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2001 DIGILAW 1439 (PNJ)

Ashwani Kumar Aggarwal v. Kalawati

2001-12-21

BAKHSHISH KAUR

body2001
JUDGMENT Bakhshish Kaur, J. - Challenge in this revision is to the impugned order whereby the learned Additional District Judge has affirmed the order passed by the trial Court on an application under Order 39 Rules 1 & 2 read with Section 151 CPC. 2. Smt. Kalawati-plaintiff is residing at Jagadhri. Her husband had expired on July 10, 1964. After his death, family settlement was arrived at between the plaintiff and other legal heirs of Peru Mal; father-in-law of the husband of the plaintiff. In the said family settlement, the properties situated at Jagadhri as well as at Dehradun had fallen to their shares. The defendant Ashwani Kumar Aggarwal was having an evil eye on the properties of the plaintiff and with mala fide intention, got a decree in respect of the property under challenge, situated at Jagadhri by playing fraud upon the plaintiff and by misrepresenting her at Jalandhar courts. It is further averred that the defendant is a clever person. Earlier also, he had played fraud upon her by getting the properties in dispute transferred in his name through a sale deed dated 27.3.1984. He had even attempted to sell the property. Hence, she had filed a suit for permanent injunction against the defendant at Jagadhri. In the written statement the defendant-petitioner had mentioned the fact of passing of decree by the Civil Court at Jalandhar in his favour. Thus, for the first time, she came to know about the decree passed against her by the Civil court at Jalandhar. 3. The aforesaid decree so passed in favour of the defendant has been challenged by the plaintiff, apprehending that on the basis of the decree, the defendant would dispose of the property, which will deprive her of her right to property. 4. The point raised by Shri C.L. Sharma, is that the plaintiff was fully aware of the passing of the decree in favour of the defendant and she has suppressed the material facts that the interim stay was already declined to her by the Civil Court at Jagadhri where suit for injunction is pending. The said suit was filed on 27th September, 1995. Therefore, she is not entitled to the discretionary relief of interim injunction under Order 39 Rules 1 and 2 CPC and the courts below were error in allowing the same. 5. The said suit was filed on 27th September, 1995. Therefore, she is not entitled to the discretionary relief of interim injunction under Order 39 Rules 1 and 2 CPC and the courts below were error in allowing the same. 5. The petitioner, no doubt, placed on record copy of the plaint in Civil Suit No. 618 dated 27.9.1995 (Kalawati v. Ashwani Kumar and others). However, copy of the order, or, the order vide which the stay has been declined has not been placed on record. The date of decision on the certified copy of the plaint is mentioned as November 03, 1999. The present suit No. 232 of 1999 was instituted by the plaintiff November 26, 1998. Thus, the objection raised by the learned counsel for the petitioner that the respondent has concealed material facts is not tenable because this suit was instituted prior to the decision of the suit No. 618 pending in Civil Court, Jagadhri i.e. this suit was filed one year prior to the decision rendered on November 03, 1999. 6. The other objection raised that the suit is barred by limitation, therefore, she is not entitled to the injunction, is not required to be looked into for the purpose of decision of this revision, as this question will be considered only by the trial court at the time of decision of the suit. Moreover, where a judgment or decree has been obtained by playing fraud upon the Court, the same can be challenged in any Court at any stage in the litigation, as has been observed by the Apex Court in S.P. Chengalvaraya Naidu v. Jagannath, 1994(2) Civil Court Cases 131 . It is also observed that a judgment or decree obtained by playing fraud on the Court is a nullity and non est in the eyes of law. 7. It is also well-settled that when there is concurrent finding arrived at by the courts below, the High Court should not interfere unless the jurisdiction vested in the Court has been exercised illegally or with material irregularity. In this regard reliance is placed on The Managing Director (MIG) Hindustan Aeronautics Ltd., Balanagar, Hyderabad and another v. Ajit Prasad Tarway, Manager (Purchase and Stores) Hindustan Aeronautics Ltd. Balanagar, Hyderabad, AIR 1973 SC 76 and The Municipal Corporation of Delhi v. Suresh Chandra Jaipunia and another, AIR 1976 SC 2621. In this regard reliance is placed on The Managing Director (MIG) Hindustan Aeronautics Ltd., Balanagar, Hyderabad and another v. Ajit Prasad Tarway, Manager (Purchase and Stores) Hindustan Aeronautics Ltd. Balanagar, Hyderabad, AIR 1973 SC 76 and The Municipal Corporation of Delhi v. Suresh Chandra Jaipunia and another, AIR 1976 SC 2621. In view of the aforesaid, there being no patent error in the impugned order, this revision merits dismissal as it is not tainted with serious legal infirmity justifying interference. Dismissed. Revision dismissed.