Sebastian P. Varghese @ Sebastian P. V. v. Robin George

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 13[TH] DAY OF JULY 2022 / 22ND ASHADHA, 1944 R.P.NO. 78 OF 2022** **AGAINST THE JUDGMENT DATED 20.12.2021 IN F.A.O.NO.65 OF 2021 OF THE HIGH COURT OF KERALA** ## **REVIEW PETITIONER/RESPONDENT:** **SEBASTIAN P. VARGHESE @ SEBASTIAN P. V. AGED 42 YEARS, S/O. P.D VARGHESE, PAYYAPALLY HOUSE, UDAYAMPEROOR, TRIPUNITHURA-682 307, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER P.D VARGHESE, S/O. DEVASSY, AGED 83 YEARS, PAYYAPALLY HOUSE, UDAYAMPEROOR, TRIPUNITHURA - 682 307.** **BY ADV ASHA B.MATHEW** ## **RESPONDENT/APPELLANT:** **ROBIN GEORGE AGED 46 YEARS, S/O. A.P GEORGE, AZHEEKKAKATH HOUSE, WINNERS ROAD, SOUTH CHITTOOR - 682 027.** **BY ADVS. K.PAUL KURIAKOSE K.HABEEBULLA T.A.RAFEEK (CHERTHALA)** **THIS REVIEW PETITION HAVING COME UP FOR FINAL HEARING ON 23.06.2022, THE COURT ON 13.07.2022 DELIVERED THE FOLLOWING:** 2 Review Petition No.78 of 2022 in F.A.O.No.65 of 2021 ## **O R D E R** ## Ajithkumar, J. The judgment of this Court dated 20.12.2021 is sought to be reviewed by the respondent in the appeal for which he filed this petition under Section 114 and Order XLVII Rule 1 of the Code of Civil Procedure, 1908. ## 2. Following are the grounds raised in the petition for review: “1. Having framed substantial questions of law, this court failed to answer every one of them and this amounts to a grievous error apparent on the face of the record. 2. This Hon'ble court failed to consider Annexure R(4) & R(6) produced by the review petitioner in the above FAO while passing the impugned judgment. 3. This Hon'ble court ought to make good the loss and expenses caused to the Decree Holder while set asiding the judgment and decree as per the judgment made by Hon'ble Apex Court in AIR 2019 SC 3225. 4. This Court also failed to consider that delivery of decree schedule property is obstructed by the Defendant/ Judgment Debtor as per the report of Court Amin, which reflected in Annexure R(4) filed with counter in the FAO. 5. While hearing on FAO this Hon'ble Court only consider the sanctity of the order passed by the court below under Section 9 of the Limitation Act. Therefore the opportunity 3 Review Petition No.78 of 2022 in F.A.O.No.65 of 2021 of drawing this Hon'ble Courts attention to AIR 2011 SC 1150 Parimal Vs. Veena and 2019 KHC 6641 Robin Thapa Vs. Rohit Dora was failed. 6. This Court, as is apparent from order, not looked the material fact that the negligence, deliberate inaction and lack of bonafides of the Defendant/Judgment Debtor in not preferring any petition to challenge the Decree while proceeding with the claim petition filed by the person under him. 7. This Court also went in wrong while interpreting the second proviso of Order IX Rule 13 of the Code of Civil Procedure. 8. This Court ought to have consider Parimal vs Veena (AIR 2011 SC 1150) while passing the order dated 20/12/2021. 9. This Court ought to have consider that the Defendant/Judgment-Debtor not made any explanation for not preferring the petition to challenge the decree even after he appeared in the execution proceedings, obstructed the delivery in person as per the report of Court Amin and finally mount on box after filing objection in the claim petition. 10. This Hon'ble Court ought to have consider the non examination of the brother of Defendant/Judgment Debtor as he claimed in the reply to the counter, at the first time, that the brother of the Defendant was the one who obstructed the delivery of the decree schedule property. 11. This Hon'ble Court ought to have consider deposition of the Defendant/Judgment Debtor that he was present in the 4 Review Petition No.78 of 2022 in F.A.O.No.65 of 2021 decree schedule property at the time when the Court Amin and Village Officer came to the property for effecting delivery as per the order of the Hon'ble execution court and the admission of the Defendant/Judgment Debtor that he is the only one who spoke to the deputed Court Amin 12. The Judgment dated 20/12/2021 is perincuriam.” 