor of the vendors of the revision petitioner under the
agreement dated 05.05.2011 had already conveyed the suit properties by way of
a valid registered sale, and it is this sale that was sought to be annulled in the
suit filed in O.S. No. 21 of 2020 by Advocate I. Veerasamy, who had arrayed
himself as the plaintiff.
29. It is pertinent to note that Advocate I. Veerasamy, a practising
lawyer, is none other than the brother of the 2nd respondent, A. Madhu. In his
plaint in O.S.No.21 of 2020, Advocate-I.Veerasamy not only sought relief
against the 2nd respondent but also against the other family members.
30. In the plaint filed in O.S. No. 21 of 2020, Advocate I. Veerasamy
alleged that the suit properties were joint family properties, though purchased
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in the name of the 2nd respondent. It was further contended that the 2nd
respondent had executed the sale deed with the intention of defeating the rights
of the other family members. Accordingly, he prayed for a judgement and
decree declaring the sale deed dated 26.07.2013 as null and void, in addition to
seeking the reliefs of partition and permanent injunction.
31. Along with the suit in O.S. No. 21 of 2020, Advocate I. Veerasamy
also filed an application in I.A. No. 131 of 2020 under Order XXXIX Rules 1
and 2 of the Code of Civil Procedure, seeking an ad-interim injunction.
However, the said application was dismissed on merits by the learned District
Munsif by order dated 29.10.2021.Subsequently, Advocate I. Veerasamy filed
a memo expressing his intention not to pursue the suit any further and sought
permission to withdraw the same. Notably, he did not seek to reserve his right
to institute a fresh suit on the same cause of action. Accepting his request, the
learned District Munsif dismissed the suit as not pressed by judgement dated
15.11.2021.
32. From the foregoing facts, it is evident that Advocate I. Veerasamy, a
practising Advocate who is the brother of the 2nd respondent, was well aware
of the sale of the suit property as early as July 2013. He had himself instituted a
suit challenging the sale deed dated 26.07.2013 executed by his brother, the
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2nd respondent – A. Madhu, in favour of D. Madhaiyan and two others.
However, the said suit was later withdrawn by Advocate I. Veerasamy on his
own volition, without reserving liberty to file a fresh suit on the same cause of
action. Thereafter, Advocate I. Veerasamy himself instituted the suit in
O.S.No.16 of 2023 on behalf of the 1st respondent – Ganesan, seeking specific
performance of the so-called agreement of sale dated 05.05.2011.
33. It is pertinent to note that the 1st defendant in the said suit, A.
Madhu, is none other than the brother of Advocate I. Veerasamy. The suit in
O.S.No.16 of 2023 came to be filed for specific performance by the very same
advocate who had earlier challenged the sale deed executed by his own brother
in the suit in O.S.No.21 of 2020 and subsequently withdrew that suit without
reserving any liberty. However, while drafting the plaint in O.S. No. 16 of
2023, Advocate I. Veerasamy deliberately maintained complete silence with
respect to the prior transactions involving the very same properties. He
conveniently omitted any reference to the earlier sale deed dated 26.07.2013,
which he had himself challenged in his own suit in O.S. No. 21 of 2020. Such
suppression is glaring and cannot be overlooked, particularly when the same
advocate, fully aware of the prior transaction, chose not to disclose it in the
subsequent suit. The deliberate omission raises serious concerns and casts a
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shadow over the bona fides of the suit, suggesting that the suppression was
intentional and for reasons best known to Advocate I. Veerasamy, his brother
A. Madhu.
34. Despite being fully aware of the registered sale deed executed by his
brother, A. Madhu, on 26.07.2013 in favour of D. Madhaiyan, G. Rajendran,
and P.K. Duraisamy, Advocate I. Veerasamy, while filing the suit in O.S. No.
16 of 2023 for specific performance, deliberately chose not to implead the said
purchasers as parties to the suit. Instead, he arrayed only his brother, A. Madhu,
the 2nd respondent herein as a defendant, along with certain Government
officials. The conscious omission of necessary parties, despite knowledge of
their direct interest in the subject matter, further reinforces the inference of
deliberate suppression and calls into question the bona fides of the suit. This
court is unable to comprehend how the Sub Registrar, Pennagaram, District
Registrar, Dharmapuri and District Collector, Dharmapuri were necessary
parties to the issue relating to enforcement of a contract.
