THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO CRP.No.5392 of 2009 ORDER: This Revision is filed under Section 22 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (hereinafter referred to as, ‘the Act’) challenging the order dt.03.11.2009 in E.A.No.109 of 2004 in E.P.No.27 of 2004 in R.C.No.398 of 2003 on the file of II Additional Rent Controller, Hyderabad. 2. The petitioner herein is a third-party to the said R.C. 3. The said R.C. has been filed by respondent nos.1 to 3 herein against 4th respondent under Section 10(2)(i) of the Act for his eviction. The 4th respondent was set ex parte and an ex parte decree was passed directing his eviction on 02.09.2004. According to respondent nos.1 to 3, the 4th respondent was a tenant of the premises bearing H.No.3-4-760/4, Barkatpura, Hyderabad belonging to them. 4. Thereafter, E.P.No.27 of 2004 was filed by respondent nos.1 to 3 to evict 4th respondent in execution of the order dt.02.09.2004 in R.C.No.398 of 2003. 5. In the said E.P., on 28.12.2004, the bailiff of the Court went to the R.C. Schedule premises with a warrant delivery of possession. The petitioner and other persons claiming to be in possession of the R.C. Schedule property resisted the execution contending that they are not parties to the said proceedings. So the bailiff left the premises without executing the warrant. 6. Thereafter, the petitioner filed E.A.No.109 of 2004 under Rule 23 (7) of the Rules framed under the Act to recall the warrant of delivery of possession, since the judgment in R.C. was inexecutable against petitioner. 7. In the affidavit filed in support of the said application he contended that he has a 2/3rd undivided share in the R.C. Schedule property bearing H.No.3-4/760/4, situate at Barkatpura, Hyderabad comprising of four rooms, consisting of plinth area of 400 Sq.ft. and land area of 163.3 Sq.yds.; that he purchased the said property through a registered sale deed bearing Document No.592/04 dt.05.03.2004 from one C. Yadagiri, the owner, and B. Nicholas, B. Sunderraj the agreement holders , who along with one S. Yadgiri entered into an agreement to purchase the said property from C. Yadgiri under a registered agreement of sale bearing Document No.2034/2001 dt.05.07.2001; the property is part and parcel of property purchased by C. Yadagiri along with P. Narsimha through a registered sale deed bearing Document No.641/64 dt.03.03.1964; part of the property is in his possession and part of the property is in the possession of S. Yadagiri originally as a tenant of C. Yadagiri; and subsequently, he had entered into a registered agreement to purchase 1/3rd portion of the said property. He contended that after the Bailiff of the Rent Controller Court visited on 28.12.2004, the petitioner discovered that respondent nos.1 to 3 falsely representing that they are the owners of the RC schedule premises, filed the eviction petition against 4th respondent, who was never in possession of R.C. Schedule property at any point of time alleging that he is their tenant, contended that he was not paying rents, and obtained an ex parte order of eviction; that respondent nos.1 to 3 did not have any possession of the R.C. Schedule property; respondent nos.1 to 3 falsely set-up the 4th respondent as their tenant, initiated eviction proceedings with a view to illegally evict petitioner and other occupants who are in lawful possession of R.C. Schedule property and to grab the same. He alleged that respondent nos.1 to 3 by misrepresenting the facts and by playing fraud upon the Court, obtained an ex parte order of eviction; that fraud is manifest from the fact that though 4th respondent is alleged to be a tenant of H.No.3-4-760/4 situated at Barkatpura, Hyderabad, but his address for service is mentioned as H.No.3-4-922/1, Satyanagar, Barkatpura, Hyderabad; and that if really 4th respondent was in possession of the R.C. Schedule property as tenant, the address for service should have been H.No.3-4-760/4 and not some other address. He contended that when the notices were returned un-served, respondent nos.1 to 3 took out substituted service in a newspaper viz., ‘The Pledge’ which had no circulation at all; 4th respondent is a fake person; the documents filed by respondent nos.1 to 3 do not establish even prima facie that they are the owners of the R.C. Schedule property; and the orders obtained by respondent nos.1 to 3 in the R.C. Schedule property cannot be executed, since they are not the owners and the 4th respondent was not a person in possession as a tenant of the R.C. Schedule property. He further contended that himself and other occupants are not claiming through the 4th respondent or respondent nos.1 to 3 and they are in lawful and bona fide possession and in their own right. 