MADAYI SYAMALA & SREENA v. SUDHA SUNDARESWARAN and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **MONDAY, THE 15TH DAY OF FEBRUARY 2016/26TH MAGHA, 1937** ## **Ex.SA.No. 29 of 2015 ()** **-----------------------AGAINST THE JUDGMENT/DECREE IN AS 21/2014 OF IST ADDL. DISTRICT COURT, KOZHIKODE DATED 07/11/2015 AGAINST THE ORDER IN E.A. NO. 133/2013 IN EP NO. 183/2012 IN RCP.NO. 53/2007 OF PRINCIPAL MUNSIFF COURT-I, KOZHIKODE DATED 03/02/2014** **---------------------** ## **APPELLANTS/APPELLANTS/CLAIM PETITIONERS :** **--------------------------------------------------------------------------** ## **1. MADAYI SYAMALA** **W/O. LATE MADAYI SREENIVASAN, AGED 65, RESIDING AT C/O. DR. BABURAJ, 13/101 NEAR GOVERNMENT DISTRICT HOSPITAL, VATAKARA VATAKARA AMSOM, DESOM, KOYILANDY TALUK.** ## **2. SREENA** **D/O.MADAYI SYAMALA, AGED 35, IN -DO- -DO-** **BY ADVS.SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE** ## **RESPONDENTS/RESPONDENTS/DECREE HOLDER & JDS :** **-------------------------------------------------------------------------------------** ## **1. SUDHA SUNDARESWARAN,** **W/O.LATE SUNDARESWARAN, AGED ABOUT 54, GAYATHRI BUILDING PACHUKUTTY PARAMBA, NAGARAM AMSOM, DESOM KOZHIKODE TALUK, PIN 673 001.** ## **2. SREEDEVI,** **D/O.LATE SUNDARESWARAN, AGED ABOUT 29, GAYATHRI BUILDING PACHUKUTTY PARAMBA, NAGARAM AMSOM, DESOM KOZHIKODE TALUK, PIN - 673 001** ## **3. SOUNDARYA,** **D/O.LATE SUNDARESWARAN, AGED ABOUT 24, GAYATHRI BUILDING PACHUKUTTY PARAMBA, NAGARAM AMSOM, DESOM KOZHIKODE TALUK, PIN – 673 001.** **...2/-** **Ex.SA.No. 29 of 2015 () -2-** ## **4. HAYAGREEVA SUNDARESWARAN, AGED 19,** **GAYATHRI BUILDING, PACHUKUTTY PARAMBA, NAGARAM AMSOM DESOM, KOZHIKODE TALUK, PIN – 673 001.** ## **5. SREESH,** **S/O.SREENIVASAN, AGED 44, LAKSHMI, KATCHERI AMSOM DESOM, KOZHIKODE TALUK, PIN – 673 020.** ## **6. SREENISH,** **S/O.SREENIVASAN, AGED 41, LAKSHMI KATCHERI AMSOM DESOM, KOZHIODE TALUK PIN – 673 020.** **R1 TO R4 BY ADV. SRI.P.A.HARISH R5 & R6 BY ADV. SRI.NIDHI BALACHANDRAN BY ADV. SRI. V.V. SURENDRAN** **THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25-01-2016, THE COURT ON 15-02-2016 DELIVERED THE FOLLOWING:** **Mn** ## **C.R.** ## **P.B.SURESH KUMAR, J.** **----------------------------------------------Ex.S.A. No.29 of 2015 ----------------------------------------------Dated 15[th] February, 2016.** ## **J U D G M E N T** The decision in E.A.No.133 of 2013 in E.P.No.183 of 2012 in R.C.P.No.53 of 2007 on the file of the Rent Control Court, Kozhikode, as confirmed in appeal, is under challenge in this Second Appeal. 2. The facts relevant for examining the correctness of the impugned decision are the following: The grandfather of the second respondent filed R.C.P.No.53 of 2007 for eviction of the tenants from the petition schedule building therein, under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The need, on the basis of which eviction of the building was sought in the said proceedings, was that the second respondent, a dependent of the petitioner therein is unemployed and that she wants to run Ex.S.A.No.29 of 2015 2 a nursery in the petition schedule building. Since the building was sought to be evicted for the requirement of the second respondent, when the eviction petition came up for trial, the second respondent also gave evidence. In her deposition as PW2, the second respondent has reiterated the stand taken in the eviction petition that she is unemployed and that therefore, she needs the petition schedule building for running a nursery. The rent control court accepted the case of the petitioner and ordered eviction. Though the matter was taken up by the tenants in appeal, the appellate court confirmed the decision of the rent control court. The tenants took up the matter in revision before this Court and this Court also confirmed the decision in the eviction petition. Thereupon, proceedings have been initiated for execution of the order of eviction by the legal representatives of the petitioner in the eviction petition including the second respondent. One Madayi Sreenivasan was the tenant of the premises. As he was no more at the time of filing of the eviction petition, the same was filed against his legal representatives. However, the appellants who were also Ex.S.A.No.29 of 2015 3 the legal representatives of the deceased tenant were omitted to be arrayed as parties in the eviction petition. As such, the appellants filed E.A.No.133 of 2013 in the execution petition seeking a declaration that the order of eviction is void and not binding on them. According to the appellants, they are in possession of the suit premises and in so far as they are not parties to the eviction petition, the order of eviction cannot be enforced against them. In the course of the proceedings before the execution court, the appellants filed two applications, of which one was to cause production of a few documents and the other was seeking permission to serve interrogatories on the petitioners in the execution petition. In the affidavits filed in support of the above applications, it was alleged by the appellants that the second respondent was employed as an executive in a Software company called 'IBM' at the time of filing of the eviction petition and the order of eviction obtained suppressing the said fact is therefore void and unenforcible. According to them, the order of eviction, in the circumstances, can be construed only as one obtained by playing fraud on the Ex.S.A.No.29 of 2015 4 court. The execution court rejected the said applications. The common order passed on the said applications was challenged by the appellants before this Court in O.P.