Devamma vs E.R. Sujatha

Budihal R.B, J.—The petitioners have filed Misc. No. 14131/2009 u/s 5 of the Limitation Act praying this Court to condone the delay of 3018 days caused in filing the review petition in the interest of justice and equity. The said application is supported by the affidavit of petitioner No. 2.

In the affidavit filed by petitioner No. 2 in support of the application Misc. No. 14131/2009, he has stated that he knows the facts of the case and hence, he is swearing the affidavit. Since 40 years, himself and his mother are in possession of the suit schedule property. The respondent and her family members filing cases over cases on the same property by abusing the process of the Court. Raghavachar, the husband of the respondent and Lingappachar are the direct brothers. The respondent herein is the wife of brother of her vendor as Lingappachar is her vendor. The said Lingappachar filed a suit in O.S. NO. 124/1979 for the very suit schedule property contending that he has purchased the same under the sale deed dated 29.11.1967 for R. 1,000/from one Rajappa. He had contended that he had given the suit house on rent and his tenant had vacated the house on 1.1.1978 and thereafter, petitioner No. 1 herein had entered the house unauthorisedly and staying there. Hence Lingappachar filed the suit for recovery of possession from petitioner No. 1 herein. Petitioner No. 1 contended that the suit house is in Sy. No. 116/2 and not in the property said to have been purchased by Lingappachar. In the said suit, the Commissioner was appointed to verify the fact that whether the suit house is situated in Sy. No. 116/33 or in Sy. No. 116/2. The Commissioner gave the report as per Ex. P. 9 stating that the suit house is situated in Sy. No. 116/2. But however, the Munsiff decreed O.S. No. 124/1979 basing on the municipality number of the suit house. The said decree was challenged by petitioner No. 1 by preferring an appeal and the Civil Judge was pleased to allow the appeal holding that Lingappachar vendor of the respondent had failed to prove that the suit house was situated in Sy. No. 116/33 and he had also not proved as to how and when Sy. No. 116/33 was subdivided as Sy. No. 116/33A. Accordingly, the said appeal was allowed on 28.2.1980 and the said order passed in the appeal court has become final.

The said Lingappachar filed another suit in O.S. No. 18/1981 before the Civil Judge, Kodagu at Madikeri after the judgment and decree passed in R.A. No. 51/1979 suppressing the fact of filing of the earlier suit and the said suit was also dismissed. Lingappachar being the brother-in-law of the respondent herein has executed sale deed in favour of the respondent on 28.5.1984 claiming to file a new suit in her name. Accordingly, the respondent filed a suit in O.S. No. 39/1990 on the file of the Civil Judge, Madikeri for declaration and possession. The boundaries given in the earlier two suits and O.S. No. 39/1990 were one and the same. The said suit was dismissed holding that the respondent has not proved the identity of the suit property. The respondent challenged the same in R.A. No. 7/1993 before the Additional District Judge, Kodagu, which was also ended in failure. Thereafter, the respondent filed the regular second appeal in R.S.A. No. 1080/1995 before this Court. and the said appeal was allowed holding that the decree would not affect the property of the petitioners at all as the respondent appellant was claiming that she has purchased Sy. No. 166/33A. Accordingly, the said appeal was allowed and thereafter, the respondent herein filed an execution petition No. 57/1999. The petitioners herein contested regarding identity of the property. The respondent herein filed an application in O.S. NO. 39/1990 praying the court to permit her to correct the Sy. No. as 116/33A instead of Sy. No. 166/33A. She had also fried an application praying to court to amend the decree. The trial court has dismissed both the applications by order dated 24.10.2000. Thereafter, the respondent herein had challenged those orders before this Court by fling the civil revision petition Nos. 363 and 364/2001. Later, the respondent herein had filed similar applications in the above appeal praying to amend the decree by showing Sy. No. 116/33A instead of Sy. No. 166/33A. This Court was pleased to club both CRPs with the above R.S.A. by amending the decree as prayed for by the respondent without issuing notice either to petitioner No. 1 or petitioner No. 2 herein, on 30.3.2001.

The petitioners filed I.A. No. 3 in execution case u/s 151 of CPC praying the executing Court to dismiss the execution petition. The said application was dismissed on 6.2.2006. Though the executing Court was of the opinion that petitioners herein have to get corrected the order passed in the above appeal on 30.3.2001, they were helpless because of the vicarious financial conditions and the old age of his mother.. The executing Court was also pleased to allow I.A. No. 5 filed by the respondent permitting her to amend the'' execution petition by changing Sy. No. 116/33A by order dated 26.2.2008. Due to financial condition, the petitioners were persuading the local Counsel to prove with regard to the identity of the property and the local counsel was trying his best by filing necessary applications. The local counsel has also filed an application praying the executing Court to hold an enquiry with regard to identity of the suit property which is still pending. But the executing court has orally directed the counsel for the petitioners herein to get set aside the modified decree passed by this Court. Hence, they have filed the present review petition.

