Ram Singh vs Sohan Lal and Others

V.K. Jhanji, J.—This shall dispose of Regular Second Appeals No. 1444 and 2260 of 1992, filed by the appellant, Ram Singh.

Sohan Lal (respondent herein) was in possession of agricultural land measuring 13 kanals 8 marlas bearing Khewat No. 355/325, Khatoni No. 440, rectangle No. 16, Killa No. 9/2 (5-8), rectangle No. 21 killa No. 23 (8-0). The land belonged to the Rehabilitation Department. Sohan Lal continued to remain in possession till the property was put to restricted auction on 13.10.1984. Sohan Lal gave a bid of Rs. 11800/- and was declared as highest bidder. He deposited l/8th instalment, The sale was subject to confirmation by the Settlement Officer. The Settlement Officer did not confirm the sale. The property was again put to auction on 30.1.1985 and Ram Singh who gave a bid of Rs. 27,000/- was declared as highest bidder. Sohan Lal (respondent) filed a suit against the Government of Haryana through the Tehsildar (sales) and Ram Singh son of Ratti. The suit was for declaration to the effect that the sale made in his favour is valid and Tehsildar (Sales) has no right to re-auction the property. The suit was contested by the Government of Haryana through Tehsildar (Sales) alone as Ram Singh despite service, did not appear and was proceeded against ex-parte. The Government of Haryana took up all pleas including that the Civil Court has got no jurisdiction to entertain and try the suit. On contest, the suit was decreed and it was held that sale of the suit land in favour of Sohan Lal is valid and he has-become owner of suit land. The auction in favour of Ram Singh was held to be not valid. On appeal by the State of Haryana order of the trial Court was maintained. In appeal, Ram Singh was represented by a counsel. Ram Singh who was proceeded against ex-parte, filed an application Under Order 9 Rule 13 of the Code of Civil Procedure, but his application was dismissed as barred by time, At this stage, it may be mentioned that on 10.6.1987, during the pendency of the suit the Rehabilitation Department took possession from Sohan Lal and gave it to Ram Singh. After decision of the suit Sohan Lai filed an application u/s 144 of the CPC for restitution of the property on the ground that Ram Singh had no right to come into possession and since possession-was taken during the pendency of the suit, he was entitled to come into possession. This application was dismissed, being not maintainable. The Court found that possession of the land of was with Sohan Lal when he filed suit, but he was out of possession when suit was decreed. The possession taken from him was not under the decree and thus there was no question of restitution of the property in terms of Section 144 of the Code of Civil Procedure. Sohan Lal thereafter, filed an execution application, seeking possession. Ram Singh filed objection, but before the objections could be disposed of on merits, execution was got dismissed as withdrawn and rightly so, because it was only a decree for declaration for which no execution was maintainable. Ram Singh who had come into possession during pendency of the suit, in order to protect his possession, filed suit for declaration, challenging the decree in favour of Sohan Lal on the ground of fraud and collusion. When this suit was pending another suit was filed by Sohan Lal for possession on the basis of decree in his favour. Suit of Ram Singh was dismissed by the trial Court on 31.1.1991. On appeal by Ram Singh, judgment and decree of the trial Court was maintained. This decree is being impugned by Ram Singh in R.S.A, No. 1444 of 1992.

Similarly, suit for possession filed by Sohan Lal was decreed by the trial Court and on appeal, judgment and decree was maintained by the fit appellate Court. This judgment and decree is being challenged by Ram Singh in R.S.A. No. 2260 of 1992.

Mr. Gopi Chand, Advocate, counsel for the appellant Ram Singh, contended that decree dated 4.9.1986 and as affirmed in appeal on 11.12.1986, was obtained by fraud as according to the counsel Sohan Lal suppressed material facts from the Court. He further contended that the other defendant i.e. State of Haryana was in collusion with Sohan Lal and because of collusion certain documents which had the direct bearing on the case were not produced. Lastly he contended that Court decreeing the suit had no jurisdiction to try the suit as the order not confirming the auction in favour of Sohan Lal could be challenged before the Authority under the Displaced Peons (Rehabilitation and Compensation) Act (in short the Act). Thus, according to him, suit was barred u/s 27 of the Act. In reply, learned counsel for respondent, Sohan Lal, contended that appellant was a party to the earlier suit and the contentions now put forth by the counsel are not available to the appellant. According to the counsel, judgment and decree in the fit suit is inter-partes and shall operate as res-judicata.

