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2008 DIGILAW 2374 (ALL)

KEDAR NATH v. FULENA

2008-12-01

TARUN AGARWALA

body2008
JUDGMENT Honble Tarun Agarwala, J.—The present writ petition has been filed for the quashing of the plaint dated 8.5.2006 in Original Suit No. 757 of 2006 and its entire proceedings . The facts leading to the filing of the present petition is, that the petitioners and the contesting respondents have common ancestors and are in physical and cultivatory possession of their shares in pursuance of some alleged family settlement. It transpires that the predecessors of the petitioners filed suit No. 1463 of 1956 which was decreed by an order dated 2.4.1956 in terms of a compromise. It is alleged by the present petitioners that the said suit was filed collusively by the defendants in the name of the predecessors of the petitioners without their knowledge. When the petitioners came to know about this fraud and the collusive decree, they filed a suit for the cancellation of the decree which was dismissed, against which an appeal was filed, and during the pendency of the appeal, an application was filed by the petitioners for the withdrawal of the suit as well as of the appeal which was allowed by the lower appellate Court. It is contended by the petitioners that the withdrawal was allowed with liberty to the petitioners to file afresh which fact is seriously disputed by the contesting respondent. 2. However, notwithstanding the aforesaid, it transpires that the village was notified under Section 4 of the U.P. Consolidation of Holdings Act and, based on this notification, the petitioners filed their objections contending that they are entitled for a larger share and that the decree passed by the Civil Court was not only a collusive decree but a void order since the Civil Court had no jurisdiction to try the suit. This matter was contested by the answering respondents. The Consolidation Officer allowed the objection of the petitioners and, allocated a larger share and, in this process held that the decree passed by the Civil Court was a collusive decree and was liable to be ignored. The contesting respondents filed an appeal which was dismissed by an order dated 11.9.1991 and the revision was also dismissed by the Chief Revenue Officer/Deputy Director Consolidation by an order dated 5.6.2000. The contesting respondents filed an appeal which was dismissed by an order dated 11.9.1991 and the revision was also dismissed by the Chief Revenue Officer/Deputy Director Consolidation by an order dated 5.6.2000. The respondents being aggrieved by the said orders filed a Writ Petition No. 27061 of 2000, which was dismissed by a judgment dated 10.7.2005, against which, the defendants filed a Review Application which was also dismissed by an order dated 2.5.2005. The respondents thereafter filed a Special Leave Petition before the Supreme Court which was dismissed by a judgment dated 1.8.2005. The controversy with regard to the allocation of the shares finally came at rest and the dispute was settled once and for all. 3. Notwithstanding the fact that the order of the Consolidation Officer had become final vis-a-vis the allocation of the shares between the petitioners and the respondents, the contesting respondents filed Suit No. 757 of 2006 praying that the order of the Chief Revenue Officer/Deputy Director of Consolidation dated 5.6.2000 be declared void and unenforceable and that the judgment of the High Court should be ignored and the suit of the plaintiff/respondents should be decreed. The plaint allegation is, that the High Court committed an error in upholding the judgment of the Deputy Director of Consolidation and that the decree of the 1956 could not be held to be void by the Consolidation authorities. 4. The petitioners, being aggrieved by the institution of the suit has filed the present writ petition, praying for the quashing of the proceedings of the plaint on the ground that not only the suit was barred by the principles of res judicata but it is also a misuse of the process of the Court and that when the issue involved in the question had been finally settled at rest right upto the stage of the Supreme Court, the same could not be reopened on such grounds which are frivolous and contemptuous grounds. 5. Heard Sri R.C. Singh, the learned counsel for the petitioners and Sri N.C. Rajvanshi, assisted by Sri M.K. Rajvanshi, the learned counsel for the contesting respondents. 6. 5. Heard Sri R.C. Singh, the learned counsel for the petitioners and Sri N.C. Rajvanshi, assisted by Sri M.K. Rajvanshi, the learned counsel for the contesting respondents. 6. Sri Rajvanshi, the learned counsel for the contesting respondents submitted that the petitioners have a remedy of filing an application under Order VII Rule 11 of the C.P.C. for the rejection of the plaint and that the Civil Court had full power to reject the plaint and consequently, the Court should not interfere at this stage. In support of his submission, the learned counsel has placed reliance upon a decision of this Court in U.P. Avas Evam Vikas Parishad v. State of U.P. and others, 2001(4) ALR 215, wherein it has been held that since the relief could be claimed under Order VII Rule 11 of the C.P.C. the remedy under Article 226 was not the appropriate remedy. The learned counsel also placed a decision in Aligarh Muslim University v. VIIth Addl.C.J.M. (Addl.C.J.) Aligarh and another, 1999(36) ALR 571, where the Court held that if the suit was barred under the provisions of the Stamp Act, the remedy available was to file an application under Order VII Rule 11 of the C.P.C. or get a preliminary issue framed on that issue. 