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2015 DIGILAW 2280 (MAD)

N. S. Sakina Begum v. Mohammed Ibrahim

2015-06-23

R.MALA

body2015
ORDER : R. Mala, J. 1. The present applications have been filed to implead the LR's of the decreased sole appellant along with applications to set aside the abatement and to condone the delay of 174 days in seeking to set aside the abatement caused due to the death of the sole appellant. The learned counsel appearing for the petitioner would submit that the appellant who is the mother of the petitioners/proposed parties and the first respondent died during the pendency of the second appeal leaving behind them as legal representatives. Hence, the petitioners have come forward with an application under Order 22 Rule 3 CPC, along with applications to set aside the abatement and to condone the delay of 174 days in setting aside the abatement. 2.(a) Resisting the same, the first respondent who is none other than the son of the deceased appellant has filed a detailed counter affidavit stating that as if the application was filed under Order 22 Rule 5 and Order 22 Rule 10 CPC, the petitioners stepped into the shoes of the deceased appellant on the basis of the settlement deed executed by their mother on 03.03.2008, during the pendency of the second appeal. However, the petition itself is not maintainable as they have played fraud upon the Court and hence, this Court ought to dismiss the application. To substantiate the said argument, the learned counsel for the respondent relied upon the following decisions: "1. 1994-1-L.W. 21, S.P. Chengalvaraya Naidu v. Jagannath and others. 2. 2004-2-L.W. 70, Ram Chandra Singh v. Savitri Devi and others. 3. 2006-1-L.W. 232, Bhaurao Dagdu Faralkar v. State of Maharashtra and others" (b) The learned counsel for the respondent further submitted that during the pendency of second appeal, the deceased appellant had settled the property in favour of the petitioners/proposed parties and so, they are not entitled to be impleaded. To substantiate the said argument, the learned counsel relied upon the decision reported in AIR 1996 Supreme Court 135(1), surjit Singh and others v. Harbans singh and others. (c) The learned counsel further submitted that concurrent finding was rendered by the Courts below by which the deceased appellant is entitled to 1/2 share in the suit property and the remaining 1/2 share to the first respondent and 1/2 share to the second respondent. Furthermore, the settlement deed, dated 03.03.2008 is hit by lis pendens. (c) The learned counsel further submitted that concurrent finding was rendered by the Courts below by which the deceased appellant is entitled to 1/2 share in the suit property and the remaining 1/2 share to the first respondent and 1/2 share to the second respondent. Furthermore, the settlement deed, dated 03.03.2008 is hit by lis pendens. Thus, the learned counsel for the respondent prayed for dismissal of the applications. 3. Considered the rival submissions made by both sides. 4. One Mohammed Ibrahim and Abdul Salam as plaintiffs had that the suit in O.S. No. 9079 of 1993 on the file of the IV Assistant City Civil Court, Chennai for partition and separate possession of 3/4 share in the suit property. The Trial Court after considering the oral and documentary evidences had decreed the suit against which the 1st defendant in the suit, as appellant has filed an appeal in A.S. No. 43 of 1998 on the file of the VI Additional Civil Court, Chennai. The said appeal also came to be dismissed against which she had preferred the present second appeal and the same is pending. 5. During the pendency of the second appeal, the appellant/Sakina Begam had died and her legal representatives/proposed parties have come forward with the present applications stating that they are the daughters of the deceased appellant. The first respondent who is the contesting party is the son of the deceased appellant. So, they pray for impleading themselves as party to the proceedings. It is appropriate to incorporate paragraphs 2 and 3 of the affidavit. "2. I submit that my mother N.S. Sakkine Begum, the appellant herein executed a deed of Settlement in respect of the suit property on 3.3.2008 and registered as Document No. 72 of 2008 in the office of the District Registrar, Chennai North settling the property in favour of me and my sister, Mrs. Sarifa Banu. My mother, the appellant herein died on 5.4.2014 leaving behind two daughters namely myself and my sister, Sarifa Banu and a son namely Md. Ibrahim as her legal heirs. Therefore, the legal heirs have to be impleaded in the above second appeal. 3. I submit that already Md. Ibrahim is a party respondent in the above appeal. Therefore, myself and my sister should be added as the legal heirs of the deceased appellant in the above appeal. Ibrahim as her legal heirs. Therefore, the legal heirs have to be impleaded in the above second appeal. 3. I submit that already Md. Ibrahim is a party respondent in the above appeal. Therefore, myself and my sister should be added as the legal heirs of the deceased appellant in the above appeal. I ought to have filed the above petition to bring the L.Rs on record within 90 days from 5.4.2014. Since I am the house wife and not well conversant with the legal procedures, the above Second Appeal has been abated and the abatement should be set aside and there is a delay in filing a petition to set aside the abatement and there has occurred a delay of 174 days in filing a petition to set aside the abatement. The delay is due to my illness. Therefore, unless the delay of 174 days in filing the petition to set aside the abatement is condoned, I will be put to great loss and hardship." 6. In paragraph 2 of the affidavit, the petitioners/proposed parties have stated that their mother had executed a settlement deed in favour of the petitioners/proposed parties in respect of the suit property on 03.03.2008. However, they have stated subsequently that their mother died on 5.4.2014 leaving behind two daughters viz., the petitioner/proposed parties and a son namely Md. Ibrahim as legal heirs and therefore, the legal heirs are to be impleaded in the second appeal. Furthermore, it was stated that already the son of the deceased appellant, Mohammed Ibrahim is a party/respondent in the second appeal and therefore, the petitioners/proposed parties should be impleaded in the second appeal. 7. It is pertinent to note that the present application for impleading has been filed under Order 22 Rule 3 CPC. It is -appropriate to incorporate the said provision: "3. Procedure in case of death of one of several plaintiffs or of sole plaintiff.--(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. (2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the court may award to him the costs which he may have incurred in defending the suit, to be recovered from, the estate of the deceased plaintiff." 