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High Court of KeralaSingle JudgeReview petition allowed; judgment dated 24.05.2...

R.P. No. 524 of 2022 in O.P.(C) No. 719 of 2022

Case / Petition Number:RP No. 524 of 2022 in O.P.(C) No. 719 of 2022

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • A. Badharudeen
Judgment Date
2022-07-19
Court Decision / Holding
The review petition is allowed. Judgment dated 24.05.2022 is set aside. The original OP(C) petition is restored to file, with liberty to the review petitioners to file objections within two weeks. Costs of Rs. 10,000 are ordered to be deposited before KELSA within fifteen days, with the receipt to be produced before the court. The matter is posted for hearing on merits along with the objections on 10.08.2022.
Final Disposition
Review petition allowed; judgment dated 24.05.2022 set aside; original petition restored; costs Rs. 10,000 to KELSA; objections to be filed within two weeks; merits hearing to proceed on 10.08.2022.

Parties to the Case

Appellants / Petitioners

  • N. VANAJA @ VANAJA NAGENDRAN
  • SAKTHIVEL HEMA
  • NAGENDRA SREENIVASAN
  • RADHAKRISHNAN
  • RAMAGOPAL
  • SANTHARAM
  • DHANAPALAN
  • PREMA
  • BHAVANI
  • VIJAYALAKSHMI
  • SELVALAKSHMI
  • UMADEVI

Respondents

  • BHANUMATHY W/O GOVINDAN, KIZHAKEDATH MADATHUM MURIYIL, EROOR NORTH P.O., TRIPUNITHURA, ERNAKULAM, PIN - 682306
  • RAJAMMA W/O MADHAVAN, KIZHAKEDATH MADATHUM MURIYIL, EROOR NORTH P.O., TRIPUNITHURA, ERNAKULAM, PIN - 682306
  • MALLIKA W/O CHANDRAN, KIZHAKEDATH MADATHUM MURIYIL, EROOR NORTH P.O., TRIPUNITHURA, ERNAKULAM, PIN - 682306
  • PRADEESH CHANDRAN S/O CHANDRAN, KIZHAKEDATH MADATHUM MURIYIL, EROOR NORTH P.O., TRIPUNITHURA, ERNAKULAM, PIN - 682306
  • SUDHEESH CHANDRAN S/O CHANDRAN, KIZHAKEDATH MADATHUM MURIYIL, EROOR NORTH P.O., TRIPUNITHURA, ERNAKULAM, PIN - 682306
  • SHARANYA VIJESH W/O VIJESH KUMAR, KIZHAKEDATH MADATHUM MURIYIL, EROOR NORTH P.O., TRIPUNITHURA, ERNAKULAM, PIN - 682306
  • SANTHAMMA W/O P.K. KRISHNANKUTTY, KIZHAKEDATH MADATHUM MURIYIL, EROOR NORTH P.O., TRIPUNITHURA, ERNAKULAM
  • MANI W/O RAMADAS, KIZHAKEDATH MADATHUM MURIYIL, EROOR NORTH P.O., TRIPUNITHURA, ERNAKULAM, PIN – 682306

Legal Representation & Advocates

Counsels for Petitioners

  • • M.P. Ramnath
  • • P. Rajesh (Kottakkal)
  • • K.J. Sebastian
  • • M. Varghese
  • • Uma R. Kamath
  • • S. Sandhya Bebin Paul
  • • Shalu Varghese
  • • S. Deepak Antony Tharian
  • • K.S Akshay Mohan
  • • Gentle C.D.

Counsels for Respondents

  • • A. T. Renju
  • • K. C. Charles

Case Synopsis & Summary

R.P. No. 524 of 2022 in O.P.(C) No. 719 of 2022, decided on 19 July 2022 by the High Court of Kerala at Ernakulam, concerns a review of a judgment dated 24 May 2022 in O.P.(C) No. 719 of 2022. The review petition was filed by 12 respondents who originally appeared as respondents in OP(C) No. 719 of 2022 (the review petitioners). The court had directed the 2nd Additional Munsiff’s Court, Ernakulam, to examine PW1 within three weeks from receipt of the judgment copy. The petitioners contend that the impugned judgment rests on a false memo purporting to show service of notice on counsel for the respondents; they assert fraud on the court, arguing that no proper notice was served and that the memo relied upon is forged. The petition raises grounds including error on the face of the record, mis-stated service of notice, and the argument that the order was obtained by fraud and is thus void. The court notes admissions by respondents’ counsel that no notice was served and disputes the alleged memo’s authenticity. Citing the principle that fraud vitiates judgments and A.V. Papayya Sastry, the court allows the review petition, sets aside the 24 May 2022 judgment, restores the original petition, and directs cost of Rs. 10,000 to KELSA with further hearings on merits.