35. Having chosen to implead his brother-A.Madhu, the 2nd respondent
herein and certain government officials of the State as party defendants in the
suit in O.S.No.16 of 2023, Advocate - I. Veerasamy, however, failed to
implead the purchasers - D.Maddhaiyan, G.Rajendran and P.K.Duraisamy, who
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had acquired the suit properties from the said A.Madhu, the 2 nd respondent
herein under the registered sale deed dated 26.07.2013, as well as the
subsequent purchasers, namely the revision petitioners herein, who had
purchased the same properties on 13.12.2017 from D.Maddhaiyan,
G.Rajendran and P.K.Duraisamy. Despite their clear and direct interest in the
subject matter of the suit, those purchasers were deliberately omitted from the
array of parties in O.S. No. 16 of 2023, thereby rendering the suit defective for
non-joinder of necessary parties.
36. In the suit in O.S. No. 16 of 2023, the 2nd respondent, A. Madhu—
who was arrayed as the 1st defendant, conveniently remained ex parte, thereby
allowing the suit to be decreed ex parte. It is not in dispute that A. Madhu, the
2nd respondent herein had already sold the subject properties as early as July
2013 to D. Maddhaiyan, G. Rajendran, and P.K. Duraisamy. His brother,
Advocate I. Veerasamy, who is a practising lawyer, was fully aware of the said
transaction and had even instituted a suit (O.S.No.21 of 2020) challenging the
said sale, which he later withdrew.
37. However, in the subsequent suit in O.S. No. 16 of 2023, Advocate I.
Veerasamy, while acting as counsel for the plaintiff—Ganesan (1st respondent
herein), conveniently omitted to implead the subsequent purchasers, including
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the revision petitioners herein, who had acquired the properties on 13.12.2017,
as party defendants. This Court is of the considered view that such omission
was not inadvertent but a deliberate act aimed at suppressing material facts
relating to the prior alienation of the suit properties. The suppression of the
subsequent sale transactions, particularly in a suit for specific performance,
amounts to a clear and calculated act of fraud.
38. Had the subsequent purchasers been impleaded as parties in the suit,
they would have had the opportunity to contest the claim and establish that the
properties were transferred to them for valuable consideration, in good faith,
and without notice of any prior agreement. The failure to implead them,
coupled with the ex parte conduct of the 1st defendant, leads this Court to
conclude that the decree was obtained by playing fraud upon the Court, thereby
vitiating the very foundation of the judgement and decree passed in O.S. No. 16
of 2023.
39. It is now well settled that an agreement for sale can be enforced
against a subsequent purchaser only if it is shown that such purchaser had
notice of the prior agreement and that the purchase was not made in good faith
or for valuable consideration. Only in order to circumvent such legal
complications, the suit for specific performance in O.S. No. 16 of 2023 was
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cleverly instituted without impleading the subsequent purchasers as party
defendants.
40. The pleadings in the earlier suit, O.S. No. 21 of 2020, filed by
Advocate I. Veerasamy as plaintiff, clearly indicate that the subject properties
were sold on 26.07.2013. Significantly, it was not his case in that suit that the
sale consideration was not paid by the purchasers. If the agreement of sale
dated 05.11.2011 had in fact been executed in favour of the 1st respondent and
was in existence, such a vital fact ought to have been disclosed, in all fairness,
in the pleadings of O.S. No. 21 of 2020.
41. The omission to mention the alleged agreement dated 05.05.2011 in
the earlier suit and the subsequent filing of O.S. No. 16 of 2023 without
impleading the known purchasers clearly reveal a concerted effort to suppress
material facts. These circumstances strongly suggest that the 1st respondent is
merely a name-lender, and that the suit is a result of collusion between the 2nd
respondent and his brother, Advocate I. Veerasamy.
42. This conclusion is further fortified by the inherently improbable
conduct of the 1st respondent, who, despite allegedly paying the entire sale
consideration of Rs. 80,000/- on 05.05.2011, failed to take any steps
whatsoever for over twelve years to enforce the agreement. Such prolonged and
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unexplained silence is wholly against with the normal conduct of an ordinary
prudent man, which casts serious doubt on the genuineness of the alleged
transaction.