The petitioners have contended that if delay is not condoned, they will be scape goats in the hands of the respondent and her brother-in-law who had lost the litigation with regard to the same suit property in the earlier suits. The respondent and her brother-in-law have obtained the orders by playing fraud on the Court. Therefore, if the delay is condoned, the petitioners can demonstrate before this Court as to how the respondent and her brother-in-law have abused the Court process and played fraud on the Court.

The respondent herein filed objection statement to the present application contending that review petition is not maintainable either in law or on facts as it lacks bonafides. There is delay of more than 9 years in filing review petition. The petitioners have suppressed the material facts and this conduct of the petitioners disentitles them for any relief in the review petition. The petitioners have not made out any grounds for review as contemplated under Order 47 Rule 1 of CPC. The petitioners have not assigned any reasons which come within the purview of sufficient reasons as required u/s 5 of the Limitation Act. After hearing the submissions on the delay application, this Court directed the petitioners to file a better affidavit in support of their application seeking condonation of delay and a week''s time was granted. However, the second affidavit has been filed after a long time. This itself shows total lack of diligence on the part of the petitioners in prosecuting the matter.

The respondent filed an application in I.A. No. 2 u/s 10 of CPC before the executing Court seeking stay of further proceedings on the ground that the respondent has filed an application seeking amendment of the decree before this Court. The said application was filed on 25.8.2000. The copy of the said application was served on the petitioners'' counsel who was representing them before the executing Court. The order sheet maintained by the executing Court will reflect these facts. Therefore, the petitioners are aware of the fact that the respondent is seeking amendment of the decree before this Court. However, the petitioners have suppressed these facts both in their earlier affidavit and also in the subsequent affidavit. The respondent has also submitted in the objection that she has filed an application in O.S. No. 39/1990 before the learned Civil Judge (Sr. Dn.) at Madikeri seeking amendment of the decree. The said application came to be dismissed on 24.10.2000. She filed CRP No. 364/2001 before this Court challenging the order passed by the court below. The fact of filing the said revision petition was brought to the notice of the executing Court on 30.3.2001. A memo was filed to that effect by the respondent''s counsel before the executing Court and the counsel appearing for the petitioners before the executing Court was aware of these facts and the said fact was also suppressed. The petitioners themselves have stated in their affidavit that they filed I.A. No. 3 on 7.9.2001 for dismissal of the execution petition. So it goes to show that the petitioners were aware of the order passed by this Court on 30.3.2001. But however, they did not choose to take any steps to approach this Court. The inordinate delay went unexplained.

The respondent in the objection has denied the allegation of the petitioners in the second affidavit wherein they have stated the she has played a fraud on the court. The allegation of the petitioners that no notice was served on them is again a false statement for the reason that they have failed to disclose all the relevant facts in this regard. The RSA came to be allowed by this Court on 17.8.1998. Thereafter, she has realized the mistake that has crept in the survey number. In the objection, the respondent has also stated that the petitioners were represented by an advocate in RSA No. 1080/1995. The said appeal has been adjudicated after hearing both the advocates representing the parties. Since an application seeking amendment of the decree is in the very same regular appeal and the revision petitions are also pertaining to the same subject matter between the parties, the court has directed the copy to be served on the counsel representing the petitioners in the Regular Second Appeal. Accordingly, copies have been served on the learned Counsel for the petitioners and for having served the same, acknowledgement was produced. The respondent has already brought to the notice of this Court by filing a memo producing necessary communication. These facts would clearly disclose the allegation that the order has been passed by this Court without notice to them is untenable. It is further contended in the objection statement that by filing the review petition, the petitioners are seeking the review of the order passed by this Court in RSA No. 1080/1995 dated 17.8.1998. The petitioners are seeking production of additional documents and the statement they have made would clearly indicate the review of the order dated 17.8.1998. Hence, the present review petition is misconceived and the same is liable to be dismissed.

The respondent has further contended that this Court by its order dated 30.3.2001 has allowed the amendment application with regard to the survey number. The two revision petitions are also with regard to the same amendment. Hence, both revisions are also allowed. By oversight in the plaint schedule, the property was described as Sy. No. 166/33A. However, the property is bearing Sy. No. 116/33A. The said error is only typographical in nature. Even in the registered sale deed, the property is shown as Sy. No. 116/33A. Hence, sought to dismiss the application.

Heard the arguments of the learned Counsel appearing for the petitioners-defendants and also the learned Counsel appearing for the respondent plaintiff.