Legal Doctrines & Maxims

  • Fraud vitiates; a judgment/decree/order obtained by fraud is null and void (non est).

Submissions & Arguments

Contentions of Appellants / Petitioners

The review petitioners argued that the original petition directing the 2nd Additional Munsiff’s Court, Ernakulam, to examine PW1 within three weeks from the judgment copy was appealed against on grounds of serious procedural flaw. They pressed that the impugned judgment (24.05.2022) was obtained by fraud—specifically, a fake memo claimed to have served notice on Adv. M.P. Ramanath. This alleged fabrication misled the court into passing the judgment. They urged that the notice mechanism failed, and the court should treat any order based on such fraud as non est and set aside the judgment. They relied on the settled law that a judgment obtained by fraud is void, citing A.V. Papayya Sastry and Others v. Government of A.P. and Others (2007 KHC 3240). They sought restoration of the original petition to file, with appropriate costs and opportunities to object within a short period, ahead of merits-focused hearing.

Contentions of Respondents

Respondents’ counsel argued against premature disturbance of the impugned judgment. While Adv. M.P. Ramanath represented the petitioners, Adv. A.T. Renju for the respondents contended issues related to service and notice. It is noted that there was admission that no notice was served on Adv. Ramanath, and a memo suggesting service was disputed. The respondents urged that the review petition should not be allowed on technical grounds of service where substantial rights and the finality of the earlier order may be jeopardized; they defended the integrity of the lower court proceedings and cautioned against nullifying judgments on unproven allegations of service without rigorous proof.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
A.V. Papayya Sastry and Others v. Government of A.P. and Others2007 KHC 3240PositiveCited to support the proposition that a judgment obtained by fraud is null and void.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 19[TH] DAY OF JULY 2022 / 28TH ASHADHA, 1944** **RP NO. 524 OF 2022** **AGAINST THE JUDGMENT DATED 24.05.2022 IN OP(C)NO.719/2022 OF HIGH COURT OF KERALA, ERNAKULAM** ## **PETITIONERS/RESPONDENTS 1 TO 12 IN OP(C) :** **1 N.VANAJA @ VANAJA NAGENDRAN AGED 67 YEARS W/O. LATE V. NAGENDRAN, SREE LAKSHMI NIVAS, VAIKOM ROAD, OPP. TO BOYS HIGH SCHOOL, TRIPUNITHURA, ERNAKULAM, PIN 682 301, REP. BY POWER OF ATTORNEY HOLDER NAGENDRA SREENIVASAN @ N.SREENIVASAN, S/O. NAGENDRAN, AGED 46 YEARS, SREE LAKSHMI NIVAS, VAIKOM ROAD, OPP. TO BOYS HIGH SCHOOL, TRIPUNITHURA, ERNAKULAM, PIN - 682301 2 SAKTHIVEL HEMA AGED 42 YEARS W/O. SAKTHIVEL AND D/O. LATE NAGENDRAN, 4325 VERIDGRIS CIRCLE, SAN JOSE, CA-95134, USA, FROM SREE LAKSHMI NIVAS, VAIKOM ROAD, OPP. TO BOYS HIGH SCHOOL, TRIPUNITHURA, ERNAKULAM, PIN 682 301, REP. BY POWER OF ATTORNEY HOLDER NAGENDRA SREENIVASAN @ N. SREENIVASAN, S/O. LATE NAGENDRAN, AGED 42 YEARS, SREE LAKSHMI NIVAS, VAIKOM ROAD, OPP. TO BOYS HIGH SCHOOL, TRIPUNITHURA, ERNAKULAM, PIN - 682301 3 NAGENDRA SREENIVASAN @ N. SREENIVASAN, AGED 46 YEARS S/O. LATE NAGENDRAN, SREE LAKSHMI NIVAS, VAIKOM ROAD, OPP. TO BOYS HIGH SCHOOL, TRIPUNITHURA, ERNAKULAM, PIN - 682301** R.P.No.524 of 2022 IN O.P.