In my opinion, the appellate court committed gross illegality
inasmuch as one fails to understand as to how the appellate court has
overlooked the mandate of Order 6 Rule 4 CPC which required that in any
suit in which fraud is pleaded there have to be pleaded detailed particulars of
the fraud. This is all the more so required in the present case because the
suit was to nullify the earlier judgment and decree dated 27.11.1997 which
operated as res judicata and to which proceedings the respondent/plaintiff
was very much a party. No doubt, a suit can be filed alleging perpetuation
of fraud, however, in cases such as the present, the plea of fraud cannot be
easily used to overcome the bar under Sections 11 and 47 CPC especially
when not only the application under Order 9 Rule 13 CPC was dismissed
right till the Supreme Court but also objections filed by the
respondent/plaintiff in execution of the judgment and decree dated
27.11.1997 were dismissed and even an appeal against that order dismissing
objections was also dismissed.
8.
Clearly therefore the impugned judgment of the appellate court
is totally illegal and perverse to say the least.
IN THE HIGH COURT OF DELHI AT NEW DELHI
FAO No.71/2012 and C.M. Nos.17081/2010 (stay)
&2039/2013 (stay)
1st April, 2014
PARMINDER SINGH & ANR.
VERSUS
VIRENDER PAL SINGH JOLLY
CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA
This first appeal is filed under Order 43(1)(u) of Code of Civil
Procedure, 1908 (CPC) impugning the order of the appellate court dated
23.8.2008 by which the appellate court set aside the order of the trial court
dated
19.12.2006
which
had
allowed
the
application
of
the
defendants/appellants under Order 7 Rule 11 CPC and rejected the plaint.
2.
Respondent/plaintiff filed a suit for challenging the ex parte
judgment and decree dated 27.11.1997 against him (in suit No.114/1993)and
in favour of the defendants/appellants on the ground that the same was
obtained by practicing fraud. The admitted facts however were that the
application filed by the respondent/plaintiff under Order 9 Rule 13 CPC
seeking setting aside of the ex parte judgment dated 27.11.1997 was firstly
dismissed on 23.2.2001. That order dated 23.2.2001 was however set aside
by this Court in a revision application by remanding the matter back for
recording evidence and thereafter deciding the application under Order 9
Rule 13 CPC. Trial court allowed the application under Order 9 Rule 13
CPC by the order dated 2.7.2002, however this Court in civil revision
no.902/2002 set aside the order of the trial court and dismissed the
application under Order 9 Rule 13 CPC. Respondent/plaintiff had filed an
SLP before the Supreme Court but the same was dismissed. Therefore the
ex parte judgment and decree dated 27.11.1997 became final.
3.
The ex parte judgment and decree dated 27.11.1997 pertains to
a suit for possession filed by the appellants/defendants against the
respondent/plaintiff being suit No.305/1987.
The suit property bearing
no.125-C, Pocket A-2/B, Paschim Vihar, New Delhi had been allotted to the
father of the appellants/defendants by the DDA vide allotment letter dated
10.1.1983. Possession of the same was taken from the DDA on 10.3.1984.
Appellants/defendants’ father had handed over keys of the flat in question to
one Sh. Surjan Singh (brother-in-law) for looking after the flat. The father
of the appellants/defendants died in unfortunate circumstances as he was
murdered while travelling in a train. The keys of the flat were handed over
by Sh. Surjan Singh to the respondent/plaintiff to get repairs done.
Respondent/plaintiff however illegally occupied the flat and since he refused
to vacate, the suit for possession came to be filed. Respondent/plaintiff had
relied upon fraudulent and fabricated documents being agreement to sell,
power of attorney etc allegedly executed in his favour dated 28.9.1984 by
the father of the appellants/defendants, and as per which respondent/plaintiff
claimed ownership of the flat.
As already stated above, this suit was
ultimately decreed ex parte against the respondent/plaintiff vide ex parte
judgment and decree dated 27.11.1997 and the application of the
respondent/plaintiff under Order 9 Rule 13 CPC was dismissed till the
Supreme Court.
4.
The respondent/plaintiff did not rest there and filed objections
in execution. These objections were dismissed by the executing court vide
its order dated 3.6.2006 and appeal against the said order was also dismissed
by the appellate court on 1.12.2006.
5.
By the application filed by the appellants/defendants under
Order 7 Rule 11 CPC in the present suit it was pleaded that the judgment in
the earlier suit bearing no.305 of 1987 operated as res judicata against the
respondent/plaintiff under Section 11 CPC taken with the fact that the suit
was barred under Section 47 CPC inasmuch as even the objections filed by
the
respondent/plaintiff
were
dismissed
and
the
appeal
of
the
respondent/plaintiff against the order dismissing objections was also
dismissed as per details already stated above.
Trial court allowed the
application under Order 7 Rule 11 CPC and held that the suit was barred by
the provisions of Sections 11 and 47 CPC noting that no particulars of fraud
were pleaded in the plaint.
6.
The appellate court has allowed the appeal by the impugned
judgment and dismissed the application of the appellants/defendants, inter
alia by making the following observations on the aspect of fraud and Section
11 CPC:-
“7. I have seen the trial court records, impugned order, grounds
of appeal and feel that the order of the Ld. Civil Judge with
respect to the order u/o 7 Rule 11 CPC be set aside and file be
sent back to the Ld. Trial Court for further trial as per law on the
following grounds:
Firstly, so far as the order u/o.8 Rule 10 CPC is concerned,
plaintiff/appellant is not registered. Hence the order of the Ld.
Civil Judge with respect to the application u/o 8 Rule 10 CPC
is maintained.