Learned Counsel for the petitioner, during the course of the arguments, made the submission that the earlier two suits filed by Lingappachar in respect of the very same property were dismissed after considering entire merits of the case. The Learned Counsel also made the submission that only to over come the judgment and decrees passed in the two previous suits and some how to get the decree in his favour, the said Lingappachar, who is the brother-in-law of the respondent herein, transferred the property in the name of the respondent under the sale deed and there afterwards, the respondent filed a suit in O.S. No. 39/1990. The trial court has considered the suit in O.S. No. 39/1990 and held that the suit property involved in the said suit is the very same property as that of the property involved in the earlier two suits and ultimately, dismissed the suit which was confirmed by the first appellate court. The learned Counsel submitted that thereafter, the regular second appeal was preferred and alter hearing both sides, the said appeal was allowed by this Court. She submitted that after disposal of the regular second appeal, the respondent herein filed an amendment application before the executing Court and also before this Court in the RSA seeking amendment of the decree to the effect that by over sight, the survey number in the suit schedule is mentioned as Sy. No. 166/33A and it is to be deleted and in its place Sy. No. 116/33A is to be added. The learned Counsel further submitted that the executing Court rejected both the applications against which, the two civil revision petitions were filed before this Court. Since the amendment application was also filed in RSA No. 1080/1995, this Court has considered the civil revision petitions along with the amendment application in RSA No. 1080/1995. It is the further submission of the learned Counsel for the petitioners that without issuing notice to the petitioners, the said revision petitions were disposed of and hence, injustice has been caused to the petitioners herein. The learned counsel made the submission that the respondent has played fraud on the court by suppressing some important material facts and hence, the delay application may be allowed. In support of her contention, learned counsel appearing for the petitioners has relied upon the decision reported in Ganpatbhai Mahijibhai Solanki Vs. State of Gujarat and Others, .

As against this, the learned counsel appearing for the respondent during the course of the arguments made the submission that there is inordinate delay which is not explained properly by the petitioners with sufficient cause. He further made the submission that in the year 2000 itself, the respondent filed an application before the Civil Judge (Sr. Dn.), Madikeri, seeking amendment of the decree and the same came to the dismissed. Against the said order, the Civil Revision petition was filed before this Court challenging the said order. He made the further submission that the fact of filing the said revision petition was also brought to the notice of the executing court and the petitioners herein the executing court were also having the knowledge about the filing of the said civil revision petition. He further made the submission that the respondent also filed an application I.A. 2 u/s 10 of the CPC before the executing court seeking stay of the further proceedings before the said court informing that she has filed an amendment application before this Court seeking amendment of the decree passed in RSA. He made the further submission that regarding filing of the revision petitions before this Court and as directed by this Court, notice was also served on the learned Counsel who was representing the respondents in RSA No. 1080/1995, which was taken along with the two revision petitions. He made the submission that regarding service of notice on the counsel appearing for the petitioners herein, the respondent herein has filed a memo dated 16.9.2010 along with the letter of learned Counsel K. Raghavendra dated 28.2.2001 and all these materials would clearly establish that the present petitioners were knowing about these proceedings. Hence, the contention of the petitioners herein that they were not served with the notice of the civil revision petitions along with RSA 1080/1995 holds no water. The learned counsel further made submission that as the sufficient grounds are not made out, the main review petition itself is not maintainable and hence, the question of allowing the application seeking condonation of delay does not arise at all. He submitted to dismiss the application.

I have perused the averments made in the review petition filed in RSA No. 1080/1995 and also the order passed by this Court dated 30.3.2001 passed in the said appeal clubbed with CRP Nos. 363/2001 and 364/2001 so also perused the application filed u/s 5 of the Limitation Act. and the averments made in the affidavit filed in support of the said application, the objections statement filed by the despondent to the delay application and also the documents produced by both the sides in support of their contentions. I have also perused the decision and the principle of the said decision relied upon by the learned counsel appearing for the petitioners.

It is the contention of the review petitioners that on an earlier occasion, a suit was filed in O.S. No. 124/1979 by Lingappachar against the petitioners in respect of the same property and the same was decreed and the petitioners herein challenged the same by preferring an appeal. The first appellate court allowed the said appeal setting aside the judgment and decree of the trial court. It is also the case of the review petitioners that the said judgment passed in the appeal becomes final. The said Lingappachar also filed another suit also in O.S. No. 18/1981 and the said suit was also dismissed. In order to circumvent the dispute, Lingappachar sold the said property in favour of the respondent herein and the respondent herein filed a suit in O.S. No. 39/1990 and the said suit came to be dismissed against which an appeal preferred in R.A. No. 7/1993 before the Additional District Judge, Kodagu, was also dismissed confirming the judgment and decree passed in O.S. No. 39/1990. The materials go to show that against the said judgment and decrees passed in O.S. No. 39/1990 and R.A. No. 7/1993, Regular Second Appeal in RSA No. 1080/1995 was filed before this Court. This Court while setting aside the judgment and decrees of the both the courts below on 17.8.1998 has observed that the defendants specifically contended that they are residing in R.S. No. 62/3A of 0.30 cents in Hemmani village for the last 25 years. But the suit property is 10 cents in Sy. No. 166/33A of Hemmani village. This Court has further observed that though the defendant would contend that the survey numbers are different, they would further say that if the defendants are found to be in the suit property, then they have perfected their title by adverse possession. This Court has also observed that the fear of the defendants is unfounded as the Courts are bound to execute the decree as it comes before them in respect of those properties covered under the decree. So long as the defendant is not affected and so long as his properties are away from the property of the plaintiff, there can be no impediment for granting a decree as prayed for by the plaintiff in the said suit.

