State of M.P. vs Dr. U.S. Naoleker

Dipak Misra, J.

In this appeal, preferred u/s 96 of the Code of Civil Procedure, the plaintiffs/appellants have called in question the sustainability of the judgment and decree dated 24.1.2004 passed by the learned IXth Additional District Judge, Bhopal in Civil Suit No. 21-A of 2003.

The appellants as plaintiffs initiated a civil action on the ground that as the sole respondent had obtained the decree in Civil Suit No.200 of 1988 by practicing fraud on the Court, it should be declared a nullity. It was asserted in the plaint that the State of M.P. in furtherance of family planning programme between 1982 to 1984 had engaged various doctors for carrying out the operations by laparoscopic device. A sum of Rs. 21/- was to be paid towards single operation. The respondent was engaged to carry out the operation and the State Government had paid what was due from it. Despite the said factum, the respondent filed civil suit No. 200 of 1988 in the Court of Civil Judge (ALD) Kachh in the State of Gujarat for realization of a sum of Rs. 14,14,085/-. It was contended in the plaint that the defendants therein did not have any notice as there was no service of summons and eventually an ex parte decree came to be passed.

It was the further case of the plaintiffs that the Court at Kachh had no territorial jurisdiction and no cause of action has arisen therein and hence, the decree passed by the said Court was not binding on the plaintiffs. The plaintiffs came to know about the decree on 4.10.2002 when the IVth Additional District Judge, Bhopal issued a notice as regards execution of the decree. Being aware of the ex-parte decree they filed the present suit for declaring the earlier judgment and decree as null and void being vitiated by fraud and lack of territorial jurisdiction. In addition, number of grounds were urged how the decree could not have been passed on merits.

The sole defendant entered contest and supported the judgment and decree passed by the Court at Kachh. A stand was taken that the decree passed by the said Court is in accordance with law; that it was not vitiated by fraud; that the said decree has been affirmed by the High Court of Gujarat in EA.3680 of 2001 which has further confirmed by the Apex Court in SLP (Civil) No. 15444 of 2002.

The learned trial Judge framed as many as eight issues and on consideration of material evidence brought on record came to hold that the Civil Judge Senior Division Kachh in the State of Gujarat had the territorial jurisdiction to decide the lis in question; that the objection that had been raised before the executing Court u/s 47 of the CPC and after getting it rejected by the executing Court and accepting the said rejection there was no justification to raise the same in another suit; that after the matter had been carried in first appeal and special leave petition, the question of declaring the decree as a nullity on the ground of lack of territorial jurisdiction and fraud does not arise.

Questioning the defensibility of the judgment and decree passed by the learned trial Judge, Mr. P.N. Dubey, learned Deputy Advocate General for the State has raised four contentions, namely,

(i) The Court at Kachh having no territorial jurisdiction could not have tried the suit and hence the decree passed by it is totally untenable and is to be declared as a nullity.

(ii) The respondent had played fraud on the Court in as much as a person represented in a fraudulent manner the State of M.P. though he had no authority to represent.

(iii) The respondent had no cause of action with regard to the money part since he had been paid the entire dues by the present appellants and such a fact being within his special knowledge of the respondent the judgment and decree passed by the Kuchh Court deserves to be declared null and void.

(iv) The Court below has grossly erred by not expressing the opinion that dismissal of the first appeal was on a different score and fraud having been established, the learned trial Judge should not have been guided by the fact that the SLP had been dismissed and, therefore, he had no authority to interfere in the matter.

Mr. Dubey to substantiate his contentions has commended us to the decisions rendered in the cases of Girish Chandra Jana Vs. Kalachand Maity, , Eapen Thomas Vs. Syed Mohammed Kunju, , Ram Chandra Singh Vs. Savitri Devi and Others, .

Mr. Hundikar, learned counsel for the respondent, per contra, submitted that the plaintiffs/appellants could have filed an application under Order 9 Rule 13 of the CPC but they chose to file a first appeal on merits u/s 96 and therein they could have raised the factum of fraud, lack of territorial jurisdiction, lack of cause of action but only certain aspects were raised and dealt with by the High Court. It is urged by him that the contention which has been canvassed that there was a false representation by producing a person who had impersonated as the representative of the State of M.P. has not been pleaded in the plaint and the fraud that has been pleaded only relates to lack of territorial jurisdiction and merits of the case. Incrementing the aforesaid submission, it is contended by him that what has been determined to be due in favour of the respondent cannot be gone into in this suit on the foundation that it had been erroneously granted as that would be in the realm of merits of the case which the learned trial Judge could not have entered upon for the purpose of adjudication. Submission of Mr. Hundikar is that the specious proponement that there has been false representation at the Kachh Court is totally bereft of pleading and, therefore, sans substance. Learned counsel further urged that the question of lack of territorial jurisdiction cannot be raised in a different suit as that does not involve lack of inherent jurisdiction.

