A party to a litigation is said to be guilty of abuse of process of the Court, in any of the following cases:-

 It is this conduct of the respondent that is attacked by the petitioner as abuse of process of Court. What is 'abuse of the process of the Court'? Of course, for the term 'abuse of the process of the Court' the Code of Civil Procedure has not given any definition. A party to a litigation is said to be guilty of abuse of process of the Court, in any of the following cases:-

(1) Gaining an unfair advantage by the use of a rule of procedure.

(2) Contempt of the authority of the Court by a party or stranger.

(3) Fraud or collusion in Court proceedings as between parties.

(4) Retention of a benefit wrongly received.

(5) Resorting to and encouraging multiplicity of proceedings.

(6) Circumventing of the law by indirect means.

(7) Presence of witness during examination of previous witness.

(8) Institution vexatious, obstructive or dilatory actions.

(9) Introduction of Scandalous or objectionable matter in proceedings.

(10) Executing a decree manifestly at variance with its purpose and intent.

(11) Institution of a suit by a puppert plaintiff;

(12) Institution of a suit in the name of the firm by one partner against the majority opinion of other partners etc. 

Madras High Court

Unknown vs V.Ludovic Spielmann on 30 September, 2011

The third defendant in O.S.No.5 of 2007 before the learned III Additional District Judge at Puducherry, is the petitioner herein. The plaintiff thereon is the first respondent and defendants 1 and 2 are respondents 2 and 3.
2. The said suit has been filed by the first respondent against the petitioner as well as respondents 2 and 3 for partition and separate possession of his half share over the suit property.

