V.G. Loganathan vs M. Balakrishnan and Another

S.S. Subramani, J.—These revision petitions arise under peculiar circumstances. Petitioner, who is not a co-nominee party in the suit but

who is really affected person has filed this revision. He has come to Court with the grievance that he was dispossessed without notice and with the

help of Police and with further grievance that lower Court also did not apply its mind in passing various orders in the suit and in various I.As.

Petitioner herein filed a suit as O.S. 1421 of 1997 on the file of District Munsif-cum-Judicial Magistrate, Thiruvottiyur against first respondent

herein for permanent prohibitory injunction restraining him from interfering with his possession. In the suit he alleged that he is tenant of the premises

bearing old Door No. 48, New No. 44, Nethaji Street Ponniammanmedu, Chennai-110 and the same consist of a rice mill and house property.

The monthly rent was fixed at Rs. 5,000/- which was subsequently increased to Rs. 7,000/- per month. According to him, the tenancy began in the

year 1988.

It is further alleged that from the year 1997, first respondent with ulterior motive nagging plaintiff to vacate both rice mill as well as house, Since

first respondent was persistently demanding to vacate the property, rice mill alone was handed over to him on 7-7-1997, and he continued in

possession of house property as its tenant. But first respondent continued to demand vacant possession in the months of September, October and

November, 1997 and finally on 6-12-1997, first respondent created a scene before the house which ultimately resulted In filing suit for permanent

prohibitory injunction restraining first respondent from dispossessing forcibly and except by due process of law. An ad interim injunction was also

obtained and it is seen that on the basis of an order in Transfer C.M.P. 18257 of 1998, the case was transferred to City Civil Court, Madras and

renumbered as O.S. 4302 of 1999. In this connection it may also be worthwhile to note that after the case was transferred to City Civil Court,

petitioner''s counsel Mr. V. Sairam wrote a letter to first respondent on 27-7-1999 informing him that the suit has been transferred from

Thiruvottiyur to City Civil Court. Madras and renumbered as O.S. 4302 of 1999 and the case is posted on 2-11-1999. First respondent was also

aware of the transfer since he was also heard by this Court when the order of transfer was made on 20-3- 1999. First Respondent''s counsel was

one R. Perumalswamy. The suit is still pending.

In the suit, first respondent has filed counter to injunction application on 26-2-1998, relevant portion of which read thus.

1 submit that a rice mill with the office attached to it at old No. 48, new No. 44, Nethaji Street, Ponniammanmedu. Kanakkan Chatram, Chennai-

600 110, was initially let-out to one Mr. P. Mani in the year 1989 the petitioner was an employee under P. Mani. The license granted to the P.

Mani was for only one year and for the purpose of removing the husk from the paddy and to polish the rice. The petitioner herein was granted such

a licence after his employer Mani left the suit premises. Along with the rice mill there is an office building which is part and parcel of the rice mill.

The petitioner herein handed over the possession of the rice mill alone on 7-7-1997 but has not surrendered the office building which is part and

parcel of the rice mill. The rice mill could not be let out to any third party, therefore, the petitioner is bound to pay Rs. 7,000/-per month from July,

1997 onwards, the rent due from the petitioner upto February. 1998 is Rs. 56,000/-. The petitioner is misusing the office building which is the suit

property for his residential purposes. The amount of Rs. 500/- by way of D. D. sent by the petitioner was adjusted towards the arrears of rent due

from the petitioner. The petitioner has suppressed all the material facts.

He has also filed written statement admitting that defendant Is in occupation of the building. It is true that both in the counter-affidavit as well as in

the written statement first respondent pleads that petitioner is not tenant but only a licensee. Both in counter-affidavit as well as in the written

statement, he has no case that he is anything to do with his son or that he is occupying the building as agent of his son.

