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2023 DIGILAW 1655 (ALL)

Darul Ulum Samadhiya v. State of U P

2023-07-12

KSHITIJ SHAILENDRA

body2023
JUDGMENT : Kshitij Shailendra, J. 1. Heard Shri Anil Bhushan, learned Senior Counsel assisted by Shri Jitendra Kumar Singh, learned counsel for the petitioners, learned Standing Counsel for respondent nos.1 and 2 and Shri Prabhakar Awasthi, learned counsel representing respondent no.3. 2. The order under challenge in the present writ petition is dated 10.04.2023 whereby the Assistant Registrar, Firms, Societies and Chits, Jhansi in furtherance of directions issued by this Court in Writ C No.1887 of 2023 (C/M Darul Uloom Samadia & Ors. v. State of Uttar Pradesh & Ors.), has set aside the list of office bearers registered at the behest of the petitioners and also the impugned Bye-laws of the Society by recording a finding that the same had been obtained on the basis of fabricated documents. 3. The submission of learned Senior Counsel is to the effect that elections of the Society were held in the year 2021 from a Body of seven office bearers and the list was registered on 25.03.2022, whereafter, amendments were made in the Bye-laws by a list of 11 office bearers and the same were registered in the office of Assistant Registrar on 30.12.2022. It is contended that a complaint was moved by respondent no.3 and, thereafter, a direction was sought from this Court for taking a decision on the complaint and it is in pursuance of the said complaint and the direction that the order impugned has been passed. It is further contended that insofar as, the complaint is concerned, it was with respect to the meeting dated 25.12.2021 to the effect that the said meeting was not held in accordance with law; that the President of the Society namely Kudrat Ullah had no knowledge about the same and that his signatures were forged in the proceedings. Various other allegations were also levelled in the complaint and according to learned Senior Counsel, the scope of complaint was limited to examine the validity of meeting dated 25.12.2021, whereas, the Assistant Registrar has transgressed his powers and jurisdiction to go beyond the scope of complaint and has, infact, reviewed the earlier decision whereby the list of office bearers was registered on 25.03.2022 and, further proceedings were held on 08.09.2022 and 07.10.2022. 4. 4. As regards the meeting dated 25.12.2021, it has been argued that at that time, seven members were there, out of whom, five were present and, therefore, the quorum being complete, the meeting was held in accordance with law, and certain decisions were taken including the decision of resignation of Vice President and Manager owing to their sickness and inability to perform and discharge their duties. It is further contended that order impugned has been passed committing violation of principles of natural justice and even the documents filed by the contesting-respondents were not provided to the petitioners. 5. Per contra, Shri Prabhakar Awasthi, learned counsel for respondent no.3 has referred to the proceedings of meeting dated 25.12.2021 as contained in 'Annexure No.17' to the writ petition. He submits that initial two lines of the said proceedings clearly disclose that the meeting was held under the Presidentship of Kudrat Ullah as President of the Society but there is no reference of his name in the entire proceedings, except, that he was again elected/nominated in the list of office bearers. It has been shown to the Court that even the proceedings of the previous meeting were read over by the Vice President and Agenda No.2 was also put by him. It is, therefore, contended that if Kudrat Ullah as President was present in the meeting, there was no occasion for Vice President to conduct the proceedings of the meeting. It has not been disputed that prior to the meeting dated 25.12.2021, Mohammad Anees happened to be Vice President and his father Noor Mohammad happened to be Manager, whereas, in the said meeting, these two posts/office bearership were reversed that is to say Noor Mohammed was elected as Vice President and Mohammad Anees as Manager. 6. He further submits that on the basis of the said proceedings, subsequent proceedings including making amendment in the Byelaws were held and since the complainants had submitted their affidavits before the Assistant Registrar to the effect that even signatures of Kudrat Ullah had been fabricated and forged in the meeting dated 25.12.2021, the entire proceedings were null and void. 7. He further submits that on the basis of the said proceedings, subsequent proceedings including making amendment in the Byelaws were held and since the complainants had submitted their affidavits before the Assistant Registrar to the effect that even signatures of Kudrat Ullah had been fabricated and forged in the meeting dated 25.12.2021, the entire proceedings were null and void. 7. Learned Standing Counsel has supported the impugned order by arguing that once the fraud committed by the petitioners came to the notice of Assistant Registrar pursuant to the complaint and the documents filed by the contesting respondents, he was justified in setting aside the entire proceedings in pursuance of the meeting dated 25.12.2021. 