8. However, if really the petitioners/proposed parties wanted to implead themselves on the basis of the settlement deed they ought, to have filed the application under Order 22 Rule10 CPC. But in the instant case the petitioners have not filed the application to implead themselves as party on the basis of the settlement deed executed by their mother on 03.03.2008. 9. At this juncture, it would be appropriate to consider the decisions relied on by the learned counsel for the respondent. 9.1. In the decision reported in AIR 1996 Supreme Court 135 (1), Surjit Singh and others v. Harbans Singh and others, it was held that the assignees cannot claim to be impleaded as parties on the basis of assignment made by one party in defiance of restraint order passed by the Trial Court. It is appropriate to incorporate paragraph 4 of the said decision: "4. As said before, the assignment is by means of a registered deed. The assignment had taken place after the passing of the preliminary decree in which Pritam Singh has been allotted 1/3rd share. His right to property to that extent stood established. A decree relating to immovable property worth more than hundred rupees, if being assigned, was required to be registered.. That has instantly been done. It is per se property, for it relates to the Immovable property involved in the suit. It clearly and squarely fell within the ambit of the restraint order. In sum, it did not make any appreciable difference whether property per se had been alienated or a decree pertaining to that property. In defiance of the restraint order, the alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and the prevalent public policy, When the Court intends a particular state of affairs to exist while it is in seizing of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation/assignment as having not taken place at all for its purposes. Once that is so, Pritam Singh and his assignees, respondents herein, cannot claim to be impleaded as parties on the basis of assignment. Therefore, the assignees- respondents could not have been impleaded by the trial court as parties to the suit, in disobedience of its orders. The principles of lis pendens are altogether on a different footing. We do not propose to examine their involvement presently. All what is emphasised is that the assignees in the present facts and circumstances had no cause to be impleaded as parties to the suit. On that basis, there was no cause for going into the question of interpretation of paragraphs 13 and 14 of the settlement deed. The path treaded by the courts below was, in our view, out of, their bounds. Unhesitatingly, we upset all the three orders of the courts below and reject the application of the assignees for impleadment under Order 22 Rule 10 C.P.C." However, the above decision is not applicable to the facts of the present case because in the above decision the assignment was made by the party after an order of injunction was passed by the Trial court. 9.2. In the decision reported in 1994-1-L.W.21, S.P. Chengalvaraya Naidu v. Jagannath and others, it was held that a person whose case is based on falsehood has no right to approach the Court and he can be summarily thrown out at any stage of the litigation. It is appropriate to incorporate paragraph 5 of the said decision: "5. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. we do not agree with the High court that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabber, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely, we have no hesitation to say that a person. Who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation." 9.3. In the decision reported in 2004-2-L.W. 70, Ram Chandra Singh v. Savitri Devi and others, it was held that if a judgment, or decree is obtained by practising fraud on the court, the principles of res judicata shall not apply. It is appropriate to incorporate paragraph 35 of the said decision: "35. The consent order, as is well-known, is an agreement between the parties with the seal of the Court superadded to it. The appellant herein in the Review Application categorically stated that the parties to the appeal had suppressed the auction sale as also the confirmation thereof. The effect of the events appearing subsequent to the filing of First Appeal resulting in creation of a third party right was bound to be taken into consideration by the High Court. A third party right cannot be set at naught by consent. The High Court, therefore was required to consider the contention of the appellant in their proper perspective. The High Court, in our opinion, was obligated to address itself on these questions for the purpose of reviewing its order." 9.4. In the decision reported in 2006-1-L.W.232, Bhaurao Dagdu Paralkar v. State of Maharashtra and others, it was held that it is a fraud in law if a party makes representations, which he knows to be false, and injury enures there from although the motive from which the representations proceeded may not have been bad. It is appropriate to incorporate paragraph 13 of the said decision: "13. "Fraud" as is well known vitiates every solemn act. Fraud and justice never dwell together. It is appropriate to incorporate paragraph 13 of the said decision: "13. "Fraud" as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury enures there from although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata." There is no quarrel over the propositions laid down in the above decisions that the Court cannot tolerate fraud and in such cases, the Court ought to dismiss the applications. 10. But in the instant case, the settlement deed came into existence during the pendency of the second appeal. However, the petitioners/proposed parties does not want to implead themselves on the basis of the alleged settlement deed, dated 03.03.2008 executed by their mother/deceased appellant, and they wanted to implead themselves only under the right of legal representatives of the deceased appellant under Order 22 Rule 3 CPC. 11. Considering all the above aspects, I am of the view that the objection raised by the learned counsel for the respondent is over-ruled. As the reason assigned for the delay is convincing, the petition to condone the delay in setting aside the abatement filed in C.M.P. No. 270 of 2015 is allowed. 11. Considering all the above aspects, I am of the view that the objection raised by the learned counsel for the respondent is over-ruled. As the reason assigned for the delay is convincing, the petition to condone the delay in setting aside the abatement filed in C.M.P. No. 270 of 2015 is allowed. Since C.M.P. No. 270 of 2015 is allowed, the petition to set aside the abatement filed in C.M.P. No. 271 of 2015 is allowed. Consequently, the LR application filed in C.M.P. No. 272 of 2015 also stands allowed. Registry is directed to carry out. the necessary amendments and post the matter on 08.07.2015 for final disposal.