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TMI Blog2015 (1) TMI 1459X X X X Extracts X X X X X X X X Extracts X X X X ..... is family members otherwise than by due process of law. Roznama dated 16th August, 2012 indicates that the trial court granted ad-interim injunction as prayed in terms of prayer (a) of the draft notice of motion. The alleged constituted attorney of the defendants agreed that the defendant would not dispossess the plaintiff - A perusal of the Roznama dated 14th September, 2012 indicates that respondent no. 1 was present through her advocate. One Mr. A.D. Thakur advocate appears to have been tendered his vakalatnama on behalf of the defendant and the same was taken on record. A perusal of the record clearly indicates that the material produced before the trial court was more than sufficient to establish the fraud committed by respondent no. 1 and the said Mr. Shamsuddin Kasamali Qureshi upon the court in obtaining consent decree. There was a gross abuse of process of law and of court by the respondent and the said Mr. Shamsuddin Kasamali Qureshi. A perusal of the entire order makes it abundantly clear that the trial judge has taken a very casual approach in the matter while considering serious allegations of fraud committed upon the court though more than sufficient material has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 in obtaining the consent decree and in committing gross abuse of process of law and of court - Petition allowed. - Civil Writ Petition No. 4797 of 2013, Civil Application No. 2116 of 2014 in Civil Writ Petition No. 4797 of 2013 and Civil Writ Petition No. 11790 of 2013 - - - Dated:- 28-1-2015 - R.D. Dhanuka, J. For Appellant: Archana Khan For Respondents: S.K. Shinde i/b. Omkar Nagvekar JUDGMENT R.D. Dhanuka, J. 1. By Writ Petition No. 4797 of 2013 filed by the petitioner, the petitioner has impugned the order dated 9th May, 2013 passed in Miscellaneous Application No. 20 of 2012 dismissing the application of the petitioner for staying the consent decree dated 14th September, 2012 and for other relief's. The petitioner in Writ Petition No. 4797 of 2013 has filed civil application inter alia praying for appointment of the court receiver and for other relief's in respect of the suit flats. The petitioner in Writ Petition No. 11790 of 2013 has impugned the order dated 17th June, 2013 passed by the trial court in Miscellaneous Application No. 4 of 2013 thereby rejecting the application filed by the petitioner for setting aside the consent term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the month of January 2012 share certificate in respect of the suit premises came to be transferred in favour of the petitioner by the said society. 4. It is the case of the petitioner that since January 2012 till the end of July 2012, the petitioner was occupying the suit premises with his parents and carried out repairs to the monsoon leakages at the behest of the society and joint inspection of the repairs was conducted by the society, contractor and the petitioner. 5. On or about 14th August, 2012, respondent no. 1 filed a Short Cause Suit No. 1835 of 2012 in Bombay City Civil Court at Dindoshi against M/s. Drego Enterprises alleging that the said M/s. Drego Enterprises was threatening her of dispossession and her family members from the suit premises where she was alleged to have been residing since August 2002, i.e. since few months prior to the said Mr. Peter Drego went missing. 6. It is the case of the petitioner that on 16th August 2012, respondent no. 1 moved for urgent ad-interim relief's before Bombay City Civil Court in the notice of motion filed by her. The alleged constituted attorney of the said M/s. Drego Enterprises Mr. Shamsuddin Kasamali Qureshi app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner that all the articles of the petitioner and their family members including imported goods, christian faith religious literature and photos and photographs of Mr. Peter Drego and entire Drego family, old cupboard of Khira make full of several photo negatives of Drego family and gowns of Sharon, miscellaneous articles, wall attached furniture were found inside the suit flat. On 22nd November, 2012, the respondent no. 1 and her husband were released on bail by Sessions Court. On 23rd November, 2012, learned Single Judge passed an injunction order restraining the respondent no. 1 from entering into the suit flat and tempering with the evidence. 12. On 6th February, 2013, Mr. Shamsuddin Kasamali Qureshi filed an application for anticipatory bail before Sessions Court. The said application came to be rejected on 6th February, 2013. On 6th February, 2013, the trial court refused to adjourn the Miscellaneous Application No. 20 of 2012 which was filed by the petitioner and rejected the said application. By an order dated 1st March, 2013 passed in Writ Petition No. 1624 of 2013 filed by the petitioner, the said order dated 6th February, 2013 passed by the trial court came to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssica on 14th November, 1982 and after marriage the said Ms. Jessica Peter Drego was staying with her husband Mr. Peter Drego at the suit premises for more than 20 years. Since 16th November, 2002, Mr. Peter Drego a partner of Drego Enterprises went missing and could not be found. Senior Police Inspector issued a certificate declaring name of the said Mr. Peter Drego permanently missing on 28th January, 2011. Copy of the said certificate issued by the Senior Police Inspector has been annexed to the petition. 18. It is the case of the petitioner that at the end of 2005 and early 2006 distribution of the property took place and it was agreed by the family that suit premises be given to Fluda Theresa Gonsalves and as per the wish of Fluda Theresa Gonsalves, both the flats were conveyed to her children i.e. Horace Kevin Gonsalves and Sharon Lilian Gonsalves. However for the purpose of payment of stamp duty and registration, only one document by way of agreement for sale was executed. 