1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 13.12.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION No.1168 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 1.Hairunnisha 2.Shahul Hammed .. Petitioners(Plaintiffs) Vs. 1.Abdul Kader Mohammed Yacob (died) 2.Syed Ahmad 3.G.Farook 4.Sulaikaummal 5.Abdul Hussain 6.M.Farook (Respondents 2 to 4 and 6 – Given up) 7.Basheer 8.Yasin 9.K.Surendran 10.S.Niraimathi .. Respondents /Defendants 2, 4 to 9) Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decretal order dated 28.03.2011 passed in Interlocutory Application No.110 of 2009 in Original Suit No.208 of 1996 by the Additional District Munsif Court, Tuticorin. For Petitioners : Mr.R.Vijayakumar For Respondent : Mr.S.S.Sundar No.1 For Respondent : No appearance No.5 For Respondents : Mr.S.I.A.K.Bagadur Sha 7 and 8 (No appearance) For Respondents : Mr.A.K.Baskara Pandian 9 and 10 (No appearance) For R2 to 4, R6 : Given up ORDER The order dated 28.03.2011 passed in Interlocutory Application No.110 of 2009 in Original Suit No.208 of 1996 by the Additional District Munsif Court, Tuticorin is being challenged in the present Civil Revision Petition. https://hcservices.ecourts.gov.in/hcservices/ 2 2. The revision petitioners herein as plaintiffs have instituted Original Suit No.208 of 1996 on the file of the Court below for the reliefs of partition and separate possession of their shares, wherein a preliminary decree has been passed on 12.09.1995 and a final decree has been passed on 27.01.1999 and subsequently delivery of possession has been made on 03.09.1999. The third defendant therein has filed the present petition in Interlocutory Application No.110 of 2009 under Order IX, Rule 13 of the Code of Civil Procedure, 1908 praying to set aside the preliminary decree dated 12.09.1995. The Court below has allowed the same. Against the order passed by the Court below, the present Civil Revision Petition has been preferred at the instance of the plaintiffs as revision petitioners. 3. The learned counsel appearing for the revision petitioners has contended that the third defendant/first respondent herein as petitioner has already filed a petition under Order IX, Rule 13 of the Code of Civil Procedure, 1908 on 08.02.2002 and the same has been returned and subsequently not represented and thereafter he filed another petition on 26.04.2004 and the same has also been returned and not represented and the present petition has been filed in the year 2008 and the same has been taken on file in Interlocutory Application No.110 of 2009 and the specific contention putforth on the side of the first respondent/third defendant is that he has come to know the existence of ex-parte decree in Original Suit No.208 of 1996 only from the date mentioned in the petition and since in the year 2002, he has filed first petition under Order IX, Rule 13 of the Code of Civil Procedure and second petition in the year 2004, the date mentioned in the present petition so as to maintain the petition from the date of knowledge is incorrect, but the Court below has allowed the petition filed in Interlocutory Application No.110 of 2009 and against the order passed by the Court below, the present revision petitioners as revision petitioners have filed Civil Revision Petition No.568 of 2010 and this Court has set aside the order passed in Interlocutory Application No.110 of 2009 and remanded the same to the file of the Court below with a specific direction to look into the petitions alleged to have been filed already by the first respondent/ petitioner/third defendant, but inspite of the directions given by this Court, the Court below has not at all cared to look into the documents filed on the side of the contesting respondents and therefore the order passed by the Court below is liable to be set aside. 4. Per contra, the learned counsel appearing for the first respondent/petitioner/ third defendant has vehemently contended that in the instant case a wrong endorsement has been made in the summons issued to the first respondent/petitioner/third defendant as if he passed away and subsequently steps have not been taken and the Court below after considering the nature of fraud committed on the first respondent/petitioner/third defendant has rightly allowed the present petition and therefore the order passed by the Court below does not suffer from any infirmity. 5. In support of the contentions putforth on the side of the first respondent/petitioner/ third defendant, the decision in Meghmala and Others v. G.Narasimha Reddy and Others reported in (2010)8 Supreme Court Cases 383 is relied upon, wherein the Hon'ble Apex Court has held as https://hcservices.ecourts.gov.in/hcservices/ 3 follows: "An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata". 6. For the purpose of analysing the rival submissions made on either side, the Court has to look into the nature of the documents filed on the side of the contesting respondents. On the side of the contesting respondents, certain documents have been filed, wherein one document is a copy of 19 Register. 7. The consistent stand taken on the side of the contesting respondents is that in the year 2002, the third defendant has filed a similar petition and the same has been returned and not represented. Likewise, in the year 2004, a similar petition has been filed and the same has been returned and not represented. For the purpose of proving the same, some vital documents have been filed on the side of the contesting respondents. 8. Even though, in the order passed in Civil Revision Petition No.568 of 2010 a specific direction has been given to the Court below to look into the aspects mentioned on the side of the contesting respondents, the Court below has not given proper discussion and also finding with regard to the documents filed on the side of the contesting respondents. In fact, the Court below has proceeded on the basis that the contesting respondents have not denied the share of the first respondent/petitioner/third defendant. The question of admitting or denying his share does not arise in the present petition. The only point that has to be decided in the present petition is as to whether the first respondent/petitioner/third defendant is entitled to file the present petition from the date mentioned therein as date of knowledge, since he has already filed two petitions, one is in the year 2002 and another is in the year 2004? and if that be the case, the Court has to look into as to whether from the date mentioned in the present petition, the same is legally maintainable within the purview of limitation? But the Court below, inspite of the specific direction given by this Court, has not cared to look into it. But the Court below has simply allowed the present petition on the ground that the share of the first respondent/petitioner/third defendant has not been denied by the contesting respondents. The approach made by the Court below is totally erroneous and therefore the order passed by the Court below is liable to be set aside and the matter is liable to be remitted to the file of the Court below and the Court below can be directed to look into the nature of objections raised on the side of the contesting respondents as indicted below. 9. In fine, this Civil Revision Petition is allowed without costs and the order passed in Interlocutory Application No.110 of 2009 in https://hcservices.ecourts.gov.in/hcservices/ 4 Original Suit No.208 of 1996 by the Additional District Munsif Court, Tuticorin is set aside and the petition filed in Interlocutory Application No.110 of 2009 is remitted to the file of the Additional District Munsif Court, Tuticorin. The Additional District Munsif Court, Tuticorin is directed to look into the documents filed on the side of the contesting respondents and give necessary finding and also directed to look into as to whether the present petition has been filed within the purview of limitation and pass suitable orders on merits before the end of February, 2012 and report the same to the Registry without fail. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar (CO) /True Copy/ Sub Assistant Registrar To The Additional District Munsif Court, Tuticorin. Copy to The Section Officer, Judicial Section, Madurai bench of Madras High Court, Madurai (For watchind report) +1cc to Mr.S.S.Sundar, Advocate, SR.No.43432 smn GH : 19.12.2011 : 4p/4c C.R.P(PD)(MD)No.1168 of 2011 and M.P(MD)No.1 of 2011 https://hcservices.ecourts.gov.in/hcservices/