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2012 DIGILAW 438 (UTT)

Chandan Singh Bisht v. Saharbano

2012-07-30

V.K.Bist

body2012
JUDGMENT : Heard Shri V.K. Kohli, Senior Advocate assisted by Shri Jitendra Chaudhary, Advocate for the appellants and Shri Parikshit Saini, Advocate for the respondent. 2. Defendants/appellants have filed the present appeal against the judgment and decree dated 29.06.2011 passed by the Civil Judge, Senior Division, Nainital in Suit No.33 of 2011-Smt Shaharbano vs. Chandan Singh Bisht and another whereby the plaintiffs’ suit was decreed and the sale deed dated 04.10.2010 executed by the plaintiff in favour of the defendants was declared void and ineffective. 3. Plaintiff/respondent instituted suit no.33 of 2011 for a declaration that the sale deed dated 04.10.2010 be declared void and ineffective. This suit was registered on 11.05.2011. On the same day, notices were issued to the defendants/appellants fixing 13.06.2011 for filing the written statement and 20.06.2011 was fixed for the framing of the issues. One Bharat Singh Rawat, process server submitted an undated report stating therein that service could not be effected as there are two or three villages in the name of Kelani. However, on 13.06.2011 Km. Tamanna Hanif, Advocate appeared on behalf of the defendants/appellants and filed her vakalatnama. Since the Presiding Officer was on leave the same was kept on record for placing it before the Presiding Officer on the date fixed. On 20.06.2011, following two issues were framed and the case was fixed for evidence on 27.06.2011. “1. Whether sale deed dated 04.10.2010 executed by the plaintiff in favour of defendant is liable to be declared as void and ineffective? 2. Relief” 4. On 27.06.2011 the plaintiff filed her affidavit. She was cross examined on the same day and her evidence was closed. The Presiding Officer fixed the next day, i.e., 28.06.2011 for the evidence of the defendants. In the ordersheet, an endorsement was made by the counsel for the defendants for closing the evidence of the defendants. There is some overwriting over the date which was not signed by the Presiding Officer. It appears that first 27.06.2011 was written and subsequently by overwriting, 28th was done. On 28.06.2011 the Presiding Officer closed the right of evidence of the defendants. The Presiding Officer also passed an order that the matter would be heard on the same day i.e., after lunch. He heard the case and fixed the next day i.e. 29.06.2011 for the delivery of the judgment. On 28.06.2011 the Presiding Officer closed the right of evidence of the defendants. The Presiding Officer also passed an order that the matter would be heard on the same day i.e., after lunch. He heard the case and fixed the next day i.e. 29.06.2011 for the delivery of the judgment. On 29.06.2011, the judgment was delivered and the plaintiffs’ suit was decreed by declaring that the sale deed dated 04.10.2010 as void and ineffective. On 30.06.2011, the office prepared the decree and the same was issued on 06.07.2011. 5. Aggrieved by the judgment and decree dated 29.06.2011, the present first appeal has been filed. Main grounds taken by the appellants in the appeal are follows.: (iii) Neither any summons in the suit were served upon any of the defendants/appellants nor they appointed any counsel nor they filed any written statement as they were not aware of filing of the suit. (iv) Fraud has been played with the court below as paper on record shows that signature of the defendants’/appellants’ have been scanned on the vakalatnama and the written statement. (ii) The perusal of record shows that no summons was issued at all to the defendant no.2/appellant no.2 and so far defendant no.1/appellant no.1 is concerned, the summon issued in his name was returned unserved. (i) Order sheet shows that within a period of 16 days, the suit was decreed, with all formalities. (v) In addition to vakalatnama and written statement containing scanned signatures, the alleged agreement dated 17.04.2011 with scanned signatures was also produced. No such agreement was ever executed between the parties nor any of the defendants/appellants had ever signed the same. The reverse sheet of the stamp papers show that the stamps were purchased from the stamp vendor on 8th May, 2011 whereas the agreement has been shown having been executed on 17th April, 2011 i.e. much prior to the date of purchase of the stamp paper. 