(C)No.719 of 2022 ..2.. **4 RADHAKRISHNAN AGED 86 YEARS S/O. LATE P.S.S. VARADARAJA NADAR, KALARIKKALPARAMBIL, OPP.AYURVEDA COLLEGE, NADAMA VILLAGE, KANAYANNUR TALUK, PIN 682 301, REP. BY POWER OF ATTORNEY HOLDER DHANAPALAN, AGED 72 YEARS, S/O. LATE P.S.S. VARADARAJA NADAR, KALARIKKALPARAMBIL, OPP. AYURVEDA COLLEGE, NADAMA VILLAGE, KANAYANNUR TALUK, PIN - 682301** **5 RAMAGOPAL AGED 78 YEARS S/O. LATE P.S.S. VARADARAJA NADAR, KALARIKKALPARAMBIL, OPP. AYURVEDA COLLEGE, NADAMA VILLAGE, KANAYANNUR TALUK, REP BY POWER OF ATTORNEY HOLDER DHANAPALAN, S/O. LATE P.S.S. VARADARAJA NADAR, KALARIKKALPARAMBIL, OPP.AYURVEDA COLLEGE, NADAMA VILLAGE, KANAYANNUR TALUK, PIN - 682301** **6 SANTHARAM AGED 74 YEARS S/O. LATE P.S.S. VARADARAJA NADAR, KALARIKKALPARAMBIL, OPP AYURVEDA COLLEGE, NADAMA VILLAGE, KANAYANNUR TALUK, REP BY POWER OF ATTORNEY HOLDER DHANAPALAN, S/O. P.S.S. VARADARAJA NADAR, KALARIKKALPARAMBIL, OPP AYURVEDA COLLEGE, NADAMA VILLAGE, KANAYANNUR TALUK, PIN - 682301** **7 DHANAPALAN AGED 72 YEARS S/O. LATE P.S.S. VARADARAJA NADAR, KALARIKKALPARAMBIL, OPP AYURVEDA COLLEGE, NADAMA VILLAGE, KANAYANNUR TALUK, PIN - 682301** R.P.No.524 of 2022 IN O.P.(C)No.719 of 2022 ..3.. **8 PREMA AGED 70 YEARS D/O. LATE P.S.S. VARADARAJA NADAR, KALARIKKALPARAMBIL, OPP AYURVEDA COLLEGE, NADAMA VILLAGE, KANAYANNUR TALUK, PIN 682 301, REP. BY POWER OF ATTORNEY HOLDER DHANAPALAN, AGED 72 YEARS, S/O. LATE P.S.S. VARADARAJA NADAR, KALARIKKALPARAMBIL, OPP. AYURVEDA COLLEGE, NADAMA VILLAGE, KANAYANNUR TALUK, PIN - 682301** **9 BHAVANI AGED 68 YEARS D/O. LATE P.S.S. VARADARAJA NADAR, KALARIKKALPARAMBIL, OPP AYURVEDA COLLEGE, NADAMA VILLAGE, KANAYANNUR TALUK, PIN 682 301, REP BY POWER OF ATTORNEY HOLDER DHANAPALAN, AGED 72 YEARS, S/O. LATE P.S.S. VARADARAJA NADAR, KALARIKKALPARAMBIL, OPP AYURVEDA COLLEGE, NADAMA VILLAGE, KANAYANNUR TALUK, PIN - 682301** **10 VIJAYALAKSHMI AGED 64 YEARS D/O. LATE P.S.S. VARADARAJA NADAR, KALARIKKALPARAMBIL, OPP AYURVEDA COLLEGE, NADAMA VILLAGE, KANAYANNUR TALUK, PIN 682 301, REP BY POWER OF ATTORNEY HOLDER DHANAPALAN, AGED 72 YEARS, S/O. LATE P.S.S. VARADARAJA NADAR, KALARIKKALPARAMBIL, OPP AYURVEDA COLLEGE, NADAMA VILLAGE, KANAYANNUR TALUK, PIN - 682301** **11 SELVALAKSHMI AGED 62 YEARS D/O. LATE P.S.S. VARADARAJA NADAR, KALARIKKALPARAMBIL, OPP AYURVEDA COLLEGE, NADAMA VILLAGE, KANAYANNUR TALUK, PIN 682 301, REP BY POWER OF ATTORNEY HOLDER DHANAPALAN, AGED 72 YEARS, S/O. LATE P.S.S. VARADARAJA NADAR, KALARIKKALPARAMBIL,** R.P.No.524 of 2022 IN O.P.(C)No.719 of 2022 ..4.. **OPP AYURVEDA COLLEGE, NADAMA VILLAGE, KANAYANNUR TALUK, PIN - 682301** **12 UMADEVI AGED 60 YEARS D/O. LATE P.S.S. VARADARAJA NADAR, KALARIKKALPARAMBIL, OPP AYURVEDA COLLEGE, NADAMA VILLAGE, KANAYANNUR TALUK, PIN 682 301, REP BY POWER OF ATTORNEY HOLDER DHANAPALAN, AGED 72 YEARS, S/O. LATE P.S.S. VARADARAJA NADAR, KALARIKKALPARAMBIL, OPP AYURVEDA COLLEGE, NADAMA VILLAGE, KANAYANNUR TALUK, PIN - 682301 BY ADVS. M.P.RAMNATH P.RAJESH (KOTTAKKAL) K.J.SEBASTIAN M.VARGHESE VARGHESE UMA R.KAMATH S.SANDHYA BEPIN PAUL SHALU VARGHESE S.DEEPAK ANTONY THARIAN K.S AKSHAY MOHAN GENTLE C.D.** ## **RESPONDENTS/PETITIONERS 1 TO 6 & RESPONDENTS 13 & 14 IN** **OP(C) :** **1 BHANUMATHY AGED 85 YEARS W/O. GOVINDAN, KIZHAKEDATH MADATHUM MURIYIL, EROOR NORTH P.O., TRIPUNITHURA, ERNAKULAM, PIN - 682306** ## R.P.No.524 of 2022 IN O.P.