8. Counter-affidavit was filed by respondent nos.1 to 3 opposing the claim of petitioner. The respondent nos.1 to 3 contended that neither the petitioner nor his alleged vendors had any right, title, claim or possession in respect of the R.C. Schedule property at any point of time; that the documents filed by petitioner have no relevance with the plaint schedule property and were created and fabricated documents to enable petitioner to knock away the R.C schedule property; the R.C. Schedule property belongs to one Smt. C. Yellamma, who is the grand-mother of 1st respondent; she died on 21.12.1988 leaving respondent nos.1 to 3 as her sole legal heirs; a family member certificate issued by the concerned MRO on 23.04.2002 has been filed in support of this plea; the said Smt. C. Yellamma acquired the R.C. Schedule property through a registered sale deed dt.19.11.1970 from its owner and possessor Sri Gulam Rasool Khan, S/o.Hayath Hussain; and ever since the purchase she had been in continuous possession and enjoyment of the R.C. Schedule property. They contended that the Municipal Corporation of Hyderabad had also assessed the R.C. Schedule property in her name and property tax was being paid regularly; that 4th respondent was a tenant of the R.C. Schedule property and he wilfully committed default in payment of rents; eviction petition was therefore filed against 4th respondent, which was decreed on 02.09.2004; that when the Court Bailiff went to the R.C. Schedule property, the petitioner and his family members resisted the execution of the warrant by creating nuisance and threatening the Court Bailiff; and the Bailiff returned the warrant seeking police protection. According to them, the R.C. Schedule property is of extent of 101 Sq.yds., while the petitioner is claiming 163 Sq.yds.. They contended that that the xerox copy of the electricity bill and notice for payment issued by Water Works Department filed by petitioner shows that these receipts are in the name of Sri S. Yadagiri while the petitioner is claiming title from one Sri C. Yadagiri; the original link sale deed dt.03.03.1964 does not show how the vendor of C. Yadagiri had acquired title; that if really C. Yadagiri was the owner of R.C. Schedule property, then the Municipal Corporation of Hyderabad would have assessed the property in his name; and the receipts, electricity bills, etc. and the sale deeds filed by petitioner are bogus, fabricated and created for wrongful gain. They alleged that the said E.A. had been filed only to harass respondent nos.1 to 3 and prayed the Rent Controller to dismiss it. 9. Before the Rent Controller, in E.A.No.109 of 2004, the petitioner herein was examined as PW.1 and he marked Exs.A.1 to A.4. The 1st respondent herein was examined a R.W.1 and he marked Exs.B.1 to B.7. 10. By order dt.03.11.2009, the Court below dismissed E.A.No.109 of 2004, and consequently directed issuance of a warrant against 4th respondent on payment of process in E.P.No.27 of 2004. 11. In the said order passed in E.A.No.109 of 2004 it recorded the contentions of both sides and after doing so, it held that according to Ex.A.1 filed by petitioner the vendor therein was shown to be absolute owner of open land in Sy.Nos.81 and 82 admeasuring 12,613 Sq.yds. situated at Baghlingampally, Hyderabad, but as per Ex.B.4 filed by 1st respondent, the E.P. Schedule property was shown as falling within Sy.Nos.57, 58 and 59, Bagh Lingampally, University Road, Barkathpura, Hyderabad; and that the properties which are subject matter of Exs.A.1 and B.4 are different. It also referred to Ex.A.2, original agreement of sale- cum-General Power of Attorney dt.05.07.2001 filed by petitioner and stated that the vendor under the said document was said to be the owner and possessor of house bearing No.3-4-760/4 situated at Barkathpura, Hyderabad by virtue of Ex.A.1 and therefore, Ex.A.2 also does not relate to the E.P. Schedule property ; that Ex.A.3, sale deed dt.05.03.2004, also mentions that the vendor therein is the absolute owner and possessor of house bearing No.3-4-760/4 admeasuring 163.3 Sq.yds situated at Barkathpura by virtue of Ex.A.1, and therefore, even Ex.A.3 would have to be considered as relating to survey number different from the E.P. Schedule property; that Ex.A.4, electricity bill, stands in the name of Sri S. Yadagiri, while petitioner is Purnachander Goud; and so it cannot be said that petitioner was residing in the R.C. Schedule premises and is in possession thereof. It therefore held that petitioner failed to establish that he is in possession of the R.C. Schedule property or that he is a tenant thereof, and so the E.A. was liable to be dismissed. 