1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.301 OF 2006 IN CHAMBER SUMMONS NO.550 OF 2000 IN SUIT NO.145 OF 1996 Mohd. Mazhar Hussain .... Appellant Vs. M/s Abis Constructions & Anr. .... Respondents Mr.A.Y. Sakhare, Senior Advocate i/by Mr. A.C. Damale for appellant. Mr.Rajiv Narula i/by Mr.G.C. Singh for respondents. Coram : D.K. Deshmukh & Smt.R.P. SondurBaldota, JJ. Date : 25th June, 2010 P.C. 1. This appeal arises out of the order dated 8/9th March 2006 passed by the learned Single Judge allowing obstructionist’s notice taken out by respondent no.1 against the appellant. 2. The brief facts of the case required to be stated for deciding the appeal are that on 15th January 1996, respondent no.1 filed suit for declaration that respondent no.2, the original defendant, was a trespasser in respect of the suit property i.e. land bearing CTS No.1056 together with a house standing thereon admeasuring 327.8 sq. mtrs. and for a mandatory order directing respondent no.2 to remove himself from the suit 2 property. Two months after its filing i.e. on 22nd March 1996, the suit came to be decreed by filing consent terms, whereby respondent no.2 submitted to a decree for possession in favour of respondent no.1 and undertook to vacate the suit property on or before 2nd April 1996. Then respondent no.1 filed execution proceedings, in which warrant of possession dated 24th June 1997 was issued. This warrant was sought to be executed on 30th March 2000, when the representative of respondent no.1 and the Bailiff accompanying him found that respondent no.2, the judgment debtor was not in the suit premises, but the same was occupied by the appellant. Thereafter on 27th April 2000, respondent no.1 filed Chamber Summons No.550 of 2000 for removal of the obstruction caused by the appellant. 3. The Chamber Summons was opposed by the appellant claiming that he has been in occupation of the suit property, independent of the judgment debtor. According to him, his brother Raja Singh Verendra Singh Thakur @ Mohammed Ajjar Hussain had agreed to purchase the suit property vide agreement of sale dated 21st September 1984 from one Vali Ullah Khan for the consideration of Rs.5,50,000/-. On payment of entire consideration on 1st October 1984, Valli Ullah Khan had put Raja Singh in possession of the suit property. Valli Ullah Khan had been in possession of the suit property pursuant to agreement of sale dated 22nd September 1982 with the owner, W.P. Fernandes. At the relevant time, respondent no.2 had been in possession of the front portion of 3 the property as the tenant. He executed affidavit dated 15th December 1987 and surrendered the tenancy of the demised premises to Raja Singh. Since then Raja Singh and the appellant had been enjoying the entire suit property along with the adjacent property in their possession. Raja Singh died on 13th May 1990 and from that time the appellant has been enjoying exclusive possession. The appellant also contended that the consent decree obtained by respondent no.1 is a fraudulent and collusive decree. Such a decree is to be treated as nullity and hence not executable. 4. The enquiry under Order 21, Rule 97/99 Code of Civil Procedure is no longer of a summary nature but is a full fledged adjudicating enquiry allowing parties to adduce evidence, both oral and documentary and requiring the court to take into consideration such evidence to adjudicate all questions relating to the proceedings arising between the parties. In other words, such applications are to be tried like a regular suit by framing issues arising between the parties and permitting them to lead evidence on the issues framed. Perusal of the impugned judgment and order shows that there were no issues framed in the application. The learned Single Judge, however, at paragraphs 23 of the impugned judgment and order has referred to the question, which according to him fell for his consideration in the proceedings. This question is seen to be modified in subsequent paragraph 27. The question both, in it’s original 4 form and the modified form is reproduced below. “23. ....whether the obstruction or resistance to the execution of decree by the respondent deserves to be upheld or the same is required to be rejected and all obstacles in execution of the decree in question be removed, as prayed for by the plaintiff-decree holder”. “27. .... In these proceedings the Court has to decide whether the resistance or obstruction was raised without any just cause by the judgment debtor or by some other person at his instigation or on his behalf”... 