CR No. 2864 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 2864 of 2006 Date of Decision: .08.2009 Vidya Sagar ...Petitioner Vs. Mam Chand & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.M.L.Sarin, Sr.Advocate, with Mr.Vivek Sud and Mr.Kabir Sarin, Advocates, for the petitioner. Mr.Arun Jain, Sr. Advocate, with Mr.Amit Jain, Advocate, for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. The petitioner/decree holder has invoked the jurisdiction of this court under Article 227 of the Constitution of India for quashing the order CR No. 2864 of 2006 2 dated 24.4.2006 passed by the learned Civil Judge (Junior Division), Jagadhri allowing application filed by the judgment debtor/respondent under Order 9 Rule 13 read with section 151 of the Code of Civil Procedure (for short the Code) for setting aside the decree dated 31.3.1980. The facts leading to the filing of this revision petition are that the petitioner Vidya Sagar was owner of land measuring 91 kanals 15 marlas situated in village Katewali, Tehsil Jagadhari being half share of land measuring 152 kanals 4 marlas and 31 kanals 6 marlas. The remaining half was owned by his brother Raj Kumar son of Benarsi Dass. On 14.4.1964 Raj Kumar, proforma respondent No.7 acting on his own and alleging himself to be the guardian of the petitioner who was minor at that time sold the entire piece of land measuring 152 kanals 4 marlas and an area of 40 kanals owned by him alone to the judgment debtors (respondents No.1 to 6) vide a registered sale deed. The petitioner attained majority on 31.8.1973 and on attaining majority he repudiated the sale and is said to have conveyed this to judgment debtors. It was the case of the petitioner that they refused to put him in joint possession of his share of land. On 28.8.1976 the petitioner filed a suit against respondents No.1 to 6 i.e. the vendees and his brother Raj Kumar, who had sold the land including the land of the petitioner. The case of the petitioner is that summons were served personally to all the judgment debtors for 11.5.1998 wherein they put in appearance through their counsel. However, they failed to put up any defence and were subsequently proceeded against ex parte. CR No. 2864 of 2006 3 The suit was decreed ex party on 1.3.1980. On 3.1.1992 i.e. almost after 12 years of decree the petitioner filed execution of the decree dated 31.3.1980, notice of which was issued to the respondents No.1 to 6 who had put in appearance on 24.10.1992 and sought time for filing objections. The case was adjourned to 21.11.1992 for filing of objections. However, the case was adjourned on number of occasions on the request of the judgment debtors from 21.10.1992 to 21.11.1992, then to 19.12.1992 to 13.2.1993 and then to 17.4.1993. However, no objections were filed. It was the case of the petitioner that respondents No.1 to 6 had full knowledge of ex parte decree dated 31.3.1980 but due to their own acts of negligence failed to put up defence or apply for setting aside of ex parte decree. On 19.12.1997 the judgment debtors i.e. respondents No.1 to 6 filed an application for setting aside the decree dated 31.3.1980. Averments necessary for adjudication of this revision were mentioned in para No.4, 5 and 6 of the application which reads as under:- “3 That the Hon'ble Court has passed an ex parte order dated 17.3.80 illegally and wrongly. The applicants/Defendants have never been served in the said suit and the learned court has wrongly mentioned that they were duly served and if any report on the summons i.e. an act of fraud and the applicants have no knowledge of the pendency of the aforesaid suit and the summons have not been duly served on the applicants and moreover, the Hon'ble Court has not adopted the mode of CR No. 2864 of 2006 4 substituted service and wrongly and illegally the applicants/defendants have been proceeded ex parte on 17.3.80. 5. That from the inspection of the file it also came to the knowledge of the applicants/defendants that the said suit has been dismissed in default and even on the previous date the applicant/defendants have never be3en served and they have not appeared but the plaintiff and defendant No.7 have played a fraud by filing a memo of appearance of an advocate where as the applicant/defendants have no knowledge of the pendency of the said suit and they have never engaged any counsel. It is the defendant No.7 Raj Kumar son of Shri Banarsi Dass who has played a fraud in collusion with the plaintiff and their counsel and Vidya Sagar has never appeared in the Hon'ble Court and it is the defendant No.7 who has been playing fraud. He has forged the signature of the plaintiff as well as of the applicant/defendants and as such the ex parte order and ex parte decree is an act of fraud and misrepresentation and is liable to beset aside. 