@JUDGMENTTAG-ORDER
K. Ravichandra Babu, J.@mdashC.R.P.(PD).No. 2758 of 2014 is filed by the second defendant in O.S.No. 183 of 2013, aggrieved by the order of the trial Court in dismissing his application for rejection of the plaint. C.R.P.(PD).No. 3216 of 2014 is filed by the very same second defendant, who is the third defendant in O.S.No. 165 of 2007, challenging the order of the trial Court ordering joint trial of O.S.No. 183 of 2013 with O.S.No. 165 of 2007.
2. Learned counsel appearing for the petitioner submitted that the order to be passed in C.R.P.(PD).No. 2758 of 2014 is having a bearing on the order to be passed in C.R.P.(PD).No. 3216 of 2014 and therefore, she submitted that C.R.P.(PD).No. 2758 of 2014 can be first taken up, considered and decided on merits.
C.R.P.(PD).No. 2758 of 2014:
3. The second defendant in O.S.No. 183 of 2013 on the file of the District Munsif Court, Sathyamangalam, is the revision petitioner. The respondents 1 and 2 herein as plaintiffs, filed the said suit against the petitioner herein and one Muthammal, seeking for declaration to declare the decree obtained in O.S.No. 120 of 2007 (District Munsif Court, Sathyamangalam) as fraud, null and void and not binding on the plaintiffs.
4. The case of the plaintiffs in the abovesaid suit is as follows:
The plaintiffs'' father purchased the suit property on 5.12.1960 by way of sale deed and he was in possession and enjoyment of the same till his death on 23.7.1989. Thereafter, a family partition took place on 2.3.2007 and under a deed of partition, the suit property was allotted to the share of the plaintiffs herein. The first defendant is the paternal aunt of the plaintiffs. Earlier, the plaintiffs filed O.S.No. 165 of 2007 against one Muthammal (first defendant herein) and one Peranandam to declare the sale deed executed between the said Muthammal and Peranandam as not binding on the plaintiffs and that the said sale deed is not valid. The petitioner herein got himself impleaded in the said suit in O.S.No. 165 of 2007 as the third defendant, claiming to be the purchaser of the suit property as per the decree in O.S.No. 120 of 2007. The said order of impleadment along with other miscellaneous orders, were challenged by the plaintiffs before this Court in C.R.P.(PD).Nos. 1353 to 1355 of 2012 and by order dated 18.2.2013, this Court gave an opportunity to the plaintiffs to work out their remedies as against the decree in O.S.No. 120 of 2007. The defendants have fabricated the so-called unregistered sale agreement, dated 2.11.1987 and filed the said suit in O.S.No. 120 of 2007 after a lapse of twenty years and got the ex-parte decree against the so-called power agent without impleading the principal or legal heirs of the principal. Such hurriedly secured decree was laid down for execution, resulting in a fraudulent sale deed, dated 6.3.2008. Therefore, the execution proceedings are nothing but fraudulent act on the Court for securing illegal benefit. Fraud vitiates all transactions including judicial proceedings and there is no limitation for attacking such fraudulent transaction.
5. Pending the said suit in O.S.No. 183 of 2013, the second defendant (petitioner herein) filed I.A.No. 1589 of 2013 under Order 7 Rule 11 CPC seeking for rejection of the plaint on the ground that the suit is barred by limitation, even on the face of a reading of the plaint and that the plaintiffs cannot take advantage of the order passed by this Court in C.R.P.Nos. 1353 to 1355 of 2012, dated 18.2.2013, as any liberty given is only subject to the law of limitation. The said application was resisted by the plaintiffs. The trail Court dismissed the said application by holding that it is only the plaint averments that are to be considered and the Court does not find any materials in the plaint showing the same as barred under law. It is further observed by the trial Court that the question of limitation is a mixed question of fact and law, which cannot be decided at the threshold without giving an opportunity of adducing evidence to both sides.
