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2006 DIGILAW 606 (MAD)

P. Gopalasamy v. Dishnet Wireless Ltd. & Another

2006-03-03

S.R.SINGHARAVELU

body2006
Judgment :- (Civil Revision Petition filed under Article 227 of Constitution of India, against the docket Order in I.A.(S.R)No.52738 of 2005 in O.S.No.6850 of 2005 dated 05.12.2005 on the file of V Assistant Judge, City Civil Court, Chennai.) Plaintiff is the revision petitioner. He has filed a suit in O.S.6850 of 2005 on the file of V Assistant Judge, City Civil Court, Madras, for declaration that the alleged Memorandum of Understanding (MoU) dated 30.03.2004 in between the parties to the suit as null and void and for a permanent injunction restraining the defendants from using the alleged MoU for any other purpose. 2. The suit was filed on 14.10.2005 against the first defendant company and the second defendant describing as its Managing Director. Vakalat was filed for the second defendant on 25.10.2005. Suspecting the signature in the vakalat as not belonging to second defendant and apprehending that the later is attempting to mislead the court, comparison of the signature of second defendant was sought to be made in the signature found in the vakalat. For which purpose, appearance of second defendant in court was prayed for to take his admitted signature. This was prayed in the application filed under section 73 of the Indian Evidence Act. 3. In the said application, the trial court passed the following order: "The issue raised through this petition is not an issue in the suit. Hence, no direction need be given under section 73 of Indian Evidence Act". Aggrieved over this order, the plaintiff has preferred this revision petition. 4. There is strong dispute between the parties as to whether at all second defendant is a Managing Director of the first defendant company. Contra documents were shown on either side. Plaintiff's reliance upon a website of first defendant company in showing that the second defendant was only a promoter and Managing Director was objected to by the respondents / defendants. 5. Learned counsel for the revision petitioner / plaintiff has submitted that it is also a piece of evidence to be looked into by the court. 6. I may only say here that the trial court will look into such of those documents in finding out as to whether second defendant is the Managing Director of the first defendant company or not. 7. 6. I may only say here that the trial court will look into such of those documents in finding out as to whether second defendant is the Managing Director of the first defendant company or not. 7. Learned counsel for the revision petitioner has further submitted that even assuming that second defendant is not the Managing Director of the Company, so long as his name was found in the cause title as one of the parties, whether necessary or unnecessary he may not be permitted to play fraud upon the court by filing a vakalat which contains no signature of him. 8. It is true, as observed in UDAY SHANKAR TRIYAR vs. RAM KALEWAR PRASAD SINGH AND ANOTHER ( (2006) 1 SCC 75 ), even though the above issue is not directly related to the scope of the suit, one cannot permit the party to play fraud upon the Court. Thus, it becomes a matter for decision. 9. Learned Senior Counsel for the first respondent submitted that much more degree of fraud on the part of revision petitioner / plaintiff. It was submitted that the first defendant company, believing the words of the revision petitioner, purchased 9 grounds for more than Rs.60 lakhs and after purchase, when it was found that 1/3rd of the land was already acquired by the CMDA, a complaint for cheating against the revision petitioner was filed; for which, MoU dated 30.03.2004 was arrived at agreeing for an arbitration and based upon that MoU, the criminal complaint was withdrawn. Turning round the table, the revision petitioner comes with the suit disputing the MoU and with a prayer not to use the MoU for any other purpose. 10. As such, I come to a conclusion that fraud alleged on either side; one, inside the suit against the plaintiff and the other, outside the scope of the suit; but done in the process of the suit itself. So, the impugned order is liable to be set aside. 11. However, in my view, the presence of the second defendant for the purpose of getting his signature need not be required; as by order of court, the admitted signature of second defendant could be produced for the purpose of comparison. So, the impugned order is liable to be set aside. 11. However, in my view, the presence of the second defendant for the purpose of getting his signature need not be required; as by order of court, the admitted signature of second defendant could be produced for the purpose of comparison. Further, the elements of actus reas and mens rea on the part of the second respondent / second defendant has to be gone into, in order to satisfy the availability of the sine qua nons of the term 'cheating' and 'fraud' as defined in the Indian Penal Code. 12. That process need not necessarily be done in an anterior proceedings than the trial of the suit. It may make parties to go tangently away from the scope of the suit and will ultimately make the suit in cold storage. Therefore, it is necessary to consider this aspect along with the trial of the suit itself and to give a finding during the disposal of the suit, after contest. 13. In the light of the observations, civil revision petition is allowed, by setting aside the impugned order passed by the trial court. No costs. Consequently, connected C.M.P. is closed.