At the out set, it may be stated that this Court is not sitting in appeal against the judgment and decree which has become final between the parties. This Court is examining in appeal the judgment and decree of the Courts below vide which suit of Ram Singh to impugn the earlier decree on the ground of fraud, collusion and lack of jurisdiction was dismissed. There is no dispute with the contention that in order to render the earlier decree inoperative it is not necessary that is should be reveed or supeeded only in proceedings arising out of the same case. It can be rendered ineffective in an independent proceedings provided it is shown that the judgment and decree was given by the Court not competent to give it or that it was so obtained by fraud or collusion. In order to test as to whether judgment was obtained by fraud or collusion one has to see the averments made in the plaint and particulars of fraud, if any described. The averments which are relevant to be considered are given in paras 6 to 10 which for the facility of reference are reproduced as under:-

"6. That the defendant No. 1 by way of fraud filed suit No. 118 dt. 23.3.85 in the Honourable Court of Senior Sub Judge, Faridabad instead of Sub Judge, Palwal, in collusion with defendant No. 2 & 3.

That the defendant No. 1 obtain decree against the plaintiff without proper service fraudulently in collusion with defendant No. 2 & 3.

That it is well settled law that decree for declaration cannot be passed until and unless possession of the property is within the plaintiff i.e. defendant No. 1 in the present suit.

That the defendant No. 1 and 2 & 3 defrauded that Honourable Court of Sh. V.S. Malik SJIC Faridabad. Had the defendant No. 1 and 2 & 3 brought to the notice of Honourable Court that the possession is not with the plaintiff in that suit now defendant No. 1. The Honourable Court would have dismissed the suit being not maintainable and the suit No. 118 dt. 23.3.85 decided by the Honourable Court of Sh. V.S. Malik Sub Judge Faridabad, on 4.9.86 became infructuous on 10.6.86 when possession of the suit property given to the plaintiff by the defendant No. 2 in presence of defendant No. 1.

That the plaintiff (in the present suit) and defendant No. 2 in Suit No. 118 dt. 23.5.85 proceeded ex-parte on 30.5.85 or 30.7.85 without proper and due service".

Apart from the above, there are no other particulars of fraud. The one which are given are mere general allegations. It has not been shown as to how, when, where and in what way fraud was committed by the plaintiff. What is mentioned in the plaint is that the decree was obtained against the plaintiff without proper service, fraudulently in collusion with the defendants and also that it was not brought to the notice of the Court that possession was not with the plaintiff when suit was decided. The ground of decree having been obtained without proper service, was agitated in application Under Order 9 Rule 13 of the Code of Civil Procedure, but that was decided adveely to Ram Singh, and to my mind, the finding given Under Order 9 Rule 13 of the CPC will operate as res-judicata and subsequent suit on this ground will not be competent. The contention that the decree was obtained in collusion with the other defendant, is also of no substance. Counsel was unable to point out as to what other possible pleas were available to the State which it had not taken in its written statement. A reading of the judgment now sought to be set aside on the ground of fraud, makes it abundantly clear that whatever pleas were available, were raised and put into issue. On consideration of evidence brought on record, the suit was decided in favour of Sohan Lal. The mere fact that certain documents were not produced by the State or officials of the State were negligent in not producing the record which according to the counsel was relevant for the decision of suit is not sufficient to hold that the previous judgment or decree stands vitiated on the ground of collusion. One can be said to be negligent, but negligence will not take the proof of collusion. ''Collusion'' in common parlance is a secret arrangement to deceive and one made between the opposing party in a law suit. As held by the Apex Court in Sukhanandan Singh etc. v. Jamiat Singh and Ors. 1971 P.L.J. 278. Collusion in judicial proceedings is normally associated with secret arrangement between two peons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose. In such a proceeding the claim put forward is fictitious the contest feigned or unreal and the final adjudication a mask, designed to give false appearance or a genuine judicial determination, and this is generally done with the object of confounding third parties. In such a proceeding the contest is a mere sham. Even in the wider sense the word "collusion" suggests a deceitful agreement or compact between two or more peons to do some act in order to prejudice a third peon or for some improper purpose." As noticed a stranger to previous judgment may plead collusion. However, in the present case, Ram Singh was a party to the previous judgment. It is not open to him to plead collusion because he is endeavouring to set up a defence which might have been used in answer to the suit in which decree was passed and that he cannot be allowed to do consistently with the principle of res-judicata. Otherwise too, the averments made in the plaint do not give any particulars or description of any collusion between Sohan Lal and the State. If there had been a collusion between the two, the State would have remained contended with the decision of the suit, but the State filed an appeal which on contest, was dismissed.