3. It is the case of the first respondent that the second respondent is his younger brother. Their father viz., Marie Joseph Vincent Spielmann was the only son and sole legal heir of Ludovic Joseph Marcel Spielmann, who was the grand father of respondents 1 and 2. The suit property was originally purchased by the said Ludovic Joseph Marcel Spielmann under a Notaire Sale deed dated 12.8.1944. At that time, the first respondent s father was 18 years old. From the date of purchase, his father and grand father were in possession and enjoyment over the suit property. His grand father died on 8.7.1956. Thereafter, the first respondent s father continued to be in possession and enjoyment of the property till his death on 26.7.2000 and thereafter, respondents 1 and 2 alone have got right and title over the suit property. The petitioner and the third respondent are the permissible occupiers in a portion of the suit property and they have no right over the same. Since his brother, the second respondent has not agreed for an amicable partition, the first respondent has filed the suit for partition and separate possession. The petitioner and the third respondent, who were defendants 2 and 3 in the said suit have to pay the mesne profits.
4. The said suit is sought to be struck off at the instance of the petitioner, who was the third defendant in the suit. The case of the petitioner is as follows:-
(a) Ludovic Joseph Marcel Spielmann had married one Jayamarie and one daughter viz., the petitioner and her brother viz., the third respondent were born to them. Ludovic Joseph Marcel Spielmann had executed a holographic will bequeathing all his properties including the suit property in favour of his children viz., the petitioner and the third respondent. Later, he died and as per the Will dated 24.3.1952, the petitioner, her mother and the third respondent had acquired all the properties including the suit property.
(b) The petitioner had filed a suit in O.S.No.85 of 1974 on the file of the learned Principal Subordinate Judge, Puducherry against her mother and brother, the third respondent herein for partition and separate possession of the properties. A preliminary decree was passed on 31.8.1976. Final decree was passed on 16.12.1986. (c) One Marie Joseph Vincent Amedee, the father of respondents 1 and 2 and his sister Louisa Josephine claimed that Ludovic Joseph Marcel Spielmann had married one Aroquia Marie Papa and they were born to them. The petitioner s mother Jayamarie was only the second wife. Through her, the petitioner and her brother, the third respondent herein were born to them. Ludovic Joseph Marcel Spielmann had died leaving behind him all the above referred persons. Therefore, they are entitled to get = share of the suit property and a suit has been filed by Marie Joseph Vincent Amedee and Lousia Josephine in O.S.No.23 of 1980 before the learned Additional Subordinate Judge, Puducherry against the petitioner, her mother and her brother, the third respondent herein for partition and separate possession of the property claiming = share in the suit property. In the said suit, a preliminary decree was passed on 10.2.1986. Against the said judgment and decree, the petitioner had filed an appeal in A.S.No.85 of 1986 before the learned II Additional District Judge, Puducherry. By a judgment and decree dated 6.4.1988, the said judgment and decree of the trial Court was set aside and the appeal was allowed. The second appeal filed in S.A.No.106 of 1990 was also dismissed and the special leave petition filed in S.L.P.(Civil) No.16566 of 2006 was also dismissed. In all the proceedings, it has been confirmed that Ludovic Joseph Marcel Spielmann had married Jayamarie and the petitioner and her brother viz., the third respondent herein are his only children and they inherited the properties. It has been further held that Marie Joseph Vincent Amedee, the father of respondents 1 and 2 and his sister are not the legal heirs of the said Ludovic Joseph Marcel Spielmann. (d) In the meanwhile, Marie Josephe Vincent Amedee, the father of respondents 1 and 2 had filed a suit in O.S.No.172 of 1997 before the learned Additional Sub Judge, Puducherry against the petitioner and her brother, the third respondent herein for a declaration that the judgment and preliminary decree dated 31.8.1976 made in O.S.No.85 of 1974 are null and void. The suit was dismissed for default on 3.10.2002 and no steps have been taken by respondents 1 and 2, who are his legal heirs. Suppressing all those facts, the present suit in O.S.No.5 of 2007 has been filed for partition and separate possession of the property claiming half share. Since the rights of the parties have already been declared in the above referred proceedings, the petitioner has come up with the present civil revision petition seeking to strike off the plaint.
5. The case of the second respondent, in nutshell, is set out here under:-