7. There is no quarrel in the aforesaid proposition of law laid down in the aforesaid decisions and normally the Court should allow the parties to seek the remedy that is available under the C.P.C. and should not invoke the jurisdiction of the Court under Articles 226 and 227 of the Constitution of India. If the suit is barred, the remedy available is under Order VII Rule 11 of the C.P.C. but, in the present case, this Court finds that not only the plaintiffs have misused the process of the Court but the plaint allegation is contemptuous in nature. On a plain reading of the averments made in the plaint, it is clear, that the plaintiffs are making contemptuous allegations against the judgment delivered by the High Court. The matter has already been adjudicated under the Consolidation Act right from the stage of the Consolidation Officer till the stage of the Supreme Court of India. The allocation of shares made by the authority has now been finally settled and it is no longer open to the parties to reopen the said matter. The matter has already been adjudicated under the Consolidation Act right from the stage of the Consolidation Officer till the stage of the Supreme Court of India. The allocation of shares made by the authority has now been finally settled and it is no longer open to the parties to reopen the said matter. The consolidation authority had clearly adjudicated that the decree passed by the Civil Court in the year 1956 was a void decree since the Civil Court had lost its jurisdiction relating to the declaration of a right in respect of agricultural land which stood vested with the revenue authorities. The consolidation authorities further found that the petitioners were entitled to a larger share of the agricultural holding. 8. A judgment or a decree could be set aside on a limited ground, namely, on the ground of fraud or collusion. If a judgment or a decree has been obtained on account of fraud or collusion, a suit for a declaration could be filed. In the present case, from a reading of the averments made in the plaint, this Court finds that no such plea of fraud or collusion has been levelled by the plaintiffs against the contesting respondents. Consequently, this Court is of the opinion that the suit could not have been filed. The judgment of the Consolidation authorities which has been affirmed by the High Court as well as by the Supreme Court becomes binding inter-se between the parties and leaves no scope for the petitioners to file a suit all over again for the same issue. The principle of res judicata will come into the play. 9. In Biswanath Malik v. Munsif Magistrate (West) Allahabad and others, 1996(1) ARC 344, the Court quashed the proceedings of a suit instituted by the sons of the tenant against whom an order of eviction had become final upto the stage of the High Court. The Court found that the suit filed by the sons was an abuse of the process of the Court and had not only quashed the proceedings but also awarded Rs. 2000/- as cost. 10. In Smt. Raj Kumari Kapoor v. Civil Judge, Kanpur and others, 1987 ALJ 137, the order of eviction had become final and the tenant again filed a civil suit and obtained an injunction against an order of eviction. 2000/- as cost. 10. In Smt. Raj Kumari Kapoor v. Civil Judge, Kanpur and others, 1987 ALJ 137, the order of eviction had become final and the tenant again filed a civil suit and obtained an injunction against an order of eviction. The writ petition under Article 226 of the Constitution of India was filed seeking the quashing of the plaint. The Court found that the suit filed was an abuse of the process of the Court and that an appeal under Order 43, Rule 1 of the C.P.C. was not an efficacious alternative remedy, and therefore, entertained the writ petition and quashed the suit itself. 11. In Suresh Chand Jain v. Jai Kishan Goswami, 1993(2) ARC 484, the Supreme Court observed that the course adopted by the tenant was a sheer abuse of the process of the Court. The Supreme Court not only quashed the order of the District Judge as well as of the High Court but also awarded exemplary cost of Rs.15,000/- and directed the police to provide delivery of possession to the landlord. 12. In Jhumman Singh and others v. Central Bureau of Investigation and others, AIR 1995 SC 2083 , the decree of Gauhati and Gaya Courts was quashed in a petition filed under Article 226 of the Constitution of India on the ground that the decree obtained were a forged decree. In Smt. Chandan Devi v. IInd Additional District Judge, Nainital and others, 1998 ALJ 525, inspite of a clear order against a tenant, a suit was filed to avoid eviction. The Court not only quashed the suit but also directed the tenant to pay damages and cost. 13. In Gulab Chandra v. Municipal West, Allahabad, 1988 AWC 537, a Division Bench of this Hon’ble Court held that where it is established that the litigation was a sham, illusory, collusive and inspired by nefarious and vexatious designs, the Court not only has a jurisdiction but owes a duty to throttle such litigation at the thresh hold itself. The Division Bench found that suit was a misuse of the process of the Court and consequently exercised its powers under Articles 226 and 227 of the Constitution of India and quashed the plaint. 14. The Division Bench found that suit was a misuse of the process of the Court and consequently exercised its powers under Articles 226 and 227 of the Constitution of India and quashed the plaint. 14. In the light of the aforesaid decisions, it is clear beyond doubt that the plaintiff-respondents have tried to over reach the Court and has resorted to such tactics by filing a suit in order to circumvent and defeat the judgment passed by the Consolidation authorities. Such tactics cannot be allowed to succeed and such person indulging in such tactics should be dealt with properly at the thresh hold itself. The Court cannot allow the defendants to take recourse to long drawn proceedings by filing an application under Order VII Rule 11 or get an issue framed in this regard. When such blatant misuse or rather abuse of the process of the Court comes to light, this Court has a duty to rectify such errors and restore the faith in the common man in the judicial system that prevails in our country. It is imperative that the Court is required to interfere under Article 226 and issue directions under Article 227 of the Constitution of India. 15. For the reasons stated aforesaid, the Court holds that the suit filed by the plaintiff-contesting respondent was an abuse of the process of the Court and the plaintiff-contesting respondents have tried to over reach the Court and has tried to circumvent the orders of the consolidation authority by adopting such tactics. The Court therefore quashes the plaint and the entire proceedings and further directs the plaintiff-contesting respondents to pay cost of Rs. 20,000/- to the plaintiffs. This amount shall be deposited by the plaintiff-contesting respondents before the trial Court within six weeks from today. The amount so deposited can be withdrawn by the petitioners. In the event the plaintiff-contesting respondents fails to deposit the said amount within the period prescribed, this order shall become executable and it would be open to the petitioners to move an appropriate application before the executing Court for the recovery of the cost. 16. The writ petition is allowed. ————