As regards the contention that Civil Courts jurisdiction was barred u/s 27 of the Act or the finding of the Courts given in the earlier judgment that Civil Court has the jurisdiction to entertain the suit is not correct in view of decision in Kamala Mills Ltd. Vs. State of Bombay, and Ram Gopal Reddy Vs. Additional Custodian Evacuee Property, Hyderabad, , suffice it to say, this Court is not examining the correctness of the finding of the Court given in the previous judgment with regard to jurisdiction of the Court. The question as to the jurisdiction of the Court was in issue in the previous suit and finding given on it has become final between the parties and the parties would not be allowed to resort to open the same question in the subsequent proceedings. In the previous suit the State of Haryana in its written statement, had taken the objection that the Civil Court has no jurisdiction to entertain and try the suit On the pleadings of the parties the trial Court framed on issue to this effect "Whether Civil Court has got no jurisdiction to entertain and try the present suit." On this issue, the trial Court found as under:-

"Under this issue, the defendant was to prove that the civil court has got no jurisdiction to entertain and try the present suit. As I have already pointed out, the authorities have acted beyond their jurisdiction and in arbitrary manner. The civil court is always competent to enquire into such acts of the authorities. The jurisdiction of the civil courts is only taken away till the authorities act under statute. When their sections go beyond their powers under the Act, the jurisdiction of civil court steps in Ld. Govt. Pleader for defendant No. 1 did not seriously dispute this proposition. Thus, the civil court has got jurisdiction to entertain and try the present suit and the issue is decided against the defendant."

The above finding in appeal was affirmed and has become final between the parties. In order to get out of this finding, counsel for the appellant contended that the appellant had been proceeded against ex-parte and, therefore had no opportunity to assist the Court to arrive at a right decision. I am afraid, this contention cannot be accepted for the reason that the finding was inter-partes and; therefore it makes no difference whether decision was ex-parte or after contest

Faced with this situation counsel for the appellant contended that Sohan Lal is not entitled to seek possession in a subsequent suit as the second suit is barred Under Order 2 Rule 2 of the Code of Civil Procedure. His precise contention was that on the date, the suit was decreed, Sohan Lal was not in possession of the property and he having failed to seek relief of possession in the earlier suit, second suit on the same cause of action is not maintainable. In support of this argument, he made reference to judgments in AIR 1931 229 (Privy Council) , Sidramappa Vs. Rajashetty and Others, and The State of Madhya Pradesh Vs. The State of Maharashtra and Others, . The judgments cited by the counsel for the appellant only lay down that Order 2 Rule 2 of the CPC is based on the principle that the defendant should not be twice vexed for one and the same cause. If the plaintiff omits any portion of the claim which he is entitled to make or any of the remedies which he is entitled to claim in respect of a cause of action for the suit, he shall not thereafter sue for the suit, he shall not thereafter sue for the portion of the claim or for the remedy so omitted. However, these judgments or the Rule do not state that second suit based on a distinct and different cause of action, would be barred. If the right to relief in respect of which further suit is brought did not exist at the date of the former suit, then this Rule does not apply. This Rule also does not operate as bar when a subsequent suit is based on a cause of action different from that on which fit suit was based. In the present case, as already noticed, the date on which suit was tiled by Sohan Lal, he was in possession of the property Auction in his favour still had not been declared to be valid. Possession was taken from him during the pendency of the suit and that too on the basis of second auction in which Ram Singh had been declared as highest bidder. The validity of the second auction in favour of Ram Singh too was under consideration and the Court was yet to opine on its validity. It was only when the sale in favour of Sohan Lal was declared as valid that the right accrued to him to seek possession and therefore, subsequent suit was not founded on the same cause of action on the basis of which fit suit was instituted. The cause of action for seeking relief of possession became available to him only after the decision of the fit suit. Thus, in my view, the suit is not barred Under Order 2 Rule 2 of the Code of Civil Procedure, as contended by the counsel.

For the reasons recorded above, both the appeals, R.S.A. Nos. 1444 and 2260 of 1992 stand dismissed with no order as to costs.