Bhagwan Dass and Others vs Paramjit and Others

Bakhshish Kaur, J.—This revision is directed against the order dated 10.3.1998 passed by learned Civil Judge (Junior Division), Jind, on an application u/s 151 of the Code of Civil Procedure, filed by the plaintiffs for restoration of the suit.

Krishan Lal alongwith his brothers Amarjit and Paramjit had filed a suit for permanent injunction. It was registered at No. 167/7.7.1997, titled Krishan Lal etc. v. Bhag-wan Dass etc. It was contested by Bhagwan Dass and otheRs. Issues arising from the pleadings of the parties were framed. The evidence of the plaintiffs was closed by order, Since the order passed by the trial court under Order 39 Rule 1 & 2 of the Code was under challenge before the first Appellate Court, therefore the learned Additional District Judge, Jind disposed of the appeal vide order dated 2.9.1997 with a direction to the trial court to decide the suit within four months from the date of appearance of the parties.

When the case was at the stage of recording defendants evidence fixed for 18.11.1997 the defendants Bhagwan Dass and others had taken Krishan Lal alongwith them and withdrew the suit. Paramjit one of the plaintiffs now applicant was not a party, to the withdrawal of the suit i.e. he had never made any request nor he gave his consent for the withdrawal of the suit, therefore, the defendants in collusion with each other had committed fraud on the applicant as well as on the court. When he came to know about the fact, he moved an application u/s 151 of the Code of restoration of Suit No. 167 of 1997. This application has been partly allowed by the trial Court whereby the suit has been restored to its original stage. However, it was ordered/clarified that the suit against plaintiff-respondents Krishan Lal and Amarjit shall stand withdrawn.

I have heard Mr. S.D. Bansal, learned counsel for the petitioners and Mr. S.K. Jain, learned counsel for the respondents.

The impugned order has been challenged on the ground that since the matter was compromised outside the court, the plaintiff-respondent No. 2 Krishan Lal, who has the same interest as the other plaintiff-respondents No. 1 and 3 i.e. Paramjit and Amarjit, and Mr. M.L. Mittal, Advocate engaged as their counsel, had made a statement before the Court. Believing this statement of Mr. Mittal the trial court had dismissed the suit as withdrawn. Krishan Lal respondent No. 2 was also present on that date. The parties to the lis, i.e. Krishan Lal & Paramjit had also executed a rent note in favour of Bhagwan Dass-petitioner No. 1 in respect of their shop in question on 11.11.1997, whereas Amarjit -respondent No. 3 had executed a separate rent note in favour of Bhagwan Dass-petitioner No. 1 .The rent note was duly entered in the register of Suraj Bhan Mittal. Document Writer, therefore, under these circumstances it cannot be said that there was any collusion, misrepresentation of facts or that the order was obtained by practising fraud on the Court. Once the parties are represented by counsel and they had made a statement for withdrawal of the suit, the application u/s 151 of the Code will not be maintainable. The trial court had also not recorded any evidence u/s 151 of the CPC whereby the plaintiff-respondents had challenged the order passed by the trail Court, as above.

It is a fact that the plaintiff-respondents have filed a suit for permanent injunction restraining the defendants now petitioner, from forcibly dispossessing them from two adjoining shops and also from raising any wall on the eastern side of the shop thereby closing the gate or verandah on the eastern side abutting road and also for mandatory injunction directing the defendant-petitioners to remove the lock put on the eastern gate and to install the shutter on the western side which has been removed by the defendant-petitioners forcibly under the garb of removing encroachment at the instructions of M.C. Jind on 7.7.1997.

