RSA No.4010 of 2007 (O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on June 30,2010. M/s Sukhwinder Singh Vipin Kumar --Appellant vs. Gurdeep Singh and another --Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.D.S.Rajput, Advocate,for the appellant Mr.A.S.Ahluwalia,Advocate, for the respondents Rakesh Kumar Jain, J, This appeal has been preferred by M/s.Sukhwinder Singh Vipin Kumar, Commission Agents, through its partner Chhajju Ram son of Sat Pal. Briefly put, the facts of the case are that the plaintiff/respondent No.1. Gurdeep Singh filed a Civil Suit No.RT 308 of 23.10.1998 against M/S Gonda Rai Jagdish Rai, Commission Agents, Jaitu. through its partner Jagdish Rai, for mandatory injunction directing them to supply the details of account of crops sold by the plaintiff w.e.f. July 1993 to July,1996 and also suit for rendition of accounts and recovery of amount that may be due from them after taking account of crop of 1995-1996 along-with interest @ 24% per annum. The aforesaid suit was decreed by the Court of Sh.Surinder RSA No.4010 of 2007 (O&M) 2 Gupta, Civil Judge (Senior Division), Faridkot, vide judgment and decree dated 24.2.2000 in which it was ordered that “suit of the plaintiff is decreed for rendition of accounts from July 1993 to July 1996 against defendant No.2. Defendant No.2. is directed to render whole of the accounts of this period with the plaintiff. After taking of the accounts, the plaintiff shall be entitled to recover the amount found due against defendant No.2. as per the provisions of law concerning payment of court fee. The plaintiff shall also be entitled to claim interest at the rate of 12% p.a. on the amount found due from the date it is found due to the date same is paid. Suit of the plaintiff against defendant No.1. is, however, dismissed. Counter claim of defendant No.2. is also dismissed. Keeping in view the facts and circumstances of the case, parties are left to bear their own costs”. From the above decree, it is apparent that the trial Court had decreed the suit only against defendant No.2. M/s.Sukhwinder Singh Vipin Kumar and had dismissed the suit specifically against M/s.Gonda Rai Jagdish Rai. After obtaining preliminary decree dated 24.2.2000, plaintiff Gurdeep Singh filed an application dated 3.2.2001 for the purpose of passing a final decree, inadvertently impleading defendant No.1 M/s.Gonda Rai Jagdish Rai only. In reply dated 15.5.2001, defendant No.1 took a preliminary objection that the preliminary decree was passed against defendant No.2, namely M/s.Sukhwinder Singh Vipin Kumar only and not against defendant No.1 M/s.Gonda Rai Jagdish Rai. Plaintiff Gurdeep Singh filed an application dated 15.6.2001, seeking to amend the previous application dated 3.2.2001 by way of addition of defendant No.2 M/s. Sukhwinder Singh Vipin Kumar as a party. In the said application, following order was passed by the Civil Court on 15.6.2001:- RSA No.4010 of 2007 (O&M) 3 “An application has been filed by the DH. for passing the final decree and another application for permission to amend the application. Copy of the same supplied to the opposite counsel. Now to come up on 16.7.2001 for filing its reply” On 16.7.2001, following order was passed:- “Present: Counsel for the parties. Reply to application for amendment filed. Copy supplied. Now to come-upon 10.8.2001 for consideration on above application”. On 10.8.2001, following order was passed:- “Present: Shri A.S. Gondara, counsel for the decree holder. Shri S.K. Mittal, counsel for the JD. In view of the statement of LD. Counsel for the JD recorded today. The application filed by the decree holder for impleading the LRs of JD No.2 is allowed subject to the payment of costs as Rs.200/-. Cost paid. Now case is adjourned to 4.9.2001 for filing memo of application”. On 25.9.2001 following order was passed:- “Present: Mr. A.S. Gondara, Adv. for DH. Mr. S.K. Mittal, Adv. for JD. Memo of parties filed. Respondent No.2 who was made a party on the application of the applicant, is yet to be served. Therefore, respondent No.2 is ordered to be summoned for 5.11.01 on filing of PF within 7 days”. On 3.4.2002, defendant No.2 M/s.Sukhwinder Singh Vipin Kumar filed a reply to the application dated 3.2.2001, whereby the decree holder/plaintiff Gurdeep Singh had prayed for passing of final decree. On that date, learned trial Court passed the following order:- “Present: Counsel for the parties. RSA No.4010 of 2007 (O&M) 4 Reply to the application filed. For consideration, to come up on 4.5.2002”. On 22.5.2002, the trial Court passed the following order:- “Present: Counsel for the parties. The present application has been filed for passing of the final decree in terms of the preliminary decree dated 24.2.2000. A perusal of the decree sheet