1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR First Appeal No. 1011/2009 1. SUBRAMANIUM S/O NAGRAJ MUDLIAR OPP. HISLOP COLLEGE, CIVIL LINES, NAGPUR .. PETITIONER/S VERSUS 1. RAVI S/O SURYALAL JAISWAL AND 2 ORS R/O SHREE GANESH SOUTH AMBAZARI RD, LAXMI NAGAR, NAGPUR 2. RAHUL S/O SURYALAL JAISWAL R/O SHREE GANESH SOUTH AMBAZARI RD, LAXMI NAGAR, N 3. RAJNI WD/O BHASKAR GHUI R/O NR. SAI MANDIR, WARDHA RD, NAGPUR .. RESPONDENT/S - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. S.S. Voditel, Advocate, for the appellant. Mr. V.V. Bhangde, Advocate, for the respondents. CORAM : SMT. VASANTI A. NAIK, J. DATE : SEPTEMBER 14 , 2009 . The appellant is the original plaintiff. A suit was filed by the plaintiff for a declaration that the judgment and decree dated 23/1/1998 in Special Civil Suit No. 684/1991 is non-est and unenforceable as the defendant nos. 1 and 2 have no title to the suit property on the basis of the sale deed dated 7/8/1991 executed in their favour by Shri Bhaskar Ghui since he himself did not become the owner of the suit property prior to his death of 14/1/1998 on the basis of the gift deed dated 2 12/2/1976 executed by Ashabala, Madhurani and Gajanan Deshmukh. The plaintiff also sought a decree of permanent injunction restraining the respondent nos. 1 and 2 from executing the judgment and decree dated 23/1/1998 in Special Civil Suit No. 684/1991. On 12/2/1976, Gajanan Deshmukh, Smt. Ashabala and Ms. Madhurani executed a registered gift deed of the suit property in favour of one Bhaskar Ghui. By a registered document dated 19/4/1977, the donors revoked the said gift deed. A civil suit was filed by the donors bearing Regular Civil Suit No. 915/1977 for cancellation of the gift deed and for a declaration that the gift deed dated 12/2/1976 was void. The plaintiffs, in the said suit, had also applied for temporary injunction and the same was granted by the Court. During the pendency of M.J.C. filed by the donors for setting aside the order of dismissal of the suit for default, Bhaskar Ghui expired on 14/1/1988. The suit was restored on 17/3/1990 and during the pendency of the suit, one of the donors also expired. Separate applications were filed by Ms. Ashabala and Gajanan Deshmukh for withdrawal of the civil suit and the prayers made in these applications were granted. The suit filed by the donors was dismissed as withdrawn. Ms. Rajni Ghui, widow of Bhaskar Ghui, executed a registered sale deed of the suit property in favour of the respondent nos. 1 and 2 on 7/8/1991. The respondent nos. 1 and 2 filed Special Civil Suit No. 684/1991 for declaration, permanent and mandatory 3 injunction and for possession. The appellant was the defendant no.1 in the said suit. The appellant had admitted the existence of gift deed dated 12/2/1976 in the said suit. The appellant had further admitted that Bhaskar Ghui was put in possession of the suit property in the year 1976. The appellant, however, denied the title of the respondent nos. 1 and 2 to the suit property on the ground that Bhaskar Ghui had executed a Will making a bequest of the suit property in his favour and he became the owner of the suit property held by Bhaskar Ghui. It was also pleaded by the appellant in the said suit that he had advanced certain amount to Bhaskar Ghui and Bhaskar Ghui was to execute a registered sale deed in his favour and in such manner, he became the owner of the suit property. The Special Civil Suit No. 684/1991 was decreed. The respondent nos. 1 and 2 were held to be the owners of the suit property. It was found by the trial Court that the appellant had no right or interest in the suit property. The first appeal filed by the appellant against the judgment and decree passed by the trial Court in Special Civil Suit No. 684/1991, was also dismissed by this Court by the judgment dated 30/6/2008. The appellant challenged the judgments passed by the trial Court and this Court in Special Leave Petition to Appeal before the Supreme Court. The Hon’ble Supreme Court dismissed the Special Leave Petition filed by the appellant by the order dated 19/9/2008. It is necessary to note that some of the 4 grounds raised in the present civil suit were also raised as questions of law in the Special Leave Petition. After the dismissal of the special leave petition on 19/9/2008, the appellant filed a review application before this Court seeking a review of the judgment passed by this Court on 30/6/2008. The review application was, however, rejected by this Court on 26/3/2009. A specific ground of fraud was raised in the review application. After the dismissal of the miscellaneous civil application for review with costs, the appellant again approached the Hon’ble Supreme Court by filing Special Leave Petition (C) Nos. 10220-21/2009, challenging the order passed on the review application. The special leave petition was dismissed by the Supreme Court vide order dated 8/5/2009. In such background, the appellant has now instituted Special Civil Suit No. 589/2009 seeking the aforesaid reliefs. It is the case of the appellant that the earlier judgment was obtained by the respondents by playing fraud on the Courts. However, to substantiate this ground, it is merely submitted on behalf of the appellant that withdrawal of the