6. That the respondent/judgment debtors came to know about the passing of the alleged decree only on 6.12.97 when the counsel for DH/Plaintiff has produced the certified copy of the execution petition in this Hon'ble Court and the applicant/defendants have without any delay obtained the certified copy and has filed the present application without any CR No. 2864 of 2006 5 delay on the part of the defendant/applicants and as such the present application is without delay and is within limitation from the date of knowledge. Application for setting aside ex parte decree was filed on 19.12.1997. The application was opposed on the plea that the same was hopelessly barred by time primarily on the ground that respondents No.1 to 6 were served for 23.3.1992 for appearance on 14.4.1992 but they failed to apply for copies of judgment and decree and allowed the limitation to expire. Plea of fraud was also denied. Learned trial court allowed the application moved by respondents No.1 to 6 under Order 9 Rule 13 of the Code vide impugned order dated 24.4.2006 by declaring the decree to be illegal, null and void. The learned court on an application moved under Order 9 Rule 13 framed issues on 10.4.1999. Respondents No.1 to 6 in order to substantiate their claims examined Shri N.K.Jain, Document and Finger Print Expert PW 1 and one of the applicants also appeared in the witness box, whereas the petitioner examined Ram Kumar RW 1, Amarjit Singh RW 2, Om Parkash Retired Civil Nazir RW 3, Rajinder Gupta RW 4 and Hari Chand as RW 5 and closed their evidence. Leaned court below on appreciation of evidence recorded a finding that on receipt of summons of execution petition respondents No.1 to 6 applied for certified copy of the decree but it was not made available for as many as 5 years, as file was not reported to have been consigned to the record, and it was only after the file was located that certified copy of CR No. 2864 of 2006 6 the judgment and decree was made available on 10.12.1997. The application under Order 9 Rule 13 of the Code was immediately made thereafter on 19,12.1997. The learned court also held that it did not appear to reason that a person who had obtained a decree for joint possession of the land in the year 1980 would wait for 12 years to seek the joint possession. It was held that the petitioner chose to very clandestinely withhold the decree for as long as 12 years and did not get a single entry in the revenue record in his name. The main reason for setting aside the decree was that respondents No.1 to 6 had examined Shri N.K.Jain Document and Finger Prints Expert who compared the thumb impressions of the applicants No.1 to 6 on the summons with their standard thumb impressions and vide his report Ex.AW A/1 opined that the disputed thumb impressions on the summons dated 17.3.1980, which were allegedly affixed by Mam Chand, Lal Chand, Gian Singh and Labh Singh were entirely different from their standard thumb impression. The learned lower court found it established that the thumb impressions of respondents No.1 to 6 were obtained by fraud. On this very basis signatures of Gurnam Singh and Raj Kumar were also said to have been obtained by misrepresentation. The learned lower court, therefore, held that defendants No.1 to 6 were never served, and the decree dated 31.3.1980 was the result of fraud and therefore, liable to be set aside. The learned lower court further held that the decree being non est in the eyes of law and nullity, there was no limitation for setting aside the decree. Mr.M.L.Sarin, learned senior counsel appearing on behalf of the petitioner referred to Article 123 of the Limitation Act to contend that CR No. 2864 of 2006 7 the limitation for moving an application for setting aside ex parte decree is 30 days from the date of passing of decree, and in case the party is not served then 30 days from the date of knowledge. It is also the contention of the learned counsel for the petitioner that under Order 9 Rule 13 of the Code in order to have decree set aside the applicant had to satisfy the court that the summons were not duly received or that he was prevented by sufficient cause from appearing when the case was called for hearing. By referring to provisions, the contention of the learned senior counsel for the petitioner was that the limitation of 30 days in present case was to be counted from the date of knowledge even if it was proved that the summons were not served on respondents No.1 to 6. The application was hopelessly barred by time, as it was not filed within 30 days of knowledge. This contention was based on the fact that admittedly respondents No.1 to 6 came to know about the decree when they appeared in executing court on 14.3.1992. However, they took no steps to get the decree set aside till 1997 i.e. almost for 5 years. In order to contend that respondents No.1 to 6 had knowledge the learned senior cousnel placed reliance on the judgment of Hon'ble Supreme Court in the case of Panna Lal Vs. Murari Lal (dead) by his legal representatives AIR 1967 SC 1384, wherein Hon'ble Supreme Court was pleased to lay down as under:- “4. In Pundlick Rowji V. Vasantrao Madhavrao, (1909) 11 Bom LR 1296 Davar, J., held that the expression knowledge of the decree” in Art. 164 means knowledge not of a decree but of the particular decree which is sought: to be set aside, certain CR No. 2864 of 2006 8 and clear perception of the act that the particular decree had been passed against him. On the facts of that case, Devar, J., held that a notice to the defendant that a decree had been passed against him in the High Court suit No.411 of 1909 in