IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 31.01.2011 CORAM: THE HONOURABLE MR.JUSTICE S.TAMILVANAN Civil Revision Petition (NPD) No.24 of 2009 and M.P.No.1 of 2009 Karuppathal .... Petitioner Vs. 1.Palanisamy 2. Sundarammal 3. Ponna Naicker 4. Eswaran 5. Natarajan 6. Vinayaga Gounder 7. Murugasamy Gounder ..... Respondents Civil Revision Petition filed against the order, dated 14.02.2008 made in I.A.No.202/06 in O.S.No.636 of 1997 on the file of the District Munsif-cum-Judicial Magistrate, Perunthurai. For petitioner : Mrs.Kovi Ramalingam For respondents : Mr.T.Murugamanickam O R D E R
Heard both the learned counsel appearing for the petitioner as well as the respondents.
2. This revision has been preferred challenging the order, dated 14.02.2008 made in I.A.No.202 of 2006 in O.S.No.636 of 1997 on the file of the District Munsif-cum-Judicial Magistrate, Perunthurai.
3. It is an admitted fact that the petitioner is the mother of the contesting first respondent. The suit was filed by the petitioner / plaintiff against her son, the first respondent herein, seeking for partition and separate possession of the suit schedule property. When the suit was pending before the Court below, the petitioner / plaintiff filed a memo, dated 22.11.2001 before the Court below, seeking withdrawal of the suit. In the aforesaid memo, the petitioner has stated that considering the partition that had taken place on 01.08.1996 and also the welfare of her son, the first respondent herein, she wanted to withdrew the suit and prayed the Court below to dismiss the suit filed by her without costs.
4. The Court below, considering the facts and circumstances, recorded the memo filed by the petitioner / plaintiff and dismissed the suit, as prayed for by the petitioner, by order, dated 26.11.2001. In the Judgment, dated 26.11.2001, the Court below has stated that the counsel for the petitioner / plaintiff reported no instructions and the petitioner / plaintiff had already filed memo in person, stating that she is not claiming any share in the suit property and considering the welfare of her son and the first respondent herein also requested the Court to dismiss the suit without costs. The memo was recorded, accordingly and the suit was dismissed as not pressed without costs on 26.11.2001 by the Court below . A copy of the Judgment is available at page numbers 37 and 38 of the typed set filed by the petitioner herein.
5. Learned counsel appearing for the petitioner submitted that the pettiioner is an aged woman and fraud has been played on her. In the grounds of the revision, the petitioner has stated that the trial court had failed to see that the memo was filed on 22.11.2001 with a fabricated document created by the first respondent. Learned counsel appearing for the petitioner also raised allegation against the counsel, who appeared for the petitioner before the Court below.
6. Learned counsel appearing for the petitioner further submitted that the petitioner was taken to the Court with undue influence of her son, the first respondent herein and without considering the same, the Court below recorded the memo. According to the learned counsel, the petitioner was not present on 21.11.2001 before the Court below. In support of her contention, the learned counsel appearing for the petitioner relied on the following decisions :
1. Jet Ply Wood (P) Ltd., vs. Madhukar Nowlakha, 2006 (3) SCC 699
2. Banwari Lal vs. Chando Devi, AIR 1993 SC 1139
3. Dadu Dayal Mahasabha vs. Sukhdev Arya, 1990 (1) SCC 189
7. Per contra, Mr.T.Murugamanickam, learned counsel appearing for the respondents drew the attention of this Court to page number 49 of the typed set filed by the petitioner, which is a copy of the recorded evidence deposed by the petitioner herein on 10.08.2007 before the Court below. During cross-examination, the petitioner herein has admitted that she was enquired and according to her, she was brought to the Court only by her son-in-law and that she attended the Court for the two days and for about 20 hearings, she had appeared before the Sub-Court and for about 10 to 15 times, she has further deposed that she was brought to the Court by her son-in-law and she did not know whether her son, the first respondent was present there or not. The aforesaid evidence deposed by the petitioner before the Court below, while she was cross-examined by the other side would clearly show that the memo, dated 22.11.2001 was voluntarily filed by her and the Court enquired about the same before recording her memo and she was also accompanied by her son-in-law, she has further stated that she did not know whether her son, the first respondent herein had attended the Court or not on the said date, in such circumstances, the petitioner cannot totally change her stand and raise allegation against her son, the first respondent herein.