3. The respondent-appellant filed a counter-affidavit. He contends that there is absolutely no sustainable ground for a review. On the basis of the impugned judgment, the respondent has deposited the costs. Several extraneous documents were produced by the petitioner in the appeal and non-consideration of a few of such documents is now raised as a ground for review, which is impermissible. Despite informing the condition of the respondent, the Ameen, who came to the property on 13.02.2009 insisted to effect delivery. Therefore, the petitioner in spite of his disabilities and ailments reached the place and tried to convince the Ameen and Village Officer about the true facts. Nothing about that fact has been suppressed from the court. Accordingly, the respondent sought to dismiss the petition. 4. Heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the respondent. 5 Review Petition No.78 of 2022 in F.A.O.No.65 of 2021 5. In **Parsion Devi v. Sumitri Devi [(1997) 8 SCC 715]** the Apex Court after referring to **Thungabhadra Industries Ltd. v. Govt. of A.P. [AIR 1964 SC 1372], Meera Bhanja v. Nirmala Kumari Choudhury [(1995) 1 SCC 170]** and **Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, [(1979) 4 SCC 389]** held thus: "Under Order XLVII Rule 1 C.P.C. a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order XLVII Rule 1 CPC. In exercise of the jurisdiction under Order XLVII Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered, has a limited purpose and cannot be allowed to be "an appeal in disguise". 6. This principle was reiterated in **Sasi (D) Through LRs. v. Aravindakshan Nair and others [(2017) 4 SCC 692]** and followed by this Court in **Babu M. and others v. Union of India and others [(2017) 3 KLJ NOC 13].** 6 Review Petition No.78 of 2022 in F.A.O.No.65 of 2021 7. If the grounds urged by the petitioner for the review are looked at in the light of the proposition of law mentioned above, it is obvious that almost all the grounds are matters for appeal and not amenable to a review. The learned counsel appearing for the petitioner during the course of arguments dilated two points further. One is that the respondent presented wrong facts before the Court. The learned counsel contended that the impugned judgment thus has become a product of fraud played by the respondent upon the Court and the same is liable to be recalled. The learned counsel relied on **S.P. Chengalvaraya Naidu (Dead) by LRs. v. Jagannath (dead) by LRs. and others [(1994) 1 SCC 1], Hamza Haji v. State of Kerala & another [AIR 2006 SC 3028], Meghmala and others v. G.Narasimha Reddy and others [(2010) 8 SCC 383]** and **Kelvin Jute Co.Ltd. Workers Provident Fund and another v. Krishna Kumar Agarwala and others [(2019) 12 SCC 689]** to contend that the judgment in the appeal is smacked by the fraud played by the respondent and is liable to be recalled. 7 Review Petition No.78 of 2022 in F.A.O.No.65 of 2021 ## 8. In **S.P.Chengalvaraya Naidu** (supra), the Apex ## Court held that,- “A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party. xx xx It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree - by the first court or by the highest court - has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings." ## 9. The Apex Court in **Hamza Haji** (supra) reiterated the above principle. In **Meghmala** (supra), the Apex Court held,- “28. 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 eyes of law. "Fraud avoids all judicial acts ecclesiastical or temporal." (Vide S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. & Ors. AIR 1994 SC 853). In Lazarus Estate Ltd. Vs. Besalay 1956 All. E.R. 349), the Court observed without equivocation that "no judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for fraud unravels everything." 8 Review Petition No.78 of 2022 in F.A.O.No.65 of 2021 ## 10. In **Kelvin Jute Co.Ltd. Workers Provident Fund** ## (supra), the Apex Court held that,- “14. xx xx The main contention of the applicants seems to be that writ petitioners had played fraud on Court and that the basis of the judgment of the High Court has been obtained by misleading that Court. If that be the position, nothing prevents the applicants from approaching the High Court and seeking a review of the judgment. We make it clear that in the event of such a review being filed on the ground of fraud, the High Court will be free to examine the same.” 11. The principle flows from the aforesaid decisions is that if the party approached the court without disclosing the material facts, which he ought to have disclosed, or placed wrong facts before the court, that amounts to fraud upon the