Urmila Tripathy vs Charulata Kar

Dr. B.R. Sarangi, J.—The Plaintiffs, being the Petitioners, have filed this application assailing the Order Dated 08.10.2013 passed by the Learned Civil Judge (Senior Division), Puri in C.S. No. 323 of 2011 rejecting the application filed u/s 151 CPC (in short ''CPC'') to stay the further proceedings of the suit till disposal of the Revision Case No. 770 of 2011 pending before the Commissioner Consolidation, Bhubaneswar. The short fact of the case, in hand, is that the Petitioners, as Plaintiffs, filed a suit for declaration of their right, title, & interest, confirmation of possession & for permanent injunction. The Plaintiffs'' claim is that one Ananta Charan Tripathy is the recorded owner of the suit land as per the record of right of 1927, who died in 1952 leaving behind his only daughter namely Fakiri Dei. Niranjan & Bhagaban are the two sons of Maheswar Kar through said Fakiri Dei. Ananta having no male issue, adopted Niranjan & accordingly Niranjan as the adopted son & legal heirs of Ananta, inherited his properties. But during the settlement operation in 1966, Bhagaban, the brother of Niranjan in connivance with Maheswar, his father, managed to record the suit land in their names in exclusion of the name of Niranjan who is the adopted son & successor of Ananta Charan Tripathy. As the dispute arose for the wrong recording between the parties. Maheswar & Bhagaban executed two registered sale deeds bearing No. 1577 & 1576 dated 29.03.1966 in respect of the land recorded in their names in favour of Niranjan to avoid the dispute & disruption between the parties. But during consolidation operation, Niranjan could not take any step & Maheswar & Bhagaban suppressing the aforesaid fact managed to record the suit land in their names although the possession of the suit land was with Niranjan till his death in 2003. After the death of Niranjan in 2003, the Plaintiff-'' Petitioners & proforma Defendants inherited the suit property as the legal heirs of late Niranjan & possessed the same in the same manner, but after the death of Niranjan, said Bhagaban in association with his two sons, i.e., present Opp. Parties 2 & 3 created disturbance in the possession of the Plaintiffs. Hence, the suit.

The Defendant-Opp. Parties by filing written statement challenged the maintainability of the suit on the ground that the Consolidation Authorities being competent to decide right title & interest, & they having hold title in respect of the land in favour of Maheswar & Bhagaban, only legal heir & successor to the interest of Fakiri Dei & the said decision having been arrived at by the competent Authority under Special Act, the same is not open for challenge before the Civil Court after thirty years of final publication of the consolidation R.O.R. Apart from the same the Defendant-Opp. Parties have disclosed the facts of execution of a gift deed by Ananta Charan Tripathy in 1942 in favour of the Defendants. Therefore, it is stated that once the Consolidation Authorities decided the title during consolidation operation, the suit in question should be dismissed.

Assailing the order of the Consolidation Authorities, the Plaintiffs-Petitioners filed Consolidation Revision Petition u/s 37 of the Orissa Consolidation of Holdings & Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as "the OCH & PFL Act''), registered as Consolidation Revision Petition No. 770 of 2011, which is pending before the Court of the Commissioner Consolidation, Orissa, Bhubaneswar. The same having been admitted, notice has been issued to the Defendants, who are the Opp. Parties therein, after filing of the suit for declaration of right, title, interest, confirmation of possession & permanent injunction before the Civil Judge (Senior Division), Puri in C.S. No. 323 of 2011. After the revision petition was entertained by the competent Court, the Plaintiffs-Petitioners filed an application u/s 151 of C.P.C. with a prayer to stay further proceeding of the suit till disposal of the revision.

Learned Trial Court rejected the application for stay of further proceedings of the suit in exercise of power u/s 151 CPC by impugned Order Dated 08.10.2013 stating that the Consolidation Revision being a subsequent proceeding to the suit, Sec. 10 of CPC cannot be attracted to stay the suit & the decision of the suit will be binding in all respect. Apart from the same, it is further held that since there is de-notification u/s 41 of the OCH & PFL Act & during pendency of the consolidation operation, there is no substantial ground to stay the proceeding of the suit till disposal of the revision. Hence, the present Writ Petition.