8. In support of his contention, the learned counsel appearing for the first respondent, relied on Kasim Sait and 2 others vs. Pappamal and 25 others reported in 1996-1-LW 224, which reads as follows :
“8. …Earlier, it has been found that the compromise was arrived at after full discussion and deliberation and amounts have also been paid thereunder to the respondents or their predecessors-in-interest in relation to loss of standing crops and the compensation in respect of loss of tenancy rights and under these circumstances, the compromise cannot be in any manner assailed by the respondents.”
9. In the open court, during cross-examination, the petitioner has admitted that the memo was filed by her voluntarily, hence, the arguments advanced by the learned counsel appearing for the petitioner that the memo was filed against her will, that she had been forcibly taken by her son, the first respondent herein and fraud was played with the help of her counsel cannot be accepted, as a true version by the petitioner. Having admitted in the open court, the petitioner is estopped from stating a contradictory version.
10. Learned counsel appearing for the respondent submitted that the petitioner herein was with her son, the first respondent under his care and protection and subsequently, she is with her daughter and son-in-law. Only at the instigation of her son-in-law and daughter, she has taken a different stand and filed an application against her earlier memo, that was voluntarily filed by her, seeking withdrawal of the suit, after the same was recorded and the suit was dismissed as withdrawn.
11. In Jet Ply Wood (P) Ltd., vs. Madhukar Nowlakha, reported in 2006 (3) SCC 699, the Hon’ble Apex Court has held that an order permitting for withdrawal of suit, without permission being sought for to file a fresh suit and to recall of such order is maintainable under Section 151 of the Code of Civil Procedure, as the Code is silent in this regard. In such cases, inherent power of the Court would not come to aid to act, as per the maxim, ‘ex debito justitiae ‘ for doing real and substantial justice between the parties. Similarly it was held that where there are failure on the part of the Court below in discharging its duty, while recording a memo, not pressing suit, to meet the ends of justice and to prevent the abuse of process of law, this Court can invoke Article 227 and pass appropriate orders.
12. In Dadu Dayal Mahasabha vs. Sukhdev Arya, reported in 1990 (1) SCC 189, the Hon’ble Apex Court has held that while exercising the inherent power under Sections 151 and 115 CPC, High Court is empowered to vacate its order obtained by fraud or misrepresentation.
12. In Kasim Sait and 2 others vs. Pappammal and 25 others, reported in 1996-1-LW 224, this Court has held as follows :
“9. Even on the footing that the respondents can be permitted to question the compromise dated 28.2.1983, the further question is whether that could be done so by means of an application filed under O.9, R.9 C.P.Code, and that too, without reference to any period of limitation. Admittedly, on 28.2.1983 (sic) when O.P.28 of 1981 was closed on the basis of the joint compromise memo filed by counsel on both sides, there was no question of its dismissal for default. In that view, the application under O.9, R.9 C.P.Code, filed by the respondents was not in order, as there was no question of the dismissal of any proceedings for default and its restoration back to file. It is also significant that in this case the respondents have not invoked S.151, C.P.Code. If according to the respondents, the joint memo should not have been recorded by the court and an order passed thereon, then their remedy was different. On a consideration of the relevant provisions of Code of Civil Procedure as they stood prior to the amendments introduced by Act 104 of 1976 and after the introduction of the amendments by Act 104 of 1976, it is seen that though under S.96(3) of Civil Procedure Code, a consent decree is not appealable and a second suit challenging the validity of the compromise is also barred under O.23, Rule 3-A, yet, a remedy is provided under O.43, R.(1A) and (2) by way of an appeal against the decree by the party aggrieved, and in such an appeal, it shall be open to the party against whom the judgment is pronounced after an order is made under the provisions of the Civil Procedure Code or on the basis of either recording or refusing to record a compromise, to challenge the decree passed. This is the view that has been taken in Janab S.K.Kallulllah Sheriff’s case (1989 I MLJ 172 (supra) and the remedy of the respondents would, therefore, be not an application under O.9, R.9, C.P.Code. In addition, even if the application filed by the respondent be regarded as one filed under O.9, R.9 C.P.C., such an application should have been filed within thirty days from 28.2.1983 and this is not in dispute. Earlier, it had been held that the compromise is valid and binding and in that view, it follows that even if the application is construed to be one falling under O.9, R.9, C.P.Code, I.A.No.55 of 1991 should have been filed within thirty days from 28.2.1983 and the application filed on 14.9.1989, was clearly barred by time. ”
13. It is not in dispute that the Court below, by exercising its inherent power under Section 151 CPC or this Court, invoking revisional power under Section 115 CPC or superintending power under Article 227 of the Constitution is empowered to set aside an order passed by the said Court, based on a compromise memo, when it is established that there had been fraud played by a party in getting an order in their favour.
