IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 28041 of 2008(L)
1. ADRIAN G.MIRANDA
... Petitioner
Vs
1. BRENDA BARBARA FRANCIS
... Respondent
For Petitioner :SRI.P.CHANDRASEKHAR
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :25/09/2008
O R D E R
V. RAMKUMAR, J.
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W.P.(c).No.28041 of 2008
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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
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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
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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
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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
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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
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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