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2001 DIGILAW 984 (MAD)

Kannaiyan and others v. Periamalai

2001-08-31

PRABHA SRIDEVAN

body2001
Judgment :- 1. The appellants plaint was rejected underO.7, Rule 11, C.P.C. as barred by res judicata. 2. The respondent filed a suit against the appellants for partition and separate possession. Preliminary decree was passed on 30.4.1985. Thereafter, the respondent applied for passing of final decree on 9.4.1986. The appellants entered appearance on 16.8.1986 and filed an application to set aside the ex parte decree along with an application to condone the delay of 470 delays. According to them, even before the passing of preliminary decree, there was a Panchayat and the respondent had agreed to receive Rs.2,000 in lieu of his claim and also promised to withdraw the suit. The appellants under the impression that the suit would be withdrawn, had not appeared in Court on the date when preliminary decree was passed. Only when they received notice of the final decree proceedings, they came to know of the fraud committed by the respondent. So they filed an application to set aside the ex parte decree. But there was a delay of 470 days which had to be condoned. The trial Court condoned the delay. But in revision filed against that in C.R.P. No.1632 of 1988, this Court had set aside the order of the trial Court on 24.9.1993. Thereafter, the appellants filed O.S. of 1997 for a declaration that the decree is invalid on the ground of fraud. This was rejected by the District Munsif, Sirkazhi on the ground that the suit is barred by res judicata. Against that, the appellants preferred an appeal to the Principal Sub Court, Mayladuthurai who confirmed the same and therefore, this second appeal. 3. Three substantial questions of law were framed by this Court while admitting the second appeal. “(1) Whether the Courts below erred in holding that the decision rendered in an interlocutory application would operate as res judicata for the subsequent suit? (2) Whether the Courts below erred in rejecting the plaint on the ground the same is barred by res judicata without numbering the plaint and permitting the parties to let in evidence? “(1) Whether the Courts below erred in holding that the decision rendered in an interlocutory application would operate as res judicata for the subsequent suit? (2) Whether the Courts below erred in rejecting the plaint on the ground the same is barred by res judicata without numbering the plaint and permitting the parties to let in evidence? (3) Whether the lower appellate Court erred in holding that the present suit is barred by res judicata and cannot be re-opened because the earlier suit reached its finality even if there is an allegation of fraud contrary to the decision of Supreme Court reported in S.P.Chengalvaraya Naidu v. Jagannath S.P.Chengalvaraya Naidu v. Jagannath S.P.Chengalvaraya Naidu v. Jagannath (1994)1 S.C.C. 1 ?“ 4. Mr.A.Muthukumar, learned counsel for the appellants submitted that fraud avoids all judicial acts as laid down in the decision reported in S.P.Chengalvaraya Naidu v. Jagannath S.P.Chengalvaraya Naidu v. Jagannath S.P.Chengalvaraya Naidu v. Jagannath (1994)1 S.C.C. 1 , where it was held that a judgment or decree obtained by playing fraud is a nullity and the principle of” finality of litigation “cannot be pressed to the extent that it becomes an engine of fraud in the hands of dishonest litigants. The learned counsel submitted that the principle of res judicata is based on the salutary principle that every action must attain a finality and the same bogey cannot be raised again and again. But that will not apply in cases of decrees obtained by fraud because such decrees are non-est and therefore cannot operate as res judicata. He also relied on the decision reported in Beli Ram and Bros. v. Mohjd. Afzal A.I.R. 1948 P.C. 168 which is to the same effect and the decision in Vellappan v. Peter Thomas A.I.R. 1979 Ker. 194. He also referred to Sec.44 of the Evidence Act which carves out an exception to Sec.11, C.P.C. He would therefore submit that the Court atleast ought not to have rejected the plaint even at the threshold, but should have given an opportunity by taking the suit on file and after trial, arrived at a decision on merits. 5. 194. He also referred to Sec.44 of the Evidence Act which carves out an exception to Sec.11, C.P.C. He would therefore submit that the Court atleast ought not to have rejected the plaint even at the threshold, but should have given an opportunity by taking the suit on file and after trial, arrived at a decision on merits. 