While so, first respondent filed a suit as O.S. 140 of 1999 on the file of District Munsif Court, Thiruvottiyur against his son for the following

reliefs :

a) for mandatory injunction directing the defendant, his men and agents or any, other person including V.G. Longanathan and his family members

to leave the suit premises morefully hereunder by removing all movables including household articles lying therein and thereby surrender the vacant

suit premises to the plaintiff;

b) in default and as alternative remedy, grant mandatory injunction by permitting the plaintiff to break open the locks if any put up to the doors lying

in the suit premises morefully described in the scheduled premises, with the assistance of the local police and thereby take over the suit premises by

the plaintiff:

c) for permanent injunction restraining the defendant his man and agents or any other persons including the suit premises morefully described in the

scheduled here-under

d) cost of the suit: and

e) pass such further or other orders as this Honourable Court may deem fit and proper in the circumstances of the suit and thus render justice.

Allegation in the suit is that first defendant''s son is in possession of the building and petitioner herein is only named as if he is supporting his son.

It is also said that plaintiff''s son trespassed into the property to an extent of 36 feet x 13 feet residential portion and first floor bearing old No. 48.

In the plaint he, has not stated anything about suit that is pending between petitioner herein and himself. He also said in para 3 of the plaint that he

was in peaceful possession and enjoyment of entire property till 20-7-1999.

Along with the suit, I.As. 498. 499 and 500 of 1999 were also filed containing similar averments in the plaint. In I.A. 498 of 1999, relief sought

for reads thus,

For the reasons set out in the accompanying affidavit, the above, named petitioner/ plaintiff most humbly prayed that this Hon''ble Court may

graciously be pleased to pass an order to direct the respondent his men and his agents V.G. Loganathan and others and his family members to

leave the suit property by removing all movables including house articles lying therein and thereby surrender the vacant suit premises to the

petitioner, pending disposal of the suit.

In I.A. 499 of 1999, the following relief is sought for.

For the reasons set out in the accompanying affidavit the above-named petitioner/ plaintiff most humbly prayed that this Hon''ble Court may

graciously be pleased to pass an order to direct the petitioner to break open the locks if any, put up to the doors lying in the suit premises with the

assistance of local police and thereby take over the petition premises by the petitioner, pending disposal of the suit.

In I.A. 500 of 1999, the relief sought for reads thus,

For the reasons set out in the accompanying affidavit the abovenamed petitioner/ plaintiff most humbly prayed that this Hon''ble Court may

graciously be pleased to pass an order of interim injunction restraining the respondent, his men and his agent V. G. Loganathan and others and his

family members either from interfering with the plaintiffs entering into the suit premises or disturbing the petitioner in whatsoever manner in the suit

premises, pending disposal of the suit and thus render justice.

Lower Court ordered notice on these applications and defendant is none other than his own son, received notice as if he is residing in door No.

He remained ex parte and on 17-8-1999 all these petitions were ordered on the ground that respondents on those applications are not present

and declared ex parte. Thereafter suit summon was also issued to defendant''s son wherein also he did not appear. First respondent moved an

application in I.A. 633 of 1999 to advance the posting on the ground that defendant has been set ex parte. He also stated in the affidavit that when

he approached the Inspector of Police, Meda-vakkam Police Station for implementing orders in various interlocutory applications, he advised him

that police protection could be given only on final disposal of suit. Lower Court was not satisfied with that affidavit and dismissed the petition and

on 26-10-1999 ex parte evidence was taken and suit was decreed on 26-10-1999.

After ex parte decree was obtained without executing that decree, with police help petitioner was dispossessed on the day of Deevali.

Case of petitioner is that he was taken by surprise when police and other persons came to the house and forcibly dispossessed him.

Eventhough he made various enquiries, first respondent did not state any reason nor police officials divulge the cause for his dispossession. It is

only some time later, he came to know from the police authorities themselves that a suit as O. S. 140 of 1999 was filed by first respondent and he

obtained collusive orders against his son and on that basis he has been forcibly dispossessed. Petitioner wants to seek interference of this Court u/s

115 of CPC by calling for the records in the case and see that injustice done to him is rectified.