12. Challenging the same, the present Revision is filed. 13. Heard Sri B. Vijaysen Reddy, counsel for petitioner; and Sri P. Shiv Kumar, counsel for respondent nos.1 and 3. Although notice on 2nd respondent has been served, none appears for him. Notice to 4th respondent has not been served, and the Revision was dismissed for non-payment of batta against 4th respondent. 14. The counsel for petitioner referred to Exs.A.1 to A.4 filed by him and contended that the registered agreement of sale-cum- General Power of Attorney dt.05.07.2001 (Ex.A.2) executed by Sri C. Yadagiri in favour of B. Nicholas, B. Sunderraj and S. Yadagiri mentioned the R.C. Schedule premises bearing H.No.3-4-760/4 of extent 163.3 Sq.yds; the subsequent sale deed Ex.A.3 sale deed executed by C. Yadagiri in favour of P. Narsimha and B. Sunderraj showed in the Schedule thereto 2/3rd undivided share in the premises bearing H.No.3-4-960/4 admeasuring 163.3 Sq.Yds was sold to them; that electricity bill Ex.A.4 dt.09.11.2004 mentioned the name of S. Yadagiri as being the person in possession of premises bearing H.No.3-4-960/4; therefore, the Court below ought not to have dismissed E.A.No.109 of 2004 by expressing an opinion as to the title of petitioner’s vendors in respect of the R.C. Schedule premises. He referred to the evidence of 1st respondent in the E.A. and pointed out that although the R.C. Schedule property was filed for eviction of 4th respondent, the 1st respondent admitted in his evidence that he cannot produce any document to show that 4th respondent is a person who is alive and is in existence; that 1st respondent also admitted that by the time of filing of the R.C. that the 4th respondent was not residing in premises bearing H.No.3-4-960/4, and therefore, he had not taken summons to that premises; this itself proves that 4th respondent is a fictitious person; the 1st respondent also admitted that summons were taken to 4th respondent at the premises bearing H.No.3-4-922/1 and even when such summons were not served, publication was taken out in the newspaper ‘The Pledge’ against a non-existent party; 1st respondent also admitted that he was not having the custody of the original sale deed in the name of his predecessor-in-title Smt. C. Yellamma or its link document and that he did not know in whose custody the original link document or sale deed was; 1st respondent admitted that he was a government servant working in Osmania Hospital, and that he had not given any declaration in his service that he is owner of the E.P. Schedule property. According to petitioner, these circumstances are sufficient to show that the decree in the R.C. Schedule property was obtained against a fictitious person by respondent nos.1 to 3 who have no right, title or interest in the R.C. Schedule property. 15. On the other hand, the counsel for respondents supported the order passed by the Court below and contended that the Rent Controller was right in dismissing the E.A. on the ground that survey numbers of the documents filed by petitioner are different from survey numbers of documents filed by respondents in relation to the E.P. Schedule property and prayed that the Revision be dismissed. 16. I have noted the submissions of both sides. 17. The admitted facts are that the R.C. was filed under Section 10(2)(i) of the Act for eviction of 4th respondent by respondent nos.1 to 3 in respect of premises bearing H.No.3-4-760/4, Barkathpura, Hyderabad. The 4th respondent was set ex parte and the R.C. was decreed ex parte on 02.09.2004. 18. When the E.P. was filed and the Court Bailiff went to deliver possession, the petitioner and others obstructed the execution of the order in the R.C. and thereafter, the petitioner filed E.A.No.109 of 2004 under Rule 23 (5) & (7) of the Rules framed under the Act. 19. The said Rules state : “(5) An order of eviction passed under Sections 10, 12 and 13 shall be executed by evicting the person against whom the order was passed or any other person bound by the said order and by delivering the vacant possession of the building in regard to which the order was passed either to the person in whose favour the order was passed or to such person as he may appoint to take delivery on his behalf. … … … (7) If such execution is resisted and obstructed by any person other than the person against whom order or eviction