19. On 16th November, 2006, the agreement for sale came to be executed in favour of the petitioner in Writ Petition No. 4797 of 2013 and Sharon Lilian Gonsalves under the said agreement, the suit pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent No. 1 filing a suit before the Bombay City Civil Court. The agreement executed between the petitioner and M/s. Drego Enterprise was duly registered. The society had already transferred the suit premises as well as the shares in favour of the petitioner. The respondent No. 1 suppressed all these facts and without impleading the petitioner as a party defendant to the suit obtained a consent decree from the Bombay City Civil Court fraudulently. The petitioner thus had locus to apply for setting aside such consent decree fraudulently obtained by the respondent no. 1 by committing a fraud upon the court. It is submitted that even when the panchanama was made pursuant to an order passed by the learned trial court judge, it is not in dispute that the articles of the petitioner were found lying in the suit premises. The respondent no. 1 and her husband were released by the Sessions Court. Anticipatory bail was rejected. Even the earlier order passed by the trial court rejecting the miscellaneous application filed by the petitioner has been set-aside by this court and the matter was remanded back for fresh consideration. 23. It is submitted by the learned counsel that the agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that a perusal of the copy of the said power of attorney would indicate that the stamp paper was in the name of Jal Office. The signature of Peter Drego on the said alleged power of attorney does not tally with his other admitted signatures. 26. It is submitted by the learned counsel that since the petitioner had right, title and interest in the suit flats, the petitioner was entitled to protect his interest by making an application to the trial court and to bring to the notice of the court the fraud committed by the respondent no. 1 upon the court by obtaining consent decree. It is submitted that if there is abuse of process of court, the court has implied power to prevent such abuse of process of law, as may be necessary for the ends of justice. It is submitted that such powers are not limited. Once it is brought to the notice of the court by even a third party that fraud is committed upon the court, it is the duty of the court to interfere and to prevent the abuse of process of court for doing complete justice in the matter. 27. It is submitted by the learned counsel that under Order XXIII Rule 3, explanation, any agreement or compromise which is void or voidable und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at each and every partner of the firm is an agent of the firm and has to act in accordance with the powers and authorities under the partnership deed as well as under the provisions of the Partnership Act, 1932. 31. It is submitted that even under the said alleged power of attorney, there was no reference to the suit property which could have been dealt with by the alleged constituted attorney on behalf of the firm. The other partners of the said M/s. Drego Enterprise who are alive and were continued to be the partners no such alleged power of attorney could be executed without their consent. The learned counsel placed reliance on the provisions of the Power of Attorney Act and in particular section 2 thereof and would submit that there was no seal of M/s. Drego Enterprise on such alleged power of attorney and/or on that ground itself the said power of attorney could not have been enforced. The learned counsel placed reliance on the copy of the extract of the registration of firm of M/s. Drego Enterprise and would submit that admittedly the said firm had not been dissolved when the alleged power of attorney was executed or even till date. 32. The learned counsel submits that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... greements are fraudulent documents. The respondent no. 1 has not produced any proof of any consideration received from those parties. One agreement relied upon by the respondent no. 1 is an agreement of leave and licence in favour of one cousin and within a short span, another agreement is entered into i.e. agreement for sale in favour of another cousin. The learned counsel also invited my attention to the correspondence entered into between one of such cousin for seeking permission of the society for carrying out repairs. It is submitted that respondent no. 1 having committed fraud upon the court, even those third parties who are claiming to be in possession of the suit flats are liable to be evicted by this court. No third parties who are beneficiaries of such fraud can be allowed to occupy the suit premises. The learned counsel submits that this is a fit case for appointment of a court receiver with a direction to take forcible possession from those third parties and to seal the premises till disposal of the suit. 36. Ms. Khan also placed reliance on some of the judgments delivered by the Supreme Court and this court that if any fraud is committed upon the court, the court ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial judge and shows patent illegality. It is submitted that there was no prohibition under Order XXIII Rule 3-A of the Code of Civil Procedure from making an application in the said suit for setting aside a decree obtained by fraud. On the contrary, filing of a suit for a declaration that such decree is unlawful is prohibited under the said provisions. 41. The learned senior counsel placed reliance on the judgment of the Supreme Court in S.P. Chengalvaraya Naidu vs. Jagannath, (1994) 1 SCC 1, in support of his submission that any order obtained by fraud on court by any party is nullity. It is held that the person who comes to the court must come with clean hands and whose case is based on fraud, has no right to approach the court. He can summarily be thrown out at any stage of litigation. Paragraphs 5 and 6 of the said judgment read thus:- 5. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... site party. 