Regular Civil Suit No. 915/1977 by the donors could not have clothed the title on the widow of Bhaskar Ghui as during the pendency of the suit, one of the donors had expired and Shri Bhaskar Ghui also expired during the pendency of the civil suit. It was canvassed on behalf of the appellant that the provisions of Section 122 of the Transfer of Property Act 5 apply to the facts of the case as the acceptance of the gift was not made during the life time of the donor and the donee also expired before the acceptance of the gift deed, as the said gift deed was cancelled by the donors. Since the injunction was operating in Regular Civil Suit No. 915/1977, it is the case of the appellant that there was no transfer of property from the donors to Bhaskar Ghui in view of the events which occurred during the pendency of Regular Civil Suit No. 915/1977. It is the case of the appellant that these facts came to the knowledge of the appellant after the case papers were perused by the counsel for the appellant and hence, the present suit was filed for setting aside the decree which was obtained by fraud. The respondent nos. 1 and 2 filed an application (Exh.15) under Order VII Rule 11 (d) of the Code of the Civil Procedure for rejection of the plaint as, according to them, a bare reading of the plaint would demonstrate that the suit filed by the appellant was hit by the provisions of Section 11 explanation -IV of the Code of Civil Procedure i.e. the principles of res judicata. The trial Court, vide order dated 11/8/2009, allowed the application (Exh.15) filed by the respondent nos. 1 and 2 for rejection of the plaint, and the appellant has challenged this order by the present appeal. On hearing the learned counsel for the parties and on a perusal of the record, it is clear that the present suit filed by the appellant is false and vexatious. The 6 appellant/plaintiff has not disclosed a clear right to sue the respondent nos. 1 and 2 by the present suit. The proceedings instituted by the appellant are meritless and an attempt is made by the unscrupulous appellant to stall the execution of the decree in the previous proceedings, though the appellant has lost the litigation twice till the Hon’ble Supreme Court. The statements of facts or the grounds on the basis of which the fraud is sought to have been alleged, were either raised before this Court or the Hon’ble Supreme Court of India, in the review application and the S.L.P. challenging the order passed in review application, or they could have been raised in the Special Civil Suit No. 684/1991. The appellant, however, filed this bogus litigation for preventing the respondent nos. 1 and 2 from executing the decree of possession in Special Civil Suit No. 684/1991 in their favour. The fraud as alleged, firstly, is not clear on the grounds as alleged by the appellant and it is clear that each of the statements of facts which are pleaded in the present suit, could have been easily raised by the appellant in the previous round of litigation. The contentions of the appellant even on their face value do not relate to anything fraudulent and they are merely pleas which could have been raised during the previous litigation. The cause of action to file the present suit does not arise at all as this is the suit filed with the only motive of preventing the respondent nos. 1 and 2 from reaping the fruits of the decree passed in their favour on 7 23/1/1998. It is also necessary to note that in the previous round of litigation, it was admitted by the appellant that Bhaskar Ghui became the owner of the property by the gift deed executed by the donors in the year 1976 and it was pleaded that the appellant became the owner thereof in pursuance of the Will executed by Bhaskar Ghui in his favour. When his pleas were negatived by the Courts and the judgment was confirmed by the Hon’ble Supreme Court, the appellant is taking a somersault in the present litigation to assert that Bhaskar Ghui did not become the owner of the suit property in view of the provisions of Section 122 of the Transfer of Property Act. The submissions made on behalf of the appellant in the trial Court and before this Court, are ill- founded. The trial Court committed no error in allowing the application filed by the respondent nos. 1 and 2 under Order VII Rule 11(a) & (d) of the Code of Civil Procedure. The trial Court rightly considered the decisions of the Hon’ble Supreme Court reported in (1977) 4 Supreme Court Cases 467 and 1995 Suppl. (4) Supreme Court Cases 702 . The judgments reported in (1994) 1 Supreme Court Cases 1, (2006) 7 Supreme Court Cases 416 and relied on by the counsel for the appellant are totally inapplicable to the facts of this case. At the outset, it was submitted on behalf of the appellant by the learned counsel that in case, this Court finds that the suit was vexatious, the appellant may 8 be made liable to pay costs. I have found that the suit is not only meritless, but is also false and vexatious and has been instituted by the appellant with a view to prevent the respondent nos. 1 and 2 from reaping the fruits of a decree in Special Civil Suit No. 684/1991. Hence, the appeal is dismissed with costs of Rs. 10,000/- to be paid by the appellant to the respondent nos. 1 and 2. JUDGE RMP