Considering the nature of the suit, the plaintiffs having already closed their evidence, the stay was already operating in their favour and the first Appellate Court while disposing of the appeal preferred by the defendant-petitioners directed the trial Court to dispose of the suit within a period of four months whether the plaintiffs would agree to the withdrawal of the suit without making any reference to the relief claimed in the suit? If, at all, the compromise was effected outside the Court, what were the terms of the compromise? The case of the petitioners is that two rent notes were executed. One was executed on 11.11.1997 by Krishan Lal and Paramjit in favour of petitioner No. 1 in respect of their shop. The plaintiff-respondent No. 3 Amarjit had executed a separate rent note in favour of petitioner No. 1. The alleged rent notes dated 11,11.1997 have not been placed on record. Similarly, counterfoils of the receipts issued by Bhagwan Dass for the period 1.11.1997 to 31.12.1997 have also not been placed on the record. Even Krishan Lal and Amarjit co-plaintiffs had not filed any reply to the application so as to controvert the pleas having taken up by Paramjit in his application u/s 151 of the Code, whereby he has specifically alleged that he has not signed any fresh power of attorney in favour of Sh. M.L. Mittal, Advocate on 13.11.1997. The trial Court has also observed that in the power of attorney filed by Sh. M.L. Mittal, Advocate signatures of Paramjit are shown in Hindi whereas in the power of attorney filed by Sh. R.K. Jain, Advocate the signatures of Paramjit are appended in English. Thus, all these facts taken together go a long way to show that consent of Paramjit was never obtained for withdrawal of the suit. The provisions of Order XXIII Rule 1(5) of the CPC have been totally by-passed. There is no compliance of the Order at all which pro-vides that nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under Sub-rule (1), or to withdraw, under Sub-rule(3), any suit or part of a claim, without the consent of the other plaintiffs.

On the question of maintainability, if the trial Court on the basis of the material brought on record, comes to the conclusion that it was misled by one of the parties in passing the order, it can correct its own order. The objection raised by the petitioners that the application u/s 151 of the CPC was not maintainable or that the trial Court could not pass any order for the restoration of suit, would be devoid of merit, in view of the observations made by the Apex Court in Sri Dayal Ma-hasabha v. Sukhdev Arya and Anr. 1990(1) RCR 38.

Mr. Bansal learned counsel to support his arguments that if the counsel representing the plaintiffs has signed underneath the statement made before the Court, then his statement is binding upon the plaintiff-respondent has placed reliance on United India Insurance Co. Ltd. v. Rajendra Singh and Ors. etc. 2000 2 P.L.R. 787 (S.C.). The facts of this case are somewhat different. In the case in hand, neither the compromise has been placed on record nor the rent notes which were executed by the plaintiff-respondents in pursuance of the compromise have been placed on record. Even the rent receipts issued by Bhagwan Dass have not been placed on record. Thus, where material evidence is withhed by a party, then adverse inference has to be drawn against him u/s 114(g) of the Evidence Act.

The impugned order passed by the trial court recalling its order does not suffer from'' any infirmity. Fraud and justice never dwell together, as observed by Hon''ble Mr. Justice K.T. Thomas in United India Insurance Co. Lid ''s case (supra). It has been observed as under: -

"Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No Court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wrangled through fraud or misrepresentatial of such a dimension as would affect the very basis of the claim."

In United India Insurance Co. Ltd ''s case (supra) reference has also been made to S.P. Chengalvaraya Naidtt (dead) by LRs. v. Jagnath (dead) by LRs. and Ors. 1995 1 P.L.R. 293 (SC) and Indian Bank Vs. M/s. Satyam Fibres (India) Pvt. Ltd., . The relevant portion reads thus:-

"14. In S.P.Chengalvaraya Naidu (dead) by LRs. v. Jagnnath (dead) by LRs. and otheRs. 1995 1 P.L.R. 293 (SC), the two Judges Bench of this Court held: "Fraud avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Code 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 nonest 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."

"15. In Indian Bank Vs. M/s. Satyam Fibres (India) Pvt. Ltd., another two Judges Bench, after making reference to a number of earlier decisions rendered by different High Courts in India, stated the legal position thus:

"Since fraud affects the solemnity regularity and orderliness of the proceedings of the Court and also amounts to abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practiced upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order."

Keeping in view the totality of the circumstances and also the scope u/s 115 of the CPC is very limited, the power of the court to interfere being only in cases of error of jurisdiction resulting in miscarriage of justice, I find no infirmity in this case. Consequently this revision is dismissed.