R.S.A. No. 377 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 377 of 2009 (O&M) Date of decision: 21.1.2009 Ashwani Kumar ....Appellant Versus Kalawati ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. Rajiv Kataria, Advocate, for the appellant. ***** VINOD K. SHARMA, J This regular second appeal is directed against the judgments and decree dated 29.8.2006 and 3.10.2008 passed by the learned Courts below vide which the suit filed by the plaintiff/respondent for declaration that the Civil Court decree dated 3.12.1994 passed by the Court of Sh. Rajiv Malhotra, Sub Judge, Jalandhar, in case titled as Ashwani Kumar Aggarwal Vs. Kalawati was illegal, null and void, in- operative, nonest, vexatious, in-effective and not binding upon the rights of the plaintiff in any manner whatsoever, being the result of fraud and misrepresentation stands decreed. The learned Courts below recorded a concurrent finding of fact that the plaintiff was entitled to injunction prayed for by holding decree under challenge was outcome of fraud and mis-respresentation and also R.S.A. No. 377 of 2009 (O&M) -2- that the Civil Court at Jalandhar had no jurisdiction to try and decide the suit to pass the decree impugned. The learned lower appellate Court, on appreciation of evidence brought on record, has been pleased to record the following findings: - “The main ground taken by the plaintiff/respondent to challenge the impugned judgment and decree as illegal, null and void is that no family settlement took place between the parties and the alleged compromise Ex. P10 is the result of fraud. Further ground taken by the plaintiff/respondent is that there is no property in existence bearing no. WB-21. Mohalla Khodian, Lal Bazar, Jalandhar and the defendant/appellant has played fraud upon her by including that property in the plaint to create jurisdiction of Civil Court at Jalandhar whereas the other propety is situated at Jagadhari. To prove this fact that there is no property in existence bearing No. WB-21, Mohhala Khodian, Lal Bazar, Jalandhar, the plaintif herself examined Gurmej Singh Inspector, Water Supply (PW3), who deposed in his examination-in-chief that there is no water connection in property No. WB-21, Mohhala Kodian, Lal Bazar, Jalandhar as per record of Municipal Corporation, Jalandhar. Therefore, Maninder Kaur Inspector, has brought the record of House Tax Branch, Municipal Corporation, Jalandhar, and she has desposed that there is no property bearing No. WB-21, Mohalla Khodian, Lal Bazar, Jalandhar, and she herself had inspected the entire property and verified this fact. When the plaintiff has been able to prove by cogent and convincing evidence that there is no property bearing No. WB-21, Mohalla Khodian, Lal Bazar, Jalandhar, then onus shifts upon the defendant to prove that the suit property is in existence at spot. There is evidence on the file that none of the witnesses examined by the defendant/appellant has seen this witness examined by the defendant/appellant had seen this property at Jalandhar. For this reference may be made to the cross-examination of defendant himself, who appeared as DW1. In his cross-examination he has stated that his vote and ration card are made at Jalandhar, but he failed to produce the same. He further stated that the suit property situtated at Jalandhar and Jagadhari are joint property of himself and Kalawati, but no such document has been placed on record regarding joint posession. He further stated R.S.A. No. 377 of 2009 (O&M) -3- that he do not remember the date, month and year on which the joint properties referred above located at Jalandhar and Jagadhari were purchased jointly with Kalawati. He stated that he has no documentary proof regarding joint property nor he could say how he became joint owner in these properties with the plaintiff. He further stated in the cross-examination that he cannot tell the number of the property situtated at Jagadhari, which was subject matter of the judgment and decree dated 3.12.1994. He further stated that he is not in possession of any documentary proof regarding joint ownership with the plaintiff of the house situated at Khodian Mohalla, Jalandhar. He further admitted that he is not in possession of any documentary proof regarding electricity or water connection in respect of the property in his name or on the name of the plaintiff. He further stated that there was electric and water supply connection in the said property prior to 1990, but he do not know in whose name the said electricity connection was. He further stated that he cannot tell the exact area of the said property, but it was two rooms accommodation. He further stated that he cannot tell to whom the same was rented out. He further stated that he has never personally paid house-tax of the said property and even in the Will of the year 1988 the plaintiff has not mentioned House No. 21, Khodian Mohalla. Defendant has admitted that earlier also the plaintiff filed a suit for declaration on 3.8.1984 in his favour as illegal, null and void being result of fraud and mis- respresentation and that suit was decreed on the basis of his statement. He admitted the copy of the compromise Ex. P4 and copy of his statement Ex. P5 and statement of Kalawati Ex. P6 