(a) His paternal grand father viz., Ludovic Joseph Marcel Spielmann got married with Arokiamarie Papa and due to their Wedlock, they blessed with a son viz., Marie Joseph Vincent Spielmann (the first respondent and second respondent's father) and the second respondent's father got married with Arokiamarie Rajammal. During their wedlock they blessed with two sons viz., V.Ludovic Spielmann (the first respondent) and V.Maurice Spielmann (the second respondent herein). Now, the second respondent and his brother the first respondent are alive as their legal successors and legal heirs.
(b) After the death of Marie Joseph Vincent Spielmann and Arokiamarie and Rajammal, their two sons the first respondent and second respondent were amicably and orally partitioned the properties of the deceased Marie Joseph Vincent Spielmann and the second respondent alone took care of the suit property in paying the tax and other transactions.
(c) During the lifetime of the second respondent's father, he allowed some tenants to reside in a part of the suit property mentioned, as tenants on paying the rent for land. The second respondent by way of judicial proceedings vacated them from the said premises and from the date of vacating them, the second respondent alone is in legal and physical possession over the suit property. The second respondent has no dispute with the first respondent for partition of the suit property among themselves.
6. The case of the third respondent is set out here under:-
(a) The third respondent was born to Ludovic Joseph Marcel Spielmann and Jayamarie on 16.8.1947 at Pondicherry and his birth was also duly registered in the Pondicherry Municipality. Hence, the first respondent herein has chosen to wantonly play a mischief in describing him as the son of some Anthonisamy intending to play fraud upon this Court.
(b) The first respondent has suppressed the material facts and has filed the suit with full of mala fides. The first respondent's grand father is not Ludovic Joseph Marcel Spielmann as alleged in the plaint. The first respondent's father one Marie Joseph Vincent Amedee along with his sister Louisa Josephine filed a suit for partition and separate possession as against this respondent's mother Jayamarie and sister Marie Therese Helene and this defendant for partition and separate possession claiming to be the legitimate heirs of Ludovic Joseph Marcel Spielmann in O.S.No.23 of 1980 on the file of the learned Additional Subordinate Judge at Pondicherry. In the said suit, a preliminary decree was passed on 10.2.1986 declaring that Marie Joseph Vincent Amedee viz., the father of respondents 1 and 2 is entitled to 1/4th share in the suit property and the petitioner and her brother viz., the third respondent are entitled to the remaining 3/4th share, etc. Against the said judgment and preliminary decree, the petitioner has preferred an appeal in A.S.No.85 of 1986 before the Court of learned II Additional District Judge, Puducherry. In the said appeal, by a judgment dated 6.4.1988, the learned II Additional District Judge, Pondicherry has given a clear finding that Marie Joseph Vincent Amedee and Louisa Josephine are not legitimate heirs of Ludovic Joseph Marcel Spielmann. No appeal was preferred by the first respondent's father as against the said judgment. Hence, the judgment in A.S.No.85 of 1986 dated 6.4.1988 has become final and conclusive. Therefore, when the first respondent's father himself is not the son of Ludovic Joseph Marcel Spielmann, the first respondent or the second respondent, by no stretch of imagination, could ever claim any right in the suit properties.
(c) The suit property originally belonged to Ludovic Joseph Marcel Spielmann who is the natural father of this respondent and the petitioner by virtue of a notarial sale deed dated 12.8.1944. This respondent and the petitioner are the only legitimate heirs of Ludovic Joseph Marcel Spielmann. In fact there was a suit for partition as between the petitioner and the third respondent and their mother in O.S.No.85 of 1974 on the file of the learned Principal Subordinate Judge at Pondicherry. The suit properties in the present suit were the subject matter in O.S.No.85 of 1974 wherein a preliminary decree for partition was ordered by judgment dated 31.8.1976 as between petitioner and the third respondent and their mother entitling each of them of 1/3rd share. The proceedings also ended up and each sharers entitlement was divided and accordingly, separate possession was also delivered.
(d) In view of the fact that the first respondent's father Marie Joseph Vincent Spielmann having lost all the litigations more specifically in O.S.No.23 of 1980 by virtue of A .S.No.85 of 1986 in judgment dated 6.4.1988, the first respondent does not have any cause of action for the suit. Therefore, the suit is liable to be dismissed for want of cause of action and in fact the plaint is also liable to be reject.
7. I have heard the learned counsel appearing for the petitioner and the learned counsels appearing for the respondents.