It was submitted by Senior Counsel that first respondent has played fraud on Court by not stating true facts and lower Court has also passed

interim orders and finally decreed (sic) without application of mind. Counsel also submitted that counsel appearing for first respondent in lower

Court was also well aware of the earlier proceedings and he also owes a duty to Court to state true facts. Counsel further submitted that when

petitioner''s name has been specifically mentioned and he also wanted relief against him, he should have been impleaded in the suit. Lower Court

also did not discharge its duty in a judicial manner while ordering dispossession of third person, who is not a party to the suit.

When the revision came for admission, I directed counsel for petitioner to take a special messenger from this Court itself and directed Registry

to see that the notices are served on them. I also called for the records in both the suits and the entire records were also placed before me. Special

messenger has reported that when the notice was attempted to be served on respondents, they refused to accept the same. The names of

respondents are also printed in the cause list and none represenled them.

I heard the learned Senior Counsel for petitioner in detail and after perusing the records, I find that petitioner has come to Court with genuine

grievance that he has been forcibly dispossessed through the aid of Court.

I have already extracted the case of first respondent in O.S. 1421 of 1997 (O.S. 4302 of 1999), wherein he has admitted that petitioner is in

physical possession of the building whether as licensee or as tenant. Even when the transfer petition was disposed of by this Court, he only wanted

an early disposal of the suit and this Court directed the suit to be disposed of without any further delay. He has no case even at that time that

petitioner is not in possession of building. After case record was sent to City Civil Court, counsel for petitioner informed first respondent about the

renumber of case and also date of posting.

Without disclosing anything about earlier case, first respondent filed a suit as if his son has trespassed into the building on 20-7-1999 and

petitioner also sided with his son. Further statement in para 3 of the plaint is that first respondent is in peaceful possession and enjoyment of entire

property till 20-7-1999. Son, who is not at all in picture obliged his father after accepting all summons and notices and remained ex parte. When

so many allegations are made against his son that he has forcibly entered and also alleged that Police complaint was also given, it is too much to

think that he will remain silent unless there is collusion between father and son. The intention is very clear that first respondent wanted only to

dispossess petitioner from the building.

It is seen that first respondent also moved an application to implement the order of injunction in which also petitioner was not made party. In

that petition also son fully obliged his father by remaining ex parte and petition was allowed.

From the facts stated above, it is clear that by suppressing real facts before Court first respondent has obtained an undue advantage by filing

collusive suit and forcibly dispossessed third person who was admittedly in possession of the building. I make it clear that I am not concerned

about the right of petitioner whether he is licensee or only lessee. I am only pointing out that petitioner was in possession/occupation of the building.

When first respondent has suppressed material facts before Court and Court was also misled by that misrepresentation or fraud, I feel that it is

a fit case to set aside the judgment and also orders in all the interlocutory applications.

As was held in S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, a fraud is an act of deliberate deception

with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another''s loss. It is a cheating

intended to get an advantage. Their Lordships in the earlier portion of the judgment in para 5, have held thus :

. . . . .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, whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the

litigation.

It is further held in ihat case that the party who comes to Court has to disclose all materials and produce all the documents and without any

information to gain advantage that will amount to guilt playing fraud on Court as well as on the opposite party.

In Indian Bank Vs. M/s. Satyam Fibres (India) Pvt. Ltd., In paras 20 to 24 their Lordships held thus,

...... .This plea could not have been legally ignored by the Commission which needs to be reminded that the authorities, be they constitutional,

statutory or administrative, (and particularly those who have to decide a lis) possess the power to recall their judgments or orders if they are

obtained by fraud as fraud and justice never dwell together (Frauset jus nunquam cohabitant). It has been repeatedly said that fraud and deceit

defend or excuse no man (Fraus et dolus nemini patrocinari debent"".

In Smith v. East Elloe Rural Distt, Council 1956 AC 736 the House of Lords held that the effect of fraud would normally be to vitiate any act

or order. In another case. Lazarus Estates Ltd. v. Beasley, (1956) 1 QB 702 . Denning. L. J. said :

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.