placed on the file. He has also admitted that the sale deed dated 27.3.1984 was cancelled by the Jagadhari Court vide Orer Ex. P7 and decree sheet Ex. P7/A. He also admitted that a case in respect of the Kothi owned by Kalawati was filed by him at Dehradun. Smt. Mamta (DW2) has also admitted in her cross- examination that she had not seen any property i.e house of Khodian Mohalla, Lal Bazar or Peer Botalana Bazar pertaining to Kalawati and she cannot say if the plaintiff was owner of any house situated in Mohalla Khodian, Lal Bazar or Peer Bottan Bazar. She further stated that the plaintiff never took her to any house at Jalandhar, which pertains to the plaintiff, R.S.A. No. 377 of 2009 (O&M) -4- but she had been all the properties of Jagadhari, which were shown to her by the plaintiff. This witness is wife of the defendant and there is no explanation on the file that when she had seen the entire property of the parties at Jagadhari, why she had no knowledge of the property No. WB-21 situtated at Khodian Mohalla, Jalandhar, for which inference can be drawn that there is no such property at Jalandhar. From the evidence brought on record regarding the house and cross-examination of defendant himself as well as cross-examination of DW2 it is proved that earlier also there was litigation between the parties and one sale deed allegedly got executed by the defendant/appellant from the plaintiff/respondent by way of fraud was set aside. It is also proved on the file that there is no property bearing No. WB-21, Mohalla Khodian, Jalandhar in existence, at Jalandhar and this property was added by the plaintiff just to create jurisdiction at Jalandhar Court, which is a kind of fraud played by the defendant/appellant upon the plaintiff/respondent. If the alleged property No. WB-21 allegedly situated at Jalandhar was not included in the earlier suit filed by the defendant/appellant against the plaintiff/respondent, the other property admittedly was situated at Jagadhari and the Civil Court at Jalandhar would have no jurisdiction to try the present suit and the decree obtained is nullity in the eyes of law. In this context, I am fortified by the pronouncement of the Hon'ble Supreme Court in the case titled as Devasahavam Vs. P. Savitharama and Ors 2005(4) RCR 306, in which the Hon'ble Apex Court has held that decree passed by the Court having no jurisdiction is a nullity in the eyes of law. Similarly, in the pronouncement titled as The Chandigarh Primary Co-Op Agricultural Development Bank Ltd. Vs. State of Punjab 2004(3) PLR 371 it has been held that a litigant who obtained a judgment and decree by fraud cannot be tried to take benefit of the same. Further in case titled as S.P. Chengalvaraya Naidu Vs. Jagannath 1994(2) CCC 131, it has been held that a judgment and decree obtained by playing fraud on the court is nullity and nonest in the eyes of law and such a decree can be challenged in any Court even in collateral proceedings. Otherwise also, there was no chance of family settlement between the plaintiff/respondent and defendant/appellant because the property situated at R.S.A. No. 377 of 2009 (O&M) -5- Jagadhari was received by the plaintiff/respondent from her in-laws family by way of family settlement and decree Ex. P1, whereas, the defendant/appellant is son of her sister. No document has been placed on the file by the defendant/appellant that which of the properties were joint between the parties and what was the need of family settlement among them after inheritence of the said property at Jagadhari by way of Ex. P1. There was no chance of it becoming joint family property with the defendant/appellant, who was remotely related to the plaintiff/respondent and does not fall even in Class-1 legal category. Besides all these facts, there was also earlier litigation, as discussed above, between the parties and the sale deed allegedly obtained by the defendant/appellant by fraud from the plaintff/respondent was got set aside by filing a suit by her. It has also come on the file that the defendant/appellant also filed one suit for permanent injunction against the defendant/respondent at Dehradun and as such, there were remote chances of compromise or family settlement between the parties. As such, the learned lower Court rightly came to the conclusion that the impugned judgment and decree is the result of fraud played by the defendant/appellant upon the plaintiff/respondent. As regards first argument of the learned counsel for the defendant/appellant that the Civil Court at Jalandhar has no jurisdiction to try the suit, the impugned judgment and decree being passed in Lok Adalat and separate suit is not maintainable as provided under Order 23 Rule 3 A CPC. I have considered this contention of the learned counsel for the defendant/appellant, but finds no force because perusal of the copy of the judgment and decree Ex. P8 and Ex. P9 shows that it was not passed in Lok Adalat. It was taken up in Pre-Lok Adalat and front page of the said judgment Ex. P8 shows that it was passed by the Court of Sh. Rajeev Malhotra as Sub Judge 1st Class, Jalandhar and not as Presiding Officer of the Lok Adalat. Ex. P9 decree sheet placed on the file also shows that it has been prepared under the seal of Sub Judge 1st Class and not as Presiding Officer, Lok Adalat. Therefore, this contention of the learned counsel for the defendant/appellant has no force. As regards maintainability of suit to challenge the judgment and decree on the basis of fraud is concerned, in the pronouncement titled as Ram Kishan and Ors. Vs. Sardari Devi and Ors. 2003(1) CCC II it has been held that where a suit is filed R.S.A. No. 377 of 2009 (O&M) -6- challenging the compromise decree on the ground that it was obtained by fraud and mis-representation, such a suit is maintainable. As regards issue of limitation is concerned, Ex. D7 is copy of plaint of suit filed by the plaintiff/respondent. In para 4 she has stated that she came to know regarding the impugned judgment and decree obtained by the defendant/appellant from the Court, which was filed on 27.9.1995 whereas the present suit has been filed on 26.11.1998. In case S.P. Chengalvaraya Naidu Vs. Jagannath 1994(2) CCC 131 it has been held that where a judgment and decree has been obtained by fraud, the same can be challenged in collateral proceedings. It has been held that in such cases bar of limitation will not be attracted and even suit can be filed even more than four years after the date of knowledge. Therefore, the suit of the plaintiff/respondent is well within the period of limitation.” Mr. Rajiv Kataria, learned counsel, appearing on behalf of the appellant claimed that the following substantial questions of law arise for consideration in this appeal: - “1. Can a judgment and decree passed in Lok Adalat on the basis of compromise between the parties can be challenged by way of a fresh suit on the ground of fraud? 2. Can a compromise decree be challenged by way of a fresh suit after a period of three years in contravention to the provisons of Order 23 Rule 3-A CPC? 3. Can a compromise decree be challenged beyond the period of three years by way of a fresh suit? 4. Can a party after signing the written statement and appearing in the witness box and making and entering into a compromise in a suit, later on plead fraud having been committed upon that for challenging the judgment and decree at any point of time? 5. Can a party after submitting to the jurisdiction of the Court in a suit later on by way of a separate suit challenge the jurisdiction of Court to entertain the earlier cause? R.S.A. No. 377 of 2009 (O&M) -7- 6. Can a Court go beyond the judgment and decree on merits which has been challenged on the ground of fraud. In other words can the Court before which the judgment and decree has been challenged on the ground of fraud act as an appelalte Court to the earlier decision of the judgment and decree?” Learned counsel for the appellant in support of the substantial questions of law contended that the judgment and decree passed by the Lok Adalat on the basis of compromise between the parties could not be challenged by way of fresh suit. This plea had been rightly rejected by the learned Courts below by holding that the judgment and decree was not passed by the Lok Adalat but in Pre-Lok Adalat and that too by the Court, which prima facie had no jurisdiction. The second substantial question of law also does not arise for consideration in view of the concurrent finding of fact recorded by the learned lower appellate Court holding that the decree was obtained by fraud and mis-representation keeping in view that the Court had no jurisdiction to pass the decree and also that the appellant/defendant was not member of the family of respondent/plaintiff to constitute a joint family to enter into any family settlement. The contention of the learned counsel for the appellant that the decree could not be challenged after three years, also cannot be sustained as the suit could be filed within three years of knowledge as the decree under challenge was outcome of fraud and mis- respresentation. The contention of the learned counsel for the appellant that in a subsequent suit, the Court could not sit in appeal over the judgment R.S.A. No. 377 of 2009 (O&M) -8- and decree passed in the earlier suit, also cannot be sustained, as the learned Courts below have not disturbed the findings in previous suit but have recorded a finding of fact that the previous decree was outcome of fraud and mis-representation thus, not binding on the rights of the plaintff. The finding of the learned Courts below is based on well established principle of law which do not call for any interference by this Court. The learned counsel for the appellant contended that the finding of the learned lower appellate Court on fraud and mis- representation cannot be accepted in view of the finding recorded by the learned trial Court that the plaintiff had failed to show by way of preponderance of probability that she had been fraudulently misled by the defendant. This plea is also mis-conceived as the learned lower appellate Court has given good and valid reasons to come to conclusion that the decree challenged by way of civil suit was outcome of fraud. The substantial questions of law,as framed, therefore, do not arise for consideration by this Court in view of the finding of the learned lower appellate Court referred to above. No merit. Dismissed. (Vinod K. Sharma) Judge January 21, 2009 R.S.