8. The only aspect that has to be considered is whether the first respondent herein can maintain the suit in the backdrop of the facts set out earlier. The facts which are not disputed are that
(i) the petitioner claiming that his father Ludovic Joseph Marcel Spielmann had executed a holographic Will bequeathing all the properties including the suit property to her and her brother, the third respondent and her mother Jayamarie, has filed a suit in O.S.No.23 of 1980 before the learned Principal Subordinate Judge, Puducherry against her mother and brother for partition and separate possession of the properties and obtained a preliminary decree on 31.8.1976 and a final decree was granted on 16.12.1976. (ii) One Marie Joseph Vincent Amedee, the father of respondents 1 and 2 and his sister Louisa Josephine has filed a suit in O.S.No.23 of 1980 before the learned Additional Subordinate Judge, Puducherry against the petitioner, her mother Jayamarie and brother viz., the third respondent for a preliminary decree for partition and separate possession of their half share in the suit property. Their claim was that they were born to Ludovic Joseph Marcel Spielmann through Aroquia Marie Papa, their mother. The petitioner s mother Jayamarie is only the second wife and hence, they are all entitled to half share over the properties. (iii) A preliminary decree was made in O.S.No.23 of 1980 on 10.2.1986 which was set aside in an appeal in A.S.No.85 of 1986. The second appeal in S.A.No.106 of 1990 was also filed. Pending appeal, Marie Joseph Vincent Amedee died and respondents 1 and 2 were brought on record as his legal representatives. The said second appeal was also dismissed on 13.11.2001. Special Leave Petition in SLP (Civil) No.16566 of 2006 also met with the same result. (iv) While so, the first respondent herein has filed the present suit in O.S.No.5 of 2007 for partition and separate possession claiming half share over the suit property.
9. In the above backdrop of the matter, it has to be seen whether the present suit, in view of the factual matrix of the matter set out earlier, is sustainable or not. I am of the considered view that the present suit is clearly an abuse of process of law. When the father of respondents 1 and 2 has already filed a suit in O.S.No.23 of 1980 before the learned Additional Subordinate Judge, Puducherry against the petitioner, her mother Jayamarie and her brother, the third respondent praying for a preliminary decree for partition and separate possession along with his sister and when the suit was originally decreed and thereafter set aside in an appeal in A.S.No.85 of 1986 and was confirmed further in the second appeal in S.A.No.105 of 1990 and further confirmed by the Hon ble Apex Court in SLP (Civil) No.16566 of 2006, the first respondent once again cannot file a suit in O.S.No.5 of 2007 for partition and separate possession.
10. The claim of the father of respondents 1 and 2 viz., Marie Joseph Vincent Amedee was that Ludovic Joseph Marcel Spielmann had married one Aroquia Marie Papa and the father of respondents 1 and 2 and his sister Louisa Josephine were born to them. The petitioner s mother Jayamarie is only the second wife. Though the suit was decreed originally, the same was set aside in an appeal in A.S.No.85 of 1986 by the learned II Additional District Judge, Puducherry. In the said judgment, there is a categorical finding that Ludovic Joseph Marcel Spielmann had married Jayamarie and the petitioner and her brother, the third respondent were the only children born to them. It has been further held that the father of respondents 1 and 2 viz., Marie Joseph Vincent Amedee and his sister Louisa Josephine were not the legal heirs of Ludovic Joseph Marcel Spielmann. This finding was confirmed, as stated already, in the second appeal and the special leave petition before the Hon ble Apex Court was also dismissed. That apart, the father of respondents 1 and 2 had filed a suit in O.S.No.172 of 1997 before the learned Additional Subordinate Judge, Puducherry against the petitioner and her brother viz., the third respondent for a declaration that the judgment and the preliminary decree dated 31.8.1976 made in O.S.No.85 of 1974 and the final decree dated 16.12.1996 in I.A.No.295 of 1981 are null and void and sought for setting aside the same and also for a preliminary decree for partition. The said suit was dismissed for default on 3.10.2002 and no further steps have been taken to set aside the said judgment and decree. Thus, in the proceedings referred to above, the title of the petitioner and the third respondent and their predecessor was settled. While so, the first respondent again knocked the door of the Court, claiming partition and separate possession of the suit property. The claim once again in the present suit by the first respondent is that his father Marie Joseph Vincent Amedee is the only son of Ludovic Joseph Marcel Spielmann. If this is allowed, no litigation will come to an end.
11. During the course of arguments, the learned counsel appearing for the first respondent contended that a fraud has been played in the earlier proceedings and hence, the first respondent shall be permitted to expose the same. That apart, he has contended that when fraud has been played on the Court and a decree has been obtained, nothing prevented him from exposing the same by filing a later suit and the same cannot be struck off. However, I am of the considered view that such plea taken now at this stage, cannot be entertained. The first respondent in his suit has not claimed that fraud has been played by the parties at the time of initiation of the earlier proceedings. The plaint is very silent about the same. When such is the position, the first respondent cannot now say that an application has been filed before the trial Court in the present suit praying for amendment of the pleadings exposing the fraud and contend that the suit cannot be struck off.