The judiciary in India also possesses inherent power, specially u/s 151, C.P.C., 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 behaviour. This power is necessary for the

orderly administration of the Court''s business.

Since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of the

Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practised upon that Court. Similarly, where the

Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order. .....

On going by the records of the case in both suits, 1 find that first respondent has misled the Court and obtained unfair advantage by

dispossessing the person who was not heard. Lower Court also not acted in accordance with law while passing interim orders and finally decreeing

the suit. In this connection, while first respondent gave ex parte evidence has not said anything about petitioner except that the petitioner is also

residing with him. Lower Court has not considered even that evidence while passing decree in the suit. Court is marie as an instrument to do

Injustice and, therefore, Court is bound to restore possession to petitioner. The Presiding Officer of the Lower Court also did not act as was

expected from a Judicial Officer. He has a duty to verify whether on the basis of allegations in the plaint a third party is liable to be dispossessed.

At least, notice should have been ordered on petitioner when he has been named in the plaint and in various interlocutory applications. The conduct

of the Officer is liable to be questioned.

The counsel Mr. R. Perumalsamy who appeared for first respondent also owed a duty to Court and he is also a party to fraud played on

Court. It was with his active assistance, petitioner was dispossessed. By not making petitioner as a party and getting orders against him, counsel

was also not honest to his profession. Both first and second respondents are also colluded together in playing fraud on Court with the active

assistance of counsel. They have abused the machinery of Court and the Court, which has to do justice has done injustice to party only because of

the fraud committed by them. By committing fraud Respondents 1 and 2 and counsel have caused obstruction in the administration of justice.

Contempt of Court proceedings will have to be initiated against Respondents 1 and 2 and counsel and office is directed to issue notice to them to

explain as to why proceedings shall not be initiated against them for contempt. Counsel R. Perumalsamy, M.H.A.A., II Floor. High Court.

Chennai. first respondent M. Balakrishnan, residing at No. 19, Avadhana Ramaswamy Street. Old Washermenpet, Chennai-21 and second

respondent B. Murugesan residing at 44, Nethaji Street, Ponniamman Medu, Kanakkan Chathiram, Chennai-110 are all directed to appear before

this Court on 21-12-1999.

In the result, ex parte decree in O.S. 140 of 1999 on the file of District Munsif Court, Thiruvottiyur is set aside. Following the decision in S.P.

Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, , suit filed by first respondent herein will stand dismissed with

costs. Since petitioner has been dispossessed forcibly first respondent is liable to pay compensation to petitioner and also restore the property to

petitioner bearing old door No. 48. new No. 44, Nethaji Street, Ponniammanmedu, Kanakkan Chatram, Chennai-110 bounded on the north by

House bearing door No. 45; south by passage leading to cremation ground; east by Brindavan Nagar; and west by Nethaji street, situated within

the registration district of North Chennai and sub-registration district of Thiruvottiyur.

It is represented by learned Senior Counsel that even though trespass alleged is only 26''x 13'', and first floor of the building, he has been

dispossessed of the entire building and that is why 1 want restoration of possession of building mentioned above.

I further direct the Commissioner of Police, Chennai to see that the order of this Court is implemented forthwith and report compliance to this

Court on 22-11-1999. If the building is locked or any other person is in occupation, they shall be dispossessed and the building shall be handed

over to petitioner as directed. The Commissioner of Police is directed to implement the same on production of copy of this order and shall not

hesitate to Implement the same for one reason or the other nor he is expected to get instructions from any other source. The Commissioner of

Police, Chennai himself shall report compliance before this Court on 22-11-1999 without fail. He is also expected to take necessary police force

to implement this order.

Petitioner is also entitled to cost to be realised from first respondent quantified at Rs. 5,000/-. First respondent is further directed to pay

compensation to petitioner for forcible dispossession, which is temporarily quantified as Rs. 10,000/-. Petitioner is at liberty to move appropriate

Court for getting compensation and this order shall not stand in his way of getting actual compensation.

The revision petitions are allowed as above. Consequently. C.M.P. 19350 of 1999 is closed.