RSA No 4342 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM Nos. 12903-C and 12904-C of 2008 and RSA No. 4342 of 2008 Date of Decision: September 10, 2009 Om Parkash Mittal ...... Appellant Versus Radhe Shyam Mittal and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.V.D.Sharma, Advocate for the appellant. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. CM Nos. 12903-C and 12904-C of 2008 For the reasons recorded in the applications, the delay of 126 days in filing and 22 days in refiling the present appeal are condoned. CMs stand disposed of. RSA No. 4342 of 2008 This appeal has been filed against the concurrent judgments of the Courts below dismissing the suit of the plaintiff-appellant challenging the preliminary decree for rendition of accounts to which he was a party and which was ultimately affirmed up to this Court. The ground taken in the present suit was that in the earlier suit the respondents did not mention that the property had been partitioned and that is how they obtained the decree RSA No 4342 of 2008 2 by fraud. Learned counsel is not in a position to deny that the appellant was a party in that suit. Learned Lower Appellate Court has rightly held that in those circumstances there could be only two alternatives viz. (i) either the appellant took this plea in the earlier suit – in which case the present suit would be barred by res judicata and (ii) that the appellant did not take this plea in the previous suit- in which case the plea in the present suit would be barred by Order 2 Rule 2 C.P.C. The following questions have been proposed:- i) Whether the courts below committed an error in law dismissing the suit holding that appellant-plaintiff failed to take the plea of jurisdiction before the courts below which is contrary to the settled legal proposition that jurisdictional objection regarding subject matter can be raised at any stage of the suit? ii)Whether courts below committed an error in law dismissing the suit of the appellant-plaintiff holding the same time barred when no time limit applies for challenging the Coram non judice matters as in the present case? iii)Whether courts below committed an error in law and acted beyond jurisdiction while decreeing suit for rendition of accounts on a subject matter which was not part of HUF corpus of property? iv)Whether HUF property admittedly partitioned already, could be declared joint property by courts below without reunion/reforming/recreating of HUF status of family by appellant and respondents? v) Whether a joint Hindu family, once partitioned can be repartitioned without restoring HUF status according to legal provisions as applicable in legal framework? vi)Whether to decree the suit for rendition of accounts without getting title to suit property (sale certificate PW4/1) set RSA No 4342 of 2008 3 aside and a declaration of suit property as HUF property is within jurisdiction of courts below and such suit maintainable? vii)Whether courts below committed an error in law dismissing the suit of the appellant-plaintiff holding the same as time barred when preliminary decree (Ex.PW5/35) under challenge got merged into second preliminary decree (PW5/36) thereby suit of the appellant-plaintiff again within limitation? viii)Whether to decree the suit for rendition of accounts (by treating the suit property as HUF property) after the apportionment of compensation by competent authority (against requisition and acquisition) to the title holders to the suit property, is within jurisdiction of the courts below where respondents admittedly acquiesced the apportionment and never challenged said apportionment before competent authority and same attained finality? ix)Whether issue of right,title or interest of the appellant- plaintiff (after obtaining finality under governing Acts for the purpose) could be decreed by courts below for sharing of compensation with those having no title, right or interest in suit property and in derogation of findings recorded by competent authority under governing Acts? x) Whether judgment and decree passed by courts below stand vitiated by non consideration ignoring the material evidence (Ex.Px1,Px2) passed by learned Civil Judge Sh.G.K.Rai (though noted)? xi)Whether non disclosure and concealment of material fact i.e. HUF status already ceased to exist since 1957, as asserted and admitted by respondents in suit no.2 of 1978 (Ex.PW5/12) and obtaining decree (Ex.PW5/35) from the courts below in subsequent suit no. 84 of 1978 (Ex.PW5/24) amounts to fraud/misrepresentation played o the court and the appellant-plaintiff? xii)Whether non-disclosure and concealment of material fat that RSA No 4342 of 2008 4 suit property was an evacuee property purchased through auction and against the certified claims for immovable properties left by appellant-plaintiff and obtaining decree from the courts below asserting the property as HUF property, amounts to fraud/misrepresentation played on the court and the appellant-plaintiff? xiii)Whether courts below committed an error in law by applying wrong legal principle and not holding that respondents were estopped from instituting the suit no. 84/1987 (Ex.PW5/24) for rendition of accounts (when,admittedly the status of HUF had already severed way back in 1957) and such wrong application caused miscarriage of justice? xiv)Whether the findings recorded by the courts below are perverse being against law and evidence on record thus unsustainable in law? xv)Whether courts below committed gross error in law an assumed jurisdiction illegally while granting relief larger than pleaded and prayed in the suit without obtaining declaration and partition of property,determination of their shares and amount in compensation or ownership rights in the property? xvi)Whether findings recorded by courts below are vitiated being based on conjectures and surmises? xvii)Whether findings returned by courts below being contrary to the pleadings of the party, evidence led and the propositions of law, vitiates such findings and rendered the impugned judgment and decree unsustainable in law? xviii)Whether courts below misread, misinterpreted,ignored the relevant and material evidence (both documentary and oral especially Ex.Px1,Px2,Pw5/44, Pw5/22) and considered the irrelevant and inadmissible evidence for returning the findings and basing the judgment and decree on such findings? xix)Whether the approach of the courts below applied to the RSA No 4342 of 2008 5 controversy in issue was correct, legally tenable and free from doubt? xx)Whether judgment and decree of courts below are vitiated on account of findings recorded as a result of wrong and erroneous application of statutory provisions/legal principles and/or contrary to precedents? Learned counsel for the appellant has placed reliance on a judgment of the Hon'ble Supreme Court in S.P. Chengalvaraya Naidu (Dead) by LRs v. Jagannath (dead) by LRs and others reported as (1995- 1) The Punjab Law Reporter 293 and particularly paras 5 and 6 thereof wherein it has been held as follows:- “5. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that “there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence.” The principle of “finality of litigation” cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property- grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court- process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation. 6. The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud RSA No 4342 of 2008 6 on the court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Ex.B-15) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non- production and even non-mentioning of the release deed a the trial is tantamount to playing fraud on the court. We do not agree with the observations of the High Court that the appellants-defendants could have easily produced the certified registered copy of Ex.B-15 and non-suited the plaintiff. 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.” In the first place the stark difference between the present case and that case was that the plea of fraud was taken in reply to the application for final decree whereas in the present case the preliminary decree has been challenged by way of a separate suit. No explanation is forthcoming why that preliminary decree was allowed to become final. Secondly, in that case the fraud pertained to a fact which was not in the knowledge of the appellants viz.that at the time when Jagan Nath had filed a suit for partition he had no locus standi since he had already executed a registered release deed relinquishing all this rights in respect of the property in dispute in RSA No 4342 of 2008 7 favour of Chunilal Sowcar and it was only at the hearing of the application for final decree that the appellants had come to know about the release deed and they challenged the application on the ground of non-disclosure. Here the alleged non-disclosure was admittedly in the knowledge of the appellant. In these circumstances this judgment would be of no help to the appellant. The proposed questions No. (iii) to (xx) which all deal either with the plea of fraud or with the findings in the earlier suit have to be held against the appellant. In view of decision on questions No. (iii) to (xx), questions No. (i) and (ii) do not arise. Consequently this appeal is dismissed. No costs. (AJAY TEWARI) JUDGE September 10, 2009 sunita