favour of one Pundlick “Rowil with whom he had no dealings was not sufficient to impute to him clear knowledge of the decree in the absence of any information – that the decree had been passed in favour of Pundlic Rowji as the assignee of a promissory note which he had executed in favour of another party. This case was followed by the Calcutta High Court in Kumud Nath Roy Chowdhury V. Jotindra Nath Chowdhury, (1911) ILR 38 Cal 394 at mp.403. In Bapurao Sitaram Karmarkar Vs,. Sadbu Bhiva Gholap, ILR 47 Bom 485: (AIR 1923 Bom 193) the Bombay High Court held that the evidence of two persons who had been asked by the plaintiff to tell the defendant about the decree and to settle the matter was not sufficient to impose knowledge of the decree on the defendant within the meaning of Art. 164. Macleod, C.J., said “We think the words of the article mean something more than mere knowledge that a decree had been passed in some suit in some Court against the applicant. We think it means that the applicant must have knowledge not merely that a decree has been passed by some Court against him, but that a particular decree has been passed against him in a particular Court in CR No. 2864 of 2006 9 favour of a particular person for a particular sum. A judgment debtor is not in such a favourable position as he used to be when he had thirty days from the time when execution was levied against him. But we do not think that the Legislature meant to go to the other extreme by laying down that time began to run from the time the judgment debtor might have received some vague infor5mation that a decree had been passed against him.” This decision was followed in Batulan V. S.K.Dwivedi, (1954) ILR 33 Pat 1025 at pp 1050-8 and other cases. We agree that the expression 'knowledge of the decree' in Art. 164 means knowledge of the particular decree which is sought to be set aside,. When the summons was snot duly served, limitation under Art. 164 does not start running against the defendant because he has received some vague information that some decree has been passed against him. It is a question of fact in each case whether the information conveyed to the defendant is insufficient to impute to him knowledge of the decree within the meaning of Art. 164. The test of the sufficiency is not what the information would mean to a stranger, but what it meant to the defendant in the light of his previous dealings with the plaintiff and the facts and circumstances known to him. If from the information conveyed to him the defendant has knowledge of the decree sought to beset aside, time begins to run against CR No. 2864 of 2006 10 him under Art. 164. It is not necessary that a copy of the should be served on the defendant. It is sufficient that the defendant has knowledge of the material facts concerning the decree, so that he has a clear perception of the injury suffered by him and can take effective steps to set aside the decree. Mr.M.L.Sarin, learned senior counsel appearing on behalf of the petitioner also placed reliance on the judgment of Hon'ble Supreme Court in the case of State of Punjab and ors. Vs. Gurdev Singh and Ashok Kumar AIR 1992 SC 111 to contend that the limitation for declaration that the order is illegal even though void is 3 years. The contention, therefore, was that the learned trial court was wrong in holding that as the decree was nullity the limitation to set aside the order was not to apply. Mr.M.L.Sarin, learned senior counsel appearing on behalf of the petitioner also placed reliance on the judgment of this court in the case of Kanshi Ram MohanLal Vs. Smt. Bhagwan Kaur AIR 1970 Punjab & Haryana 300 to contend that as per Article 123, the ex parte decree could be set aside within 30 days from its date of passing but when there is no due service, then within 30 days from the date of knowledge of the decree, therefore, in either case the application under Order 9 Rule 13 of the Code filed by respondents No.1 to 6 being time barred was liable to be rejected. Mr.M.L.Sarin, learned senior counsel appearing on behalf of the petitioner vehemently contended that as per provisions of Order 6 Rule 4 particulars of fraud were required to be pleaded. Order 6 Rule 4 of the CR No. 2864 of 2006 11 Code stipulates that any case in which party pleading relies on any misrepresentation, fraud, prejudice of trust, wilful default or undue influence with the particulars with dates and items are necessarily to be stated. The contention was that in application the fraud was not pleaded with particulars and dates and therefore, learned court below was not justified in holding the decree to have been obtained fraudulent. The contention raised by Shri M.L.Sarin, learned senior counsel appearing on behalf of the petitioner cannot be disputed that it is well settled principle of law that application for setting aside ex parte decree is to be filed within 30 days of passing of decree, and in case no notice is served then 15 days from the date of knowledge. It cannot be disputed that knowledge does not envisage supply of copies of judgment and decree. Even in case of void orders the limitation to challenge is 3 years. But what is to be seen is whether, the contentions can be applied to the facts