To appreciate the rivalised submissions raised at the bar, we have carefully perused judgment passed by the learned trial Judge. We have also scrutinized the evidence brought on record. Learned counsel for the parties have drawn our attention to the pleadings of the parties before the Court below. On a perusal of the plaint, it is clearly evincible the assertion relates to the payment made to the sole respondent. It is asseverated that the plaintiff did not have notice from the Kachh Court and the defendant who was plaintiff in the Kachh Court had falsely represented in a clever manner, he obtained ex parte decree. It is put forth that lis was beyond the territorial jurisdiction of the Kachh Court and further the amount that had been decreed could not have been decreed as the same had already been paid. In this background, a declaration has been sought that the judgment and decree passed in Civil Suit No.200 of 1998 on 29.6.1996 by the Kachh to nullity.

At this juncture, we think it conding to refer to the order passed by the High Court of Gujarat in F.A. No. 3680 of 2001. Be it noted, in the memorandum of appeal, it was set forth that notice had not been served; that the cause of action had arisen in the State of M.P.; that the findings recorded by the learned trial Judge at Kachh Court are perverse; that the judgment is reeked with malafide. The Division Bench in paragraph 4 had expressed the view as under:

The learned counsel for the appellants sought to contend that the Court at Bhuj had no jurisdiction to entertain the suit. In fact, the plaintiff had pleaded and also established by evidence that his services were engaged at Bhuj, his terms and remuneration was also communicated to him Bhuj. In this context, the plaintiff had also relied upon circulars of the Government of India, Ministry of Health and Family Welfare, New Delhi dated 19.8.1982 and 22.8.83 as also 10.1.1984. The acceptance of these terms and conditions by the plaintiff was also at Bhuj.

It was sought to be contended on behalf of the appellants that the appellants/defendants were not served with the suit summons. This contentions must also fail in view of the finding recorded by the trial Court that the defendants were duly served with the suit summons by Regd. Post A.D. The acknowledgments thereof are at Eh. 10.11.12 on the record. We are obliged to observe that such a contentions ought to have been raised at all in view of the fact that the authorised person from the Department of Health and Family Welfare, State of Madhya Pradesh had infact, remained present before the trial Court on 27.2.1989. Further a telegram was sent by the competent officer to the trial Court on 25.2.1989 which is at Exh.53. This telegram also mentions that a special messenger is being deputed. Thereafter, the State of Madhya Pradesh as also its officers, chose not to participate in the proceedings for reasons best known to them. No written statement was filed and no evidence was lead. However, once it is found that the suit summons were duly served, the request for adjournment on behalf of the defendants itself stipulates in favour of due service of summons. If the defendants chose to remain absent, it their concern. In any case, it was open to them to apply to the trial Court for setting aside the exparte decree, if they so desired. Even this recourse was not taken.

On a perusal of the aforesaid order, it is clear as crystal that the summons were served on the defendant in the suit preferred before the Kachh court. Submission of Mr. Dubey, learned Deputy Advocate General for the State is that the High Court of Gujarat had held that a prayer was made for adjournment of the case before the Original Court at Kachh but no one from the State of M.P. ever represented in the case afterwards. It is highlighted by him that someone impersonating himself as the authorised representative of the M.P. took time in the suit and the same was done at the instance of the plaintiff and this tantamounts to fraud on Court. Learned counsel has placed heavy reliance on the decision rendered in the case of Ramchandra Singh (supra). In the said case, the two judge Bench of the Apex Court expressed the view that fraud vitiates every solemn act and fraud and justice never dwell together. Their Lordships referred to fraudulent misrepresentation, action of deceit and exclusive knowledge with regard to certain facts. Their Lordships referred to Kerr on Fraud and Mistake, Bigelow on Fraudulent Conveyance and Arlidge and Parry on Fraud and the decisions rendered in the cases of Derry Vs. Peek, (1889) 14 AC 337 , Ram Preeti Yadav Vs. U.P. Board of High School and Intermediate Education and Others, , Smt. Shrisht Dhawan Vs. M/s. Shaw Brothers, , S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, , Indian Bank Vs. M/s. Satyam Fibres (India) Pvt. Ltd., , and Chittranjan Das Vs. Durgapore Project Ltd. (1995) 2 Cal LJ 388 and came to hold that if a judgment and decree has been obtained by practicing fraud on Court doctrine of res-judicata would not apply. It was reiterated that a judgment can be recalled if it is obtained by fraud on Court. The Apex Court concurred with the view that the principle of finality of litigation cannot be pressed to the extent of absurdity. In this context, we may refer with profit to the devision bench decision rendered in the case of Girish Chandra Jana Vs. Kalachand Maity, , wherein in paragraph 4 it has been held as under:

