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Judgment
Honourable Mr. Justice G. Rajasuria
This Civil Revision Petition has been filed to get set aside the order dated 23.09.2008 passed in unnumbered I.A. No. Nil of 2008, in A.S. No. 51 of 2007 on the file of the Court of Subordinate Judge, Tuticorin. A summation and summarisation of the germane facts absolutely necessary for the disposal of this Civil Revision Petition, would run thus:
(i) The learned Counsel for the revision petitioner inviting the attention of this Court to various parts of the records, would portray and parody that the revision petitioner herein happened to be one of the appellants in A.S. No. 51 of 2007 on the file of the Court of Subordinate Judge, Tuticorin; while so, without the knowledge of the revision petitioner/first appellant also, the other appellants manipulated the things in such a manner so as to give an impression that at the instance of the first appellant, the appeal was sought to be withdrawn, whereupon the appeal was dismissed as withdrawn.
(ii) However, the revision petitioner/first appellant on coming to know of this hanky panky act which the other appellants had indulged in, filed the application before the same appellate Court, but instead of numbering the I.A., the lower Court passed the order thus:
23-9-08 Rejected:-
Correct provision Not quoted.
Appeal (A.S. 51/07) was filed by this petitioner as first appellant with 2 to 6 appellants in respect of O.S. No. 8/03 Prl. District Munsif Court Tiruchendure. On 7.2.08 Appeal was ''Not Pressed'' as settled out of Court and it was dismissed that day itself by this Court. As per this petitioner''s contention is that the 2nd appellant i.e. Petitioner''s brother who conducted the case faudulantly put the Petitioner''s signature in the ''Not Press Memo'' and received some benefits 2nd Appellant cheated the Petitioner and the court like this manner the averment in this petition is mentioned If so whether this petitioner lodged any complaint against the 2nd Appellant No such averment in this petition i.e. from 7.2.2008 to 19-9-08 this petitioner Not at all taken any legal steps against the 2nd appellant. - No proof in this regard, further this court dismissed the appeal since the matter was settled out of court. Not pressed Memo also filed. all the Appellants signed and counsel for the appellants also signed. This petition is filed after (7-2-08 to 19-9-08) 71/2 Months further this petitioner''s counsel reported this the following ruling AIR 2000 SC 1165 and 2006 (3) MLJP 258, which are Not applicable. In this circumstance this petition cannot be entertained. Hence petition rejected.
(extracted as such.)
Being aggrieved by and dissatisfied with the same, this Civil Revision Petition has been focussed.
According to the learned Counsel for the revision petitioner/first appellant, the first appellate Court was the competent Court to probe into it and give a finding as to whether the contention of the revision petitioner/first appellant was correct or not; instead of doing so, the first appellate Court simply rejected it by passing certain remarks here and there.
The learned Counsel for the second respondent would also agree with the legal proposition as put forth by the learned Counsel for the revision petitioner/first appellant and would submit that the first appellate Court is the competent Court to probe into the matter as to whether the signature was the forged one or not and whether the revision petitioner/first appellant gave consent or not for the dismissal of the appeal as settled out of Court.
Trite, the proposition of law is that if any fraud is purported to have been practised allegedly by one of the parties to the litigation, on the Court, it is the very same Court before which such fraud was practised, is competent to probe into it and give its finding and also rectify the error if any erupted out of such fraud.
In such a case, the first appellate Court without adverting to such proposition of law, simply threw the baby along with the bathe water and accordingly, the order dated 23.09.2008 passed in unnumbered I.A.No. Nil of 2008, in A.S. No. 51 of 2007 on the file of the Court of Subordinate Judge, Tuticorin, is set aside and this Court mandates the first appellate Court to take the unnumbered I.A. on file if it is otherwise in order and order notice to the parties concerned and conduct enquiry, even a broad based roving enquiry and give its finding untrammelled or uninfluenced by any of the observations made by this Court in this Civil Revision Petition. In the result, this Civil Revision Petition is disposed of.
Consequently, the connected Miscellaneous Petitions are closed. No costs.