8. Having heard learned counsel for the parties, I find that the basis of amending the Bye-laws as well as holding the subsequent proceedings has its genesis in the meeting dated 25.12.2021. A bare perusal of the said document reflects that apart from the fact that the meeting was shown to have been held under the Presidentship of Kudrat Ullah, it was mentioned that Vice President and Manager had submitted their resignations owing to their sickness and inability in discharge of duties and performance of functions and their resignations had been accepted in the meeting. Surprisingly, the persons whose resignations were accepted were again nominated in the same meeting but with a reverse description of office bearership. The Court expresses its surprise as to when these persons were not able to perform their duties as to what persuaded anyone to again include them in the Committee/Society. 9. Even ignoring the aforesaid aspect, I find that once Kudrat Ullah and others had submitted affidavits to the effect that meetings including the meeting dated 25.12.2021 had not actually been held and the signatures of the persons allegedly present in the meeting had been fabricated, the Assistant Registrar was justified in not only making observations with regard to the meeting dated 25.12.2021 but also regarding the proceedings held subsequent thereto. 10. It is well settled that fraud vitiates even the most solemn act. De Grey, C.J., in Rex Vs. Duchess of Kingston [ 2 Smith L.C. 687] observed that 'Fraud' is an intrinsic, collateral act, which vitiates the most solemn proceedings of courts of justice. Lord Coke says it avoids all judicial acts ecclesiastical and temporal". 11. 10. It is well settled that fraud vitiates even the most solemn act. De Grey, C.J., in Rex Vs. Duchess of Kingston [ 2 Smith L.C. 687] observed that 'Fraud' is an intrinsic, collateral act, which vitiates the most solemn proceedings of courts of justice. Lord Coke says it avoids all judicial acts ecclesiastical and temporal". 11. In Kerr on Fraud and Mistake, it is stated that "in applying this rule, it matters not whether the judgment impugned has been pronounced by an inferior or by the highest Court of judicature in the realm, but in all cases alike it is competent for every Court, whether superior or inferior, to treat as a nullity any judgment which can be clearly shown to have been obtained by manifest fraud." 12. It is also clear as indicated in Kinch Vs. Walcott [1929 APPEAL CASES 482] that it would be in the power of a party to a decree vitiated by fraud to apply directly to the Court which pronounced it to vacate it. According to Kerr, "In order to sustain an action to impeach a judgment, actual fraud must be shown; mere constructive fraud is not, at all events after long delay, sufficient but such a judgment will not be set aside upon mere proof that the judgment was obtained by perjury." (See the Seventh Edition, Pages 416-417) 13. In Corpus Juris Secundum, Volume 49, paragraph 265, it is acknowledged that, "Courts of record or of general jurisdiction have inherent power to vacate or set aside their own judgements". In paragraph 269, it is further stated, "Fraud or collusion in obtaining judgment is a sufficient ground for opening or vacating it, even after the term at which it was rendered, provided the fraud was extrinsic and collateral to the matter tried and not a matter actually or potentially in issue in the action." It is also stated: "Fraud practiced on the court is always ground for vacating the judgment, as where the court is deceived or misled as to material circumstances, or its process is abused, resulting in the rendition of a judgment which would not have been given if the whole conduct of the case had been fair". 14. 14. In American Jurisprudence, 2nd Edition, Volume 46, paragraph 825, it is stated, "Indeed, the connection of fraud with a judgment constitutes one of the chief causes for interference by a court of equity with the operation of a judgment. The power of courts of equity in granting such relief is inherent, and frequent applications for equitable relief against judgments on this ground were made in equity before the practice of awarding new trials was introduced into the courts of common law. Where fraud is involved, it has been held, in some cases, that a remedy at law by appeal, error, or certiorari does not preclude relief in equity from the judgment. Nor, it has been said, is there any reason why a judgment obtained by fraud cannot be the subject of a direct attack by an action in equity even though the judgment has been satisfied." 15. The law in India is not different. In Paranjpe Vs. Kanade [ILR 6 BOMBAY 148], it was held that it is always competent to any Court to vacate any judgment or order, if it be proved that such judgment or order was obtained by manifest fraud. In Lakshmi Charan Saha Vs. Nur Ali [ILR 38 Calcutta 936], it was held that the jurisdiction of the Court in trying a suit questioning the earlier decision as being vitiated by fraud, was not limited to an investigation merely as to whether the plaintiff was prevented from placing his case properly at the prior trial by the fraud of the defendant. The Court could and must rip up the whole matter for determining whether there had been fraud in the procurement of the decree. 