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TMI Blog2007 (6) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... t Ceiling Act) with surplus area of 36,315.80 sq. mts. and as such the said surplus land vested in the State Government by virtue of notification dated 26-10-1989 under Section 10(3) of the Ceiling Act. On 12-10-1990 the said land was allotted to the petitioner-MHADA and accordingly possession was taken on 31-10-1990. Respondents 1 to 3 and original respondent No. 4 Ramji Mahadeo Darokar, now dead, had together filed Regular Civil Suit No. 1068 of 1991 on 22-4-1991 in the Court of Civil Judge, Sr. Dn., Nagpur, for declaration and permanent injunction. Ramji claimed to be the owner of the same land admeasuring 3.235 acres bearing Field Survey No. 75/2K (Old), i.e. Kh. No. 140 (new). Under registered sale-deed dated 11-10-1990 Ramji sold two acres out of the said land to respondents 1 to 3 and by another sale-deed dated 15-10-1990 he sold the remaining 1.235 acres of land to respondent No. 3. Ramji claimed that he received the said piece of land in partition amongst his brothers Gomaji Darokar and Narayan Darokar and that is why he was the owner of the said land admeasuring 3.235 acres. The suit was thereafter amended and a plea was taken that the State Government had issued a Circul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re only relevant for deciding the suit. All other issues have become redundant. Hence evidence of deft. 2 be only recorded. Hence this joint pursis. Nagpur: Dt. : 30-10-1999 Sd/ S.D. Dewani, C. for plff. Sd/- B.G. Kulkarni, C. for deft. No. 2. This pursis is admittedly not signed either by the Government Pleader or by defendant No. 1. Defendant No. 1 is not deleted from the suit. The pursis is not signed by any of the parties to the suit. It is stated in the pursis that except issues No. 4-A and 4-B all other issues have become redundant. After filing of the pursis, as aforesaid, on the same day without recording evidence of any of the plaintiffs, straightway evidence of Chandrashekhar Dhande (witness No. 1 for defendant No. 2) was recorded on behalf of petitioner-MHADA by Shri B.G. Kulkarni, Advocate for the petitioner. Perusal of evidence of this witness shows that he admitted that Ramji was the owner of the suit land and in cross-examination he admitted everything against the interest of petitioners/employer and the State Government, and not only that he agreed on behalf of MHADA to release the land in favour of the plaintiffs. Thereafter, on the same day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 3.23 acres difference comes to 1,42,360 sq. ft. and the Civil Court has ordered release of 14,526.32 sq. mts. (i.e. 1,45,260 sq.ft.) which clearly shows total non-application of mind on the part of Civil Court. (v) The Civil Court could not have acted without jurisdiction when its jurisdiction was specifically barred by Section 33 of the Ceiling Act and Section 177 of MHADA Act, 1976 and even if the parties wanted to confer jurisdiction on the Civil Court, the Court ought to have refused to exercise jurisdiction which it did not have. (vi) In the absence of service of statutory notice under Section 80 of the Civil Procedure Code and under Section 173 of the Act of 1976 the suit was liable to be dismissed. (vii) None of the plaintiffs entered witness box to prove their case, (viii) The petitioner-MHADA had never consented to the filing of pursis (Ex. 56) and without its consent the Advocate of the petitioner in collusion with the plaintiffs filed the pursis for giving up the preliminary objections regarding the very jurisdiction of the Court. Neither Shri B.G. Kulkarni, Advocate nor the witness, i.e. the officer of MHADA Shri Chandrashekhar Dhande had any authority t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C3044 , Surya Dev Rai v. Ramchander Rai and Ors. (f) AIR1985SC1147 , Ram and Shyam Com. v. State of Haryana and Ors. (g) (2004)3SCC553 , ABL International Ltd. and Anr. v. Export Credit Guarantee Corporation of India Ltd. and Ors. 8. Submissions of respondents 1 to 4: Per contra, Mr. Ghare, learned Counsel for respondents 1 to 4 vehemently opposed the submissions made by Mr. Manohar and submitted as under: (i) The delay of seven years in filing the present writ petition against the impugned judgment and decree is not properly explained and though the petition was ready for filing the same was not filed for a period of about one year in this Court and hence the petition should be dismissed without going into any aspect of the matter. (ii) The remedy of regular appeal under Section 96 of the Code of Civil Procedure though being available, the present writ petition could not have been filed and is liable to be dismissed on the said ground. (iii) There are allegations of fraud against Shri B.G. Kulkarni Advocate for the petitioner-MHADA in the trial Court and in absence of Shri B.G. Kulkarni being a party to the petition, the said allegations cannot be considered. (iv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal plaintiff No. 4 Ramji in respect of the suit land, who was not even the owner