6. Ms.P.T.Asha, learned counsel appearing for the petitioner submitted that even from a plain reading of the plaint, a clear admission of the plaintiffs regarding their knowledge of the decree made in O.S.No. 120 of 2007 on 17.12.2007 itself can be seen, and therefore, the suit having been filed on 29.8.2013 is beyond the period of limitation. She further submitted that the liberty granted by this Court in the earlier order, cannot over-ride the statutory provisions under the Limitation Act. She further stated that as per Article 58 of the Limitation Act, the suit ought to have been filed within three years and in support of this submission, she relied on the decisions of this Court reported in
7. Mr.T.Murugamanickam, learned counsel appearing for the respondents 1 and 2/plaintiffs submitted that the plaintiffs'' father and first defendant are brother and sister. The plaintiffs'' father is said to have executed a Power of Attorney on 26.11.1986 in favour of the first defendant, namely his sister. He died on 23.7.1989. However, the defendants fabricated the so-called unregistered sale agreement, dated 2.11.1987 and filed the suit in the year 2007 for specific performance, after a lapse of 20 years by arraying the said Power of Attorney alone as the defendant, without impleading the principal or his legal heirs. The specific performance decree was obtained by fraud, because the facts of the case would show that there is a fraud played upon the Court. In any event, this Court, in C.R.P.(PD).Nos. 1353 to 1355 of 2012, by order dated 18.2.2013, granted liberty to the plaintiffs to question the decree made in O.S.No. 120 of 2007. The present suit was immediately filed on 29.8.2013. Therefore, the present suit is well within time and in any event, the issue with regard to the limitation in this case cannot be decided purely on application of law alone without conducting trial, as, such issue is a mixed question of law and facts. As the plaintiffs are not parties to the decree in O.S.No. 120 of 2007, Article 59 of the Limitation Act will not apply. In support of his submissions, learned counsel relied on the following decisions:
(i) 2006 (5) SCC 658 (Balasaria Construction (P) Ltd. Vs Hanuman Seva Trust) and
(ii)
8. Heard the learned counsel appearing on either side and perused the materials placed before this Court.
9. The respondents 1 and 2 herein filed O.S.No. 183 of 2013 against the petitioner herein and another person, namely Muthammal, who is none else than their aunt, challenging the decree passed in O.S.No. 120 of 2007 as fraud, null and void and not binding on the plaintiffs. The said suit in O.S.No. 120 of 2007 was filed by the petitioner herein against the said Muthammal alone seeking for specific performance of agreement of sale, dated 2.11.1987. It is seen that the said suit in O.S.No. 120 of 2007, filed on 9.3.2007, came to be decreed ex-parte on 7.6.2007. Admittedly, the respondents 1 and 2 herein who are the present plaintiffs, are not parties to the said suit in O.S.No. 120 of 2007. It is also not in dispute that on the date of filing of the said suit in O.S.No. 120 of 2007, the father of the respondents 1 and 2 (plaintiffs), namely Gurumallappa, who allegedly executed the Power of Attorney in favour of the said Muthammal, was no more and died on 23.7.1989 itself. Based on the said ex-parte decree in O.S.No. 120 of 2007, E.P.R.No. 2 of 2008 was filed against the said Muthammal and consequently, the sale deed was registered by the Court on 14.3.2008. It is further seen that symbolic possession was also recorded by the executing Court on 31.3.2008. It is further seen that the present plaintiffs (respondents 1 and 2 herein) filed another suit in O.S.No. 165 of 2007 on the file of the District Munsif Court, Sathyamangalam against the said Muthammal and one Peranandam, seeking to declare the sale deed executed between them on 12.12.1994, as not binding on the plaintiffs and not valid as per law. The said suit in O.S.No. 165 of 2007 was filed in respect of the entire extent of 7.36 acres, whereas the subject matter of O.S.No. 120 of 2007 is in respect of 5.36 acres out of 7.36 acres.
10. In the said suit in O.S.No. 165 of 2007, the present revision petitioner got himself impleaded on 19.7.2011. It is seen that some other interim orders were also passed in the said suit. Challenging those orders, including the impleadment, the respondents 1 and 2 herein filed C.R.P.(PD).Nos. 1353 to 1355 of 2012 before this Court, in which an order came to be passed on 18.2.2013. A perusal of the said order of this Court would show that the points raised now before this Court were already raised, more particularly with regard to the suit in O.S.No. 120 of 2007 and ex-parte decree made therein, followed by sale deed executed in the execution proceedings. The learned Judge, after hearing the rival submissions of the parties, has observed in paragraphs 13 to 16 of the order made in the said C.R.Ps. as follows:
"13. As of now, the decree passed for specific performance in O.S.No. 120 of 2007 and the consequential sale deed executed in favour of the first respondent herein have not been disturbed by any judicial proceedings. It is for the petitioners to work out their remedies as against the first respondent herein in respect of the above decree and all the other consequential proceedings to establish that Mr.Guru Mallappa died in the year 1989 and therefore, all the subsequent transactions at the behest of second petitioner/second defendant or the first respondent herein are void in law. Until the same is done, in my considered opinion, the first respondent is a necessary party in the present proceedings.