court and the court then has every jurisdiction to review and recall the decision so obtained. Here, the petitioner did not say in the review petition what was the fraud played upon either this Court or the court below. It can be inferred that grounds No.10 and 11 in the review petition might be the fraud he intends. In this context, we may extract the discussion made by the court below on the facts and also the conclusions in its order dated 18.06.2020, upon 9 Review Petition No.78 of 2022 in F.A.O.No.65 of 2021 ## which the appeal itself arose: “7. Point Nos. 1 & 2:- These points can be considered together for the brevity of discussion. In the above numbered suit an exparte decree was passed on 11.04.2017. The petitioner claimed that in December 2016 he swallowed a fish bone which developed an abdominal pain. He was undergone treatment. Ext.A1 is the medical certificate issued by one Dr.Santhosh John Abraham wherein it is stated that he was under treatment from 19.06.2017. The doctor was not examined even after getting ample opportunity. Since an exparte decree was passed in the above numbered suit on 11.04.2017 the petitioner ought to have filed petition to set aside the exparte decree on or before 12.05.2017. 12.05.2017 happened to be summer holidays and court was closed. It re-opened on 20.05.2017. So, the petition to set aside decree ought to have been filed on 20.05.2017. The petitioner not produced any single scrap of paper to show that on that day he was under treatment. He produced Ext.A1 medical certificate stating that he was undergone treatment from 19.06.2017 only. Section 9 of the Limitation Act, 1963 which reads as follows: "Continuous running of time - Where once time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it." From the provision it can be revealed that in the present case the time has begun to run from 11.04.2017, when the 10 Review Petition No.78 of 2022 in F.A.O.No.65 of 2021 decree was passed. As per Article 123 of Limitation Act, 1963 the petition to set aside the exparte decree is to be filed within 30 days from the date of decree. So the petition ought to have been filed on or before 12.05.2017. On that day was holiday due to summer vacation the petition ought to have been filed on 20.05.2017, the reopening day. On that day there was no evidence produced by the petitioner to show that he was under treatment. Subsequently he was bedridden cannot be considered as ground for condonation of delay. Once time has begun to run it will not stop due to subsequent disability. Moreover a mere production of medical certificate is not sufficient to prove this delay. Doctor who issued the certificate was not examined. So Ext.A1 is believed to be genuine then also petitioner failed explain that he was under treatment on 20.05.2017 and he was laid up. In view of the Section 9 of the Limitation Act I am of the opinion that petitioner failed to file petition to set aside the exparte decree in time. The present petition to condone the delay of 696 days deserves no merit. I have no other choice other than to disallow the prayer in the present petition. Accordingly point Nos. 1 and 2 found against the petitioner.” 12. It is seen that no contention that the respondent herein had placed any false evidence was raised before that court. While making submissions before this Court in the appeal also, no such suppression of facts was pointed out. 11 Review Petition No.78 of 2022 in F.A.O.No.65 of 2021 13. Of course, the respondent contended that it was his brother and the tenant who really obstructed the delivery. Now, the respondent stated in the counter affidavit filed in this petition that it was his brother and the tenant obstructed, but the Ameen continued with the process of delivery, and he on getting that intimation, in spite of his ailments and difficulties went to the spot. 14. It may be noted that the respondent was crossexamined at length before the court below. On the basis of the evidence before it, including the oral testimony of the respondent, the court below rendered the order dated 18.06.2020. The petitioner did not have a case till she lost in the appeal that the respondent adduced false evidence in court and played fraud upon the court. Also, the petitioner has not taken any step for taking action against the respondent on the ground that he has furnished any false facts or evidence before the court. Now, the petitioner having lost in appeal, has come forward with the review petition with the allegation that the respondent had played fraud upon the court. Such a contention is 12 Review Petition No.78 of 2022 in F.A.O.No.65 of 2021 now raised without there having sufficient foundation in the pleadings. The attempt of the petitioner now to raise such a contention cannot be termed as a bona fide one; although, we do not term it as an abuse of the process of the court. We, therefore, are of the view that on that ground no review is possible. 