of the said lands. The owner of the said lands was Gomaji Darokar. Ramji, who was plaintiff No. 4 in the suit in question, averred in the plaint that as a result of partition between his brothers Gomaji and Narayan, he became the owner of the suit land. Plaintiff No. 4 Ramji admittedly did not enter the witness box nor filed any evidence of partition or allotment of the suit lands in his favour in the trial Court. In the written statement, in paragraph 2, it is averred by the petitioners that it was Gomaji who was the owner who filed return under Section 6 of the Ceiling Act in respect of the suit lands and that plaintiff No. 4 Ramji had nothing to do with the suit lands. By evidence of Chandrashekhar Dhande (witness No. 1 for defendant No. 2) the fact that the suit land was allotted to petitioners-MHADA who was placed in possession on 31-10-1990 under possession receipt (Ex.60) was fully established. Going by these facts, it appears to me that the trial Court ought to have found out whether Gomaji or plaintiff No. 4 Ramji was the real owner of suit land. Further, whether due to suit lands being decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho had participated in the ULC proceedings was one Shri Gomaji Mahadeo Darokar. It is also pertinent to point out here that right from the year 1976 till the year 1990, the said Ramaji Mahadeo Darokar has never turned up at the acquisition proceedings nor has raised any objection which clearly shows that he had no connection with the said land. Also it is pertinent to point out here that in the Civil Court proceedings his name is shown as Ramaji Mahadeo Dharuka which might be a typographical error or it might also be a case where the plaintiff No. 4 along with plaintiff Nos. 1 and 2 are trying to take advantage of similar synonymous of Shri Gomaji Mahadeo Darokar and Ramaji Mahadeo Darokar. It is most respectfully submitted that the said Shri Chandrashekhar Pandharinath Dhande, being the officer of MHADA had no authority in law to submit before the Court in his evidence that the defendant No. 2 was ready to release the land in favour of plaintiffs in accordance with the circular dated 23-8-1988 without the concurrence and approval of the Competent Authority of the petitioner No. 1. It was evident from the circular that the said circular applied only to landowners/landholders and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the said circular was not applicable to the case of plaintiff No. 1/respondent Nos. 1 to 4 in Regular Civil Suit No. 1068/91 at all. It is submitted that the said circular dated 23-8-1988 applies only to landowners/landholders who have participated in the proceedings before the ULC authorities. In the present case, it was only Shri Gomaji Mahadeo Darokar who was entitled for possession of the said 40% land if he had so applied. Plaintiff Nos. 1 to 4 are not covered by the circular dated 23-8-1988 and the judgment of the Hon'ble High Court dated 19-2-1997 is not concerned with Khasra No. 75/2 at all. 13. Respondents 1 to 4 have not chosen to rebut the averments in the writ petition despite opportunity being given to them. They stuck to their gun that the petition should be dismissed on preliminary objection to the maintainability of petition and hence it was not necessary for them to counter the averments in the petition, despite the fact that they were put on notice that the petition would be finally disposed of at the admission stage. 14. The pronouncement made by the Apex Court in respect of unrebutted pleadings in the case reported in [1964]6SCR330 is reproduced belo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty was cast upon the trial Court to first examine whether it had jurisdiction to go ahead with the matter. Section 33 of the Ceiling Act reads thus: 33. Appeals : (1) An appeal against an order or award of the Collector shall lie to the Maharashtra Revenue Tribunal in the following cases: (1) an order under Sub-sections (2) and (3) of Section 13 [not being an order under which a true and correct return complete in all particulars is required to be furnished]; (2) a declaration [or any part thereof] under Section 21; [(2a) an order under Section 21-A;] (3) an award under Section 25; (4) an order refusing sanction to transfer or divide land under Section 29; (5) an order of forfeiture under Sub-section (3) of Section 29; (6) an amendment of declaration or award under Section 37; and (7) an order of summary eviction under Section 40. (1A) ... 