It is settled law that where the fraud alleged is of such kind as to attack the suit itself and not merely the regularity or sufficiency of the service or the proceedings, a suit by a person on whom no summons was served, for setting aside the ex parte decree is maintainable. It is also settled law that mere falsity of claim and/or perjured evidence if non-service of summons be not proved will not support the action. The plaintiff, therefore, in a suit for setting aside an ex parte decree on the ground of fraud when he was unsuccessful in his application for setting aside the ex parte decree on the ground of non-service of summons must prove some kind of ground, which affects the suit itself and not merely the regulatiry or sufficiency of the service or the proceedings, in addition to non-service of summons in order to obtain a decree. Falsity of claim would amount to such fraud, though, possibly, mere perjured evidence, unless the claim was false, would not. In order, therefore, that the plaintiff may succeed in the present suit, it is necessary to establish that the mortgage claim was false. On that point the learned Munsif found against the plaintiff. The learned Subordinate Judge has not recorded any different conclusion. He has reversed the High Court of Gujarat and has been answered. In this context we may also refer with profit to the decision rendered in the case of Manilal Harjivandas Vs. Gangaben Ganeshbhai, wherein A.M. Ahmadi, (as his Lordship there was) in paragraph 6 has expressed the opinion as under:

A reference to Seth Hiralal Patni Vs. Sri Kali Nath, , will make it clear that it is settled law that objection as to legal jurisdiction of a Court stands on a different footing from an objection as to the competence of the Court to try a case. Competence of a court to try a case goes to the very root of jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. But an objection as to the legal jurisdiction of a Court can be waived and this principle has received statutory recognition in S.21, C.P.C. In paragraph 4 of the judgment, their Lordships have made it clear that the validity of a decree can be challenged in execution proceedings only on the ground that the court, which passed the decree was lacking in inherent jurisdiction in the sense that it could not have siezin of the case because the subject matter was wholly foreign to its jurisdiction. "These observations lend support to the argument that a decree passed in earlier proceedings cannot be struck down as a nullity in collateral proceedings on the ground that this Court which passed the decree was lacking in legal jurisdiction.

In this regard, it is apposite to refer to the decision rendered in the case of Seth Hiralal Patni Vs. Sri Kali Nath, wherein the Apex Court observed as under:

It is well-settled that the objection as to local jurisdiction of a court does not stand on the same footing as an objection to the competence of a court to try a case the learned Munsiffs decision, dismissing the suit, and decreed the suit simply upon the findings that no summons was served upon the plaintiff in the mortgage suit and that it was fraudulently suppressed. That is not supportable in law and the learned Subordinate Judge''s decision must, therefore, be set aside.

The obtaining factual scenario is to be tested on the anvil of aforesaid parameters. Submission of Mr. Dubey is that serious fraud had been practiced on Court and, therefore, the decree is a nullity. It is contended by him that High Court had recorded that someone had represented the State of M.P. but no one was authorised to represent. It is worth noting here that there is absense of such pleadings in the plaint. In the case at Rajgopal (Dead) by Lrs. Vs. Kishan Gopal and Another, , a two judge Bench of the Apex Court has expressed the view that in absence of specific pleading in the plaint no lis exists thereon and courts are precluded from taking cognizance on mere evidence. Similar view was taken in the Bondar Singh and Others Vs. Nihal Singh and Others, . Mr. Dubey, learned counsel for the State submitted that the whole plaint has to be read to understand a particular plea and there cannot be water tight compartmentalization. There can be no scintilla of doubt the pleadings are to be read as a whole to ascertain the stand and it is not permissible to read out a sentence or a passage out of context or in isolation but a pregnant one, the said principle is not attracted to the case at hand in as much as by perusing the plaint in entirity, we fail to perceive such a plea. We have no hesitation in holding that an endeavour has been made to build a castle in Spain. Resultantly, the submission of Mr. Dubey has to be rejected and we repel the same.

It is next contended by Mr. Dubey that the Court at Kachh had no territorial jurisdiction. The said aspect had been raised in appeal before Compentence of a court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand an objection as to the local jurisdiction of a court can be waived and this principle has been given a statutory recognition by enactments like S.21 of the Code of Civil Procedure."

In AIR 1664 SC 907, Ittyavira Mathai Vs. Varkey Varkey their Lordships laid down as follows (at p. 910):

Even assuming that the suit was barred by time, it is difficult to appreciate the contentions of learned counsel that the decree can be treated as a nullity and ignored in subsequent litigation. If the suit was barred by time and yet, the court decreed it, the court would be committing an illegality and therefore the aggrieved party would be entitle to have the decree set aside by preferring an appeal against it. But it is well settled that Court having jurisdiction over the subject matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it has acted beyond its jurisdiction. As has often been said, courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullities.

In view of the aforesaid proposition of law, submission of Mr. Dubey is totally sans substratum and we have no hesitation in negativing the same.

In the result, we do not find any merit in the appeal and the same stands dismissed. However, in the facts and circumstances of the case, the parties shall bear their respective costs of the appeal.