Research › Search › Judgment

Allahabad High Court · body

2011 DIGILAW 2545 (ALL)

Rajani Chauhan v. Saroj Singh and others

2011-11-09

SHASHI KANT GUPTA

body2011
Shashi Kant Gupta, J.;- This writ petition is directed against the impugned order dated 27.9.2011 whereby an application of the petitioner for recalling the judgment and order dated 18.12.2009 passed by Additional District Judge, Court No. 2, Bulandshahr in Small Causes Case No. 9 of 2004 (Smt. Saroj Singh and another Vs. Smt. Rajni Chauhan and another) has been dismissed. 2. SCC Suit No. 9 of 2004 was filed by the landlord-Respondent No. 1 in March 2004 against the petitioner for arrears of rent and ejectment. The said suit was decreed against the petitioner by judgment and order dated 18.12.2009. Being aggrieved and dissatisfied with the said judgment and decree order dated 18.12.2009, the petitioner preferred a SCC Revision No. 19 of 2010 before this Court which was finally disposed of by judgment and order dated 19.1.2010. For ready reference, judgment and order dated 19.1.2010 passed by this Court in SCC Revision No. 19 of 2010 is quoted herein below; "Heard Sri H.N.Singh, learned counsel for the revisionists and Sri M.K.Gupta, learned counsel for the respondents-landlord. This is a revision under Section 25 of the Provincial Small Causes Court Act against the judgement and order dated 18.12.2009 passed by the Judge Small Causes Court/Additional District Judge, Court No.2, Bulandshahar in Small Causes Case No. 9 of 2004 (Smt. Saroj Singh and another Vs. Smt. Rajni Chauhan and another), whereby the suit filed by the respondents-landlord for eviction and recovery of arrears of rent has been allowed. After the matter was heard at quite some length, the parties have agreed to settle the same in the terms as stated hereunder:- 1. The revisionist-tenants shall vacate the premises on or before 31.5.2010 and handover the vacant and peaceful possession to the respondents-landlord. 2. The revisionists-tenant shall pay the entire arrears of rent at the rate of Rs. 7,000/- (seven thousand) per month from 1.5.2003 up to 31.12.2009 by 4th March, 2010. 3. The revisionists-tenants shall continue to pay the monthly rent at the rate of Rs. 7,000/- per month by 7th of the next succeeding month when it falls due, till he vacates the premises in question. The aforesaid conditions agreed by the parties shall be reduced in the form of an undertaking by the revisionists-tenant within 15 days from today and such undertaking should be filed by him before the Trial Court. 7,000/- per month by 7th of the next succeeding month when it falls due, till he vacates the premises in question. The aforesaid conditions agreed by the parties shall be reduced in the form of an undertaking by the revisionists-tenant within 15 days from today and such undertaking should be filed by him before the Trial Court. In the event such undertaking is not filed, this order shall stand vacated and the decree shall become executable forthwith. It is also provided that in case any of the conditions contained in the undertaking are violated by the revisionists-tenant, the decree would become executable forthwith. This civil revision stands disposed of as above. The parties may bear their own costs. " 3. The aforementioned order passed by this Court reveals that the matter was heard at length by this Court and with the consent of the parties, the revision was decided but the petitioner instead of complying with the order dated 19.1.2010 passed by this Court, in order to prolong the execution proceedings, filed an application for recalling the judgment and decree dated 18.12.2009, inter alia, on the ground that the said judgment was obtained through fraud, collusion and mis-representation. The said application was dismissed by the court below by a detailed order dated 27.9.2011. Aggrieved with the said order, the present writ petition has been filed. 4. The matter was heard on 8.11.2011 and after perusing the record, this Court was of the tentative opinion that the present petition is nothing but an abuse of the process of the Court and liable to be dismissed with exemplary cost. Thereupon the learned counsel for the petitioner requested the Court on 8.11.2011 to place the matter for further consideration on the next date i.e. 9.11.2011. For ready reference, the order 8.11.2011 is quoted hereinbelow; "After arguing the matter for sometime, learned counsel for the petitioner prayed that this matter may be taken up tomorrow i.e. 9.11.2011. Mr. Neeraj Agarwal, learned counsel for the respondent No. 2 has stated that he has already filed caveat in the matter but the same has not been reported. Office is directed to trace it out and place it on record. Learned counsel for the petitioner has served a copy of the writ petition upon Mr. Neeraj Agarwal, learned counsel for the Respondent No. 2. Put up as fresh tomorrow i.e. 9.11.2011 showing the name of Mr. Office is directed to trace it out and place it on record. Learned counsel for the petitioner has served a copy of the writ petition upon Mr. Neeraj Agarwal, learned counsel for the Respondent No. 2. Put up as fresh tomorrow i.e. 9.11.2011 showing the name of Mr. Neeraj Agarwal, learned counsel for the Respondent No. 2." 