Mohammed Rafeeq v. Murkikanakath Sulai ka Rosanabi, Mohammed Ashraf, Nafeesa Beevi, Suhara Beevi and Ayisha Nazeema

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **FRIDAY, THE 15TH DAY OF FEBRUARY 2013/26TH MAGHA 1934** ## **OP(C).NO. 3713 OF 2012 (O)** **--------------------------------------C.M.A. NO.4 OF 2012 IN DISTRICT COURT, MANJERI** ## **PETITIONER(S):** **---------------------** **MOHAMMED RAFEEQ AGED 55 YEARS S/O.LATE PADINJARAKATH CHERIYA KUNHU MOHAMMED PADINJARAKATH HOUSE, PUTHENKALAM, PONNANI SOUTH POST 679 577, PONNANI NAGARAM VILLAGE, MALAPPURAM DISTRICT.** **BY ADVS.SRI.O.RAMACHANDRAN NAMBIAR SRI.GEEN T.MATHEW SRI.K.B.ARUNKUMAR** ## **RESPONDENT(S):** **--------------------------** ## **1. MURKIKKANAKATH SULAIKA ROSANABI** - **D/O.PADINJARAKATH POOKOYA THANGAL PONNANNI SOUTH POST, 679 577, PONNANI NAGARAM VILLAGE MALAPPURAM DISTRICT.** ## **2. MOHAMMED ASHRAF** **S/O.LATE PADINJARAKATH CHERIYA KUNHU MOHAMED PADINJARAKATH HOUSE, PUTHENKALAM, PONNANI SOUTH POST 679 577, PONNANI NAGARAM VILLAGE, MALAPPURAM DISTRICT.** ## **3. NAFEESA BEEVI** **W/O.KOLLANKATH ABOOBACKER, EZHAVATHIRUTHY VILLAGE PONNANI POST 679 577, PONNANI TALUK MALAPPURAM DISTRICT.** ## **O.P(C) NO.3713 OF 2012** ## **4. SUHARA BEEVI** **W/O.KOORIYIL KHALID, CHIYYARAM POST, 680 026 THRISSUR TALUK AND DISTRICT.** ## **5. AYISHA NAZEEMA** **W/O.IBRAHIM CHONTHAMVEEDU, C.V MANZIL PURATHUR POST 676 102, NEAR PURATHUR HIGH SCHOOL TIRUR TALUK, MALAPPURAM DISTRICT.** **R1 BY ADV. SRI.JAMSHEED HAFIZ** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 15-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **O.P(C) NO.3713 OF 2012** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **EXHIBIT-P1: TRUE COPY OF THE PLAINT IN O.S.NO.192 OF 2007 BEFORE THE SUB COURT, TIRUR.** **EXHIBIT-P2: TRUE COPY OF THE DOCUMENT NO.3527 OF 2004 OF S.R.O. PONNANI.** **EXHIBIT-P3: TRUE COPY OF THE REGISTERED DOCUMENT NO.268 OF 1925 OF S.R.O.PONNANI.** **EXHIBIT-P4: TRUE COPY OF THE JUDGMENT IN O.S.NO.192 OF 2007 BEFORE THE SUB COURT, TIRUR DATED 21.06.2008.** **EXHIBIT-P5: TRUE COPY OF THE PRELIMINARY DECREE IN O.S.NO.192 OF 2007 BEFORE THE SUB COURT, TIRUR DATED 21.06.2008.** **EXHIBIT-P6: TRUE COPY OF THE FINAL DECREE IN O.S.NO.192 OF 2007 BEFORE THE SUB COURT, TIRUR DATED 05.03.2010.** **EXHIBIT-P7: TRUE COPY OF THE PETITION I.A.NO.328/2011 IN O.S.NO.192 OF 2007 BEFORE THE SUB COURT, TIRUR.** **EXHIBIT-P8: TRUE COPY OF THE PETITION I.A.NO.329 OF 2011 IN O.S.NO.192 OF 2007 BEFORE THE SUB COURT, TIRUR.** **EXHIBIT-P9: TRUE COPY OF THE COUNTER IN EXHIBIT-P7.** **EXHIBIT-P10: TRUE COPY OF THE COUNTER IN EXHIBIT-P8.** **EXHIBIT-P11: TRUE COPY OF THE ORDER DATED 09.01.2012 IN I.A.NO.328 OF 2011 AND I.A.NO.329 OF 2011 IN O.S.NO.192 OF 2007 BEFORE THE SUB COURT, TIRUR.** **EXHIBIT-P12: TRUE COPY OF THE ORDER DATED 09.10.2012 IN C.M.A.NO.4 OF 2012 BEFORE THE DISTRICT COURT, MANJERI.** **RESPONDENT(S)' EXHIBITS:** **NIL** **TRUE COPY** **P.S. TO JUDGE** ## **THOMAS P.JOSEPH, J.** **==================================== O.P(C) No.3713 of 2012 ==================================== Dated this the 15[th] day of February, 2013** ## **J U D G M E N T** Exhibit P11, order passed by the learned Sub Judge, Thirur on Exts.P7 and P8, applications, confirmed by Ext.P12, judgment in C.M.A. No.4 of 2012 of District Court, Manjeri is under challenge. 2. First respondent filed O.S. No.192 of 2007 in the Sub Court, Thirur for partition and separate possession of the ½ share she claimed in the suit property. Ex parte, preliminary and final decrees were passed on 21.06.2008 and 05.03.2010. In the year, 2011, Petitioner filed Exts.P7 and P8, applications – I.A. Nos.328 and 329 of 2011 to set aside the ex parte preliminary and final decrees and condone the delay of 945 days. Those applications were resisted by the 1[st] respondent and dismissed by the learned Sub Judge as per Ext.P11, order which is confirmed by the learned Sub Judge as per Ext.P12, judgment. 