16. In Manindra Nath Mittra Vs. Hari Mondal [24 Calcutta Weekly Notes 133], the Court explained the elements to be proved before a plea of a prior decision being vitiated by fraud could be upheld. The Court said- "with respect to the question as to what constitutes fraud for which a decree can be set aside, two propositions appear to be well established. Hari Mondal [24 Calcutta Weekly Notes 133], the Court explained the elements to be proved before a plea of a prior decision being vitiated by fraud could be upheld. The Court said- "with respect to the question as to what constitutes fraud for which a decree can be set aside, two propositions appear to be well established. The first is that although it is not permitted to show that the Court (in the former suit) was mistaken, it may be shown that it was misled, in other words where the Court has been intentionally misled by the fraud of a party, and a fraud has been committed upon the Court with the intention to procure its judgment, it will vitiate its judgment. The second is that a decree cannot be set aside merely on the ground that it has been procured by perjured evidence". 17. The position was reiterated by the same High Court in Esmile-Ud-Din Biswas and Anr. Vs. Shajoran Nessa Bewa & Ors. [132 INDIAN CASES 897]. It was held that it must be shown that fraud was practised in relation to the proceedings in the Court and the decree must be shown to have been procured by practising fraud of some sort upon the Court. In Nemchand Tantia Vs. Kishinchand Chellaram (India) Ltd. [63 Calcutta Weekly Notes 740], it was held that a decree can be re-opened by a new action when the court passing it had been misled by fraud, but it cannot be re-opened when the Court is simply mistaken; when the decree was passed by relying on perjured evidence, it cannot be said that the court was misled. 18. It is not necessary to multiply authorities on this question since the matter has come up for consideration before the Apex Court on varoius occasions. In S.P. Chengalvaraya Naidu (Dead) by LRs. Vs. Jagannath (Dead) by LRs & Ors. [(1993) Supp. 3 SCR 422], this Court stated that, "it is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/ decree ---by the first court or by the highest court --has to be treated as a nullity by every court, whether superior or inferior. Such a judgment/ decree ---by the first court or by the highest court --has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings." The Court went on to observe that the High Court in that case was totally in error when it stated that there was no legal duty cast upon the plaintiff to come to Court with a true case and prove it by true evidence. Their Lordships stated, "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 grabbers, 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, whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation". 19. In Ram Preeti Yadav Vs. Uttar Pradesh Board of High School and Intermediate Education & Others [(2003) Supp. 3 SCR 352], the Apex Court after quoting the relevant passage from Lazarus Estates Ltd. Vs. Beasley [(1956) 1 All ER 341] and after referring to S.P. Chengalvaraya Naidu (Dead) by LRs. Vs. Jagannath (Dead) by LRs & Ors. (supra) reiterated that fraud avoids all judicial acts. In State of A.P. & Anr. Vs. T. Suryachandra Rao [ (2005) 6 SCC 149 ], the Supreme Court after referring to the earlier decisions held that suppression of a material document could also amount to a fraud on the Court. It also quoted the observations of Lord Denning in Lazarus Estates Ltd. Vs. Beasley (supra) that. "No judgment of a Court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything." 20. According to Story's Equity Jurisprudence, 14th Edn., Volume 1, paragraph 263: "Fraud indeed, in the sense of a Court of Equity, properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence, justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another." 21. In Patch Vs. In Patch Vs. Ward [1867 (3) L.R. Chancery Appeals 203], Sir John Rolt, L.J. held that: "Fraud must be actual positive fraud, a meditated and intentional contrivance to keep the parties and the Court in ignorance of the real facts of the case, and obtaining that decree by that contrivance." 22. The Supreme Court in Bhaurao Dagdu Paralkar Vs. State of Maharashtra & Ors. [ 2005 (7) SCC 605 ] held that: "Suppression of a material document would also amount to a fraud on the court. Although, negligence is not fraud, it can be evidence of fraud." 23. The aforesaid Authorities have been considered by the Apex Court in the case of Hamza Haji v. State of Kerala reported in JT 2006 (8) SC 215. 24. The Assistant Registrar, though not a court of law, exercises quasi judicial or even administrative powers under Societies Registration Act, 1860, hence the ratio of law referred to hereinabove shall also apply to the proceedings giving rise to the instant writ petition. 25. The submission of learned Senior Counsel that the Assistant Registrar has traveled beyond his power and jurisdiction does not impress the Court in the facts and circumstances of the case as the scope of the complaint made by respondent no.3 was to examine the validity of the meeting dated 25.12.2021 and, once, cogent reasoning has been assigned and as also observed by this Court by perusing the said proceedings that the same were full of infirmities, I do not find any ground to interfere in the order impugned. 26. The writ petition lacks merit and is, accordingly, dismissed.