was passed, the Controller may hold a summary enquiry into the facts of the case and if he is satisfied that the resistance and obstruction was without just cause and that the resistance or obstruction still continues shall issue a warrant to evict the said person by force and deliver the possession of the building to the person entitled for possession in pursuance of the order of eviction and if he is satisfied that the resistance or the obstruction was occasioned by any person other than the person against whom order of eviction was passed claiming in good faith to be in the possession of the building on his own account or on account of some person other than the person against whom order of eviction was passed, he shall make an order disallowing the execution against such person.” (emphasis supplied) 20. A reading of the above rules indicate that an order of eviction passed under Section 10 of the Act is liable to be executed by evicting the person against whom the order was passed or any other person bound by the said order. They also indicate that if there is resistance or obstruction by the person other than the person against whom order of eviction was passed, the Rent Controller is to hold a summary enquiry into the facts of the case and if he is satisfied that the resistance or obstruction was without any just cause then he can issue a warrant to evict the said person by force and direct deliver of possession to the person entitled for possession pursuant to the order of eviction, but if the Rent Controller is satisfied that the resistance or obstruction was caused by any person other than the person against whom an order of eviction have been claimed in good faith to be in possession of the building on his own account or on account of some person other than the person against whom order of eviction was passed, then the Rent Controller shall make an order disallowing the execution made against such person. 21. Therefore, the question for consideration before the Rent Controller was whether petitioner who is admittedly not the person against whom the respondent nos.1 to 3 had obtained an order of eviction is bound by the order of eviction, whether had resisted the execution with any just cause or not, and whether he was claiming in good faith to be in possession of the building or not. It is not open to Rent Controller to conduct any elaborate enquiry into the title of petitioner or respondent nos.1 to 3 in respect of the R.C. Schedule property. 22. Since in the present case, the main contention of petitioner is that 4th respondent is a fictitious person and the order of eviction was obtained by playing fraud on the Rent Controller, this important aspect was required to be considered by the Court below in the light of the evidence adduced by both parties. 23. Unfortunately, the Rent Controller has not addressed himself to the said issue. 24. It is not the case of respondents also that petitioner or his predecessors-in-title were claiming the R.C. Schedule property either through 4th respondent or through respondent nos.1 to 3. Therefore, the petitioner cannot be said to be a person who is bound by the decree of eviction in the R.C. 25. In the evidence of 1st respondent, who examined himself as RW.1 before the Rent Controller, at one place the 1st respondent had stated that 4th respondent had been a tenant of the R.C. Schedule property bearing H.No.3-4-760/4 for the previous fifteen years and that he had let out the premises to 4th respondent for residential purpose, and 4th respondent was residing in the R.C. Schedule property along with his family members for the previous fifteen years. However, subsequently RW.1 stated that he cannot produce any document to show that 4th respondent is a person who was alive and was in existence. He also stated that at the time of filing of R.C., the 4th respondent was not residing in the R.C. Schedule property, and therefore he had not taken summons to that premises and instead he had taken summons to a different premises bearing H.No.3-4- 922/1. These statements in the evidence of 1st respondent clearly throw a serious doubt as to the very existence of 4th respondent and the occupation of 4th respondent of the R.C. Schedule property as a tenant of respondent nos.1 to 3 at the time of filing of the R.C. Therefore, in the light of evidence of RW.1, I am of the opinion that the Court below ought to have held that that respondent nos.1 to 3 had obtained the decree for eviction against a fictitious person, that petitioner had a just cause to resist the execution of eviction order in the R.C. and since they have thus played fraud on the Court, it should have disallowed the execution petition against petitioner. 