Mr. S.P. Mishra, Learned Senior Counsel appearing for the Petitioners assailed the order of the Learned Court below rejecting the application u/s 151 of the CPC to stay the further proceeding of the suit stating, inter alia, that the provisions contained under Sec. 10 of the CPC is not attracted since the revision application before the consolidation authority has been filed after institution of the suit & there is no consolidation operation continuing because of the de-notification issued by the authorities u/s 41 of the OCH & PFL Act. It is further contended that the allegation of fraud, as stated in the plaint, is only to the extent that the Defendants have got the property recorded in the consolidation proceeding by suppressing the fact as regards the notice. Apart from the same, when the Consolidation Authorities have the power to decide the right, title & interest, in that case the proceeding of the suit should be stayed. The rights of the Plaintiffs are based on two registered sale deeds'' of the year 1966 & any other plea challenging the 1942 gift deed cannot have any substance for adjudication of the suit as those are incidental to the main relief which can be decided by the Consolidation Authorities. Mr. Mishra, Learned Senior Counsel for the Plaintiffs-Petitioners relied upon the decision of this Court reported in Guizar Khan v. Commissioner of Consolidation >1993 (II) OLR 194 (FB), wherein this Court has held that even after closure of the consolidation proceeding, revision is maintainable & the same principle has already been followed in Krushna Chandra Barik v. Nimai Charan Panda & ors, >2003 (I) OLR 66, Bansidhar Rana & ors v. Minati Bewa & os., >2000 (13) OLR 360, Rama Chandra Parida and Others Vs. Pramod Kumar Padhiary and Another, , Netrananda Behera v. Khetrabasi Behera, >2010 (II) OLR 379, Budhi Dei v. Kalu Muduli & ors, >1991 (1) OLR 158 wherein it is held that the suit has to be stayed till final adjudication of right, title & interest simultaneously in two parallel proceedings since power has been vested with consolidation authorities to decide the same which is normally to be exercised by the Civil Court & therefore, the exercise of power U/S. 151 CPC is warranted. While rejecting the application u/s. 151 CPC, the Learned Trial Court has failed to consider these aspects & passed the impugned order.

Mr. A.P. Bose, Learned Counsel for the Defendants-Opp. Parties urged with vehemence that at this stage this Court should not interfere with the impugned order passed by the Learned Court below rejecting the application filed u/s 151 CPC & stated that the Plaintiffs have filed the suit on 6.7.2011 challenging the consolidation R.O.R., Exhibit-6 & Exhibit-F from the side of the Defendants, which was finally published in the year 1983 on the ground that fraud has been practiced against their predecessor & for declaration of their right, title & interest & has referred to the averments made in paragraphs 3, 4, 4(a) & 6 of the plaint wherein it is stated with regard to the allegation of fraud. He further urged that the consolidation revision under Annexure-4 was filed in November, 2011 much after the institution of the civil suit on 6.7.2011. Therefore, the proceeding should not be stayed & rightly the Learned Court below has rejected the same. He further argued that even the plaint was, amended in the year 2012 but filing of the consolidation revision has also not been pleaded in the allotments of the plaint. After the closure of evidence, the petition under Annexure-5 was filed on 29.8.2013 seeking for stay of further proceeding of the suit, which is absolutely misconceived one. Relying upon the Judgment of the Apex Court in Surya Dev Rai Vs. Ram Chander Rai and Others, he submits that this Court should not interfere with the impugned order because there is no violation of the parameters fixed in the case itself.

In Arnapurna Tripathy Vs. Commissioner, Consolidation and Others, , it is held that it is only within the domain of the civil Court which can decide the same question of fraud as alleged not the Consolidation Authorities save & except declaration of right, title & interest which has been concluded due to de-notification made u/s 41 of the OCH & PFL Act long since.

In Pagal Das & ors v. Upendra Dutta & ors, >1989 (II) OLR 347 it is held that if a suit is filed for declaration of title on the ground that the document was taken by practicing fraud then the suit does not abate.