Now it is the contention of the petitioners herein that the property involved in all the previous three suits is one and the same. Perusing the boundaries to the suit schedule property in the earlier three suits, they prima facie appear to be one and the same. So it is the contention of the petitioners that respondent by filing the amendment application before this Court and also before the trial court that by mistake and through over sight, survey number is mentioned as ''166/33A'' instead of mentioning ''116/33A'', Therefore, looking to these contentions of the parties in the RSA, it was observed by this Court that the plaintiff is claiming relief in respect of the property bearing Sy. No. 166/33A and the defendant claiming in respect of property bearing Sy. Nos. 116/2, and 116/33A. Hence, it will not affect the defendants in any manner and accordingly, Court has allowed the RSA. But the materials go to show that by filing the amendment application seeking amendment of the decree, the respondent herein wanted to claim the property bearing Sy. No. 116/33A about which the matter was seriously contested by the petitioners herein. There is a serious allegation by the review petitioners that the respondent herein has suppressed the material facts and thereby committed fraud on the Court. It is also their contention that when the two civil revision petitions were filed before this Court and they were taken together along with RSA No. 1080/1995, no notice was served on them. But, it is a fact also. The contention of the respondent herein is that as directed by the Court, notice was served on the Counsel who was appearing on behalf of the petitioners herein in RSA No. 1080/1995. When the said RSA was finally disposed of in the year 1998 itself, again where was question of serving notice of civil revision petitions on the same advocate. Looking to the judgment passed by this Court dated 30.3.2001 in respect of the two civil revision petitions along with RSA No. 1080/1995, the judgment is silent and there is no specific mention in the judgment as to whether this Court has heard the learned Counsel for the respondent and what was his submission in the case. The only reference made in the judgment is about the arguments of the learned Counsel for the appellant. Therefore, looking to these materials, the review petitioners herein have made out a case that they were not issued with the notice of civil revision petitions by this Court before disposing of those two petitions. When it is the contention of the review petitioners that the earlier three suits i.e., two suits filed by Lingappachar and one suit filed by the respondent herein, were dismissed, then the matter required to be considered in the review petition.

In Ganpatbhai Mahijibhai''s (supra), the Hon''ble Supreme Court laid down the proposition as under:

" Ganpatbhai Mahijibhai Solanki Vs. State of Gujarat and Others,

Constitution of India, Art. 226-Recall of order-Order obtained by-practicing fraud on Court-Order liable to be recalled -- Fact that application for recall was enormously delayed, notwithstanding.

Civil P.C. (5 of 1908), O. 47, R. 1.

An order obtained from Court by fraud or by suppression of material facts is liable to be recalled. Fact that application for recall is made after inordinate delay notwithstanding. It is now a well settled principle that fraud vitiates all solemn acts. If an order is obtained by reason of commission of fraud, even the principles of natural justice are not required to be complied with for setting aside the same."

The parties rights in respect of immoveable property are involved in the case. Even if there is some delay as contended by the respondent herein, but looking to the materials on record and the allegation of fraud alleged by the review petitioners, I am of the opinion that the case of the review petitioners cannot be rejected only on the technical grounds. Procedural law is there to advance justice and not to defeat it. Even if the delay is condoned, the respondent herein will not be put to any injury or hardship as the respondent is still having an opportunity to submit his say on the merits of the review petition itself. But if the application seeking condonation of delay is not allowed, then the review petitioners herein will be put into hardship and injury. In this connection, I am referring to the decision of the Hon''ble Supreme Court reported in Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, . Therefore, looking to the principles enunciated in the two decisions of the Hon''ble Supreme Court so also looking to the earlier proceedings between the same parties and the serious allegation of fraud said to have been committed on the Court by the respondent herein, the application deserves to be allowed.

Accordingly, Misc. Cvl. No. 14131/2009 filed u/s 5 of the Limitation Act is allowed and the delay in tiling the review petition is hereby condoned.