5. Mr.P.Veeraraghavan, learned counsel for the respondent on the other hand submitted that when fraud is alleged, the least that the suitor should do is give particulars of the fraud and in this case, no details of fraud were furnished except vague averments to the effect that the decree was obtained by fraud and this is the reason why the lower appellate Court held that the same question had already been decided in the proceedings that arose out of the application for condonation of delay in setting aside the ex parte decree. New reasons or new acts of fraud have not been either set out in the plaint or pleaded and therefore, the lower appellate Court rightly came to the conclusion that this suit was barred by res judicata. There was no reason to interfere with the same and in any event, no subsequential question of law arose for consideration. If we look at the plaint averments, it is alleged that the respondent falsely state that the properties were purchased by the father and mother and this went to the root of the case and that it was also a deliberate falsehood to say that some of the properties belonging to the respondents mother were purchased then, and that, “These material and relevant facts are known to the defendant and he was fully aware of these sale deed. At any rate during Panchayat these facts came up for discussion and then only the defendant agreed for compromise.” According to the appellants, the suppression of these material facts amounted to fraud on Court and therefore, the decree can be reopened by a new action since the earlier one had been obtained by fraud. In C.R.P. No.1632 of 1988 mentioned above, the learned Judge had summarised the case before him as follows: “There was a panchayat in which the revision petitioner agreed to receive Rs.2,000 for his claim and on the ground that he promised to withdraw the suit and that Rs.2,000 was paid. In C.R.P. No.1632 of 1988 mentioned above, the learned Judge had summarised the case before him as follows: “There was a panchayat in which the revision petitioner agreed to receive Rs.2,000 for his claim and on the ground that he promised to withdraw the suit and that Rs.2,000 was paid. Since he though at the respondents would have withdrawn the suit, they had kept quiet and only after service of notice in the petition for passing of final decree, they came to know of the fraud committed by the respondent and hence the delay had occurred. That was resisted by the revision petitioner denying the above said panchayat and the receipt of Rs.2,000.” Again: “This conduct would go a long way to (show) that the panchayat and settlement put forth by them cannot be true.” Finally, the learned Judge held thus: “Considering the totality of evidence, it is absolutely clear that the panchayat alleged and the payment alleged are all not true. The Court below had adopted an erroneous approach and hence came to an erroneous conclusion regarding the panchayat and payment thereof and condoned the delay. The said order cannot be sustained and the same is set aside.” 6. If one takes the plaint averments to be true, the appellants had brought to the notice of the respondent the fraudulent pleas made in the suit for petition and the suppression of material documents in the said suit and consequently the respondent had agreed to come for a compromise and there was this alleged Panchayat which resulted in the respondent agreeing to withdraw the suit. Now, the judgment in C.R.P. shows that this Court had found the appellants case of panchayat to be false and unbelievable. The appellants had raised the same issue of the respondent playing a fraud on Court by suppressing certain material factors as seen from the above extract. It is the very same issue that they are now trying to rake up in the present unnumbered suit. It is not wonder then that the Court below held thus: 7. The appellants had raised the same issue of the respondent playing a fraud on Court by suppressing certain material factors as seen from the above extract. It is the very same issue that they are now trying to rake up in the present unnumbered suit. It is not wonder then that the Court below held thus: 7. While a decree obtained by fraud will not operate as res judicata as held by the Supreme Court in the decision referred to above, definitely the appellants cannot say that having once invited a decision regarding the case of fraud pleaded by the appellants which was found to be false, a subsequent suit on the same ground is definitely barred by res judicata. The same witnesses will have to be called in for evidence and the same documents will have to be produced before the Court and the trial Court will be called upon to decide whether the case of the Panchayat pleaded by the appellants is true or not and whether the preliminary decree had been obtained fraudulently by the respondent suppressing the panchayat despite the finding in C.R.P. No.1632 of 1988 which has become final, that there was no panchayat and that there was no fraud played by the respondent. This goes contrary to all settled principles of jurisprudence. Therefore, none of the substantial question of law raised by the appellants merit acceptance. The C.M.S.A is dismissed with costs. C.M.P.No.362 of 2001 is closed.