depicts that the preliminary decree was passed only against M/s Sukhwinder Singh Vipin Kumar Commission Agents, Jaitu and it was not passed against M/s Gonda Rai Jagdish Rai. Therefore, the present application in my opinion is infructuous qua M/s Gonda Rai Jagdish Rai. Counsel for the parties submit that some person be appointed as Local Commissioner in order to inspect the account books of the JD. In the interest of justice, the case stands adjourned to 8.6.2002 for providing the name of the persons, who can be appointed as Local Commissioner”. From the resume of the aforesaid proceedings and the zimni orders, two things are clear that proceedings of passing of final decree was dropped against M/S.Gonda Rai Jagdish Rai, and was ordered to be continued only against M/s.Sukhwinder Singh Vipin Kumar, who had contested the application for passing of final decree by filing reply by engaging Sh.S.K.Mittal,Advocate, who had also appeared on behalf of defendant No.1 M/S.Gonda Rai Jagdish Rai. The trial Court vide its judgment and decree dated 30.1.2007 passed the final decree to the effect:- “It is ordered that the final decree with regard to the amount which made found due to plaintiff from the defendant after deducting the amount received by plaintiff and his father and Nirotam Dass and Kamal Kumar is ordered to be passed in favour of applicant-decree holder and against the respondent- RSA No.4010 of 2007 (O&M) 5 defendant, with no order of costs”. Since there was an error in the preparation of decree sheet dated 30.1.2007 in which name of M/s.Gonda Rai Jagdish Rai was inadvertently mentioned instead of M/s.Sukhwinder Singh Vipin Kumar despite the zimni order dated 22.5.2002, therefore, M/s.Gonda Rai Jagdish Rai filed Civil Appeal No.47 dated 13.3.2007 against the judgment and decree dated 30.1.2007. In this appeal, the appellant brought to the notice of the First Appellate Court that due to oversight, learned trial Court had not mentioned the name of M/s.Sukhwinder Singh Vipin Kumar and has erred in mentioning the name of M/S.Gonda Rai Jagdish Rai, therefore, final decree dated 30.1.2007 be treated to have been passed against M/s.Sukhwinder Singh Vipin Kumar only. The said prayer was accepted by learned First Appellate Court and vide its judgment and decree dated 13.9.2007, the appeal was disposed off with the following order:- “It is ordered that the appeal is accepted and ordered accordingly. The final decree dated 30.1.2007 is treated to have been passed by the learned lower Court against the respondent M/s.Sukhwinder Singh Vipin Kumar,Commission Agents.” There is no dispute that against the preliminary decree passed in Civi Suit No.308 dated 23.10.1998 by the Court of Sh.Surinder Gupta, Civil Judge (Senior Division) Faridkot, dated 24.2.2000 which was only against M/s.Sukhwinder Singh Vipin Kumar, neither any appeal was filed by M/S.Gonda Rai Jagdish Rai nor by M/s.Sukhwinder Singh Vipin Kumar, therefore, the said preliminary decree dated 24.2.2000 became final against them. It is also borne out from the record that the mistake committed by the plaintiff/decree holder, in the application filed for passing of final decree, RSA No.4010 of 2007 (O&M) 6 could not be brought to his notice at the threshold who had to file an application for amendment to implead M/s.Sukhwinder Singh Vipin Kumar as a party, which was allowed, M/s.Sukhwinder Singh Vipin Kumar engaged Sh.S.K.Mittal,Advocate and filed reply to that application for passing the final decree which has been decided in favour of the plaintiff/decree holder by both the Courts below. However, knowing fully well about the proceedings carried out during the preparation of final decree by the trial Court, the present appellant who has filed the present second appeal has alleged that it was not a party before the Court below, therefore, decree was passed in its absence. This Court was addressed by the learned counsel for the appellant on 24.1.2008 at the time of preliminany hearing and his argument was noticed as under:- “Present: Mr. DS Rajput, Advocate for the appellant. Learned counsel for the appellant has made reference to para no.6 of impugned judgment of learned District Judge and contends that the learned District Judge has passed the decree against M/s Sukhwinder Singh Vipin Kumar appellant only on the basis of statement made by respondent-plaintiff during the course of arguments. In fact, M/s Sukhwinder Singh Vipin Kumar was neither a party before the trial Court nor it was party before the first appellate court, still decree has been passed against him. Notice of motion for 11.7.2008. In the meantime, operation of the impugned judgment and decree shall remain stayed”. Thereafter, record of this case was summoned by this Court on RSA No.4010 of 2007 (O&M) 