(C)No.719 of 2022 ..5.. - **2 RAJAMMA AGED 73 YEARS** **W/O. MADHAVAN, KIZHAKEDATH MADATHUM MURIYIL, EROOR NORTH P.O., TRIPUNITHURA, ERNAKULAM, PIN - 682306** - **3 MALLIKA AGED 52 YEARS** **W/O. CHANDRAN, KIZHAKEDATH MADATHUM MURIYIL, EROOR NORTH P.O., TRIPUNITHURA, ERNAKULAM, PIN - 682306** - **4 PRADEESH CHANDRAN AGED 29 YEARS** **S/O. CHANDRAN, KIZHAKEDATH MADATHUM MURIYIL, EROOR NORTH P.O., TRIPUNITHURA, ERNAKULAM, PIN - 682306** - **5 SUDHEESH CHANDRAN AGED 27 YEARS** **S/O. CHANDRAN,** **KIZHAKEDATH MADATHUM MURIYIL, EROOR NORTH P.O., TRIPUNITHURA, ERNAKULAM, PIN - 682306** - **6 SHARANYA VIJESH AGED 23 YEARS** **W/O. VIJESH KUMAR, KIZHAKEDATH MADATHUM MURIYIL, EROOR NORTH P.O., TRIPUNITHURA, ERNAKULAM, PIN - 682306** - **7 SANTHAMMA AGED 81 YEARS** **W/O. P.K. KRISHNANKUTTY, KIZHAKEDATH MADATHUM MURIYIL, EROOR NORTH P.O., TRIPUNITHURA, ERNAKULAM.** R.P.No.524 of 2022 IN O.P.(C)No.719 of 2022 ..6.. **8 MANI AGED 71 YEARS** **W/O. RAMADAS, KIZHAKEDATH MADATHUM MURIYIL, EROOR NORTH P.O., TRIPUNITHURA, ERNAKULAM, PIN – 682306** **BY ADV.SRI.K.C.CHARLES** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 04.07.2022, THE COURT ON 19.07.2022 DELIVERED THE FOLLOWING:** R.P.No.524 of 2022 IN O.P.(C)No.719 of 2022 ..7.. **“C.R.”** ## **A.BADHARUDEEN, J.** **-------------------------------------------------------** ## **R.P.No.524 of 2022** ## **IN O.P.(C)No.719 of 2022** **------------------------------------------------------Dated this the 19[th] day of July, 2022** ## **O R D E R** Respondents 1 to 12 in the original petition are the review petitioners. Respondents in this review petition are original petitioners 1 to 6 and respondents 13 and 14. 2. Heard Adv.Sri.M.P.Ramnath, the learned counsel for the review petitioners and Adv.Smt.A.T.Renju, the learned counsel for the respondents. 3. It is submitted by the learned counsel for the review petitioners that the original petition filed by the respondents 1 to 6 herein to direct the 2[nd] Additional R.P.No.524 of 2022 IN O.P.(C)No.719 of 2022 ..8.. Munsiff's Court, Ernakulam to examine the petitioners witness in Ext.P1 suit within a period of one month was allowed by this Court with direction to the learned 2[nd] Additional Munsiff to complete the examination of PW1, within a period of three weeks from the date of production of a copy of the judgment or on receipt of the same. 4. The main grounds raised to review the judgment dated 24.05.2022 as could be read out from the review petition are as under; 1. There is error apparent on the face of record. 2. The recording made by this Hon'ble Court in para-3 of the present judgment dt.24.05.2022 in this OP(C) that, “Though notice served to respondents 1 to 12 by serving copy of this petition to Adv.M.P.Ramanath, nobody appeared” is erroneous and caused to be made by this Hon'ble Court by misleading this Hon'ble Court when in fact no valid memo even was served on the counsel for the respondents 1 to 12 in the OP(C) (who are the contesting defendants before the court below). ## R.P.No.524 of 2022 IN O.P.(C)No.719 of 2022 ..9.. 3. There is an error apparent on the face of record which has also resulted in this Hon'ble Court passing the current impugned judgment, which requires necessary review. 