5. When the matter was taken up today, learned counsel for the petitioner refused to argue this matter and prayed that the matter may be released and be placed before another Judge since this Court had expressed its opinion on 8.11.2011 to dismiss the petition with exemplary cost. 6. Such attitude of the learned counsel for the petitioner is not only abhorrent but must be deprecated. The learned counsel for the petitioner is trying to play hide and seek with the process of law. It is distressing feature and reprehensible. The petitioner cannot be permitted to indulge in Bench hunting tactics. The judgment and decree dated 18.12.2009 was confirmed by this Court in Civil Revision No. 19 of 2010 and the perusal of the order passed by this Court clearly reveals that the matter was heard at length and with the consent of the parties, the revision was decided by this Court. However, in order to delay the execution proceedings, the application for recalling the judgment and decree dated 18.12.2009 was filed, inter alia, on the grounds that the judgment and decree dated 18.12.2009 has been obtained by fraud, collusion and misrepresentation. The court below has dealt with the matter at length and recorded a finding that the alleged fraud committed by the plaintiff before the court has not been pointed out by the learned counsel for the applicant. For ready reference, the relevant portion of the impugned judgment and order dated 27.9.2011 is quoted hereinbelow; "It is admitted fact that the applicant/judgment debtor filed revision no. 19.2010 Smt. Rajani Chauhan Vs. Smt. Saroj Singh against the impugned judgment before the Hon'ble High Court. A copy of the order passed by the Hon'ble High Court in the revision has filed in execution proceeding as paper no. 76C1. The order passed by the Hon'ble High Court reveals that the matter was heard at length by the Hon'ble High Court and with the consent of the parties the revision was decided. A copy of the order passed by the Hon'ble High Court in the revision has filed in execution proceeding as paper no. 76C1. The order passed by the Hon'ble High Court reveals that the matter was heard at length by the Hon'ble High Court and with the consent of the parties the revision was decided. Thus whatever has been stated by the applicant through this miscellaneous case all these points should have been raised before the Hon'ble High Court in the said revision. This is not the Forum where the applicant should challenge a judgment on the grounds that the Court while passing the judgment has flouted many laws and rules. If the decree is not executable in the opinion of the learned counsel for the applicant then it was proper for him to file an objection under Section 47 CPC in the execution proceeding which is pending before this Court as execution no. 7/2010 Saroj Singh versus Rajani Chauhan. It cannot be said that the plaintiff/decree holder practised fraud if the Court in absence of a power of attorney considered the evidence of the husband of the plaintiff. It cannot also be said that the plaintiff practised a fraud if the Court exercised its jurisdiction beyond its pecuinary limit. It cannot also be said that the plaintiff practised a fraud with the Court while deciding the case flouted the rules and provisions of the Act. All these points were to be raised before the Hon'ble High Court in the revision and the revision being decided the applicant/defendant has no right to re-agitate the grounds on which the judgment was passed in SCC no. 9/2004. Thus the applicant has completely failed to furnish any detail which may go to show that the impugned judgment has been obtained through fraud, collusion or mis-representation." (Relevant portion of paragraph No. 4) "In the light of the above observations of the Hon'ble Supreme Court in the present case the impugned judgment can only be recalled or set-aside if the applicant proves that the same has been obtained by practising fraud. The applicant has miserably failed to point out any fraud committed by the plaintiff/decree-holder before the SCC Court. As observed by Hon'ble Supreme Court the decree/judgment passed by the SCC Court has merged in order of revision dated 19.1.2010 passed by the Hon'ble High Court. Thus, the same cannot be recalled by this Court. The applicant has miserably failed to point out any fraud committed by the plaintiff/decree-holder before the SCC Court. As observed by Hon'ble Supreme Court the decree/judgment passed by the SCC Court has merged in order of revision dated 19.1.2010 passed by the Hon'ble High Court. Thus, the same cannot be recalled by this Court. In a decided case skyline Contractors (P) Ltd. and another Vs. State of UP & others 20073)AWC 3052 lays down that "Court cannot travel beyond pleadings". In a decided case Manju Devi versus State of UP and others 2008 AWC 2257 lays down that" petition could not have been allowed on grounds not taken in the pleadings." These all principles are applicable where the judgments or decrees are challenged in revision or appeal but where the applicant has applied for cancellation on the ground of fraud, these principles are of no help to decide this case. The applicant has totally failed to make out a case against the opposite party that she has practised any fraud upon the SCC court. The miscellaneous case of the applicant is liable to be dismissed." (paragraph No. 7) 7. In view of the above, I do not see any merit in the case. It is nothing but an abuse of the process of the Court. In fact, this writ petition should have been dismissed with heavy costs, however, taking the lenient view of the matter, the cost is not being imposed. 8. In the result the writ petition is dismissed. 9. Registry is directed to send the copy of this order to the Additional District Judge, Court No. 2 Bulandshahar for information.