14. It may be true that in O.S.No. 165 of 2007, so far as the first relief sought for is concerned, since it is only as against first defendant and second defendant, the first respondent may not be a necessary party. However, the second relief sought for in the said suit is for permanent injunction which is an independent relief sought for and not a consequential relief. Unless, the petitioners/plaintiffs prove their possession, they cannot succeed.
15. In respect of possession, it is the case of the first respondent herein that he is in possession of the property on account of the decree in O.S.No. 120 of 2007. Therefore, in my considered opinion, the first respondent is a necessary party to decide the second relief sought for in the said suit. Therefore, it cannot be said that the first respondent herein is not a necessary party to the said proceedings. I hold that though the reliefs sought for in I.A.Nos. 1281 to 1283 of 2007 were not happily worded, the trial Court was right in allowing the same by moulding the relief. Thus, I do not find any merits in the Civil Revision Petitions.
16. In the result, the Civil Revision Petitions fail and accordingly, they are dismissed. However, liberty is given to the petitioners to work out their remedies as against the decree in O.S.No. 120 of 2007 and all the other consequential proceedings and transactions. No costs. Consequently, connected miscellaneous petition is closed."
(emphasis supplied)
11. From a perusal of the above order, it is evident that this Court has not only observed that it is for the respondents herein to work out their remedies as against the decree made in O.S.No. 120 of 2007 and also specifically granted liberty to work out their remedies against the petitioner herein in respect of the decree made in O.S.No. 120 of 2007 and all the other consequential proceedings to establish that the said Gurumallappa died in the year 1989 and all subsequent transactions at the behest of the said Muthummal or the petitioner herein, are void in law. The word "liberty" has been defined in the Concise Oxford Dictionary (tenth edition) as "a right or privilege, especially a statutory one". The phrase "at liberty" has been defined therein as "allowed or entitled to do something". Going by the abovesaid meaning/definition of the words "liberty" and "at liberty" and the order passed in the above C.R.Ps., the question of limitation in this case cannot be gone into while considering the application for rejection of the plaint itself, because, the plaint averments, more particularly, while dealing with the limitation aspect is concerned, were carefully worded by the plaintiffs by taking shelter under the order of this Court made in the abovesaid C.R.Ps. In other words, the plaintiffs, armed with the order passed by this Court in the said C.R.Ps., are projecting their case as though the present suit is not barred by limitation, in view of the abovesaid liberty granted by this Court to file the same. Whether such liberty entitles the plaintiffs to maintain the present suit, is certainly an arguable point, which has to be necessarily considered and decided after conducting trial and by appreciating the totality of the circumstances of the case. It goes without saying that a person who is otherwise having every right to initiate a proceeding in a Court of law, need not either seek permission or liberty to do the same from the Court. The Court also need not enable such person to do so, if he is otherwise entitled to do so even without such permission. Therefore, it is to be noted that such liberty is sought for and granted only when such person is either disabled or prevented from doing so by reason of certain facts and circumstances which may include the issue with regard to the limitation as well. Further, if such liberty is granted by the Court to one party, after hearing both parties, and when such order has not been further challenged and it has become final and conclusive, the question that remains is as to whether the other party can still question the maintainability of a suit. Otherwise, seeking and granting of liberty will have no meaning, especially when such liberty was unconditional. Therefore, when a ground or point is raised like this in the present plaint, certainly the same cannot be considered and decided at the threshold itself, especially when such liberty granted by this Court, was not behind the back of the petitioner/second defendant, and on the other hand, he was also party to the abovesaid C.R.Ps.