in Jhumpamani Bewa & others v. Khetrabasi Chhotaray, >1986 (II) OLR 9 it is held that even though consolidation operation is closed, yet in respect of cases or proceedings pending before the authority under OCH & PFL Act, it shall be deemed that the proceeding is alive, in the present case, after the notification was issued u/s 41 of the said Act 28 years ago & thereafter the suit was filed & during pendency of the suit, the application filed u/s 37 of the OCH & PFL Act, 1972, would not mean that it is a continuation of Consolidation Proceeding. Reliance has also been placed on the decision of this Court in Manas Ranjan Das & others v. Consolidation Officer, Pipili & others, >1999 (I) OLR 649 where the distinction of powers u/s 36 & Section 37 of the OCH & PFL Act has been taken into consideration & this Court has held that Section 36(1) provides that if a person feels aggrieved by any decision of the Director of Consolidation, he may file a revision within the time stipulated therein against such decision before the Consolidation Commissioner, who may revise it after giving the parties concerned reasonable opportunity of being heard. Section 37 revision is different from Section 36 revision. A close & careful reading of Section 37(1) of the OCH & PFL Act would show that the Commissioner has the discretion to call for & examine the records of any case decided or proceedings taken by any subordinate authority. Such discretion should not be arbitrary but should be judicious. The purpose for calling for & examining the records is also indicated in the provision itself. It is for the purpose of satisfying himself as to the regularity of the proceedings or as to the correctness, legality or propriety of any order passed by the subordinate authority in the case or proceedings. The Commissioner thereafter may make such order as he thinks fit after giving the parties concerned reasonable opportunity of being heard.

In National Institute of Mental Health and Neuro Sciences Vs. C. Parameshwara, referring to Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, it has been held that inherent jurisdiction of the Court to make orders ex debito Justitia is undoubtedly affirmed by Section 151, CPC, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals, expressly with a particular matter, the provision should not normally be regarded as exhaustive. In that present case, as stared above, Section 10, CPC has no'' application & consequently, it was not open to the High Court to bye-pass Section 10, CPC by invoking Section 151, CPC.

Considering the above contention raised by the parties & perusing the pleadings & materials available on record, the admitted fact is that the consolidation proceeding has been over in respect of the village in question 28 years ago, & de-notification of the consolidation proceeding u/s 41 of the OCH & PFL Act had been made long since. The same having not been challenged by the aggrieved party on a subsequent disclosure of the fact, the suit has been filed by the Plaintiffs-Petitioners seeking for declaration of right, title, interest, confirmation of possession & for permanent injunction referring to pleadings made in paragraph 3, 4, 4(a) & 6 of the plaint. It is specifically stated that praying fraud in notifying the documents, which had never been challenged before the Consolidation Authorities at any point of time or before the present suit was filed but for the first time in the present suit, such pleadings have been raised by the Plaintiff-Petitioners. Admittedly after the suit was instituted on 06.07.2011 assailing the consolidation R.O.R. in Ext. 6 & Ext. F, consolidation revision under Annexure-4 was filed in November, 2011 & after filing of the revision even though the plaint was amended in the year 2012, filing of such consolidation revision has not been pleaded in the amended plaint, but application was filed under Annexure-5 u/s 151, CPC to stay the suit on 29.08.2013 much after the institution of the suit as well as the consolidation revision filed by the Plaintiffs-Petitioners even 28 years after the de-notification made u/s 41 of the OCH & PFL Act. The question of jurisdiction of the Consolidation Authorities for consideration of revision u/s 37 of the OCH & PFL Act even after de-notification was made u/s 41 may not have any effect in the present context but it has got its ramification when there is allegation of fraud in the plaint itself. In the plaint itself, the Plaintiff-Petitioners have made the allegation that during the consolidation operation the Defendants have suppressed the fact of execution of registered sale deed in 1963 & further during the consolidation proceeding no notice was served on the Plaintiffs. As such, the Defendants have played fraud on the Plaintiffs & managed to record the suit land in their names in the consolidation operation.

The Apex Court in Meghmala and Others Vs. G. Narasimha Reddy and Others, held in paragraphs 28 to 35, as follows:

it is settled proposition of law that where an applicant gets an order/office by making misrepresentation or playing fraud upon the competent authority, such order cannot be sustained in the eye of law. "Fraud avoids all judicial acts, ecclesiastical or temporal." (Vide S.P. Chengalvaraya Naidu v. Jagannath) In Lazarus Estates Ltd. v. Beasley the Court observed without equivocation that: (QB p. 712)

No Judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.

In A.P. State Financial Corp. v. GAR Re-Rolling Mills & State of Maharashtra v. Prabhu this Court observed that a Writ Court, while exercising its equitable jurisdiction, should not act as to prevent perpetration of a legal fraud as the Courts are obliged to do justice by promotion of good faith. "Equity is always known to defend the law from crafty evasions & new subtleties invented to evade law."

In Shrisht Dhawan v. Shaw Bros, it has been held as under: (SCC p. 553, para 20)

Fraud & collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct.

in United India Insurance Co. Ltd. v. Rajendra Singh this Court observed that "Fraud & justice never dwell together" (frauset jus non quam cohabitant) & it is a pristine maxim which has never lost its temper over all these centuries.