14. As per the Latin Maxim, “Ex dolo malo non oritur actio”, no right of action can arise out of fraud being committed, since rendering real and substantial justice is paramount for any Court. Accordingly, the Hon’ble Supreme Court referring various earlier decisions has given a ruling in the decision Jet Ply Wood (P) Ltd., vs. Madhukar Nowlakha, reported in 2006 (3) SCC 699, that fresh suit and recall of such impugned order was maintainable under Section 151 CPC, when there was order permitting withdrawal of a suit.
15. Similarly in Dadu Dayal Mahasabha vs. Sukhdev Arya, reported in 1990 (1) SCC 189, the Hon’ble Apex Court laid down the ratio that the Court, which passed the order, under Section 151 CPC and the High Court having revisional jurisdiction either under Section 115 CPC or supervisory power under Article 227 of the Constitution are empowered to vacate an order obtained by fraud or improper representation by any party.
16. In Kasim Sait and 2 others vs. Pappammal and 25 others, reported in 1996-1-LW 224, this Court has held a decree obtained by consent is binding on the parties and challenging the validity of the compromise is also barred under O.23, Rule 3-A, yet, a remedy is provided under O.43, R.(1A) and (2) by way of an appeal against the decree by the party aggrieved, and in such an appeal, it shall be open to the party against whom the judgment is pronounced or the decree passed on the ground, the compromise should not have been recorded.
17. In the instant case, this Court has to consider whether there has been any fraud played by the first respondent herein in obtaining an order of dismissal of the suit, by way of filing memo by the petitioner / plaintiff under a compelling circumstance or whether there is any improper exercise of power by the Court below in recording the memo filed by the petitioner, seeking permission to withdraw the suit and consequently dismissing the suit.
18. It is made clear that as per the admitted facts and materials available on record, the petitioner herein was present before the Court below on the date of recording the memo. As contended by the learned counsel appearing for the first respondent herein, it is seen from the evidence adduced by the petitioner herein during her cross-examination that she had admitted the memo filed by her to withdraw the suit, considering the welfare of her son, the first respondent herein. She has categorically admitted that she was accompanied by her son-in-law for about two days, on the date of filing the memo and subsequently, while the suit was dismissed. She has further stated that she had attended the District Munsif Court for about 20 hearings and appeared before the Sub-Court for about 10-15 times. She has further admitted in her cross-examination that she was brought to the Court only by her son-in-law and she did not know whether her son, the first respondent herein was present there or not.
19. In the aforesaid circumstances, the petitioner cannot raise a new defence after the dismissal of the suit, stating that her son, the first respondent had played fraud on her in filing the aforesaid memo by her. Similarly, she cannot raise a plea that her lower court counsel had colluded with her son, the first respondent herein, without any basis and supporting materials. Since the petitioner is a senior citizen and also a woman, the Court has to consider more carefully the version of the petitioner, with a view to render proper justice.
20. In the instant case, according to the learned counsel appearing for the first respondent, she was under the care and protection of her son, the first respondent herein, voluntarily she filed a memo in person before the Court below and the Court verified by putting questions to the petitioner with regard to the genuineness of the averments made and having satisfied with the same, recorded the memo and that is borne out even as per the evidence of the petitioner. In such circumstances, it cannot be said that the Court below has improperly exercised its jurisdiction, so as to warrant any interference with the decision of the Court below, invoking the revisional jurisdiction under Section 115 CPC. The petitioner has admitted that she was brought to Court by her son-in-law and therefore, the contention of the learned counsel appearing for the first respondent herein that at the instance of her son-in-law and daughter, the petitioner could have filed the Interlocutory Application in I.A.No.202 of 2006 in the suit, without any bonafide intention cannot be ruled out. Having voluntarily filed her memo to withdraw the suit, the petitioner has taken a different stand, by raising a plea that her son, the first respondent herein had played fraud on her, raised allegations against the Court below and also her counsel, who appeared before the Court below, without any basis, which cannot be accepted.
21. On the aforesaid facts and circumstances, I am of the view that the revision petition is liable to be dismissed, as it is an abuse of process of the Court.
22. In the result, this Civil Revision Petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. No costs.
31.01.2011
Index : Yes
Internet : Yes
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To
The Subordinate Judge
Ponneri.
S.TAMILVANAN, J
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C.R.P (NPD) No.24 of 2009
31-01-2011