12. Considering the abovesaid order passed by this Court and considering the allegations made in the plaint that fraud has been committed by fabricating the sale agreement, dated 2.11.1987 and that the suit in O.S.No. 120 of 2007 has been filed based on such sale agreement, that too after a period of 20 years and that an ex-parte decree was passed therein, I am of the view that the question of limitation as claimed by the petitioner herein, cannot be decided as simple as sought to be, simply by reading only the cause of action portion of the plaint alone. It is well settled that the cause of action is a bundle of facts to be gathered by reading the entire plaint averments. No doubt, it is stated in the cause of action paragraph of the plaint in O.S.No. 183 of 2013 that the plaintiffs came to know about the fraudulent decree on 17.12.2007. However, in the very same paragraph, the plaintiffs also referred to the order made by this Court in C.R.P.(PD).Nos. 1353 to 1355 of 2012, dated 18.2.2013, granting liberty to the plaintiffs to challenge the decree made in O.S.No. 120 of 2007. When that being the averments, coupled with the other averments regarding the alleged fraud committed in creating a Power of Attorney, followed by filing of specific performance suit, etc., this Court is not convinced to accept the contention of the petitioner/second defendant that the plaint has to be rejected at the threshold on the ground of limitation. On the other hand, this Court is of the view that such issue being an issue requiring consideration of not only the law, but also the facts involved in this case, has to be relegated to the trial Court to be taken up as an issue and decided after trial. It is needless to say that the trial Court, while considering the issue of limitation, will consider all the points raised by the respective parties and decide the same on merits and in accordance with law.
13. Learned counsel for the respondents 1 and 2 relied on a decision of the Honourable Supreme Court reported in 2006 (5) SCC 658 (Balasaria Construction (P) Ltd. Vs Hanuman Seva Trust), wherein in paragraph 8, it has been observed as follows:
"8. After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time. The findings recorded by the High Court touching upon the merits of the dispute are set aside but the conclusion arrived at by the High Court is affirmed. We agree with the view taken by the trial court that a plaint cannot be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure."
14. Further, in a recent decision of this Court made in C.R.P.(PD).No. 16 of 2014, dated 27.11.2014, it has been observed that technical objections cannot be allowed to be raised by the person against whom allegation of fraud is made on the plaint and in the said case, this Court observed as follows:
"33. Above all, in this case, a thorough reading of the plaint would show that the plaintiffs have pleaded that the impugned transactions were made by committing the act of forgery and impersonation. According to them, the original owner, namely, Andrew Xavier Packiam died intestate on 22.8.1978, and therefore, the alleged Power of Attorney, dated 18.8.2000 said to have been executed by such dead person, was a rank forgery and by impersonation. This allegation is certainly a very serious one and if the same is proved, all the impugned transactions cannot be sustained and they become void-ab-initio. Therefore, the plaintiffs who made such allegation should be given sufficient opportunity to prove the same by conducting trial. Unless it is found that such allegation is baseless or false and without supporting evidence, the person against whom such serious allegation is made, cannot be permitted to raise certain technical objections to escape from the clutches of trial. It is well settled that if technicalities and substantial justice are pitted against each other, only the latter should be preferred. At this juncture, the observations made by the Honourable Supreme Court in the case reported in
"49. ... .... When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred and the courts may in the larger interests of administration of justice may excuse or overlook a mere irregularity or a trivial breach of law for doing real and substantial justice to the parties and pass orders which will serve the interest of justice best."
Therefore, these technical objections raised by the defendants 1 and 2 in their application for rejection of plaint, cannot be sustained at this stage, especially when those objections are matters for trial. This Court is not to be mistaken as if it holds that no such technical objections can be raised in the application under Order 7 Rule 11 CPC. What it wants to emphasise is as to who can raise such technical objections. As stated supra, a person against whom forgery and impersonation are pleaded, is not certainly a person entitled to speak about the technicalities and seek for a decision on such technical objections first at the threshold, without submitting himself to the trial to disprove such serious allegations."
15. Further, in a decision of the Honourable Supreme Court reported in
"30. In
"1. ''Fraud avoids all judicial acts, ecclesiastical or temporal'' observed Chief Justice Edward Coke of England about three centuries ago. 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 eye of the 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. It can be challenged in any court even in collateral proceedings."
In the said case it was clearly stated that the courts of law are meant for imparting justice between the parties and one who comes to the court, must come with clean hands.