15. The next ground is that Exts.R(4) and R(6) are not considered while rendering the impugned judgment, and therefore, the same is liable to be reviewed. Exts.R(4) and R(6) are extracts of the proceedings of the execution court in E.P.No.8 of 2018 in O.S.No.101 of 2016. The only contention with reference to the same raised by the petitioner was that the respondent appeared in the execution petition and only after a long lapse of delay from the date of such appearance, he has filed the petition for setting aside the exparte decree. That fact was very much in question while considering the sufficiency of the cause for setting aside the exparte decree. In the appeal, what was considered was the legality and correctness of the order of the court below dated 18.06.2020 in I.A.Nos.1497 and 13 Review Petition No.78 of 2022 in F.A.O.No.65 of 2021 1498 of 2019 in O.S.No.101 of 2016. The impugned judgment in the appeal was passed only after considering all such facts required to be considered, and now the option available for the petitioner, if the judgment is erroneous in his view, to question it in appeal. That is not a reason for a review. 16. Yet another contention, which requires consideration is that this Court omitted to order to re-compensate the petitioner while allowing the appeal and thereby setting aside the exparte decree in terms of the principle adopted by the Apex Court in **Robin Thapa v. Rohit Dora [(2019) 7 SCC 359]** . In that case, the Apex Court while setting aside an exparte decree in a specific performance suit directed the appellant-defendant to pay the expenses incurred by the respondent-plaintiff for obtaining the sale certificate. Sum equivalent to the cost of stamp paper and registration charges, apart from costs, was directed to be paid to the respondent-plaintiff. 17. It is true that while exparte decree in O.S.No.101 of 2016 was set aside as per the impugned judgment, the only condition imposed was that a cost of Rs.5,000/- should be paid 14 Review Petition No.78 of 2022 in F.A.O.No.65 of 2021 by the respondent. It is seen that the petitioner had to spend Rs.72,000/- towards stamp value and Rs.18,000/- towards registration fees. The petitioner contended that besides the same, other miscellaneous expenses were met by him. The money spent by the petitioner on account of the value of stamp paper and registration fees is lost, since the sale certificate may go once the decree is set aside. In that view of the matter, the principle in **Robin Thapa** ought to have been applied. To that extent, there occurred an error while rendering the impugned judgment. 18. We hold that none of the other grounds set out in the review petition is liable to be entertained either because they can be a subject matter of an appeal alone or they are no errors on the face of record warranting a review. Hence, the petition is liable to be allowed in part on the sole ground that the expenses met by the petitioner towards the cost of the stamp paper and registration fees was not ordered to be paid by the respondent as a condition for setting aside the exparte decree. 19. This petition is accordingly allowed in part and the 15 Review Petition No.78 of 2022 in F.A.O.No.65 of 2021 judgment dated 20.12.2021 is modified to the extent that apart from the cost of Rs.5,000/- which was already paid, the respondent-appellant shall pay Rs.90,000/- (value of stamp paper of Rs.72,000/- and registration charges of Rs.18,000/-) to the petitioner-respondent, within a period of one month from today, failing which the order allowing I.A.No.1498 of 2019 in O.S. No.101 of 2016 before the Additional Sub Court-I, Ernakulam, will stand withdrawn. **Sd/-** **ANIL K. NARENDRAN, JUDGE Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr