IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 25TH SEPTEMBER 2008 / 3RD ASWINA 1930 WP(C).No. 28041 of 2008(L) -------------------------- OS.34/1999 of PRL.SUB COURT,TRIVANDRUM .................... PETITIONER(S): ------------------------- ADRIAN G.MIRANDA S/O.ALFRED MIRANDA, RESIDING AT HALCYON, NEAR PAKKATTUVILA, KUNNUKUZHY, TRIVANDRUM. BY ADV. SRI.P.CHANDRASEKHAR RESPONDENT(S): -------------------------- BRENDA BARBARA FRANCIS NOW RESIDING AT 400 WEBB DIRVE SUIT 403, MISSISSAUGA, ONTARIO L5B 3Z7, CANADA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = W.P.(c).No.28041 of 2008 = = = = = = = = = = = = = = Dated this the 25th day of September, 2008 JUDGMENT The writ petitioner is the 1st defendant in O.S.No.34 of 1999 on the file of the Principal Sub Court, Thiruvananthapuram. The said suit was filed by the respondent herein who is the sister of the petitioner seeking a partition and separate possession of her 1/5th right over one item of immovable property. The suit was listed for trial on 26.9.05. On that day since neither the plaintiff nor her counsel was present, the suit was dismissed for default. On the same day itself I.A.No.3519 of 2005 was filed under Order IX Rule 9 C.P.C and that petition was dismissed for default. The affidavit in support of the said petition was sworn to by Jerome Fernandez styling himself as the Power of Attorney holder of the plaintiff. Since the defendant could not be duly served after repeated summons, notice was eventually served by publication in the Kerala Kaumudi Daily. On getting knowledge about the filing of the restoration petition, the petitioner/1st defendant filed his objections to I.A.3519 of 2005. One of his objection was that the person who filed the affidavit in support of the I.A. 3519/2005 was W.P.(c).No.28041 of 2008 2 not the power of attorney holder of the plaintiff who has permanently settled down in Canada. The petitioner also contended that the signature occurring in the affidavit was not that of Jerome Fernandez. On 2.6.07 Ext.P4 application was filed as I.A.2287 of 2007 by the plaintiff to delete the name of Jerome Fernandez as the Power of Attorney holder for the plaintiff. The affidavit in support of the petition was sworn to by none other than Jerome Fernandez, the Power of Attorney holder. On the same day itself Ext.P5 application was filed as I.A.2288 of 2007 by the new power of attorney holder for the plaintiff. The said petition is sworn to by one Captian Alexander Francis styling himself as the new power of attorney holder. Ext.P16 is the new Power of Attorney deed in favour of Captian Alexander Francis. The signature in both the affidavits in support of I.A.Nos.2287 and 2288 of 2007 appears to be that of the same person. On 7.08.07 the court below as per Ext.P7 common order, dismissed the said applications observing that a fraud was practiced in the court by Jerome Fernandez who had by the time left for U.S.A and observing that I.A.No.3519 of 2007 should be revived and appropriate orders should be passed. Subsequently on 5.6.07 the court below allowed W.P.(c).No.28041 of 2008 3 3519/2005 on payment of Rs.1,000/- as costs. The cost was paid and the suit was restored to file. Thereafter the petitioner/ 1st defendant filed I.A.No.5002 of 2007 requesting the court to take evidence of the plaintiff only after reviewing the order passed on I.A.No.3519 of 2005 and to take appropriate action against the plaintiff to the fraud and forgery committed by the plaintiff 2. The contention raised by the petitioner in the said I.A. is as follows:- The court while passing the common order in I.A.Nos.2287 of 2007 and 2288 of 2007 had found that the plaintiff has obtained the order in I.A.No.3519 of 2005 by playing fraud on the court and that on 6.2.07 neither the plaintiff nor her power of attorney holder had represented the plaintiff in court as per rules and so I.A.No.3519 of 2005 is to be reviewed and appropriate orders are to be passed. The plaintiffs has not filed any appeal against that order. Hence, before taking evidence in this case I.A.No.3519 of 2005 has to be reviewed and appropriate action should be taken against the plaintiff under Section 344 Cr.P.C. 3. The court below as per Ext.P15 order dismissed the said application. It is the said order which is assailed in this writ W.P.(c).No.28041 of 2008 4 petition. 4. The learned counsel for the petitioner reiterated the contentions of the petitioner and submitted that a person who had played fraud on the court should not be allowed to go scot free. It is contended that the intentment behind Ext.P2 order should be translated into action by reviewing the order passed on 3519 of 2005 by taking appropriate action against the plaintiff. 5. The court below has in Ext.P15 order given valid reasons while reviewing the order in I.A.No.3519 of 2005 regarding the observation made in Ext.P7 order that fraud had been practiced on the court and has held that it was only a casual observation and that actually no such fraud had been practiced on the court. In fact, on 20.06.05 when the suit was dismissed for default, on the very same day the power of attorney holder of the plaintiff filed I.A.No.3519 of 2005 under Order 9 Rule 9 C.P.C. for restoration of the suit. On the question whether the affidavit was filed by an appropriate power of attorney holder or not, the plaintiff has subsequently appeared before the court and has stated that she is the plaintiff in the suit and the court was convinced that by filing the petition on the same day the plaintiff had proved her bona fides W.P.(c).No.28041 of 2008 5 also. The learned Sub Judge has given detailed reasons in Ext.P15 order as to why the plaintiff cannot be said to have committed or played any fraud on the court. The court below has also observed that the petitioner herein has no case that the power of attorney holder of the plaintiff had not signed I.A.No.5787 of 2006 or that somebody had forged her signature in the petition. It is also held that if the power of attorney had filed I.A.No.5787 of 2006 without actually knowing the termination of the power of attorney in his favour, it cannot be said that power of attorney or the plaintiff had played any fraud in filing that petition or getting the order thereon. The court below has further observed that if the order in I.A.No.3519 of 2005 is reviewed on the ground that the same was obtained by the plaintiff by playing fraud and the suit is thereby dismissed, irreparable legal injury and loss would be caused to the plaintiff who is entitled to a share in the plaint schedule property left behind by her deceased mother. The court below has also observed that the question whether the plaintiff or her power of attorney holder committed or played any fraud is a matter for evidence which is to be considered at a later point of time. The court below thus rejected the request of the petitioner to review W.P.(c).No.28041 of 2008 6 the order passed in I.A.No.3519 of 2005 which stood allowed as on 5.6.07. 6. I too fully agree with the conclusions reached by the court below. It is relevant to note that the other defendants in the suit have not pursued the matter to such an unreasonable level as the petitioner who wants to defeat the claim for partition by his sister by raising hypertechnical contentions. 7. If the petitioner wants to have a liberty to cross-examine the plaintiff on the proof affidavit filed, he shall make a request in that behalf before the court below. If the petitioner has not been given opportunity to cross-examine the plaintiff, the court below shall furnish an opportunity to do so, provided the petitioner does not resort to dilatory tactics. This writ petition which is devoid of any merit is accordingly dismissed. Dated this the 25th day of September, 2008. V. RAMKUMAR, JUDGE sj