12. That apart, in the plaint, the first respondent herein has suppressed all the previous proceedings. A person who has come to the Court without clean hands, cannot be allowed to stand for a minute and contend that the other side has played fraud on the Court and obtained favourable orders and hence, the same cannot be taken note of. In fact, the father of respondents 1 and 2 has filed a suit, as stated already, in O.S.No.172 of 1997 for declaration that the judgment and preliminary decree in O.S.No.85 of 1974 dated 31.8.1976 are null and void, but, however, he has not proceeded with the said suit and the same was dismissed for default as early as 3.10.2002. The first respondent who has stepped into the shoes of his father, who has filed the earlier suit in O.S.No.172 of 1997 for the relief set out earlier, without taking any steps in the said suit to set aside the judgment and decree, cannot now plead that the decree obtained in O.S.No.85 of 1974 by the petitioner is null and void. Further more, in the present suit, the first respondent has claimed only for partition and separate possession suppressing all the previous proceedings. Even the present application said to have been filed by the first respondent for amendment, was made only on 8.9.2011 after the matter was argued at length for quite some time. When it has been declared that Ludovic Joseph Marcel Spielmann had married Jayamarie, and the petitioner and her brother, the third respondent are his only children, the first respondent cannot now plead that Ludovic Joseph Marcel Spielmann had married only Aroquia Marie Papa and his father Marie Joseph Vincent Amedee and his sister Louisa Josephine were born to them.
13. Learned counsel appearing for the petitioner relied on the following decisions:-
(A) In (2010) 13 Supreme Court Cases 158  Omprakash Verma and others vs. State of Andhra Pradesh and others, the Hon'ble Apex Court, in paragraphs 70 and 76 has held as follows:-
" 70. This Court has approved this well-settled principle that a judgment of the Supreme Court cannot be collaterally challenged on the ground that certain points had not been considered. This Court in Anil Kumar Neotia v. Union of India held that it is not open to contend that certain points had not been urged or argued before the Supreme Court and thereby seek to reopen the issue. The relevant portion of the judgment is as follows: (SCC p 600, paras 17-18)
17. This Court further observed that to contend that the conclusion therein applied only to the parties before this Court was to destroy the efficacy and integrity of the judgment and to make the mandate of Article 141 illusory.
18. It is also no longer open to the petitioners to contend that certain points had not been urged and the effect of the judgment cannot be collaterally challenged.
" 76. In Forward Construction Co. v. Prabhat Mandal this Court held that an adjudication is conclusive and binding not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided. The following portion of the judgment is relevant which reads as under: (SCC p. 112, para 20) 20. So far as the first reason is concerned, the High Court in our opinion was not right in holding that the earlier judgment would not operate as res judicata as one of the grounds taken in the present petition was conspicuous by its absence in the earlier petition. Explanation IV to Section 11 CPC provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject-matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided.
(B) In (2010) 2 Supreme Court Cases 114 Dalip Singh vs. State of Uttar Pradesh and others, the Hon'ble Apex Court in paragraphs 1 and 2 has held as follows:-
" 1. For many centuries Indian society cherished two basic values of life i.e. satya (truth) and ahimsa (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.
2. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final. "
(C) In (2003) 8 Supreme Court Cases 289  Ravinder Kaur vs Ashok Kumar and another, the Hon'ble Apex Court, in paragraph 22 has held as follows:-
" 22. All these facts apart, we notice that nowhere in the petition the respondent tenants claim to be in possession of any shop other than Shop No. 3 in regard to which they have suffered an eviction order. It is not their case that they are also in possession of some other property in regard to which there is no eviction order but the landlord is trying to take possession in these execution proceedings. We have specifically asked the learned counsel appearing for the respondents that apart from Shop No. 3 belonging to the appellant, are the respondents in possession of any part of the property bearing No. EK 172/2 situated at Chowk Panjeer, Jalandhar. The learned counsel was not able to give any satisfactory reply to our question which would only mean that the respondents are not in possession of any other property other than Shop No. 3 leased out to them in the abovementioned property belonging to the appellant. That is also why they prayed for restoration of possession. Therefore, raising a dispute in regard to the description or identity of the suit schedule property or a dispute in regard to the boundary of the suit schedule property is only a bogey to delay the eviction by the abuse of the process of court. Courts of law should be careful enough to see through such diabolical plans of the judgment-debtors to deny the decree-holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing law's delay and bringing bad name to the judicial system. "