Secondly, the Ld. Civil Judge stated that the present suit is
barred u/s. 41(a) of the Specific Relief Act. Section 41(a) of the
Specific Relief Act provides as under:
(a) to restrain any person from prosecuting a judicial
proceeding pending at the institution of the suit in which
injunction is sought, unless such restraint is necessary to
prevent a multiplicity of proceedings.
This section only speaks about the injunction. Reasoning may
be correct had the suit been filed only with respect to the
injunction but the suit is for declaration as well as fokr
injunction.
Thirdly, I have seen the prayer of the injunction in the original
suit. Though the relief should be interim relief, the relief is
worded in the absolute terms. Plaintiff is seeking in relief of
injunction that till the suit is decided and disposed defendant be
restrained from executing the decree in the previous suit and that
is allowed. Hence the relief is not covered u/s 41(a) of Specific
Relief Act.
Fourthly, so far as relief of declaration is concerned it is stated
that the previous judgment/decree has to be sought to be null
and void on the ground of fraud. However, the fraud is not
explained. Merely because the fraud has not been explained
cannot be the ground for rejection of the plaint. If the particulars
has not been given it could have been taken by examining the
pleadings and then the Ld. Civil Judge could pass the
appropriate order.
Fifthly, Order 7 Rule 11 provides as under:
Rejection of plaint-The plaint shall be rejected in the
following cases:
a) where it does not disclose a cause of action;
b) where the relief claimed is under-valued, and the
plaintiff, on being required by the Court to so correct the
valuation within a time to be fixed by the Court, fails to do
so;
c) where the relief claimed is properly valued, but the
plaint is written upon paper insufficiently stamped, and the
plaintiff, on being required by the Court to supply the
requisite stamp-paper within a time to be fixed by the Court,
fails to do so.
d) Where the suit appears from the statement in the plaint
to be barred by any law;
e) Where it is not filed in duplicate:
f) Where the plaintiff fails to comply the provisions of Rule9:
Only ground (a) of Order 7 Rule 11 CPC is applicable in the
present case. There is no finding that the order is based on Order
7 Rule 11 (a). So far as the relief of injunction in concerned that
may be barred u/o. 7 Rule 11(d) but the reliefs of declaration
are not barred u/o. 7 Rule 11(d)by virtue of Section 41 (a) of
Specific relief Act.
Sixthly, it is well established and even noted by the Ld. Civil
Judge that while dealing with application u/o. 7 Rule 11 CPC
only plaint has to be seen but the order shows that the Ld. Civil
Judge has travelled beyond the pleadings. It is stated in the order
that the plaintiff has not stated the facts and concealed the facts
with respect to the dismissal of the application and even
dismissal of review application. If these facts were notstated in
the plaint then how Ld. Civil Judge note these facts and from
where. During the order the Ld. Civil Judge discussed about the
res judicata and then it is stated by Ld. Civil Judge that the suit
is not barred by res judicata even otherwise res judicata is not
the ground u/o 7 Rule 11 CPC. That may be the ground on a
separate application u/s. 11 of the CPC.
8.
In view of the above, the appeal of the appellant is
hereby allowed. The case is remanded back to the Ld. Trial
Court for fresh trial as per law.”
7.
In my opinion, the appellate court committed gross illegality
inasmuch as one fails to understand as to how the appellate court has
overlooked the mandate of Order 6 Rule 4 CPC which required that in any
suit in which fraud is pleaded there have to be pleaded detailed particulars of
the fraud. This is all the more so required in the present case because the
suit was to nullify the earlier judgment and decree dated 27.11.1997 which
operated as res judicata and to which proceedings the respondent/plaintiff
was very much a party. No doubt, a suit can be filed alleging perpetuation
of fraud, however, in cases such as the present, the plea of fraud cannot be
easily used to overcome the bar under Sections 11 and 47 CPC especially
when not only the application under Order 9 Rule 13 CPC was dismissed
right till the Supreme Court but also objections filed by the
respondent/plaintiff in execution of the judgment and decree dated
27.11.1997 were dismissed and even an appeal against that order dismissing
objections was also dismissed.
8.
Clearly therefore the impugned judgment of the appellate court
is totally illegal and perverse to say the least. If the impugned judgment is
allowed to stand, really respondent/plaintiff will profit from false litigation,
and continue to illegally hold on to possession of the suit property, and of
which respondent/plaintiff has been illegally in possession way back
from around the year 1997. The appellate court has passed the impugned
judgment in a very cursory and mechanical manner without giving reasoning
as to why particulars of fraud ought not to have been mentioned inasmuch as
it is only after fraud is pleaded that evidence can be led with respect to the
pleadings of fraud and in the absence of pleadings, no evidence can be led
with respect to plea of fraud. In this case, the plea of fraud was clearly a
malafide and dishonest plea to avoid handing over possession of the suit
property to the appellants/defendants and prevent execution of the judgment
and decree dated 27.11.1997 in favour of the appellants/defendants.
9.
In view of the above, this appeal is allowed.
Impugned
judgment of the appellate court dated 23.8.2008 is set aside and the
judgment of the trial court dated 19.2.2006 is sustained whereby the plaint of
the respondent/plaintiff shall stand rejected under Order 7 Rule 11 CPC.
Considering the facts of the present case, the appeal is allowed with costs of
Rs.50,000/- because I find that the respondent/plaintiff is engaging in
unnecessary false litigation and has been continuing to illegally occupy the
suit property of which the appellants/defendants are the owners. Supreme
Court in the case of Ramrameshwari Devi & Ors. Vs Nirmala Devi & Ors.
(2011) 8 SCC 249 has held it is high time that in certain litigations heavy
costs must be imposed. I am also empowered to impose costs in terms of
Volume V of the Punjab High Court Rules and Orders (as applicable to
Delhi) Chapter VI Part I Rule 15.
APRIL 01, 2014
VALMIKI J. MEHTA, J.
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