of the present case. In view of the findings recorded by the learned trial court it cannot be disputed that the summons were not issued to respondents No. 1 to 6, and the thumb impressions were got marked from some body else. It is also proved on record that the counsel who has put in appearance on behalf of respondents No.1 to 6 had not filed any power of attorney on behalf of respondents No.1 to 6, and after putting in appearance allowed the case to be proceeded ex parte. In the present case, it was also proved on record that fraud played could only be detected by respondents No.1 to 6 only on receipt of CR No. 2864 of 2006 12 copy of the judgment and decree which admittedly was made available on 10.12.1997. The learned court took almost 5 years to supply the copy of the judgment and decree and the delay of 5 years, therefore could not be attributed to applicant/respondents. The Hon'ble Supreme Court in the case of Hamza Haji Vs. State of Kerala and Anr. AIR 2006 SC 3028, has been pleased to lay down as under:- “ 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." Hon'ble Supreme Court was further pleased to lay down that no judgment of the court or order of Minister can be allowed to stand if it has been obtained by fraud as fraud unravels everything. Hon'ble Supreme Court further approved Story's Equity Jurisprudence, 14th Edn., Volume-I, paragraph 263 laying down as under:- “ "Fraud indeed, in the sense of a Court of Equity, properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence, justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another." In Patch vs. Ward [1867 (3) L.R. Chancery Appeals 203], Sir John Rolt, L.J. held that: CR No. 2864 of 2006 13 "Fraud must be actual positive fraud, a meditated and intentional contrivance to keep the parties and the Court in ignorance of the real facts of the case, and obtaining that decree by that contrivance." This Court in Bhaurao Dagdu Paralkar vs. State of Maharashtra & Ors. 2005 (7) SCC 605 held that: "Suppression of a material document would also amount to a fraud on the court. Although, negligence is not fraud, it can be evidence of fraud." Finally in para No.18 of the said judgment Hon'ble Supreme Court has been pleased to lay down as under:- “18. The High Court, as a court of record, has exercised its jurisdiction to set at naught the order of the Forest Tribunal thus procured by the appellant by finding that the same is vitiated by fraud. There cannot be any doubt that the court in exercise of its jurisdiction under Article 215 of the Constitution of India has the power to undo a decision that has been obtained by playing a fraud on the court. The appellant has invoked our jurisdiction under Article 136 of the Constitution of India. When we find in agreement with the High Court that the order secured by him is vitiated by fraud, it is obvious that this Court should decline to come to his aid by refusing the exercise of its discretionary jurisdiction under Article 136 of the Constitution of India. We do not think that it is necessary to refer to any authority in CR No. 2864 of 2006 14 support of this position except to notice the decision in Ashok Nagar Welfare Association and another vs. R.K. Sharma and others [(2001) Supp. 5 SCR 662).” In view of the fact that in the present case, it was proved on record that the decree was obtained by the petitioner by presenting wrong summons in court by showing service on respondents No.1 to 6, though it was proved to be wrong, the court of equity in exercising of powers under Article 227 of the Constitution of India cannot set aside an order on the technical ground of limitation. It may also be noticed that by way of impugned order no prejudice can be said to have been caused to the petitioner except that opportunity has been given to respondents No. 1 to 6 to contest the claim of the petitioner on merit. It may further be noticed that Hon'ble Supreme Court in the case of A.P.PapayyaSastry & Ors. Vs. Government of A.P. & Ors. 2007 (2) RCR (Civil) 431, has been pleased to lay down that where a fraud comes to light, the subsequent development cannot be ignored merely because of long delay as the law is well settled that if any judgment or order is obtained by fraud it cannot be said to be a judgment or order in law, as fraud vitiates everything. Such judgment and orders are treated as nullity by every court, superior or inferior. The Fraudulent acts can be recalled by suo motu exercise of revisional jurisdiction. The contention of learned senior counsel for the petitioner that in view of the provisions of Order 6 Rule 4 of the Code the petition was liable to be dismissed, is also not sustainable as in the application the fraud CR No. 2864 of 2006 15 was duly pleaded and evidence was also led to prove the assertions made in the application for setting aside ex parte order. This court in exercise of jurisdiction under Article 227 of the Constitution of India cannot come to the aid of the petitioner, to secure fruits of fraud practiced by him in getting ex parte decree. For the reasons stated above, I find no merit in the present revision petition, and is ordered to be dismissed but with no order as to costs. (Vinod K.Sharma) 19.08.2009 Judge rp