(D) In the decision reported in 2003-1-L.W.475 Hotel S.S.Pandian Pvt. Ltd., vs. The Chief Judge, Court of Small Causes, etc., this Court in paragraphs 9, 11, 12 and 14, has held as follows:-
" 9. A perusal of series of facts placed before this Court and referred to earlier, signifies that this is one of those cases in which the process of administration of justice is rendered a mockery by raising technical pleas with deliberate intention to throw aside valid decrees and orders. Such decrees and orders are reduced into nothing more than pieces of paper. The landlord even after having obtained an order of eviction as early as 2.5.1990, is unable to execute the same due to unconscionable action on the part of the writ petitioner. Poongothai Pandian who describes herself as the Managing Director of M/s.Pandian Hotels, is none else than the wife of S.S.Pandian, who is the tenant of the premises. After eviction was ordered against him on 2.5.1990, in the execution proceedings, he manages to convince the landlord to agree for a compromise with an undertaking to vacate the premises in three years namely, by 16.11.1993. After the lapse of three years he does not vacate the premises but sets up new tenancy. The Executing Court on 16.11.1993 ordered delivery of possession. This was again resisted by the tenant under the guise of seeking for amendment of the decree relating to description of the property and manager to squat on the property. Ultimately, the issue went up before the Supreme Court in Civil Appeal Nos.7809 and 7810 of 1997 in which by order dated 4.9.2000, the Supreme Court held that the executing Court shall give effect to the order of eviction dated 10.11.1993. When the landlord attempted to pursue his remedy in terms of the orders of the Supreme Court, the tenant sets up his wife by describing herself as the Managing Director of S.S.Pandian Hotels to file O.S.No.237 of 2000 on the file of City Civil Court, Madras, claiming to be the real tenant. As she did not succeed in obtaining any interim order, execution was resisted when the landlord attempted to execute the order of eviction through the Rent Controller. There also the tenant manages to protract the proceeding by filing series of objections for adjournment, petition transferring the E.P. to some other Court, summoning witnesses, etc. Ultimately the order of removal of obstruction was ordered on 16.4.2001. Hence, the above writ petition complaining bias against the executing Court and violation of principles of natural justice."
11. The right of an innocent and genuine occupant as an obstructor is recognised under Order 21, Rule 97 C.P.C. But such a right cannot be converted into a tool in the hand of high handed and self seeking persons / Judgment debtors in order to defeat the rights of the parties and to render the decrees and orders of the Court nothing more than pieces of papers. Order 21, Rule 97 C.P.C. is intended to protect a person who is genuinely in possession of the property claiming independent rights. That is why under Order 21, Rule 101 C.P.C., the Court is required to go into all allegations of title, right and interest as if it is a suit by itself. But the most important feature to be borne in mind is Rule 102 which is squarely applicable to the facts of the present case. The provisions relating to the resistance or obstruction to possession of immovable property will no apply to obstruction by a person to whom the judgment debtor had transferred the property pendente lite. In the present case, the petitioner is the judgment debtor or at the most a transferee. Admittedly, S.S.Pandian Hotels is alleged to have taken possession from S.S.Pandian, who had suffered an order of eviction and hence bound by the decree against S.S.Pandian. There is nothing on record to show that the landlord had been informed about the alleged transfer nor the landlord attorning to the tenancy of Pandian Hotels. In fact it is admitted in the oral evidence of S.S.Pandian that the landlord had not been informed about the transfer of the business in favour of the company, but would claim that the landlord was originally informed. This is nothing but a lie considering the strained relationship between the parties and that a legal battle was going on between the parties at that time before this Court and subsequently before the Supreme Court. Also admittedly, the so called transfer of business had not been mentioned before this Court when the revision was pending or subsequently before the Supreme Court. Therefore, for deciding the rights of the parties between the landlord and the tenant S.S.Pandian, conversion of the business into a company, is irrelevant. It cannot affect the rights of the landlord to secure vacant possession in terms of the orders of the Supreme Court. The fact that the transfer of business was neither informed in writing to the landlord nor to this Court or the Supreme Court, betrays clandestine attempt to avoid eviction in an unfair manner. The said fact is also indicative of the position that the petitioner himself had not attached any importance to the so-called transfer or business. If they had thought that it was a relevant and important factor then they ought to have informed this Court or the Supreme Court about the transfer of business. Therefore, viewed from any angle the conduct of the petitioner is a clear action of abuse of process of Court aimed at thwarting eviction proceedings which had become concluded before the Supreme Court upholding the order of eviction. The very documents relied on by the petitioner namely, the cheque said to have been issued by Pandian Hotels is signed by S.S.Pandian as Managing Director for Pandian Hotels. The attempt on the part of S.S.Pandian and his wife to project as if Pandian Hotels is a different entity which had entered into a separate tenancy with the landlord, is a highly deplorable conduct and has to fail. The Court cannot allow such hide and seek tactics.
