Ameena Begum vs M/S.Koushik Coop Housing Society ...
2021 Latest Caselaw 84 Tel

              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

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

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

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

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.

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

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

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.

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

(1999) 8 SCC 396

1971 SCC Online AP 176

(1994) 1 SCC 1

(2010) 8 SCC 383

(2011) 8 SCC 613

(2013) 11 SCC 296

(1977) 4 SCC 467

(1987) 2 SCC 107

(1998) 7 SCC 123

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.

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."

(1992) 2 L.W. 209

(AIR) 1963 SC 1203

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

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

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

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

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

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.