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2012 DIGILAW 1069 (MP)

Hameeda Begum v. Inder Kumar Jain

2012-10-17

ALOK ARADHE

body2012
JUDGMENT : This appeal is by the defendant No. 1 who has lost in both the Courts. The appeal was admitted on the following substantial question of law : - "Whether the respondent No. 1 who is stranger to the parties of the suit have right to maintain the suit under section 44 of the Indian Evidence Act?" 2. The background facts, which are necessary to answer the aforesaid substantial question of law, are that the suit house which is known as 'Kudrat Manzil' was held by one Sheikh Dullu. On his death, the suit house devolved upon his two sons, namely, Barkatullah and Shamshuddin. Shamshuddin died in the year 1965. Thereupon, the suit house devolved on Barkatullah and the legal representatives of Shamshuddin, namely, Amana Bi, Jalaluddin and Smt. Hamida Bi. The aforesaid persons let out the suit house to the father of the plaintiff, namely, Shikhar Chand vide registered lease deed dated 1-5-1968. Jalaluddin executed 'Tamliqnama' in favour of his wife in respect of the southern portion of the suit house. The defendant No. 1 filed a civil suit, namely, C. S. No. 15-A/1981 against the defendants No. 2 & 3 in which she sought a declaration that 'Tamliqnama' dated 17-4-1974 is null and void. The aforesaid suit was decreed ex pane on 9-1-1982. Thereafter, Begum Bi with the consent of Jalaluddin, her husband, executed a sale deed dated 2-2-1982 in favour of the plaintiff in respect of the southern portion of the suit house. 3. The defendant No. 1 filed a civil suit, namely, Civil Suit No. 266-A/1994 against Inder Kumar and 5 others for declaring the sale deed dated 2-2-1982 as null and void. The aforesaid civil suit was dismissed by judgment and decree dated 12-1-1998. In first appeal, namely, F. A. No. 96/1998 vide judgment and decree dated 20-2-2004 the High Court partly allowed the appeal and held that the sale deed dated 2-2-1982 to be not binding to the extent of defendant No. 1's share. 4. The plaintiff filed a civil suit, from which this appeal arises, on the ground that judgment and decree dated 9-1-1982 passed in Civil Suit No. 15-A/1981 has been obtained by playing fraud. The defendant No. 3 executed the sale deed with the consent of defendant No. 2 in favour of the plaintiff on 2-2-1982. The value of the suit house was more than Rs. 50,000/-. The defendant No. 3 executed the sale deed with the consent of defendant No. 2 in favour of the plaintiff on 2-2-1982. The value of the suit house was more than Rs. 50,000/-. However, the relief claimed in the suit was not properly valued and the fact that defendant No. 2 was the owner of the half portion of the suit house was suppressed. It was also pleaded that the claim in the suit was barred by limitation. Accordingly, the plaintiff sought a decree for declaration that decree passed in the aforesaid civil suit is not binding on the plaintiff. 5. The defendant No. 1 filed written statement in which, inter alia, it was pleaded that since 'Tamliqnama' was declared as null and void and the appeal preferred by the defendants No. 2 & 3 has also been dismissed, therefore, the defendant No. 3 had no authority to execute the sale deed in favour of the plaintiff. It was further pleaded that the plaintiff has no right to institute the suit as plaintiff was not a party in Civil Suit No. 15-A/1981. The defendant Nos. 2 & 3 supported the case of the defendant No. 1. 6. The trial Court vide judgment and decree dated 2-12-1998, inter alia, held that from judgment and decree dated 12-1-1998 passed in Civil Suit No. 266-A/1994 it is apparent that defendant No. 1 had derived knowledge about 'Tamliqnama' on 27-9-1978 i.e., when the copy of the same was filed in the said civil suit. However, in Civil Suit No. 15-A/1981, a false statement was made by the defendant No. 1 that she learnt about 'Tamliqnama' on 23-12-1979. The Civil Suit No. 15-A/1981 was filed in the month of October, 1981 which was barred by limitation. Thus, the trial Court held that the decree passed in the aforesaid civil suit was obtained by playing fraud, and since the plaintiff was the person aggrieved by the decree, therefore, he had the locus to seek declaration. Accordingly, the suit filed by the plaintiff was decreed. The lower appellate Court vide judgment and decree dated 4-12-2001, inter alia, held that decree passed in Civil Suit No. 15-A/1981 was obtained by playing fraud and, therefore, the plaintiff, who is an aggrieved person, has the remedy to seek declaration in this regard. Accordingly, the appeal was dismissed. 7. Accordingly, the suit filed by the plaintiff was decreed. The lower appellate Court vide judgment and decree dated 4-12-2001, inter alia, held that decree passed in Civil Suit No. 15-A/1981 was obtained by playing fraud and, therefore, the plaintiff, who is an aggrieved person, has the remedy to seek declaration in this regard. Accordingly, the appeal was dismissed. 7. Learned counsel for the appellant while inviting the attention of this Court to section 44 of the Indian Evidence Act, 1872 (hereinafter referred to as the 'Act') submitted that since the plaintiff is not a party to the suit in question, therefore, he has no locus to file the suit and the Courts below have grossly erred in decreeing the suit of the plaintiff. 8. On the other hand, learned senior counsel for the respondents submitted that the plaintiff on the date of passing of the decree in Civil Suit No. 15-A/1981 was persona non grata. The decree in the aforesaid civil suit was obtained by playing fraud and the plaintiff who was a subsequent purchaser was not bound by the same. It was further submitted that since the decree was obtained by playing fraud, its invalidity can be set up at any stage even in collateral proceedings. In support of his submissions, learned senior counsel has placed reliance on the decisions in Nilmony Mookhopadhya vs. Aimunissa Bibee, 12 (C) 156, Bommareddi Polireddi vs. Bommareddi Bapireddi and others, 30 1C 639 and S. P. Chengalvaraya Naidu (dead) by L.Rs. vs. Jagannath (dead) by L.Rs. and others, AIR 1994 SC 853 . 9. I have considered the respective submissions made by learned counsel for the parties and have perused the record. Section 44 of the Act reads as under:- "44. Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved. - Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under sections 40, 41 or 42, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion." 10. Section 44 of the Act is an enabling provision under which a judgment or decree which is sought to be proved with a view to establish the plea of res judicata can be avoided. Section 44 of the Act is an enabling provision under which a judgment or decree which is sought to be proved with a view to establish the plea of res judicata can be avoided. The section is remedial in character and does not destroy the substantive right which exists independently of the Act. Therefore, a person affected by the fraud, can impeach the same and can sue to set aside the judgment and its consequences. A stranger to a proceeding can always plead and prove the fraudulent nature of the transaction, even if it be a decree of the Court. I am fortified in my view by a decision reported in 1950 Nagpur Law Journal 226. Also see (1912) 16 Cal.LJ 141. In the instant case, both the Courts have concurrently recorded a finding that decree in Civil Suit No. 15-A/1981 has been obtained by playing fraud. The plaintiff is the person who is aggrieved by the decree and, therefore, he can file the suit to establish the effect that the decree in the aforesaid civil suit was obtained by playing fraud. Accordingly, the substantial question of law is answered in the affirmative and against the appellant. 11. In the result, the appeal fails and is hereby dismissed with costs. Appeal dismissed.