12. Learned counsel for the respondent has rightly contended that it is open to the Court to pierce veil of the legal entities and to find out the real motives. Learned counsel relies on the following passage in A.Ramiah's Companies Act, 14th Edition, at page 352 which is as follows:-
"The Court may disregard the separate existence of the company where it appears that the company was incorporated for evading contractual and statutory obligations. An observation about such cases is to be found in Cower. Principales of Modern Company Law, 126-127 (Fourth Edn. 1989): "Thus in Cilford Motor Co. v. Horne (1993) ch 935 (CA), Horne a former employee of the plaintiffs covenanted not to solicit its customers. He attempted to evade this obligation by forming a company which undertook the soliciting. An injunction was granted against both him and the company (notwithstanding that it was not a party to the covenant). The company was described in the judgment as "a device, a stratagem: at 956, 961 and a "mere cloack or sham" (bid p.969. In Jones v. Lipman, (1962) 1 ALL ER.442; the defendant attempted to avoid completing the sale of his house to the plaintiff by conveying it to a company formed for the purpose. In ordering both the defendant and his company specifically to perform the contract with the plaintiff, Russel, J described the company as "a devise and a sham a mask which he holds before his face in an attempt to avoid recognition by the eye of equity (Ibid p.836, See also Einhorn v. Westmount Investment Ltd. (1969) DLR (3d) 71, Sask Q.B. (Affd) 73 WWR 161 (CA))"
14. The series of the action by the petitioner commencing from violating the undertaking given by him for vacating the premises in 1993 after a period of three years, then raising a dispute as though there was fresh tenancy and now even after the proceedings had finally concluded before the Supreme Court in December, 2000, filing a review petition without mentioning the alleged transfer of tenancy then the present defence being taken up as an obstructor or as a new tenant, expose a determined and high handed attitude on the part of the petitioner to circumvent the order of eviction. The attitude of the writ petitioner deserves to be seriously viewed".
(E) In 1998 (I) CTC 66 Ranipet Municipality v. M.Shamsheerkhan, this Court, in paragraph 9, has held as follows:-
" 9. It is this conduct of the respondent that is attacked by the petitioner as abuse of process of Court. What is 'abuse of the process of the Court'? Of course, for the term 'abuse of the process of the Court' the Code of Civil Procedure has not given any definition. A party to a litigation is said to be guilty of abuse of process of the Court, in any of the following cases:-
(1) Gaining an unfair advantage by the use of a rule of procedure.
(2) Contempt of the authority of the Court by a party or stranger.
(3) Fraud or collusion in Court proceedings as between parties.
(4) Retention of a benefit wrongly received.
(5) Resorting to and encouraging multiplicity of proceedings.
(6) Circumventing of the law by indirect means.
(7) Presence of witness during examination of previous witness.
(8) Institution vexatious, obstructive or dilatory actions.
(9) Introduction of Scandalous or objectionable matter in proceedings.
(10) Executing a decree manifestly at variance with its purpose and intent.
(11) Institution of a suit by a puppert plaintiff;
(12) Institution of a suit in the name of the firm by one partner against the majority opinion of other partners etc. ..."
(F) The Hon'ble Apex Court, in the decision reported in (1999) 5 Supreme Court Cases 590  Hope Plantations Ld., vs. Taluk Land Board, Peermade and another, in paragraph 26, has held as follows:-
" 26. It is settled law that the principles of estoppel and res judicata are based on public policy and justice. Doctrine of res judicata is often treated as a branch of the law of estoppel though these two doctrines differ in some essential particulars. Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two aspects are cause of action estoppel and issue estoppel . These two terms are of common law origin. Again, once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is to approach the higher forum if available. The determination of the issue between the parties gives rise to, as noted above, an issue estoppel. It operates in any subsequent proceedings in the same suit in which the issue had been determined. It also operates in subsequent suits between the same parties in which the same issue arises. Section 11 of the Code of Civil Procedure contains provisions of res judicata but these are not exhaustive of the general doctrine of res judicata. Legal principles of estoppel and res judicata are equally applicable in proceedings before administrative authorities as they are based on public policy and justice. "
14. The above judgments make it very clear that the parties cannot re-litigate again and again on the same cause of action. They have to be estopped from doing so. Vexatious litigations cannot be allowed to stand and it is a clear abuse of process of law.