42. The learned senior counsel also placed reliance on the judgment of this Court in the case of Peter John D'Souza and others vs. Armstrong Joseph D'Souza, delivered on 28th March, 2014 in Miscellaneous Application No. 69 of 2012 in Testamentary Petition No. 722 of 2010 and in particular paragraphs 8, 14, 15, 17, 19 and 20 and would submit that once fraud is brought to the notice of the court, even by a third party, it becomes the duty of the court to look into such allegations and to set-aside such order obtained by fraud by the parties to the proceedings. Paragraphs 8, 14, 15, 17, 19 and 20 of the said judgment read as under:- 8. Mr. Kumbhakoni, the learned senior counsel appearing on behalf of the respondent, on the other hand, raises issue of maintainability of these petitions on the ground that the petitioners in both the matters were admittedly not the legal heirs of the said deceased and did not have any caveatable interest, the question of effecting any service of citation or citing the petitioners in the petition for letters of administration did not arise. It is submitted that in any event both the petitioners are claiming title adverse t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... njoint reading of illustrations (v) and (vi) to Section 263 of the Act makes it clear that even after the administration of the estate, if the Will is discovered subsequently, such grant is liable to be revoked. 20. I am not inclined to accept the submission of Mr. Kumbhakoni, learned senior counsel that merely because there was no specific bequest in the Will of the deceased in respect of the plots in which the petitioners claim interest, the petitioners cannot be even allowed to urge and bring to the notice of this Court the fact of fraud, fabrication or concealment. In my view, Court can take cognizance of the allegation of fraud, fabrication or concealment even at the instance of a party who claims even a slightest interest in the property of the deceased. Once the allegation of fraud, fabrication or concealment is brought to the notice of the Court, which is alleged to have been committed by the opposite party for obtaining letters of administration from a Court, it becomes the duty of the Court to look into such allegation whether any grant of letters of administration is obtained by a party from the Court by practicing fraud, fabrication or concealment. The Court can ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xistent and cannot be allowed to stand by the court at first instance or by the final court. (e) If it is held that an order, judgment or decree are obtained by reason of commission of a fraud, all subsequent proceedings taken pursuant thereto also are void and nullity and it would not be equitable to confer a benefit on a party who is a beneficiary thereunder. 73. In my view the record clearly indicates that the plaintiff as well as the intervener are the beneficiaries of this fraud committed upon the court and are liable to be thrown out from the premises in their respective possession obtained by committing a fraud on this court in this notice of motions itself. The intervener admittedly claims to be in possession of the entire property though part of it was not even subject matter of the suit. The intervener was fully involved in the entire fraud jointly with the plaintiff. I am thus not inclined to accept the submissions of Mr. Deshmukh, learned counsel appearing for the intervener that no order can be passed by this court against the intervener, he being neither party to the suit prior to such orders having been passed by this court nor after such orders are passed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , equity and good conscience, though in exercise of such power, it must be careful to see that its decision is based on the sound general principles of law and is not in conflict with them or the intention of the Legislature. It is submitted that inherent powers of the Court cannot override the expressed provision of law. Section 151 of the said Code does not invest the Court with jurisdiction over matters which are excluded from its cognizance. This Court cannot exercise inherent power if the applicant has another remedy provided elsewhere in the Code of Civil Procedure but has neglected to avail himself such remedy. This Court cannot exercise inherent power so as to come in conflict with the general principles of law. 47. It is submitted that the inherent power of the Court is in addition to and complementary to the powers expressly conferred under the Code of Civil Procedure but such powers cannot be exercised if its existence is inconsistent with or comes into conflict with any of the powers expressly or by necessary implication conferred by the other provisions of the Code. Section 151 of the said CPC is an enabling section. In support of the aforesaid submissions, learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not. This is so because a consent decree, is nothing but contract between parties superimposed with the seal of approval of the court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made. The second defendant, who challenged the consent compromise decree was fully aware of this position as she filed an application for setting aside the consent decree on 21.8.2001 by alleging that there was no valid compromise in accordance with law. Significantly, none of the other defendants challenged the consent decree. For reasons best known to herself, the second defendant within a few days thereafter (that is on 27.8.2001), filed an appeal and chose not to pursue the application filed before the court, which passed the consent decree. Such an appeal by second defen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly on the validity of the agreement or compromise on which it is made. The second Defendant, who challenged the consent compromise decree was fully aware of this position as she filed an application for setting aside the consent decree on 21.8.2001 by alleging that there was no valid compromise in accordance with law. For reasons best known to herself, the second Defendant within a few days thereafter (that is on 27.8.2001) filed an appeal and chose not to pursue the application filed before