5. The oral evidence in the proceedings consisted of deposition of the appellant for himself and of respondent No.2, the judgment-debtor as the witness of respondent no.1, the decree-holder. The proprietor of respondent no.1 has not examined himself or anybody from his office. It is strange that the decree-holder in the proceedings taken out for execution of the decree examines the judgment-debtor as his witness. This is despite the allegation in the affidavit-in-support of the chamber summons that the appellant is set up by respondent no.2 to defeat the execution of the decree. By not examining himself, the proprietor of respondent no.1 has kept himself out of the reach of the cross-examination, though there is a specific allegation made against him that the decree obtained is a fraudulent and collusive decree. 6. The learned Single Judge on his appreciation of the evidence held that neither the younger brother of the appellant nor his predecessor-in-title had any right to the suit property 5 as the documents relied upon by them were unregistered agreements of sale and that they were merely in possession suit property. As regards the allegations of fraud he held: “ With regard to the decree being collusive and vitiated by fraud perpetrated on the Court, in my view, from a reading of the affidavit filed by the judgment-debtor to oppose the Notice of Motion it is apparent that he admits that he was in possession of the suit property as an employee of the deceased younger brother of the respondent and not as a tenant of the original owner. The deposition which is recorded during the course of these proceedings, gets credence and support from the version in the earlier affidavit”. 7. The appellant challenges the impugned judgment and order contending that the learned Single Judge ought to have held that the consent decree is a fraudulent and collusive decree as substantiated by the record. It is also submitted that the finding on the merit is overreaching the scope of the application. In the circumstances, the two questions arising for our consideration in the appeal are : i) Whether the consent decree dated 22nd March 1996 is vitiated by fraud and ii) Whether the obstruction caused by the appellant to the execution of the decree is at the instigation or on behalf of respondent no.2 ? If the appellant succeeds in establishing that consent decree obtained by respondent no.1 is vitiated by fraud, the same will 6 have to be treated as a nullity and as such in-executable. Further if he establishes that his occupation of the suit premises is not through respondent no.2, but is by way of an independent right, there can be no question of dispossessing him in execution of the decree to which he is not a party. 8. The suit herein was filed on 15th January 1996, in which consent terms came to be filed on 22nd March 1996. Respondent no.1 does not dispute the allegation that the consent terms filed in the suit had been kept ready in January 1996 itself. It is also not disputed that the writ of summons in the suit was never served upon respondent no.2. There are also no benefits to respondent no.2 under the consent terms. The evidence shows that at the time of filing of the suit, respondent no.1 was well aware that the suit property has been in possession of the appellant and not respondent no.2 as alleged in the plaint. Therefore the suit against respondent no.2 for possession of the suit property was a false suit. In these facts, there is little wonder that the proprietor of respondent no.1 did not examine himself in the matter. As has been rightly contended on behalf of the appellant, adverse inference ought to have been drawn against respondent no.1. The very fact that he has examined respondent no.2 as his sole witness establishes the collusion between the respondents. 9. Also the evidence in cross-examination of respondent no.2 completely supports the allegations made by the appellant about 7 the decree. The relevant portion of the cross-examination reads thus : “I do not know that any suit bearing number 145 of 1996 was filed against me in the High Court of Judicature at Bombay”. “I do not know whether any consent term was filed by me in such suit in 1996”. “I do not know about any consent term filed in the suit number 145 of 1996 or that any such consent term were prepared on January 1996 and filed in the suit on 22nd March 1996”. “No decree was passed me in any proceeding in the High Court for vacating the suit premises. I vacated the suit premises at the request of Raja Singh Thakur and not because for any decree of eviction was passed against me.” “Raja Singh Thakur had given me Rs.30,000/- so that I can secure some premises for myself. With that money I secured premises at Ghatkopar. I am still residing there... I had vacated the suit premises on my securing premises at Ghatkopar. I shifted there during his lifetime.” “After I shifted to Ghatkopar Raja Singh Thakur started residing in the suit premises.” Raja Singh Thakur expired on 13th May 1990. This fact coupled with the evidence of respondent no. 2, fully establishes that on the date of filing of the suit, respondent no.2, was not in possession of the suit property. In our considered opinion, the learned Single Judge clearly fell in error in not considering the above material on record and in holding that the appellant has failed to show that the decree is fraudulent and collusive. The impugned judgment dismisses the abovequoted evidence with an 8 observation that in the cross-examination, respondent no.2 may have twisted the version to some extent. Respondent no.1 has thus in a false suit, obtained consent decree for possession without establishing his title to the suit property. 