## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH**
**THURSDAY, THE 15TH DAY OF NOVEMBER 2012/24TH KARTHIKA 1934**
**RSA.NO. 336 OF 2011 ( )**
**-----------------------------------AS.310/2004 OF FIRST ADDITIONAL DISTRICT COURT, THRISSUR OS.885/2002 OF III THIRD ADDITIONAL MUNSIFF'S COURT, THRISSUR**
## **APPELLANT/APPELLANT/DEFENDANT:**
**----------------------------------------------------------**
**THRISSUR URBAN DEVELOPMENT AUTHORITY REPRESENTED BY THE SECRETARY, STN NAGAR, THRISSUR NOW REPRESENTED BY THE SECRETARY CORPORATION OF THRISSUR, MUNICIPAL CORPORATION OFFICE, M.O.ROAD, THRISSUR.**
**BY ADVS.SRI.K.P.VIJAYAN SRI.V.M.SYAM KUMAR SMT.KRIPA ELIZABETH MATHEWS SRI.V.N.HARIDAS SMT.C.B.SUMA DEVI**
## **RESPONDENT/RESPONDENT & PLAINTIFF:**
**-------------------------------------------------------------**
## **VIJAYAN**
**MUTTICHOOR DESOM, PADIYAM VILLAGE THRISSUR TALUK. 680 695.**
**BY SENIOR ADVOCATE SHRI P.B.SURESH KUMAR (SR.) BY ADV. SRI.LEO GEORGE BY ADV. SRI.K.N.SASIDHARAN NAIR BY ADV. SRI.T.T.RAKESH**
**THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15.11.2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## **THOMAS P.JOSEPH, J.**
**==================================== R.S.A. No.336 of 2011 ==================================== Dated this the 15[th] day of November, 2012**
## **J U D G M E N T**
The following substantial questions of law are framed for a decision:
(i) Whether a decree obtained by employing fraudulent means by producing fabricated and forged documents is sustainable under law?
(ii) When evidence of the plaint schedule land being covered by statutory notification under the Town Planning Act, 1108 and further documentary evidence of the proceedings initiated by the statutory authority under the said Act is produced before the Court, is it not the duty of the plaintiff to rebut the same?
2. The Second appeal is brought from the judgment and decree of the First Additional Sub Court, Thrissur in A.S. No.310 of 2004 confirming the judgment and decree for prohibitory injunction granted in favour of the respondent by the Third Additional
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Munsiff's Court, Thrissur in O.S. No.885 of 2002.
3. The respondent claimed that he is the owner in possession of the suit property - 35 cents as per Exts.A1 to A3 series. He alleged that appellant-defendant, the Thrissur Urban Development Authority has attempted to trespass into the suit property without following the formalities prescribed by law.
4. The appellant contended that the respondent or his predecessor-in-interest had no right, title or possession over the suit property and that it belonged to the appellant as surrendered by the erstwhile owners in the year, 1982 pursuant to a Town Planning Scheme evolved by the appellant.
5. The respondent produced Exts.A1 to A6 and relied on the evidence of P.W.1 in proof of title and possession he claimed. The appellant relied on Exts.B1 to B4 and the evidence of D.W.1.
6. The trial court found in favour of the respondent and granted a decree as prayed for. That was confirmed by the first appellate court. Hence this Appeal.
7. The learned counsel for appellant contended that Ext.A3 series, Pattas (issued under the provisions of the Kerala Land Reforms (Ceiling Rules), 1970 are found to be obtained by forgery and hence Exts.A1 and A2, sale deeds executed on the
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strength of Ext.A3 series are invalid. The learned counsel contended that in the circumstances the courts below are not correct in relying on Exts.A1 to A3 series to find title of the suit property with the respondent. It is contended that in the inspection conducted by the Vigilance And Anti Corruption Bureau (VACB) it was revealed that Ext.A3 series were forged. The appellant has produced the surprise check report of the Dy.Superintendent of Police, VACB, Thrissur Unit dated 22.08.2005 in proof of the contention and filed I.A. No.731 of 2011 to receive the said report as additional evidence under Rule 27 of Order XLI of the Code of Civil Procedure (for short, “the Code”). Learned counsel requested that the said report be accepted in evidence.