26. A similar situation arose before this Court in a case reported i n Koneru Aruna Kumari v. Shaik Ali[1]. In that case, the executing court came to a conclusion that the tenancy is between a third party who filed the petition under Rule 23(7) and the 1st respondent therein and the alleged tenancy that has been stated in the main Rent Control petition to be between the land-lady and one K. Koteswara Rao, is incorrect. So it allowed the application under Rule 23 (7) and directed restoration of possession of the R.C. Schedule premises therein to the third party. This finding was also confirmed by this High Court. This Court held that even third parties can maintain a petition under Rule 23 (7) and that applications under the said proviso need not be filed only by the decree-holder/land-lord. In view of the finding in that case that an eviction order has been obtained against a person who is not the tenant, the Court held that fraud was played on the Court in obtaining an order of eviction by showing a fictitious person and not showing the real person who was the tenant; and that when such conclusion was arrived at, it is the duty of the Court which directed eviction to set aside its own wrong order and place the parties in the same position as they were before the passing of the order directing eviction of third party. It went further and held that even if delivery was ordered, the third-party is entitled to an order of restoration of possession. 27. In the above judgment, this Court also referred to a decision of this Court in R. Lilavathi v. Dandu Bala Narasaiah[2] and followed the same. 28. In R. Lilavathi (2 supra), the eviction petition was filed against a dead person and after obtaining eviction order the same was executed against the dead person’s family members. When they filed a petition for restoration of possession, the land-lord raised a contention that he is unable to re-deliver the premises since it was let-out to third parties after taking delivery. This Court ordered eviction of the third-party who is residing in the R.C. Schedule property at the time of passing of the order and ordered re-delivery of property to petitioner. In that case, this Court placed reliance on the judgment of the Supreme Court in Busching Schmitz. vs. Menghani[3] and observed that the act of the Court should not prejudice a party and that whenever it is brought to the notice of the Court that it has been made a party to a thoroughly illegal and void order, either by misrepresentation of facts, or by playing fraud upon it, it should have the power to rectify the wrong. This Court held that the Court cannot say that while it can be a party to a wrong law or a wrong order, it has no power to remedy the same. 29. In the present case also, I am of the opinion that 4th respondent is a non-existent person and he was not in possession of the R.C. Schedule property even according to 1st respondent on the date of filing of the R.C. The very fact that summons in the R.C. were sent to a different address and not to the R.C. Schedule premises as admitted by 1st respondent conclusively establishes that fraud was played on the Rent Controller, and the decree for eviction was obtained by respondent nos.1 to 3 against 4th respondent by playing fraud on the Rent Controller. 30. It is settled law that a decree obtained by playing fraud on the Court cannot be allowed to be executed or enforced. 31. In S.P. Chengalvaraya Naidu v. Jagannath [4] , the Supreme Court of India had held : “Fraud avoids all judicial acts, ecclesiastical or temporal” observed Chief Justice Edward Coke of England about three centuries ago. 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.” 32. This decision was reiterated in Badami v. Bhali [5]. The Court again declared in that case: “31. A person whose case is based on falsehood has no right to approach the court. A litigant who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If a vital document is withheld in order to gain advantage on the other side he would be guilty of playing fraud on court as well as on the opposite party. 32. In Shrisht Dhawan v. Shaw Bros. it has been opined that the fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It has been defined as an act of trickery or deceit. The aforesaid principle has been reiterated in Roshan Deen v. Preeti Lal, Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education and Ram Chandra Singh v. Savitri Devi. 33. In State of A.P. v. T. Suryachandra