15. Learned counsel appearing for the first respondent has relied on the following decisions:-
(A) In (2005) 7 Supreme Court Cases 605  Bhaurao Dagdu Paralkar vs. State of Maharashtra and others, the Hon'ble Apex Court, in paragraphs 11 and 12, has held as follows:-
"11. Fraud as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letters or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letters. 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 wilfully 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 ensues therefrom 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 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. (See Ram Chandra Singh v. Savitri Devi6.)
12. In Shrisht Dhawan v. Shaw Bros.7, it was observed as follows: (SCC p. 553, para 20)
Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likens a fraudster to Milton's sorcerer, Camus, who exulted in his ability to, wing me into the easy-hearted man and trap him into snares . It has been defined as an act of trickery or deceit. In Webster's Third New International Dictionary fraud in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black's Law Dictionary, fraud is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury's Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Contract Act, 1872 defines fraud as an act committed by a party to a contract with intent to deceive another. From the dictionary meaning or even otherwise fraud arises out of the deliberate active role of the representator about a fact, which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of fact with knowledge that it was false. In a leading English case i.e. Derry v. Peek8 what constitutes fraud was described thus: (All ER p. 22 B-C) Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false.
But fraud in public law is not the same as fraud in private law. Nor can the ingredients, which establish fraud in commercial transaction, be of assistance in determining fraud in administrative law. It has been aptly observed by Lord Bridge in Khawaja v. Secy. of State for Home Deptt. that it is dangerous to introduce maxims of common law as to the effect of fraud while determining fraud in relation of statutory law. Fraud in relation to the statute must be a colourable transaction to evade the provisions of a statute. If a statute has been passed for some one particular purpose, a court of law will not countenance any attempt which may be made to extend the operation of the Act to something else which is quite foreign to its object and beyond its scope. Present day concept of fraud on statute has veered round abuse of power or mala fide exercise of power. It may arise due to overstepping the limits of power or defeating the provision of statute by adopting subterfuge or the power may be exercised for extraneous or irrelevant considerations. The colour of fraud in public law or administrative law, as it is developing, is assuming different shades. It arises from a deception committed by disclosure of incorrect facts knowingly and deliberately to invoke exercise of power and procure an order from an authority or tribunal. It must result in exercise of jurisdiction which otherwise would not have been exercised. That is misrepresentation must be in relation to the conditions provided in a section on existence or non-existence of which power can be exercised. But non-disclosure of a fact not required by a statute to be disclosed may not amount to fraud. Even in commercial transactions non-disclosure of every fact does not vitiate the agreement. In a contract every person must look for himself and ensure that he acquires the information necessary to avoid bad bargain. In public law the duty is not to deceive.  (See Shrisht Dhawan v. Shaw Bros., SCC p. 554, para 20.)"
(B) In (2008) 8 Supreme Court Cases 511  North Eastern Railway Admn. vs. Bhagwan Das, the Hon'ble Apex Court, in paragraph 19, has held as follows:
" 19. If the stand of the appellant, which, according to them, is borne out from the documents now on record, is found to be correct, then obviously these will have material bearing on the core issue, namely, whether the decree dated 13-3-2001 is a nullity, having been allegedly obtained by concealing material facts and playing fraud on the court. It is trite that a judgment or decree by the first court or by the highest court obtained by playing fraud on the court is a nullity and non est in the eye of the law. (See S.P. Chengalvaraya Naidu v. Jagannath5 and India Household and Healthcare Ltd. v. LG Household & Healthcare Ltd.)
(C) In (1994) 1 Supreme Court Cases 1 S.P.Chengalvaraya Naidu (dead) by Lrs. vs. Jagannath (dead) by Lrs and others, the Hon'ble Apex Court, in paragraph 1, has held as follows:-
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 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. It can be challenged in any court even in collateral proceedings. (D) In (2000) 7 Supreme Court Cases 543  Gram Panchayat of Village Naulakha vs. Ujangar Singh and others, the Hon'ble Apex Court has held that as the appellant Panchayat had not filed an independent suit to set aside the earlier decree or sought a declaration, the statutory revenue authorities could not ignore it on the ground that it was collusive and fraudulent.
16. By relying on those decisions, learned counsel appearing for the first respondent contended that when a fraud has been played on the Court, the same can be challenged in a later suit or proceedings. But, in the present case on hand, the discussions made above will amply establish that not only in one proceeding but also continuously upto the Hon ble Apex Court, the claim of the petitioner was upheld. The attempt made by the father of respondents 1 and 2 by filing a suit in O.S.No.172 of 1997 to set aside the decree obtained by the petitioner in O.S.No.85 of 1974 as null and void was also not proceeded with. As stated already, the first respondent herein suppressing all the facts, has filed the present suit for partition and separate possession. If the plea of the first respondent has to be accepted, the parties will litigate the matter again and again and re-litigation cannot be accepted. Further more, as already pointed out, the first respondent has not stated about the fraud, etc., at the time of filing of the suit, and for the first time he had made it through his counsel and in fact, the application for amendment incorporating the alleged fraud was made only after the commencement of arguments in this revision.
17. For all the reasons stated above, I am of the considered view that the first respondent cannot be allowed to proceed with the suit and as rightly claimed by the petitioner, the plaint has to be struck off.

18. In the result, the plaint in O.S.No.5 of 2007 pending on the file of learned III Additional District Judge, Puducherry is struck off and the civil revision petition stands allowed. However, there is no order as to costs. Consequently, connected miscellaneous petition is closed.
30 .09.2011
Index:Yes
Internet:yes
sbi
To
The III Additional District Judge, Puducherry.
K.VENKATARAMAN, J
sbi

CRP (PD) No.1625 of 2010

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