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1979 DIGILAW 967 (ALL)

Gajraj v. Sitaram

1979-09-06

SAIDULLAH

body1979
JUDGMENT Saidullah, Member. - This is second appeal against the order of the Additional Commissioner, Varanasi, dated 30.3.1979 whereby he allowed two appeals against the order passed by Assistant Collector, First Class, In-charge of the Sub-Division, Shahganj, district Jaunpur, dated 4.7.1979. 2. Briefly, the facts of the case are that the appellants had sought declaration of Sirdari rights over the plot nos. 17/90, 229/5-54 situated in Gaon Sabha Lapri. The suit was decreed in favour of the plaintiff-appellants on 6.7.75 but the decrees was passed ex parte against the Gaon Sabha. An application was moved on behalf of the Gaon Sabha on 4.12.1975 for setting aside the said ex parte decree. The grounds advanced were that the decree had been obtained by the plaintiff-appellants through collusion with the Gaon Pradhan and passing of the ex parte decree was not known to the Gaon Sabha. It was further urged that the decree had been obtained by practicing fraud on the court in as much as forged entries in Khatauni 1372-1375 Fs were produced purporting to be the extracts from the original Khatauni, while in fact no such entries existed in the said Khatauni. It was further urged that the delay in moving the application for setting aside the ex parte decrees may be condoned under section 5 of the Indian Limitation Act. The learned trial court dismissed the application for setting aside the ex parte decree. The learned Additional Commissioner allowed the appeals and set aside the order of the trial court. The learned Additional Commissioner has also observed that in view of the fact that a patent fraud had been practiced on the court, the ends of justice would be served if action under section 151 C.P.C. was taken by him and inherent powers of the Court were invoked to ensure that the benefits arising out of the said fraud were not enjoyed by the plaintiff-appellants. 3. 3. I have heard the learned counsel for the appellants at considerable length and also gone through the large number of rulings cited by him in supported of the contention that section 151 C.P.C. could not be invoked in matters where other specific remedy provided by law was available and that merits of the case could not be looked into at the time of setting aside the ex parte decree nor could the trial court look into the effect of defective service of summons on any party. The learned counsel has cited rulings reported in 1970 A.I.R. (S.C.) 977 (b) wherein has been held that the court cannot make use of section 151 C.P.C. where a party had a remedy provided elsewhere in the Code and neglected to avail himself of the same and this power cannot be exercised as an appellate power; 1970 R.D. 323, which lays down that a court has no jurisdiction to set aside decree either under section 151 C.P.C. or under order XXIII Rule 3 C.P.C Defendant applying to court to set aside the consent decree on the basis that it was not being honoured the trial court could not set aside the decree on that ground. It is worth noting that in this ruling it was mentioned that no fraud was practiced on the court; 1957 A.I.R. (Allahabad) 820, which deals with the setting aside of a compromise decree under section 151 C.P.C. The principle enunciated is that the inherent jurisdiction of the court cannot be invoked when another remedy is open under the law to a party but he did not pursue that remedy; 1960. A.I.R. (Allahabad) 360, in which it has been held that inherent powers of the court should not be invoked to circumvent the mandatory provisions of the Code. However, that very ruling lays down that "It is well established that fraud on the Court itself and mistake of the court and the protection of minors are categories of cases in which the powers given to the court under section 151 of the code may be exercised in suitable cases. However, that very ruling lays down that "It is well established that fraud on the Court itself and mistake of the court and the protection of minors are categories of cases in which the powers given to the court under section 151 of the code may be exercised in suitable cases. Independently of the provisions of order IX Rule 13, under which provision an application for setting aside an ex parte decree has to be made, the Court is not entitled to set aside an ex parte decree under its inherent powers unless the case falls under either of the above categories of cases 1968 R.D. 15 this ruling deals with Order XXIII Rule 13 and as such it has no application to the present case 1971 R.D. 323 this ruling also relates to the setting aside of consent decree only through a regular suit or by an application for review of judgment on any ground which can justify cancellation of an agreement on the decree is passed. This ruling also is not applicable to the facts of the present case, R.D. 1973 page 304 this ruling lays down that in setting aside the ex parte decree the merit of the case should not be discussed. This ruling related to the setting aside the of ex parte decree on account of the bar under section 49 of the U.P. Consolidation of Holdings Act and as such has no application to the present appeals; 1974 A.I.R. (Allahabad) 294 this ruling is not attracted to the facts of the present case because it deals with averment in plaint of plaintiff's readiness and willingness to perform a contract. This is not the matter at issue in the proceeding before me; 1977 A.I.R. (S.C.) 1348, this ruling relates to Income Tax case in which the High Court had declined to answer a reference in the absence of party and non-filing of paper book, in which the High Court had inherent power to recall its earlier order and dispose of the reference on merits. The authority says that there was sufficient cause for looking in the reference. 4. I have quoted in extenso from the authorities to show that the facts of the present appeal are easily distinguishable from these rulings as none of them deal the effect of fraud practiced on a court. The authority says that there was sufficient cause for looking in the reference. 4. I have quoted in extenso from the authorities to show that the facts of the present appeal are easily distinguishable from these rulings as none of them deal the effect of fraud practiced on a court. In the instant case, the trial court had prepared a memo after comparing the entries in the original Khatauni 1372-1375F and coming to the conclusion that the extracts of Khatauni which purported to be true copy of the record of the original Khatauni were forged. In deciding the suit under section 229B of the U.P.Z.A. & L.R. Act the Court had definitely taken into consideration these forged entries irrespective of other evidence produced before the Court. The trial court; therefore, would have been justified in invoking its inherent powers under section 151 C.P.C. and setting aside the ex parte decree on the ground that fraud had been practiced on the court in obtaining the said decree. None of the rulings cited above have dealt with this aspect of the case and in fact they have made exception in the case of fraud practiced on court, Section 151 C.P.C. arms the court with inherent powers to ensure that justice is done to parties without any taint of fraud, and these powers should be invoked to secure the ends of justice. There can be no better case than the present one in eliminating fraud that had been admittedly practiced on the court. The same view had been expressed in the ruling reported in 1978 R.D. 16 wherein the correct legal position has been laid down that it is a basic and wholesome view of law that where fraud is practiced upon the court and a fraudulent decree is obtained the court has not only the jurisdiction under section 151 C.P.C. but also the duty cast upon it to undo the said fraud. The aim of the court is to further the ends of justice and not to let injustice prevail. It cannot be denied that fraud vitiates all proceedings and no person can be permitted to enjoy the benefit arising out of any litigation. 5. With utmost respect of the authorities discussed above that have no application to the present case I am inclined to hold that this appeal should not be admitted and is accordingly dismissed.