3. Learned counsel contends that Ext.P11, order and Ext.P12, judgment cannot be sustained and that on facts **O.P(C) No. 3713 of 2012** ## -: 2 :- petitioner ought to have given opportunity to contest the case. It is also argued by the learned counsel that preliminary and final decrees passed by the learned Sub Judge are vitiated by fraud and collusion in so far as Ext.P3, document as per which claim for partition made by the 1[st] respondent for partition was not produced in the trial court. It is contended that from Ext.P3, it is clear that property involved is Wakf property which cannot be the subject matter of alienation in any form whatsoever. In that view of the matter, judgment and decree are vitiated by fraud and collusion. It is argued that fraud would vitiate all proceeding, even the solemn proceeding of the court and it makes the proceeding a nullity. Learned counsel placed reliance on the decisions in **Indian Bank v. Satyam Fibres (India) Pvt. Ltd.** ([1996] 5 SCC 550) and **United Indian Insurance co., Ltd. v. Sanjay Singh and Others** ([2000] 3 SCC 581). 4. Learned counsel for the 1[st] respondent has contended that courts below were justified in refusing to set aside the ex parte decree. It is pointed out that summons in the suit and final decree proceedings were issued to the **O.P(C) No. 3713 of 2012** ## -: 3 :- petitioner and evidence reveal that he had notice of the said proceedings as well. In the circumstances trial court was correct in refusing to condone the delay and set aside ex parte decree. A further contention learned counsel has advanced is that there is no mention in the affidavits in support of I.A. Nos.328 and 329 of 2011 about any fraud or collusion and hence that question need not be gone into this proceeding under Articles 226 and 227 of the Constitution. 5. So far as prayer to set aside ex parte, preliminary and final decrees is concerned, it is not very much in dispute that summons/notice was served on petitioner. It is also seen that preliminary decree was passed on 21.06.2008 and that was followed by the 1[st] respondent filing application for passing final decree on 24.06.2009. Advocate Commissioner inspected the property on 08.11.2009 and submitted report on 25.11.2009. Final decree was passed on 05.03.2010. It is 945 days thereafter that petitioner came with I.A. Nos.328 and 329 of 2011. 6. Trial court has observed that apart from service of summons, petitioner was also aware of various proceedings in the suit and application for passing final decree. Trial court **O.P(C) No. 3713 of 2012** ## -: 4 :- also observed that wife of petitioner was present at the time Advocate Commissioner inspected the properties on 08.11.2011. The above are sufficient to hold that petitioner had knowledge about the suit and final decree proceeding. In that view of the matter, I do not find any infirmity in the trial court refusing to condone the delay and set aside the ex parte decree. No interference is required with Ext.P11, order as confirmed by Ext.P12, judgment. 7. So far as the contention regarding nullity of the proceeding on the ground of fraud and/or collusion is concerned, it is not disputed before me that there is no such averment in I.A. Nos.328 and 329 of 2011. 8. In **Indian Bank v. Satyam Fibres (India) Pvt. Ltd.,** it is held that when fraud is committed before court it amounts to abuse of process of the court and that an application for review of judgment and decree on the ground of fraud is maintainable. 9. When proceeding of the court is found to be vitiated by fraud, principles of merger, res judiciata, estoppal, etc., cannot stand against it. 10. If petitioner has a case that judgment and decree **O.P(C) No. 3713 of 2012** ## -: 5 :- of the trial court are obtained by fraud or collusion appropriate course is to request the trial court to recall its judgment and decree by moving appropriate application with sufficient plea and adducing appropriate evidence in that regard (See _**Baidyanath Dubey v. Deonandan Singh**_ - [1976] 11 SCWR 727, _**United India Insurance Co., Ltd. v. Rajendra Singh and Others**_ - AIR 2000 SC 1165 and _**A.V. Papayya Shetty and Others v. Government of A.P and Others**_ - AIR 2007 SC 1546). 11. Learned counsel for the 1[st] respondent would contend that even Ext.P3, would not show that the property involved is Wakf property. But in the view I have stated above, it is not necessary for this Court to go into that question. Therefore I decline to go into that question. If petitioner has such a case, he has to move the appropriate court if he is otherwise entitled to that course. Without prejudice to that right if any of petitioner and of contesting respondents to resist it, this Original Petition is disposed of. ## **THOMAS P. JOSEPH, JUDGE.** vsv