4. There has been no memo served upon “Adv.M.P.Ramnath” - the counsel for the review petitioners herein, who are the defendants in the suit before the court below intimating that this Hon'ble Court has by any order in this OP(C) directed service of notice to the respondents 1 to 12 in the OP(C)/defendants in the suit through counsel appearing before the court below or that this OP(C) is posted before the bench for appearance of respondents 1 to 12 therein on 24.05.2022 or any other date. 5. Adv.Sri.M.P.Ramnath, the learned counsel for the review petitioners reiterated the grounds as stated above on asserting that he did not receive notice for and on behalf of respondents 1 to 12. It is surprising to notice that the learned counsel appearing for respondents 1 to 6 herein/the original petitioners would also concede that no notice served upon Adv.M.P.Ramnath and she made apology R.P.No.524 of 2022 IN O.P.(C)No.719 of 2022 ..10.. in this regard. In fact, a memo, which was filed on 23.05.2022 in this matter by Adv.Sri.Vimal K. Charles, is appended in the paper book showing that copy of the original petition was served upon Adv.Sri.M.P.Ramnath, the learned counsel for respondents 1 to 12, and Adv.Sri.M.P.Ramnath put signature therein. Since Adv.Sri.M.P.Ramnath denied receipt of copy as per memo dated 23.05.2022 produced, the other side also conceded that no notice was served, without much ado, it is established that a false document is produced before this Court and the impugned judgment was obtained by respondents 1 to 6 in this matter. To be precise, judgment dated 24.05.2022 was obtained on producing a fake memo showing service of notice to Adv.Sri.M.P.Ramnath for and on behalf of respondents 1 to 12, by playing fraud on Court. 6. It is the settled law that once it is established that the order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order R.P.No.524 of 2022 IN O.P.(C)No.719 of 2022 ..11.. cannot be held legal, valid or in consonance with law. It is non existent and non est and cannot be allowed to stand. This is the fundamental principle of law and needs no further elaboration. Therefore, it has been said that a judgment, decree or order obtained by fraud has to be treated as nullity, whether by the court of first instance or by the final court. And it has to be treated as non est by every Court, superior or inferior. The decision of the Apex Court reported in [2007 KHC 3240], **A.V.Papayya Sastry and Others v. Government of A.P. and Others** on this point. 7. Since the judgment in this matter was obtained by respondents 1 to 6 by producing a fake memo showing service of notice to Adv.M.P.Ramnath, I am inclined to impose reasonable cost on respondents 1 to 6/original petitioners. Respondents 1 to 6 herein/the original petitioners are directed to deposit Rs.10,000/-(Rupees Ten Thousand only) before the Kerala State Legal Services Authority(KELSA) within fifteen days from today and R.P.No.524 of 2022 IN O.P.(C)No.719 of 2022 ..12.. produce the receipt for the same before this Court. Action, if any, against the person who had produced a fake memo, shall be decided later. In the result, this review petition stands allowed. Judgment dated 24.05.2022 stands set aside and the original petition stands restored to file, with liberty to the review petitioners to file objection, if any, within two weeks. Post for hearing the original petition on merits along with receipt showing remittance of cost ordered herein above before this Court on 10.08.2022. Sd/- **A.BADHARUDEEN, JUDGE** rkj