Smt. Pushpa Panday vs Salauddin and Others

N.K. Agarwal, J.—Instant revision u/s 115 of the CPC is directed against the order dated 12-10-2001 passed by the Civil Judge Class I, Ramanujganj, Ambikapur (CG) in M.J.C. No. 1/2001, whereby the application filed by the non-applicants No. 1 and 2 under Order 9 Rule 13 read with Section 151 of CPC was allowed and exparte decree passed on 17th November, 1997 in Civil Suit No. 58A/96 in favour of the applicant was set aside.

Brief facts of the case are that the Plaintiff (applicant herein) filed a civil suit against the non-applicants No. 3 and 4 for the relief of declaration of title over the suit land Khasra No. 439/8 area 2.023 hectare and house constructed thereon at village Balrampur Pal Distt. Sarguja; for declaration to the effect that the order of the Additional Collector, Ambikapur dated 22-8-1992 in Revenue Case No. 98 A-19/91-92 whereby Patta granted by the Tehsildar in favour of the applicant/Plaintiff was cancelled is illegal and void and deserves to be cancelled. Further relief of permanent injunction was also claimed against any disturbance in the peaceful possession of the Plaintiff.

As per the Plaintiff, she is in possession of the suit land since 30 to 32 years and based on possession, Patta was granted by the Tehsildar in Revenue Case No. 38A-19/85-86 on 14-7-1986 and the suit land was settled in her favour but the Additional Collector illegally cancelled the said Patta. It was further pleaded that threat is being given by the Defendant No. 2 (non-applicant No. 4 herein) to damage the crop sown by the Plaintiff.

In the said suit, the non-applicant-State was proceeded exparte and in terms of the provisions contained in Order 8 Rule 10 of Code of Civil Procedure, an exparte decree dated 17-11-97 was passed by the trial Court. The decree so passed attained finality against the State since the State had not preferred any application under Order 9 Rule 13 of CPC to set aside the said decree nor preferred any appeal, however the non-applicants No. 1 and 2 who are strangers preferred an application under Order 9 Rule 13 read with Section 151 of CPC on the ground that the suit land was kept reserved for the purpose of construction of mini stadium and other Government purposes; the applicant in collusion with one Virendra Pandey and also in collusion with the revenue authorities got recorded the suit land in her name in revenue record without there being any revenue proceedings for grant of Patta and the alleged revenue case for grant of Patta was fake. It was further pleaded that although the Plaintiff got recorded her name in the revenue record over the suit land but in fact, she could not get possession over it and therefore, she started interfering in possession of the non-applicants No. 1 and 2 herein over the land bearing Khasra No. 439/5, 439/6 and 439/7, which were in possession of the non-applicants No. 1 and 2 by showing those lands as suit land bearing Khasra No. 439/8. The Plaintiff obtained judgment and decree by practicing fraud upon the Court and therefore, the decree deserves to be set aside.

The applicant herein filed her reply and denied the allegations and pleaded that the Additional Collector had wrongly cancelled her Patta granted in her favour by Tehsildar and therefore, she filed the suit claiming the relief of declaration that the order of the Additional Collector be declared void and illegal. No fraud has been committed by the applicant herein and the suit has been rightly decreed exparte in her favour. It was further pleaded that the non-applicants No. 1 and 2 being strangers to the suit have no locus standi to prefer the application and the application filed by the non-applicants No. 1 and 2 herein deserved to be dismissed.

Learned trial Court vide order dated 12-10-2001 allowed the application of the non-applicants No. 1 and 2 and set aside the decree passed in applicant''s favour by holding that the applicant illegally obtained the Patta of the suit land; the order passed by the Additional Collector canceling Patta is still in force; State authorities in collusion with the applicant herein did not contest the suit and therefore the exparte decree deserves to be set aside. Learned trial Court placed reliance on the decision of Allahabad High Court in Surajdeo Vs. Board of Revenue, U.P., Allahabad and Others, and held that when a decree is obtained by playing fraud, then even a stranger can apply under Order 9 Rule 13 read with Section 151 of CPC for setting aside such decree.

Shri H.B. Agrawal, learned Sr. Counsel would submit that there is nothing on record suggesting that the applicant committed any fraud and in the fact and circumstances of the case, inference of collusion with State authorities could not be drawn. The non-applicants No. 1 and 2 have no locus standi to challenge such decree and, therefore, the order passed by the trial Court whereby the application of the non-applicants No. 1 and 2 under Order 9 Rule 13 of CPC was allowed, is wholly illegal and deserves to be set aside. For this, Shri Agrawal placed reliance on decisions of M.P. High Court in Gupala Dhimar Vs. State of M.P. and Others, and judgment of Gauhati High Court in Subahu Kumar Jain v. Jagdish Prasad Choudhury and Ors. AIR 1990 Gua 66 wherein Their Lordships have held that looking to the language of Order 9 Rule 13 of Code of Civil Procedure, only Defendant can file such application and a person who was not a Defendant in the suit decided exparte, has no locus standi to prefer such application and such application is not maintainable. In the judgment of Guahati High Court in Subahu Kumar Jain (supra), the judgment of Allahabad High Court in Suraj Dev (supra) was referred and Their Lordships of Guahati High Court expressed their disagreement with the ratio laid down in the said judgment.