8. The learned Senior Advocate for the respondent has contended that the document now pressed into service is dated 28.02.2005 while the first appellate court disposed of the appeal only on 20.03.2010 which means that it was open to the appellant to produce the document in the first appellate court at least but the same was not done. It is contended that circumstances do not warrant reception of additional evidence in this Court. It is also contended that if at all the appellant has a
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case that Ext.A3 series are the result of forgery, remedy is elsewhere and not by challenging the judgment and decree of the courts below in this Court by way of a Second Appeal. It is argued that in the Second Appeal the only question for consideration is whether the first appellate court is correct in confirming the judgment and decree of the trial court based on the available evidence.
9. It is not disputed that it is based on Exts.A1 to A3 series that the trial court decided the issues in favour of the respondent and that was confirmed by the first appellate court. It is also not disputed that Ext.A3 series are issued in favour of the assignors under Exts.A1 and A2. If Ext.A3 series stand, then one has to uphold the title and possession claimed by the respondent as per Exts.A1 and A2. Though the appellant has pleaded surrender of the property and produced Exts.B1 to B4, the courts below found against that plea for cogent reasons and that finding involves no substantial question of law.
10. Then the question is whether the surprise check report is to be received as additional evidence as prayed for in I.A. No.731 of 2011?
11. The learned counsel for the appellant invited my
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attention to the surprise check report referred above and in particular, the findings in page 5. It is stated that the pattas (Ext.A3 series) in respect of the 35 cents referred to in the suit property on the strength of which Exts.A1 and A2 are got executed,
“can be said to be forged because such pattas were not issued from the Taluk Office, Thrissur”.
It is further stated in the last paragraph of the said report that the pattas in question could not be perused since the same were produced in the Munsiff's Court, Thrissur (in the present litigation) and that the pattas are said to be forged during the year, 1983. The further finding entered by the Enquiry Officer is that the Power of Attorney in the name of Smt.Leelamani, W/o.Viajayan is also said to be forged.
12. The document now pressed into service cannot be used as evidence in this case for the reason that whatever finding the Officer concerned has entered in that report is only the opinion he has formed as a result of the enquiry he has conducted. That report by itself is not evidence. Moreover, if the
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contention of the appellant in the Second Appeal based on the surprise check report dated 28.02.2005 were true, it is a case of fraud played on the court by producing Ext.A3 series which are allegedly forged. In that situation I am inclined to think that the remedy of the appellant is not by way of filing a Second Appeal against the judgment and decree of the first appellate court but the remedy lies elsewhere.
13. In **Indian Bank v. Satyam Fibers (India) Pvt. Ltd.** ([1996] 5 SCC 550) in paragraph 22 it is observed that the judiciary in India possesses inherent power, specially under Section 151 Code 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 construction 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 punish unseemly behaviour.
14. In **A.V. Papayya Sastry v. Govt. of U.P.**
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([2007] 4 SCC 221) it is held that fraud vitiates all judicial acts whether in rem or in personam and that a judgment, decree or order obtained by fraud has to be treated as non-est and a nullity, whether by the court of first instance or by the final court. Such judgment, decree or order can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings. The Supreme Court says that the above principle is an exception to Article 141 of the Constitution and the doctrine of merger.
15. Going by the above decisions, if it is shown that a judgment, decree or order has been obtained by playing fraud on the court, such judgment, decree or order, is a nullity, it is nonest and hence the principle of merger, res judicata, constructive res judicata, estoppal etc., do not apply. Therefore, notwithstanding that the judgment and decree of the trial court which were allegedly obtained by playing fraud on the court, has merged in the judgment and decree of the first appellate court and even of this Court, it is open to the appellant to move appropriate application before the trial court under Sec.151 of the Code on the allegation of fraud played on the court, establish such allegation and request to recall the judgment and decree. In the circumstances stated above and since the appellant has the
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remedy of moving such application before the trial court, I do not find reason to interfere with the judgment and decree of the trial court as confirmed by the first appellate court based on the available evidence.
16. I make it clear that it is open to the appellant to move appropriate application in the trial court as observed earlier to recall the judgment and decree, prove the allegation of forgery and show that the judgment and decree of the trial court, notwithstanding its confirmation by the first appellate court and this Court were obtained by playing fraud on the court and seek appropriate reliefs.
17. The substantial questions of law framed are answered as above.
Without prejudice to the above right of the appellant, this Second Appeal is dismissed.
All pending Interlocutory Applications will stand dismissed.
## **THOMAS P. JOSEPH, JUDGE.**
vsv