(RC) No.2625 of 2013. This Court confirmed the decision of the execution court on the said applications holding that the case set up by the appellants in the applications, namely, that the order of eviction was obtained by playing fraud on the court has not been pleaded in E.A.No.133 of 2013. Thereupon, the appellants filed an application seeking leave of the court to amend E.A.No.133 of 2013 to incorporate therein an additional plea that the order of eviction was one obtained by playing fraud on the court. E.A.No.34 of 2014 was the application filed by the appellants for the said purpose. The execution court took the view that in so far as the application for amendment was filed after the dismissal of O.P.(RC).No.2625 of 2013 on the ground that the case that the order of eviction was one obtained by playing fraud on the court has not been pleaded in E.A.No.133 of 2013, the same cannot be entertained. Consequently, E.A.No.34 of 2014 was dismissed by the execution court. Thereupon, the Ex.S.A.No.29 of 2015 5 execution court took up E.A.No.133 of 2013 for consideration and dismissed the same also on merits holding that the appellants are bound by the order of eviction as the estate of the deceased tenant was substantially represented in the eviction petition. The appellants challenged the decision in E.A.No.133 of 2013 in appeal. Before the appellate court, the contention advanced by the appellants was mainly that the dismissal of E.A.No.34 of 2014 was unsustainable. The appellate court confirmed the decision of the execution court in E.A.No.34 of 2014 as also in E.A.No.133 of 2013. Hence this second appeal. 3. Heard the learned counsel for the appellants as also the learned counsel for the respondents. 4. The learned counsel for the appellants did not raise any arguments against the view taken by the courts below that the appellants are bound by the order of eviction, for, the estate of the deceased tenant was substantially represented in the proceedings. On the other hand, he strenuously contended that the dismissal of E.A.No.34 of 2014 on the ground that the Ex.S.A.No.29 of 2015 6 said application was filed after the decision of this Court in OP. (RC).No.2625 of 2013 is unsustainable. It was pointed out by the learned counsel that if a party misleads the court, misrepresents facts, suppresses facts or documents or deceives the court by setting up a false case based on non existent facts, he is guilty of fraud. According to the learned counsel, such fraud will nullify the judicial order and the court has the duty to rip open the entire matter and to investigate the allegation of fraud whenever the same is brought to its notice. The learned counsel pointed out that the concept of finality has to yield to the more important concept of purity of the legal process in appropriate cases. According to the learned counsel, the facts sought to be incorporated in E.A.No.34 of 2014 would indicate beyond doubt that the order of eviction which is being executed by the respondents was obtained by playing fraud on the court and therefore the courts below ought to have allowed the said interlocutory application. The learned counsel relied on the decisions of the Apex Court in **Shrisht Dhawan v. M/s.Shaw Brothers** (AIR 1992 SC 1555), **S.P.Chengalvaraya Naidu v.** Ex.S.A.No.29 of 2015 7 **Jagannath** [(1994)1 SCC 1], **Indian Bank v. Satyam Fibres (India) Pvt. Ltd.** [(1996)5 SCC 550], **United India Insurance Co.Ltd. v. Rajendra Singh** [(2000)3 SCC 581], **Ram Chandra Singh v. Savitri Devi** [(2003)8 SCC 319], **Hamza Haji v. State of Kerala** [2006 (3) KLT 941) (SC)], **A.V.Papayya Sastry v. Govt. of A.P** _**.**_ [(2007) 4 SCC 221] and **Union of India v. Ramesh Gandhi** [(2012) 1 SCC 476] in support of his contention that the facts sought to be incorporated would constitute a case of fraud played on the court in the matter of obtaining the order of eviction. 5. Section 44 of the Evidence Act enables a party otherwise bound by a previous adjudication to show that the previous adjudication is vitiated by fraud and therefore, not binding on him. It is trite that an order obtained by playing fraud on the court is a nullity and such orders are to be treated as so by every court, whether superior or inferior. It is also trite that an order obtained by playing fraud on the court can be challenged in any court, even in collateral proceedings. In so far as it was held by this Court in the judgment in OP(RC). Ex.S.A.No.29 of 2015 8 No.2625 of 2013 that in the absence of necessary pleadings, the appellants are not entitled to pursue their contention that the order of eviction which is being executed by the respondents is one obtained by playing fraud on the court, the issue falls for consideration is whether the appellants have made out a case of fraud played on the court, in E.A.No.34 of 2014. The additional paragraphs sought to be incorporated in E.A.No.133 of 2013 read thus: “It is respectfully submitted that 2[nd] respondent Mrs.Sreedevi Sundareswaran for whom bonafide need is requested is working as a full time manager in IBM since 2006. Her own profile in the Face book exposes that she is a deputy manager in IBM since 2006. It is also pertinent to note that the contentions raised by the claim petitioner that 2[nd] respondent is working as a Deputy Manager in IBM since June 2006 is not denied. In short it can be seen that the respondents in total and 2[nd] respondent in particular committed fraud on this court for the ultimate benefit of the respondents in toto. It may be noted that 2nd respondent was examined before this court on 09.02.2009 and she deposed utter lie regarding her employment that too in a reputed company like IBM. It may be noted that based on the said deposition which was delivered on oath, this Hon'ble Court was pleased to allow the Rent Control Petition which was affirmed by the Hon'ble District Court and also by the Hon'ble High Court of Kerala. It is Ex.S.A.No.29 of 2015 9 relevant to submit that after holding a coveted post in IBM she has duping the parties the petition and also the court of law by deposing the fact that she is jobless. In the risk of repetition it is submitted that the conduct of the respondents especially the 2[nd] respondent is prima facie a fraudulent act. Based on the said fraudulent act she was able to obtain his eviction order by playing fraud on the court. Applying the principles laid down in 2006(3) KLT 931 this Hon'ble Court can very well vacate any judgment or order, if it is proved that such judgment or order was obtained by manifest fraud and this Hon'ble Court has got ample jurisdiction to set aside the eviction order since the same is vitiated by fraud and the claim petitioner was prevented from facing the case properly at the prior trial by the fraud of the respondents. It is also a settled position of law that decree or order obtained by playing fraud on the court is a 'nullity and nonest' in the eyes of law. 8(b) in fact in para 9 page 8 of this petition the claim petitioner has stated that the 2[nd] respondent is permanently settled in Mysore and she is having her own profession. The Hon'ble High Court disallowed the above OPRC on the ground that there are no sufficient pleadings regarding fraud. In view of the above aspects it has become highly necessary in the interest of justice that the contentions in the claim petition has to be accepted.” A close reading of the facts sought to be incorporated by way of amendment in E.A.No.133 of 2013 indicates that the case of the appellants is that the need set up in the eviction petition that the second respondent was unemployed and that the petition Ex.S.A.No.29 of 2015 10 schedule building is required for the second respondent to run a nursery was false and that the order of eviction has been obtained on the strength of the perjured evidence tendered by the second respondent. The nature of fraud which vitiates a judgment has been considered in a long line of decisions. A fraud which vitiates a judgment is a fraud of the party who secured the judgment in his favour. It must be extrinsic or collateral to the adjudication involved in the judgment and not been, or deemed to have been dealt with by the court in the impugned judgment. In **Subramoniam v. Nagaramma** (1962 KLT 1019), this Court held that a claim urged by a party to the suit was false or that the party has secured the judgment by letting in false or perjured evidence, even if true, would not amount to fraud of the kind that would nullify the decree in the suit. The view is that the falsity or truth of the claim must be deemed to have been adjudicated by the court when it decided the case. It was also held in the said case that the fraud effecting the validity of a decree must be actual positive fraud, a meditated and intentional contrivance to keep the opposite Ex.S.A.No.29 of 2015 11 party in ignorance of the real facts of the case. The said judgment was rendered by this Court relying on the decision in **Flower v. Lloyd** (L.R. 10 Ch.D. 327) and various other decisions rendered by the Indian High Courts following the decision in **Flower v. Lloyd** including a Full Bench decision of the Madras High Court. The consistent view taken in all these cases is that the jurisdiction to impugn a previous decision on the ground of fraud is to be exercised with care and reserve, for it would be highly detrimental to encourage the idea in litigants that the final judgment in the suit is to be merely a prelude to further litigation. The decision of this Court in **Subramoniam v. Nagaramma** (supra) was followed by this Court in **Raghurama Rao v. Pathimabi** (1997(2) KLT 70) and also in **Gopalakrishnan v. Rajamma** (2006(4) KLT 377). If it be held that a judgment obtained in a case which is false can be set aside in a subsequent suit, it would be open to the defendant in the second suit to prove in a third suit that the case of the plaintiff in the second suit was false and ask the judgment in the second suit to be set aside. Then there will be no end to the Ex.S.A.No.29 of 2015 12 litigation and no finality to any judgment. The additional facts sought to be added by the appellants in the application filed by them do not disclose any extrinsic fraud on the side of the petitioner in the eviction petition to keep the tenants in ignorance of the real facts of the case. As noted above, a fraud which vitiates a judgment is a fraud of the party who secured the judgment in his favour. In the instant case, the appellants do not attribute anything against the grand father of the second respondent who obtained the order of eviction. They have no case that the petitioner in the eviction petition was aware that the second respondent was unemployed when the eviction petition was filed. As such, I am of the view that the additional facts sought to be incorporated by the appellants in the application, even if true, do not make out a case of fraud played on the court which makes the order of eviction unenforcible. 6. The learned counsel for the appellants, relying on the decisions referred to by him as noted in paragraph 5 above, argued that the decisions of this Court in **Subramoniam v. Nagaramma** (supra), **Raghurama Rao v.** Ex.S.A.No.29 of 2015 13 **Pathimabi** (supra) and **Gopalakrishnan v. Rajamma** (supra) are no longer good law. As noted above, the question is as to what would amount to a fraud to be a ground for vacating a judgment in a collateral proceedings. In **A.V.Papayya Sastry v. Govt. of A.P.** (supra), in **Ram Chandra Singh v. Savitri Devi** (supra) and in **Union of India v. Ramesh Gandhi** (supra), the Apex Court has not finally adjudicated the issue whether the cases of fraud raised in the said cases would amount to fraud played on the court to nullify its decision. **Shrisht Dhawan v. M/s.Shaw Brothers** (supra), **Indian Bank v. Satyam Fibres (India) Pvt. Ltd.** (supra) and **United India Insurance Co.Ltd. v. Rajendra Singh** (supra) are not cases where previous adjudication binding on the parties were attacked on the ground that the decisions were obtained by playing fraud on the court. **S.P.Chengalvaraya Naidu v. Jagannath** (supra) and **Hamza Haji v. State of Kerala** (supra) are of course cases where previous adjudication binding on the parties were attacked on the ground that the decisions were obtained by playing fraud on the court. But in Ex.S.A.No.29 of 2015 14 both cases, fraud was attributed against the persons concerned who obtained judgments and the allegations in the said cases were that claims were put forward by the persons concerned on non existent facts knowingly and deliberately with the intention to deceive the court. As far as the present case is concerned, the appellants have no case that the petitioner in the eviction petition was aware of the fact that the second respondent was unemployed and that the eviction petition was filed suppressing the said fact with the intention to deceive the court. If the petitioner in the eviction petition was misled to institute the eviction petition, it cannot be contended that the order of eviction obtained by him is one obtained by playing fraud on the court. Since the appellants have not made out a case of fraud played on the court even going by the dictum in **S.P.Chengalvaraya Naidu v. Jagannath** (supra) and **Hamza Haji v. State of Kerala** (supra), the question whether the dictum in **Subramoniam v. Nagaramma** (supra) is good law or not does not arise for consideration in this case. 7. The learned counsel for the appellants, relying Ex.S.A.No.29 of 2015 15 on the decisions of the Apex Court in **Ram Narain Arora v. Asha Rani** [(1999)1 SCC 141] and **Gian Chand & Bros. v. Rattan Lal** [(2013)2 SCC 606] contended that there cannot be any pedantic or dogmatic approach in the matter of analysing the pleadings. It was pointed out that if the parties have understood their respective cases, there is no reason to avoid a decision for want of pleadings. According to the learned counsel, the facts sought to be incorporated in the application would indicate beyond doubt that what is intended by the appellants is that the petitioner in the claim petition has obtained the order of eviction suppressing the fact that the second respondent was employed at the relevant time, with a view to deceive the court. I am not impressed by this argument. Such an inference is not possible from the facts sought to be incorporated in the application by way of amendment. In the circumstances, the judgments impugned in the second appeal are to be confirmed, though on different grounds. The second appeal is, accordingly, dismissed. It is, Ex.S.A.No.29 of 2015 16 however, made clear that I have considered only the question as to whether the facts sought to be incorporated by way of amendment to the application filed by the appellants before the execution court would make out a case of fraud played on the court so as to nullify the order of eviction. Sd/- ## **P.B.SURESH KUMAR, JUDGE.** tgs (true copy)