Per contra, Shri Shaktiraj Sinha, learned Counsel appearing for the non-applicants No. 1 and 2 submitted that the said exparte decree was a collusive decree obtained by the applicant in hand-in-glove with the State authorities and, therefore, the said decree has been obtained by playing fraud upon the Court and, the non-applicants No. 1 and 2 though strangers to the decree, have the locus standi to prefer application under Order 9 Rule 13 of CPC read with Section 151 of CPC and the learned Trial Court has rightly set aside the exparte decree on their application. For this, learned Counsel for the Appellant placed reliance on the decision of Allahabad High Court in the case of Suraj Dev (supra), and decision of Madhya Pradesh High Court in the case of Raghunath Tambe Vs. M.P. Electricity Board and Others, .

The question arises for decision making in this revision is that in the facts and circumstances of the case whether the non-applicants No. 1 and 2 being strangers to the judgment and decree passed exparte in favour of the applicant, have any locus standi to file an application to set aside the said decree.

A bare perusal of record would reveal that the suit was not effectively contested by the State authorities and, therefore, the exparte decree was passed by the trial Court under Order 8 Rule 10 of Code of Civil Procedure. The said decree remained unchallenged and attained finality as far as Defendant State is concerned. Learned trial Court placing reliance on the judgment of Allahabad High Court in Suraj Dev (supra) set aside the said judgment and decree on the ground of collusion between the Plaintiff and the State authorities.

Rule 13 of Order 9 of the CPC which provides for setting aside the decree passed ex-parte against the Defendant reads as follows:

Setting aside decree ex parte against Defendant.-In any case in which a decree is passed ex parte against a Defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be set aside as against such Defendant only it may be set aside as against all or any of the other Defendants also:

Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the Defendant had notice of the date of hearing and had sufficient time to appear and answer the Plaintiffs claim.

A bare perusal of Order 9 Rule 13 of the CPC makes it clear that an application under the said provisions can be filed only by a Defendant and not by any other person. This view gets support from the decisions in the cases of Subahu Kumar Jain (supra), Gopal Dheemer (supra), Smt. Santosh Chopra v. Teja Singh and Anr. AIR 1977 Del 110 and Raghunath Tambe (supra) and therefore, ordinarily a stranger has no right to file an application under Order 9 Rule 13 of CPC for setting aside the decree.

As far as the contention raised by the non-applicants No. 1 and 2 with regard to alleged fraud committed by the applicant upon Court, I could not find any material in this regard, suggesting any fraud practised upon Court. It is true that fraud vitiates everything and if fraud has been practised upon Court, then the Court would have inherent power to set aside its order and decree solely on that ground but in this case, there is no material from which it can be inferred that any fraud has been played upon the Court. As far as the cases in which it is alleged that fraud has been practised upon the parties, it is for the party to plead and prove such a fraud in a regular suit and get the relief, but looking to the language of Order 9 Rule 13, Code of Civil Procedure, it is crystal clear that the right has been given only to the Defendant to apply under the said provision. Merely because the State authorities did not contest the case properly, it cannot be said that there is collusion between the Plaintiff arid the State authorities. Moreover, the non-applicant No. 1 and 2 could not get any locus standi on such pleading to apply under Order 9 Rule 13 of the CPC for setting aside the ex parte decree. Hon''ble Apex Court in case of Rup Chand Gupta Vs. Raghuvanshi Private Limited and Another, where the suit was filed by landlord against lessee for ejectment after serving valid notice to quit, and that sub-lessee was not impleaded as Defendant, and ex parte decree was passed without contest by lessee, on the question whether sub-lessee can challenge the decree as collusive, held that the mere fact that the sub-lessee was not impleaded or that the lessee did not actually contest the suit did not render the decree passed in the suit as collusive. The Apex Court in Para 9 held as under:

... Collusion in judicial proceedings is a secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose....

In view of the aforesaid legal proposition, I have no hesitation to hold that the application under Order 9 Rule 13 of CPC was incompetent and the learned trial Court by setting aside the decree on the application of non-applicants No. 1 and 2 committed a gross illegality leading to manifest injustice to the applicant. The said order dated 12-10-2001 cannot be sustained and the same deserves to be set aside and therefore, this revision deserves to be allowed.

Accordingly, this revision is allowed. The order dated 12-10-2001 passed by the Civil Judge Class I, Ramanujganj, Ambikapur (CG) in M.J.C. No. 1/2001, is set aside and ex parte decree passed on 17th November, 1997 in Civil Suit No. 58A/96 in favour of the applicant is restored.

In the facts and circumstances of the case, no order as to costs.