Prakash Chand vs Ram Sahai and Others

Mohammad Rafiq, J—This application styled as misc. application has been filed on 3.4.2015 by the petitioners with the prayer that respondent Nos. 3, 4, 6, 7 & 8 be punished for committing contempt of this Court and be directed to restore the original position of the shop No. 174 situated in Tripolia Bazar, Jaipur as it existed at the time of passing of the order dated 17.8.1982 and 23.9.1982 by this Court in S.B. Civil First Appeal No. 12/1982 and cancel the registered sale deed dated 22.2.2002 in favour of Shanti Devi, Tehal Singh and Mahendra Singh. Further prayer is that respondent No. 7 Kamal Kishore be prosecuted for filing a false and wrong reply along with affidavit in the contempt petition No. 259/1983, which led to his exoneration in the contempt petition. Dharam Singh must be prosecuted for filing false additional affidavit dated 19.5.1984 in contempt petition No. 259/1983, which helped respondent Nos. 3, 4, 6, 7 & 8 in getting exonerated from contempt proceedings.

Shri Vimal Choudhary, learned counsel for the applicants-petitioners has argued that petitioner Prakash Chand (since deceased) and Ashok Kumar filed a suit for partition, which was dismissed by judgment dated 23.9.1981 as time barred. First appeal No. 12/1982 was filed against the aforesaid judgment in which this Court by order dated 17.8.1982 restrained the respondent Nos. 3 and 4 from transferring the suit property by selling, mortgaging, gifting or alienating in any manner. However, liberty was given to them to move an application if they want to transfer any of the suit properties, which would be decided on hearing the parties. Respondent Nos. 6 to 8, which included Shyama Devi, Kamal Kishore and Bimal Kishore were impleaded later on and therefore with regard to them this Court on 23.9.1982 passed the order restraining them from transferring the suit property till further orders. Petitioners filed contempt petition against them alleging that they transferred the suit property despite the aforesaid order. Those respondents in their reply and affidavit filed before this Court refuted the allegations. This Court by order dated 18.10.1984 discharged them from the contempt proceedings and disposed of the petition. The first appeal was allowed by judgment dated 1.7.1991 and the partition suit was decreed holding the plaintiff? appellants entitled to 1/8th share together (1/16th share each) in the said properties. The respondents filed D.B. Special Appeal (Civil) No. 29/1991 against the aforesaid judgment and decree, which was dismissed vide judgment and decree dated 18.4.2014. When the petitioners filed execution petition, they learnt that the aforesaid shop has been transferred by the respondents in favour of wife of Dharam Singh, i.e. Shanti Devi and two sons namely; Tehal Singh and Mahendra Singh. Learned counsel submits that Dharam Singh was wrongly discharged because he filed a false affidavit in the contempt proceedings contending that he was a tenant in the suit property on 19.5.1984, whereas the fact is that the agreement to sale was already executed on 23.12.1983 by Kamal Kishore in favour of Shanti Devi and Tehal Singh and Mahendra Singh. Learned counsel for the petitioner has relied on the judgments of Supreme Court in A.V. Papayya Sastry and Others Vs. Government of A.P. and Others, AIR 2007 SC 1546 : (2007) 4 JT 186 : (2007) 2 RCR(Civil) 431 : (2007) 4 SCALE 88 : (2007) 4 SCC 221 : (2007) 3 SCR 603 : (2007) AIRSCW 2212 : (2007) 2 Supreme 837 , S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, AIR 1994 SC 853 : (1993) 2 BC 546 : (1993) 6 JT 331 : (1995) 109 PLR 293 : (1993) 4 SCALE 277 : (1994) 1 SCC 1 : (1993) 3 SCR 422 Supp : (1994) 1 UJ 1 , Deepa Gourang Murdeshwar Katre Vs. The Principal, V.A.V. College of Arts. and Others, (2007) 3 JT 403 : (2007) 3 SCALE 257 : (2007) 14 SCC 108 : (2007) 2 SCR 516 and United India Insurance Co. Ltd. Vs. Rajendra Singh and Others, (2000) 1 ACC 484 : (2000) ACJ 1032 : AIR 2000 SC 1165 : (2000) 2 CLT 25 : (2000) 100 CompCas 705 : (2000) 3 CTC 506 : (2000) 3 JT 122 : (2000) 2 SCALE 343 : (2000) 3 SCC 581 : (2000) 2 SCR 264 : (2000) 1 UJ 655 : (2000) AIRSCW 835 : (2000) 2 Supreme 294 and argued that any order obtained by exercise of fraud on the Court can be recalled at any point of time whenever such fraud comes to the notice of the affected party. It is therefore prayed that the application be allowed in terms of the prayer made therein.

No doubts the judgments of Supreme Court relied on by the learned counsel for the applicants-petitioners lays down the law that any judgment or decree obtained by fraud is liable to be set aside, but only in a properly constituted proceedings. The present proceedings are based on application filed under Section 12 of the Contempt of Courts Act wherein the prayer is made for not only punishing the respondents for committing the contempt of Court and imposition of exemplary cost, but also for restoration of the original position of the shop in question and cancellation of sale deed and also for prosecution of the respondents for filing false and wrong reply - affidavit.