10. The Hon’ble Supreme Court has time and again frowned upon false litigation and dishonest litigants. In the case of S.P.CHENGAL VARAYA NAIDU (DEAD) BY LRs. Versus JAGANNATH (DEAD) BY LRS. AND OTHERS, reported in (1994) 1 Supreme Court Cases, page 1 it has held that a judgment or decree obtained by playing fraud upon the court is a nullity and non-est in the eyes of law. A person whose case is based on falsehood can be summarily thrown out at any stage of the proceedings. Later in the case of Dalip Singh vs. State of Uttar Pradesh and others, reported in (2010) 2 Supreme Court Cases, page 114, it has held that it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final. In its subsequent decision in Civil Appeal No.7982 of 2002 dated 1 st April 2010 in the case of Oswal Fats and Oils Limited vs. Additional Commissioner (Administration), Bareilly Division, Bareilly and others, the Supreme Court has observed, “It is settled law that a person who approaches the Court for grant of relief, equitable or otherwise,is under a solemn obligation to candidly disclose all the material/important facts which have bearing on the adjudication of the issues raised in the case. In 9 other words, he owes a duty to the court to bring out all the facts and refrain from concealing/suppressing any material fact within his knowledge or which he could have known by exercising diligence expected of a person of ordinary prudence. If he is found guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the court not only has the right but a duty to deny relief to such person.” Therefore the Chamber Summons taken out by respondent no.1 for execution of the decree obtained by playing fraud upon the court deserves to be dismissed. 11. The second infirmity in the impugned order is in the approach towards the application for removal of obstruction. The application has been decided by the learned Single Judge as if it were a suit filed by the appellant for declaration of his title to the suit property against respondent no.1. The impugned order extensively discusses the evidence led by the appellant in support of his claim of having right to occupy the suit property independent of respondent no.2 and held that “It is apparent that neither predecessor in title of the deceased younger brother of the respondent nor younger brother had any right, title and interest in the suit property and were merely in possession thereof”. What was lost sight of by the learned Single Judge is that Valli Ullah Khan, predecessor in title of the brother of the appellant had entered into an agreement of sale of the suit property with the owner W.P. Fernandes. Before the property could be conveyed, the original owner died and his niece Cecilia inherited the property. The brother of the 10 appellant had entered into an agreement of sale of the suit property with Valli Ullah and was put in possession of the property in the year 1984. The agreement came to be registered subsequently i.e. in the year 1995. Then the appellant and his brother continued in possession of the property for 16 long years. Respondent no.1 claims to have purchased the property from Cecilia, niece of the original owner. In these circumstances, the learned Single Judge ought to have held that the appellant has produced sufficient material before the court to show that his occupation of the suit property is independent of the judgment-debtor and not per-se illegal. In that case, the only remedy to the respondent no.1 was to file a suit against the appellant for possession of suit property by challenging the right claimed by him to the property. He cannot evict the appellant through execution of a decree to which the appellant is not a party. In the circumstances, the appeal is allowed. The impugned judgment and order is set aside. The Chamber Summons No.550 of 2000 is dismissed. Respondent no.1 is directed to bring back the amount withdrawn by him pursuant to the interim order dated 26th September 2006 and deposit the same in the court within a period of 10 weeks from today. On such deposit being made, the appellant is at liberty to withdraw the same. (Smt.R.P.SondurBaldota,J) (D.K.Deshmukh, J.)