31. A person whose case is based on falsehood has no right to approach the court. A litigant who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If a vital document is withheld in order to gain advantage on the other side he would be guilty of playing fraud on court as well as on the opposite party.
32. In
33. In
"16. In Lazarus Estates Ltd. Vs Beasley (1956 (1) QB 702 : 1956 (2) WLR 502 : 1956 (1) All E.R. 341) Lord Denning observed at QB. p.712:
''..... 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.''
In the same judgment Lord Parker, L.J. observed that fraud ''vitiates all transactions known to the law of however high a degree of solemnity'' (Lazarus case- QB p.722) (1956 (1) QB 702 : 1956 (2) WLR 502 : 1956 (1) All E.R. 341)"
16. No doubt, the learned counsel for the petitioner relied on a decision of the Division Bench of this Court reported in
17. Learned counsel for the petitioner relied on a decision of this Court reported in
18. Learned counsel for the petitioner further relied on a decision of the Honourable Supreme Court reported in
"21. It is not possible, in the absence of any provision which would entitle the plaintiffs to exclude time and thus bring their suit within 12 years period of limitation, to accept a contention which would enable the plaintiffs to escape the mandatory provisions of Section 3 of the Act read with Section 28 and Articles 142 and 144 of the Limitation Act of 1908. Courts of Justice cannot legislate or reconstruct law contained in a statute or introduce exceptions when statutory law debars them from doing so. Even hard circumstances of a case do not justify the adoption of such a course. Moreover, we fail to see how the plaintiffs could complain of hardship when their own negligence or failure to act in time enabled defendants to acquire rights by reason of the operation of a law of limitation with the wisdom or justice of which we are not concerned here."
19. Learned counsel for the petitioner further relied on a decision reported in
"12. The rival pleas regarding rewriting of statute and casus omissus need careful consideration. It is well-settled principle in law that court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself. The question is not what may be supposed and has been intended but what has been said. "Statutes should be construed, not as theorems of Euclid", Judge Learned Hand said, "but words must be construed with some imagination of the purposes which lie behind them". (See Lenigh Valley Coal Co. Vs Yensavage - 218 FR 547). The view was reiterated in
20. In this case, it is contended by the learned counsel for the petitioner/second defendant that Article 58 of the Limitation Act would apply, which contemplates three years as the period of limitation to obtain any other declaration, when the right to sue first accrues. On the other hand, it is contended by the learned counsel for the respondents 1 and 2/plaintiffs, that the present suit in O.S.No. 183 of 2013 is filed for setting aside the decree made in O.S.No. 120 of 2007 and for the said relief, the relevant Article is only Article 59, which contemplates three years as the period of limitation, that too it applies only to the parties to the proceedings and not to third parties like the respondents 1 and 2 herein, who are admittedly not parties to O.S.No. 120 of 2007. Thus, he contended that they have filed the present suit in O.S.No. 183 of 2013 based on the liberty granted to them in the earlier C.R.Ps. discussed supra. Considering these rival submissions, I am of the view that the abovesaid aspect of the matter has to be considered by the trial Court based on the facts and circumstances of the case as well as the relevant provision of law. Certainly, such exercise cannot be done while considering the application under Order 7 Rule 11 CPC, as discussed supra.
21. Learned counsel for the petitioner further relied on a decision of this reported in
22. Considering all the above facts and circumstances, C.R.P.(PD).No. 2758 of 2014 fails and the same is dismissed. No costs. The Miscellaneous Petition is closed.
C.R.P.(PD).No. 3216 of 2014:
23. Since this Court has dismissed C.R.P.(PD).No. 2758 of 2014 as above, the joint trial ordered by the trial Court in respect of O.S.No. 165 of 2007 with O.S.No. 183 of 2013, cannot be found fault with, as both the suits involve the same subject matter, though may be in part in one suit. Learned counsel for the petitioner even in the very beginning submitted that she may not press for this Civil Revision Petition (C.R.P.(PD).No. 3216 of 2014), if she fails to succeed in the other C.R.P, namely C.R.P.(PD).No. 2758 of 2014. Accordingly, I find no merits to interfere with the impugned order of the trial Court and consequently C.R.P.(PD).No. 3216 of 2014 also fails and the same is dismissed. No costs. The Miscellaneous Petition is closed.