7 9.1.2009. During the pendency of this appeal, an application, C.M.No.13367-C of 2009 was filed by the plaintiff/decree holder in order to produce certain documents on record on which following order was passed on 22.12.2009:- “One of the contentions raised by the counsel for the appellant is that while praying for final decree, the present appellant was not made a party, whereas learned counsel for the respondent, while referring to documents Annexure R-1 and R-2 filed with C.M.No. 13367-C of 2009 submits that not only the application was filed including M/s.Sukhwinder Singh Vipin Kumar Commission Agent as party but they have also filed reply to the application. Counsel for the appellant prays for time to inspect the record. On his request, adjourned to 5.2.2010”. Mr.D.S.Rajput, learned counsel appearing on behalf of the appellant has argued that his conduct is bonafide because he recorded his contention before this Court at the time of notice of motion on 24.1.2008 that in the judgment and decree of the trial Court, the appellant M/s.Sukhwinder Singh Vipin Kumar is not shown as a party and also in the order of learned First Appellate Court, still decree has been passed against the appellant on the oral request of learned counsel for the plaintiff/decree holder. Therefore, it is contended that the appellant has been misled from the title of the order of the Courts below and has not over-reached this Court knowingly for getting a favourable order. On the other hand, Mr.A.S.Ahluwalia, learned counsel appearing for the plaintiff/decree holder has argued that the appellant is a rank lier who has the sagacity to contend that he was misled by the title of RSA No.4010 of 2007 (O&M) 8 the order of the Courts below and had not participated in the proceedings before the trial Court at all. I have heard learned counsel for both the parties and have perused the entire record with their assistance. The Court is immensely moved with the extra-ordinary courage of the appellant in playing fraud upon it and is at a loss to find appropriate words to deprecate his action. It is more than clear from the zimni orders that appellant M/s.Sukhwinder Singh Vipin Kumar was impleaded as a party-defendant No.2 in the application for passing of the final decree. Copy of the amended application, in which it has been shown as defendant No.2, is available on record at page 27/29. Moreover, as per zimni order dated 25.2.2002, Sh.S.K.Mittal,Advocate, who had been appearing for judgment debtor No.1 M/S.Gonda Rai Jagdish Rai, had also put in his appearance on behalf of the appellant. The power of attorney filed by Sh.S.K. Mittal,Advocate on behalf of M/S.Gonda Rai Jagdish Rai is at page 79 and power of attorney filed on behalf of M/s.Sukhwinder Singh Vipin Kumar, who is contesting the litigation through its partner Chhajju Ram is at page 81. Moreover, as per zimni order dated 22.5.2002, it is clarified by the trial Court that name of M/S.Gonda Rai Jagdish Rai has been mentioned in the array of party inadvertently, therefore, an application for passing the final decree against it (M/S.Gonda Rai Jagdish Rai) was accordingly ordered as infructuous, whereas the proceedings for preparation of final decree was continued against M/s.Sukhwinder Singh Vipin Kumar. In these proceedings, statement of RW-3 Chhajju Ram, partner of M/s.Sukhwinder Singh Vipin Kumar was recorded on 27.10.2006, meaning RSA No.4010 of 2007 (O&M) 9 thereby not only the appellant M/s.Sukhwinder Singh Vipin Kumar was a party before the Courts below during the proceedings of preparation of the final decree, but also the appellant had filed its reply to the application and led evidence. Therefore, the appellant had no cheek to say before this Court that he was not a party before the trial Court and on that basis obtained stay of the operation of judgment and decree passed against it. Moreover, the appellant did not challenge the preliminary decree by way of an appeal which had already become final against it. It is now well settled in the case of S.P.Chengalvaraya Naidu (dead) by L.Rs Vs. Jagannath (dead) by LRs and of others AIR 1994 Supreme Court 853 that an order obtained by playing fraud upon the Court, is a nullity and non-est. The entire sequence of events mentioned herein above, indicates only towards the fraudulent mind of the appellant who is guilty of 'suppresso veri and suggesto falsi'. In order to curb menace of litigant cheating the Court of law for their ulterior purpose, in my view dismissal of the appeal would not suffice the purpose for the vexatious/ fraudulent litigation on the part of the appellant, therefore, the present appeal is hereby dismissed with Rs.50,000/- (Rs.Fifty thousand) as costs. June 30,2010 (Rakesh Kumar Jain) RR Judge RSA No.4010 of 2007 (O&M) 10