6. Other grounds touch the merit of the case. 7. Shri V.K. Kohli, learned Senior Advocate for the appellant submitted that the defendants/appellants were never served with the summons and scanned signatures have been used in the vakalatnama as well as in the written statement. Even document (agreement) dated 17.04.2011 is a forged document. This has been done to benefit the plaintiff/ respondents. 7. Shri V.K. Kohli, learned Senior Advocate for the appellant submitted that the defendants/appellants were never served with the summons and scanned signatures have been used in the vakalatnama as well as in the written statement. Even document (agreement) dated 17.04.2011 is a forged document. This has been done to benefit the plaintiff/ respondents. He submitted that in such a situation, it would be assumed that all this was done at the behest of plaintiff/respondent. He prayed that the decree and judgment passed by the trial Court be set aside and an independent enquiry be ordered in the matter. 8. Shri Parikshit Saini, counsel for the plaintiff/ respondent submitted that the plaintiff/respondent has nothing to do with the scanned signatures in the vakalatnama as well as in the written statement and also the document dated 17.04.2011, which was filed by the counsel for the defendants/appellants. He submitted that defendants/appellants alone are responsible for such alleged fraud. 9. Since the present appeal has been filed mainly on the ground that the defendants/appellants were never served and that the decree has been obtained by playing a fraud with the court, the facts of the case are not being/reproduced in this judgment. 10. The Court may like to point out that engagement of Tammana Hanif has not been challenged by the defendants/appellants, however the facts are so glaring and self speaking that this omission on their part is not likely to affect the outcome of the appeal as they have contended that they have not appended their signatures on the vakalatnama and that the signatures have been scanned. 11. From a perusal of the record, it is absolutely clear that no notice was ever served upon the appellants and suit was decided in their absence. Upon a perusal of the vakalatnama as well as the written statement of defendants/appellants, it appears that those documents contain scanned signatures of the appellants. One document, i.e. agreement dated 17.04.2011 filed on behalf of defendants/appellants, also appears to be a forged one as the date of agreement is 17.04.2011 whereas the stamp paper on which the agreement is typed was purchased on 08.05.2011. It is also clear that this stamp paper was supplied to the stamp vendor on 20.04.2011. These facts are apparent from a close examination of the stamp paper itself. 12. It is also clear that this stamp paper was supplied to the stamp vendor on 20.04.2011. These facts are apparent from a close examination of the stamp paper itself. 12. The facts discussed above are sufficient to prove that a fraud was played with the Court and a decree was passed without due service on the defendants/appellants. Accordingly, the appeal is allowed. Judgment and decree dated 29.06.2011 passed by the Civil Judge (S.D.), Nainital in original suit no.33 of 2011, is hereby quashed. The matter is remitted to the trial court to decide the suit afresh. 13. Before parting with the order, it is to be asserted that the Court does not entertain any doubt in its mind regarding fraud having been played upon the Court. The reasons for doing so are as under: (i) Report of process server appears to be doubtful as well as incorrect as in no Tehsil of hill districts two/three villages in the same name are found. (ii) It also appears that signatures of the defendants/appellants on the vakalatnama and written statement have been scanned. (iii) Agreement dated 17.04.2011 is a forged one as date of agreement is prior to the date of the purchase of stamp paper. 14. This is a very serious matter. No fraud can be played upon the Court. In order to prevent such incident some exemplary course is to be adopted. The Court accordingly directs that the parties shall appear before the trial Court on 08.08.2012 on which date the defendants will file a fresh vakalatnama. The signatures on the vakalatnama would be done in the presence of Presiding Officer. The Presiding Officer will proceed from there on. While proceeding with the case the trial court will take into consideration the observation made by this Court and proceed accordingly. The trial Court is further directed to decide the matter within a period of six months from the date of production of a certified copy of this order. 15. Let a certified copy of this order be placed by the Registry within a week before the Administrative Judge for his Lordships perusal.