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