43. The cumulative facts and circumstances discussed hereinabove lead
to the inescapable conclusion that the suit for specific performance in O.S. No.
16 of 2023 was clearly an afterthought, and the agreement of sale dated
05.05.2011 is antedated with the sole object of achieving, through indirect
means, what could not be achieved directly through the earlier suit in O.S. No.
21 of 2020 filed by Advocate I. Veerasamy.
44. The very pleadings in the plaint in O.S. No. 16 of 2023, the conduct
of the parties, the deliberate non-joinder of necessary parties, and the manner in
which the 1st respondent – Ganesan obtained an ex parte decree and
subsequently got a sale deed executed in his favour through the executing
court, all point to a clear abuse of process.
45. Such a sale deed, executed in furtherance of a decree obtained by
suppressing material facts and without impleading the true and lawful
purchasers of the suit properties, cannot confer any valid title upon the 1st
respondent. Merely because an ex parte decree was passed in the suit for
specific performance and a sale deed was executed in pursuance thereof, it does
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not ipso facto confer any valid title upon the 1st respondent. It is an undisputed
fact that the 2nd respondent – A. Madhu, had already conveyed the subject
properties by way of a registered sale deed dated 26.07.2013, and therefore, on
the date when the executing court purported to execute a sale deed in favour of
the 1st respondent pursuant to the decree in O.S. No. 16 of 2023, the 2nd
respondent no longer held any title to convey.
46. In the absence of impleadment of the subsequent bona fide
purchasers, and in view of the fraudulent suppression of these transactions, the
entire proceedings culminating in the ex parte decree and execution thereof are
vitiated. Consequently, the decree for specific performance and the sale deed
executed pursuant thereto are liable to be set aside as nullities in the eye of law.
47. In view of the foregoing discussion, this Court is of the considered
opinion that the decree for specific performance obtained in O.S. No. 16 of
2023 was the result of a calculated and deliberate suppression of material facts,
including the prior alienation of the suit properties and the purchasers were not
impleaded as parties. The suit was engineered in collusion between the 1st and
2nd respondents, with the active connivance of Advocate I. Veerasamy, who
had personal knowledge of all relevant transactions but chose to withhold the
same from the Court. Such conduct constitutes a clear abuse of the process of
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court and amounts to playing fraud upon the court. It is a settled principle of
law that a decree obtained by fraud is a nullity and can be declared as such
even in collateral proceedings. Therefore, this Court finds that the ex parte
decree dated 26.09.2023 passed in O.S. No. 16 of 2023 on the file of the
learned District Munsif, Pennagaram, and the consequential sale deed executed
by the executing court in favour of the 1st respondent, are vitiated by fraud and
are hence null and void in the eye of law. This is a fit case warranting the
exercise of this Court’s supervisory jurisdiction under Article 227 of the
Constitution of India. This Court is therefore of the considered view that the
extraordinary supervisory jurisdiction under Article 227 of the Constitution of
India is required to be exercised in this case. Accordingly, the impugned decree
and sale deed are hereby set aside.
In the result, the civil revision petition is allowed in the following
terms:
(1) The judgement and decree dated 29.09.2023 passed in
O.S.No.16 of 2023 on the file of the learned District Munsif cum Judicial
Magistrate, Pennagaram, Dharmapuri District, are hereby set aside.
(2) The sale deed dated 15.11.2024 executed by the District
Munsif, Pennagaram, Dharmapuri District, on behalf the 2nd respondent-
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A.Madhu (1st defendant in O.S.No.16 of 2023 on the file of the District Munsif,
Pennagaram) Son of Abimannan, in favour of the 1st respondent-Ganesan
(Plaintiff in O.S.No.16 of 2023 on the file of the District Munsif, Pennagaram)
Son of Selvam is hereby declared as null and void and non-est in the eye of
law.
Considering the special circumstances of the case, this court is not
inclined to pass any orders on costs and the parties in this revision shall bear
their own costs incurred on this revision petition.
Consequently, connected CMP is closed.
Index : yes / no 24..06..2025
Neutral Citation : yes / no
kmk
To
1.The District Munsif cum Judicial Magistrate, Pennagaram,
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N.SATHISH KUMAR.J.,
kmk
24..06..2025
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