Phool Pati vs District Magistrate/Collector and Others

Rajiv Sharma, J.—Heard Mr Ram Kumar, learned Counsel for the Petitioner and Mr Q M Haq, learned Counsel appearing for the Respondents.

Brief facts are that vide order dated 21.3.1984, name of Surya Kala, opposite party No. 3 was mutated and the said order was assailed by the Petitioner in an appeal u/s 210 Land Revenue Act which was allowed by the Appellate Authority, by means of judgment and order dated 30.8.2000 and the matter was remanded for deciding it on merits, after giving full opportunity to the affected persons. Subsequently, by an order dated 4.2.2002, name of the Petitioner was mutated and the name of Surya Kala was cancelled. Thereafter, the opposite party No. 3 filed restoration against the order dated 4.2.2002 and by the order dated 27.2.2002, the Naib-Tahsildar, recalled the order dated 4.2.2002 and the fixed the case for 14.3.2002 to which the Petitioner had also filed an application for recalling the order dated 27.2.2002 and the Naib-Tahsildar vide orders dated 14.3.2002 allowed the application of the Petitioner and recalled the order dated 27.2.2002. Being aggrieved, the opposite party No. 3 filed a revision u/s 219 Land Revenue Act and the Revisional Court, on the date of filing of revision itself, heard the matter on merits and decided the same and remanded the matter for deciding it afresh, in view of the fact that certain evidence has to be led by the respective parties, with regard to the respective claims in the property in question. Being aggrieved by the aforesaid orders, the instant writ petition has been filed inter alia on the ground that no notice was issued to the Petitioner by the Revisional Court and the Revision has been allowed on the date of filing itself.

Learned Counsel for the Petitioner submits that the writ petition was dismissed for want of prosecution on 17.4.2008. Thereafter, an application for recall of the order was filed. After filing of the recall application, it was also rejected vide order dated 12.1.2010 and as such, another application has been preferred by the learned Counsel for the applicant for restoring the writ petition to its original number as well as recalling the orders passed on the application for recall which was listed today. As sufficient cause has been shown by the counsel for the applicant, the orders dated 17.4.2008 and 12.1.2010 are recalled and the writ petition is restored to its original number.

During the course of hearing, it has been pointed out that the sole Petitioner died and as such, an application for substitution has been moved bringing on record the legal heirs of the Petitioner. As the Petitioner died and as such, there was no necessity for issuing notices to the legal heirs.

Accordingly, the substitution application is allowed and the legal heirs are directed to be substituted, during the course of the day.

As the writ petition was filed in the year 2002 and the same was dismissed twice for want of prosecution and as such, this Court requested the Petitioner''s counsel to argue the matter finally. Initially, he did not agree, but finally he proceeded with the hearing of the case.

A preliminary objection has been raised by Mr Q M Haq, learned Counsel for the opposite party No. 3 that no writ petition lies, against the mutation proceedings under Article 226 of the Constitution of India and that too against the order of remand in the said proceedings. In support of his submissions, he has relied upon the law laid down by this Court in the cases Kunj Behari v. Board of Revenue, Lucknow and Ors. 2001 ACJ 333 and Jai Narain Ojha v. Gauri Shanker and Ors. 1999 (17) LCD 918, to which learned Counsel for the Petitioner did not tender any reply to the preliminary objections, but has proceeded with the hearing of the case and states that as the Revisional Court has decided the same on the date of filing of revision and the Petitioner has been deprived of audi alteram partem, where notice has to be issued. Dispensing with the notice is the main question involved in the instant writ petition.

According to the Petitioner, the orders passed by the Mutation Court are on the basis of fraud. Therefore, the Revisional Court has rightly set aside the orders. The fraud committed by the opposite party No. 3 can only be looked into on the basis of evidence led by the respective parties before the competent Courts.

In S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, , the Apex Court had an occasion to consider the doctrine of fraud and the effect thereof on the judgment obtained by a party. In that case, one A by a registered deed, relinquished all his rights in the suit property in favour of C who sold the property to B. Without disclosing that fact, A filed a suit for possession against B and obtained preliminary decree. During the pendency of an application for final decree, B came to know about the fact of release deed by A in favour of C. He, therefore, contended that the decree was obtained by playing fraud on the court and was a nullity. The trial court upheld the contention and dismissed the application. The High Court, however, set aside the order of the trial court, observing that "there was no legal duty cast upon the Plaintiff to come to court with a true case and prove it by true evidence". B approached this Court. Allowing the appeal, setting aside the judgment of the High Court and describing the observations of the High Court as ''wholly perverse'', Kuldip Singh, J. stated:

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. (emphasis supplied)

In Indian Bank Vs. M/s. Satyam Fibres (India) Pvt. Ltd., referring to Lazarus Estates and Smith v. East Elloe Rural District Council, the Hon''ble Apex Court stated;

The judiciary in India also possesses inherent power, specially u/s 151This power is necessary for the orderly administration of the Court''s business." Code of Civil Procedure, to recall its judgment or order if it is obtained by Fraud on Court. In the case of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the Decree obtained by fraud. Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the Constitution of the Tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behavior.

In United India Insurance Co. Ltd. Vs. Rajendra Singh and Others, by practising fraud upon the Insurance Company, the claimant obtained an award of compensation from the Motor Accident Claims Tribunal. On coming to know of fraud, the Insurance Company applied for recalling of the award. The Tribunal, however, dismissed the petition on the ground that it had no power to review its own award. The High Court confirmed the order. The Company approached the Apex Court. Allowing the appeal and setting aside the orders, the Apex Court stated;

It is unrealistic to expect the Appellant company to resist a claim at the first instance on the basis of the fraud because Appellant company had at that stage no knowledge about the fraud allegedly played by the claimants. If the Insurance Company comes to know of any dubious concoction having been made with the sinister object of extracting a claim for compensation, and if by that time the award was already passed, it would not be possible for the company to file a statutory appeal against the award. Not only because of bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, would be limited to the issues formulated from the pleadings made till then.

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 wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim. The allegation made by the Appellant Insurance Company, that claimants were not involved in the accident which they described in the claim petitions, cannot be brushed aside without further probe into the matter, for, the said allegation has not been specifically denied by the claimants when they were called upon to file objections to the applications for recalling of the awards. Claimants then confined their resistance to the plea that the application for recall is not legally maintainable. Therefore, we strongly feel that the claim must be allowed to be resisted, on the ground of fraud now alleged by the Insurance Company. If we fail to afford to the Insurance Company an opportunity to substantiate their contentions it might certainly lead to serious miscarriage of justice.

(emphasis supplied)

Further, learned Counsel for the Petitioner submits that though enquiries have been conducted by the Additional District Magistrate and Block Development Officer, yet they have not been taken into consideration.

If the enquiry has been conducted by the authorities under the orders of the Court, then it is incumbent upon the Court for deciding the matter afresh, after remand and after taking into consideration the enquiry reports submitted by the authorities concerned. No other ground has been pressed into service by the learned Counsel for the Petitioner.

In all probabilities, the writ petition lacks merit and is hereby dismissed.