17. Section 177 of the MHADA Act reads thus: Save as otherwise expressly provided in this Act, no Civil Court shall have jurisdiction in respect of any matter which the Authority or the Tribunal is empowered by or under this Act, to determine; and no injunction or stay shall be granted by any Court or other aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt can become redundant at least qua the Court exercising such jurisdiction. On the contrary, in my opinion, it is the responsibility of the Court to first examine whether it has jurisdiction or not. If the Court has no jurisdiction then the Court cannot touch the matter at all. In this case, the civil Court has failed in its duty to do so. On the contrary, there appears to be utter haste on the part of the plaintiffs and defendant No. 2, i.e. petitioners and their counsel and witness Chandrashekhar Dhande. The pursis was filed on 30-10-1999 under the signatures of Shri S.D. Dewani, counsel for the plaintiffs and Shri B.G. Kulkarni, counsel for defendant No. 2. The pursis is not signed by the Government Pleader for defendant No. 1 and it does not appear that the copy of the pursis was served on defendant No. 1. That apart, no say was at all called by the Court from the Government Pleader. The trial Court simply accepted the pursis and then on the same day of filing of pursis, witness No. 1 Chandrashekhar Dhande was examined and cross-examined wherein the witness stated that he was ready to release the suit land in favour of the plaintiffs. This statement is obviously without any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt impugned has been pronounced by an inferior or by the highest Court of judicature in the realm, but in all cases alike it is competent for every Court, whether superior or inferior, to treat as a nullity any judgment which can be clearly shown to have been obtained by manifest fraud. Where fraud is involved, it has been held, in some cases, that a remedy at law by appeal, error, or certiorari does not preclude relief in equity from the judgment. Nor, it has been said, is there any reason why a judgment obtained by fraud cannot be the subject of a direct attack by an action in equity even though the judgment has been satisfied. The law in India is not different. Section 44 of the Evidence Act enables a party otherwise bound by a previous adjudication to show that it was not final or binding because it is vitiated by fraud. The provision therefore gives jurisdiction and authority to a Court to consider and decide the question whether a prior adjudication is vitiated by fraud. The position was reiterated by the same High Court in Esmile Uddin Biswas v. Shajoran Nessa Bewa AIR1931Cal649 . It was held : (AIR p. 650) (1) It must be shown that the fraud was practised in rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usly. 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 Devi (2003)8SCC319 . 21. In the case of Ramchandra Ganpat Shinde and Anr. v. State of Maharashtra and Ors. reported in AIR1994SC1673 , the Apex Court said about collusion in para 9 as under: In Nagubai Animal v. B. Shamma Rao [1956]1SCR451 this Court held that collusion in judicial proceedings is a secret arrangement between two persons 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 proceedings, the claim put forward is fictitious, the contest over it is unreal, and the decree passed therein is a mere mask having the similitude of a judicial determination and worn by the parties with the object of confounding third parties. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affidavit, as aforesaid, the delay has been explained supported by several documents which to my mind are sufficient to reject the argument that the petition should be dismissed on the ground of delay and laches. 25. The plea raised by the respondents about the availability of alternate remedy and exercise of jurisdiction by this Court under Articles 226 and 227 of the Constitution of India are being answered by me together. In the present case, as I have already found that the impugned judgment and decree is clearly vitiated due to fraud and collusion and in the light of pronouncement of law stated by me hereinbefore, there is a right and obligation in the superior Court to set aside the orders obtained by fraud and not to allow perpetuation of benefits obtained by fraud. That apart, by now the Hon'ble Supreme Court has set at rest the legal position regarding jurisdiction under Article 226. In the case of Ram and Shyam Co. v. State of Haryana and Ors. reported in AIR1985SC1147 , the Apex Court in paragraph 9 observed as under: Ordinarily it is true that the Court has imposed a restraint in its own wisdom on its exercise of jurisdiction under Article 226 where the party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact. 27. The above observations in paragraphs 17 and 19 in the light of the fact that material averments in the writ petition and the admitted facts on record compel me to hold that in fact there was no disputed question of facts in the present writ petition. Mr. Ghare, learned Counsel, for respondents 1 to 4 pressed into service the decision of Supreme Court in the case of A.P. Foods v. S. Samuel and Ors. reported in (2006)IIILLJ18SC . The said decision is clearly distinguishable in the light of the facts available in the present petition. 28. Insofar as exercise of jurisdiction under Article 227 qua the impugned judgment and decree, the following conclusion drawn by the Apex Court in the case of Surya Dev Rai v. Ram Chander Rai and Ors. reported in AIR2003SC3044 in paragraph No. 38 clearly justify the exercise of jurisdiction. (1) ... (2) ... (3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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