Kokab Ali Khan & Others vs Deputy Director Consolidation/Additional Collector, Haridwar & Others

Manoj K. Tiwari, J

Since common questions of fact and law are involved in these petitions, therefore, both the petitions are being heard and decided together by this common judgment.

Against the orders dated 06.02.2014 passed by Deputy Director of Consolidation in Revision No. 281 of 2012-13 and Revision No. 323 of 2012-13, on the basis of a compromise, petitioner moved application, seeking recall of the orders with the contention that no such compromise was ever entered into and the compromise deeds, which form the basis of the order, are forged. Thus, in sum and substance, petitioner's case, before Deputy Director of Consolidation was that the orders dated 06.02.2014 were obtained by playing fraud upon the court. The applications filed by petitioner in both the revisions, were rejected by Deputy Director of Consolidation vide orders dated 14.06.2017. Thus, feeling aggrieved, petitioner has approached this Court challenging the orders dated 06.02.2014 and subsequent orders dated 14.06.2017 (passed in Revision No. 281 of 2012-13 and Revision No. 323 of 2012-13, respectively).

Heard learned counsel for the parties and perused the record.

Learned Deputy Director of Consolidation has rejected petitioner's recall application on the sole ground that consolidation court has no power to review/recall its order.

It is settled position in law that fraud vitiates every solemn act. Fraud and justice never dwell together. Every judicial/quasi judicial authority has inherent power to review/recall an order, which has been obtained by playing fraud. This aspect has been dealt with by Hon'ble Supreme Court in the case of Union of India & others Vs Ramesh Gandhi reported in (2012) 1 SCC 476. Para 25, 26 & 27 of the said judgment are extracted below:-

"25. This Court on more than one occasion held that fraud vitiates everything including judicial acts. In S.P. Chengal Varaya Naidu v. Jagannath, this Court observed as follows: (SCC p.2 para1)

"1. '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 honest 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."

(emphasis supplied)

Again in A.V. Papayya Sastry v. Government of A.P., this Court reviewed the law on this position and reiterated the principle. In paras 38 and 39 it was held as follows: (SCC pp.236-37)

"38. The matter can be looked at from a different angle as well. Suppose, a case is decided by a competent court of Law after hearing the parties and an order is passed in favour of the applicant plaintiff which is upheld by all the courts including the final Court. Let us also think of a case where this Court does not dismiss special leave petition but after granting leave decides the appeal finally by recording reasons. Such order can truly be said to be a judgment to which Article 141 of the Constitution applies. Likewise, the doctrine of merger also gets attracted. All orders passed by the courts/authorities below, therefore, merge in the judgment of this Court and after such judgment, it is not open to any party to the judgment to approach any court or authority to review, recall or reconsider the order.

The above principle, however, is subject to exception of fraud. Once it is established that the order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non- existent and non est and cannot be allowed to stand. This is the fundamental principle of law and needs no further elaboration. Therefore, it has been said that a judgment, decree or order obtained by fraud has to be treated as nullity, whether by the court of first instance or by the final court. And it has to be treated as nonest by every Court, superior or inferior." (emphasis supplied)

If a judgment obtained by playing fraud on the court is a nullity and is to be treated as non est by every Court superior or inferior, it would be strange logic to hear that an enquiry into the question whether a judgment was secured by playing fraud on the Court by not disclosing the necessary facts relevant for the adjudication of the controversy before the Court is impermissible. From the above judgments, it is clear that such an examination is permissible. Such a principle is required to be applied with greater emphasis in the realm of public law jurisdiction as the mischief resulting from such fraud has larger dimension affecting the larger public interest."

Hon'ble Supreme Court in the case of Ved Pal (D) through LRs & others v. Prem Devi (D) through LRs & others reported in (2018) 9 SCC 496, while considering the interplay between Order 23 Rule 3-A and Section 96(3) of Code of Civil Procedure, in a similar situation, has held that a compromise decree, if obtained by playing fraud can be challenged by filing review petition. Para 3 to 9 of the said judgment reads under:-

"3. Respondents 4 to 7 herein filed second appeal before the High Court challenging the judgment and decree dated 01.02.2003 passed by the first appellate court which arose out of judgment/decree dated 31-3-2001 passed by the Civil Judge (Junior Division) in a civil suit filed for a declaration and permanent injunction. The appellants herein were arrayed as Respondents 4 to 6 in the second appeal out of which this appeal arises.

The Single Judge of the High Court, however, by the impugned order dated 26-9-2006 disposed of the second appeal in the light of compromise, which is said to have been arrived at between the parties. In other words, the second appeal was not decided on merits but disposed of in the light of compromise arrived at between the parties.

The appellants herein felt aggrieved by the disposal of the second appeal and filed review petition but it was dismissed which has given rise to filing of the present appeal by way of special leave against the order of disposing of the appeal and dismissing the review petition.

Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal in part and set aside the order passed in the review petition and permit the appellants to file an application before the High Court for amending their review petition, filed in disposed of second appeal, raising all their grievances against the manner in which the second appeal came to be disposed of in the light of alleged compromise to enable the High Court to decide the review petition afresh.

In this case, we prefer to follow this course keeping in view the bar contained in Order 23 Rule 3-A of the Code of Civil Procedure, 1908 (for short "CPC") for filing the suit in a case of this nature and also another bar created under Section 96(3) CPC, which prohibits filing of any appeal, though in this case it does not apply because the dispute arose in second appeal filed under Section 100 CPC.

The purpose in making reference to these two provisions is to show the legislative intent which does not allow the parties to take recourse to these legal remedies to challenge the compromise once it is arrived at in the suit/appeal. The only exception being if the challenge is founded on the ground of fraud committed by the parties in obtaining any judicial orders, the suit, in appropriate case, may lie.

In this case, we find that the High Court did not examine the plea of the appellants properly keeping in view the facts alleged in the application and while negativing the attack observed that the appellants are free to take recourse to any other legal remedies. Since the second appeal was disposed of affecting the rights of the parties in the light of compromise, the proper forum to re-examine the issue, in our opinion, is the High Court, which disposed of the second appeal rather than any other forum to examine the issue at this stage. It is more so when we find that the High Court did not go into the details in the proceedings filed by the appellants in its correct perspective."

Petitioner had sought review of the orders dated 06.02.2014 on the ground that it was obtained by playing fraud upon Deputy Director of Consolidation, therefore, learned Deputy Director of Consolidation was not justified in summarily rejecting the applications as not maintainable. In view of the law laid down by Hon'ble Apex Court, learned Deputy Director of Consolidation was required to consider the review applications filed by the petitioner on merit and such an application could not have been summarily rejected as not maintainable.

For the aforesaid reasons, I am of the opinion that the application seeking recall of the orders dated 06.02.2014 was required to be considered on merits and it could not have been rejected at the threshold, as not maintainable.

In such view of the matter, both the writ petitions are partly allowed. Impugned orders dated 14.06.2017 are hereby set aside. Matter is remitted back to Deputy Director of Consolidation for reconsidering the recall applications filed by the petitioner, on merit, in accordance with law, within a period of three months from the date of production of certified copy of this order.