The ratio laid down by this Court in various cases is that dishonesty should not be permitted to bear the fraud & benefit to the persons who played fraud or made misrepresentation & in such circumstances, the Court should not perpetuate the fraud. (See Vizianagaram Social. Welfare Residential School Society v. M. Tripura Sundari Devi, Union of India v. M. Bhaskaran, Kendriya Vidyalaya Sangathan v. Girdharilal Yadav, State of Maharashtra v. Ravi Prakash Babulalsing Parmar, Himadri Chemicals Industries Ltd. v. Coal Tar Refining Co. & Mohd. Ibrahim v. State of Bihar).

Fraud is an intrinsic, collateral act, & fraud of an egregious nature would vitiate the most solemn proceedings of Courts of justice. Fraud is an act of deliberate deception with a design to secure-something, which is otherwise not due. The expression "fraud" involves two elements, deceit & injury to the person deceived. It is a cheating intended to get an advantage. [Vide Vimla (Dr.) v. Delhi Admn., Indian Bank v. Sat yam Fibres (India) Ltd., (State of A.P. v. T. Suryachandra Rao, K.D. Sharma v. SAIL & Central Bank of India v. Madhulika Guruprasad Dahir.]

An act of fraud on Court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud & deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles & any unfair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false. Suppression of a material document would also amount to a fraud on the Court. (Vide S.P. Chengalvaraya Naidu, Gowrishankar v. Joshi Amba Shankar Family Trust, Ram Chandra Singh v. Savitri Devi, Roshan Deen v. Preeti Lal, Ram Preeti Yadav v. U.P. Board of High School & Intermediate Education & Ashok Leyland Ltd. v. State of T.N.)

In Kinh v. Walcott it has been held that:

mere constructive fraud is not, at all events after long delay, sufficient but such a Judgment will not be set aside upon mere proof that the Judgment was obtained by perjury.

Thus detection/discovery of constructive fraud at a much belated stage may not be sufficient to set aside the Judgment procured by perjury.

In view of such position of law enunciated by the Apex Court when there is an allegation of fraud made in the plaint itself, that requires an adjudication by competent Civil Court & not by the consolidation authorities even though the consolidation revision was filed much after filing of the civil suit & much after the closure of the consolidation proceeding u/s 41 of the OCH & PFL Act. The contention raised that when the sale deeds of the year 1966 have been challenged by the Defendants & such transaction pursuant to said document is binding on the parties, the said question can only be considered in the suit & not in the proceeding of the consolidation revision pending with the authorities. There is no dispute that the special statute provides a forum for adjudication of the dispute in relation to the said Act. But at the same time the procedure envisaged therein has to be followed in conformity with the said statute. After the closure of the proceeding, at a belated stage, it cannot be said that the Civil Court has no jurisdiction to decide the question of right, title & interest when there is an allegation of fraud more particularly the said question cannot be considered in a special statute, such as, OCH & PFL Act, 1972 as the proceeding has already been closed 28 years ago. Stay of further proceedings of the suit on the plea of avoiding multiplicity of litigation is not attracted in the present context in view of the fact that the forum available under the special statute cannot have jurisdiction to decide the question of fraud which goes to the root of the matter & as such, in view of the Judgment of the Apex Court in Meghamala Case (supra), allegation of fraud has to be decided by assigning cogent reasons & due application of mind by competent Civil Court Once an allegation of fraud is there even if the consolidation revision is pending u/s 37, which was instituted much after the filing of the suit, the said Court is not competent to decide the question of fraud

There is no dispute with regard to the proposition of law laid down by this Court that after closure of the consolidation proceeding, revision is maintainable, but that ipso facto cannot take into consideration the allegation of fraud, which is made in the plaint itself by the Plaintiffs-Petitioners By relying upon the Judgments referred to supra in one hand, the Plaintiffs-Petitioners while raising question of fraud cannot say that the Consolidation Commissioner has the jurisdiction even after closure of the proceeding Such contention is absolutely misconceived one. In view of the aforesaid facts & circumstances, this Court does not find any infirmity in the order passed by the Learned Civil Judge (Senior Division), Puri rejecting the application filed u/s 151 of CPC Therefore, this, Court is not inclined to interfere with the impugned order passed by the Court below Resultantly, the Writ Petition fails & the same is dismissed.