On a pointed query by the Court, learned counsel for the petitioner submitted that the reply to the contempt petition is not available in the records of the Court. As the old files have been weeded out, it could not be known as to what was the averments in the reply. Learned counsel sought to justify his arguments by citing the affidavit of Kamal Kishore, which merely states that reply is drafted by his counsel under his instructions and its contents are true to his personal knowledge. He has also referred to affidavit of transferor Dharam Singh, wherein he has described nature of his possession as that of tenant in the suit property.

The Supreme Court in A.V. Papayya Sastry & Ors., supra has held that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye of the law. Such a judgment, decree or order - by the first court or by the final court - has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings.

The Supreme Court in S.P. Chengalvaraya Naidu (Dead) by L.Rs., supra has held that the judgment and decree obtained by fraud to be treated as nullity and non - disclosure of essential facts amounted to fraud and further held that such judgment is liable to be set aside.

In Deepa Gourang Murdeshwar Katre, supra it has been held that Court in exercise of its inherent powers under Sections 151 and 114 of the CPC can recall its own order obtained by fraud and misrepresentation. In United India Insurance Co. Ltd. vs. Rajendra Singh & Ors., supra where the awards of compensation secured by claimants from Motor Accident Claims Tribunal by practising fraud, it was held that such award can be recalled.

The present application however has been filed for altogether a different purpose i.e. seeking recall of the order discharging notice of contempt proceedings passed long back on 23.9.1982 i.e. 31 years ago. It is not known as to what was the reply of the respondents in the contempt petition as neither the petitioners possess their copy of reply in the contempt petition, nor are able to obtain it from the Registry as according to them, the old records have been wedded out. Applicants heavily relies on the photo copy of the affidavit said to have been filed by Dharam Singh, wherein he has mentioned his status in the suit property as of tenant. This is not the affidavit of transferor i.e. Kamal Kishore. Petitioners have placed on record copy of the affidavit of Kamal Kishore said to have been filed in support of his reply to the notice of contempt petition, but no averment is contained therein with regard to the suit property or its alleged transfer. All that is stated is that reply to the contempt petition has been drafted by his counsel under his personal instructions and that he is fully conversant with the facts and circumstances of the case and that the averments in the reply are correct to the best of his knowledge, but what is contained in the reply is not evident.

In any case, according to learned counsel for the petitioners, the transfer of the suit shop has taken place due to intervention of the Court in a suit for specific performance filed by Shanti Devi and her two sons Tehal Singh and Mahendra Singh in whose favour the judgment and decree for specific performance has been passed by the Court below on 3.7.1999 and 19.7.1999. The incident of transfer/sale has thus taken place much subsequent to the passing of the order of discharge of notice in contempt proceedings and after passing of the aforesaid judgment and decree, on which basis the sale deed must have been registered in their favour on 22.2.2000. The incident of transfer of the disputed property has thus taken place on 22.2.2000. But, in any case, according to what petitioner contends, it must be described as a collusive decree obtained by fraud concealing the restraint order passed by this Court against the transferor Kamal Kishore. He could be proceeded in contempt petition soon thereafter which action was not initiated by the petitioner. Now the question is whether the order passed in contempt petition dated 18.10.1984, by which notice issued to Dharam Singh and Kamal Kishore were discharged is liable to be recalled owing to the aforesaid reasons. Admittedly on that date, the transfer of the aforesaid property has not taken place and therefore if the Court has then discharged them, the order of the Court cannot be faulted. The transfer has taken place in 1999 or 2000 on the basis of judgment and decree, which event had taken place much subsequent thereof and cannot be a basis for recall of that order. The contempt proceedings cannot be taken at par with any other original proceeding like a suit for setting aside the judgment and decree obtained by fraud or concealment of material fact, which is what appears to have been done in the present case. For initiation of contempt proceedings, the provisions contained in the Contempt of Courts Act, 1971 will have to be adhered to. Section 20 of the Act in the present case is significant, which inter alia provides that no Court shall initiate any proceedings of contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed.

Although the petitioners in substance are asking for initiation of contempt proceedings, but styled application as the one for recall of the aforesaid order. The aforesaid order, for the aforementioned reasons, cannot be recalled after as along as 31 years.

The argument of learned counsel for the petitioners that period of limitation for the purpose of recall should be counted from the date of knowledge, also cannot be accepted because if the sale deed, which has resulted in the transfer, was registered in 2000, mere factum of acquiring knowledge thereof by the petitioners now at this stage, cannot justify recall of said order.

In the circumstances, the application for recall is dismissed, however, with liberty to the petitioners to challenge the judgment and decree of specific performance referred to supra, on the ground that the same has been obtained by fraud and concealment and take recourse to any other legal remedy as may be open to him in law.