the court which passed the consent decree. Such an appeal by the second Defendant was not maintainable, having regard to the express bar contained in Section of the Code. 50. Reliance is placed on paragraph 20 of the judgment in the case of Arjun Singh Vs. Mohindra Kumar Ors. (supra) which reads thus:- 20. On this submission, which we might mention has been urged for the first time in this court, the first question that arises is whether the Court has the inherent jurisdiction which learned counsel contends that it has. For the purpose of the discussion of the question in the context of the relevant provisions of the Code, it is unnecessary to embark on any detailed or exhaustive e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irst hearing is passed and the hearing which is fixed is for the disposal of the suit and the defendant is not present on such a day. The effect of proceeding ex parte in the two sets of cases would obviously mean a great difference in the result. So far as the first type of cases is concerned it has to be adjourned for final disposal and, as already seen, it would be open to the defendant to appear on that date and defend the suit. In the second type of cases, however, one of two things might happen. The evidence of the plaintiff might be taken then and there and judgment might be pronounced. In that case Order IX, Rule 13 would come in. The defendant can, besides filing an appeal or an application for review, have recourse to an application under Order IX, Rule 13 to set aside the ex parte decree. The entirety of the evidence of the plaintiff might not be concluded on the hearing day on which the defendant is absent and something might remain so far as the trial of the suit is concerned for which purpose there might be a hearing on an adjourned date. On the terms of Order IX, Rule 7 if the defendant appears on such adjourned date and satisfies the Court by showing good cause for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication dated May 31, 1958 purporting to be under Order IX, Rule 7 and that consequently the reasons given in the order passed would not be res judicata to bar the hearing of the petition under Order IX, Rule 13 filed by the appellant. 51. Reliance is placed on paragraph 8 of the judgment in the case of Padam Sen Anr. Vs. State of Uttar Pradesh (supra) which reads thus:- 8. Section 151 of the Code reads: Nothing in this Code shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court . The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purposes mentioned in Section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. It is also well recognized that the inherent power is not to be exercised in a manner which will be contrary to or diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment in the case of Sanganer Dal and Flour Mill Vs. F.C.I. and Ors. (supra) which reads thus:- 3. The High Court found that Satya Narain has implied power to conduct business on behalf of the partnership firm and the implied authority binds all the partners. Section 18 of the Partnership Act postulates that subject to the provisions of the Act a partner is the agent of the firm for the purposes of the business of the firm . Section 19(1) adumbrates that subject to the provisions of Section 22 the act of the partners which is done to carry on in the usual way the business of the kind carried on by the firm, binds the firm . Thus, Satya Narain has implied authority to enter into the contract with the corporation to supply the Dal of 1000 quintals at the contracted rate which is the usual course of the business of the appellant. But it is settled law that the operation of Sections 18 19(1) is subject to the exceptions engrafted in Sub-section (2) of Section 19. Section 19(2)(a) provides that in the absence of any usage or custom of trade to the contrary, the implied authority of a partner does not empower him to submit a dispute relating to the business of the firm t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es any copy of the power of attorney which was used by Mr. Shamsuddin for the purpose of filing consent terms and vakalatnama in the City Civil Court, the learned counsel stated that his client did not have any such power of attorney. 56. In so far as the submission made by the learned senior counsel for the petitioner in Writ Petition No. 11790 of 2013 is concerned, learned counsel for respondent no. 1 would submit that the petitioner had not laid any foundation for filing proper proceedings. The impugned order passed on such application thus cannot be impugned by invoking Article 227 of the Constitution of India. It is submitted that even the petitioner in Writ Petition No. 11790 of 2013 had invoked Section 151 of the Code of Civil Procedure and had mentioned the said provision in the application made before the trial Court. The petitioner did not mention even in the writ petition that the said miscellaneous application filed before the trial Court by the petitioner was under Order XXIII Rule 3A of the CPC. 57. Learned counsel submits that in so far as the submission made before the police officer in support of the submission that a cheque of ₹ 2,60,000/- was not clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion and for setting aside the decree obtained by fraud by respondent no. 1 upon the Court was filed not by an individual but was filed by the firm which was admittedly defendant to the said suit filed by respondent no. 1. It is submitted that the learned trial Judge erroneously carried an impression that the petitioner was a third party and was not a party to the suit. The learned senior counsel submits that it was not an admitted position that all the partners of the petitioner firm retired from the firm or that only Mr. Peter Drego was actively involved in the affairs of the firm. The firm was not admittedly dissolved. 61. It is submitted that no sooner the petitioner came to know about the fabricated power of attorney acted upon by Mr. Shamsuddin in collusion with respondent no. 1 and based on such power of attorney, a consent decree has been obtained fraudulently by respondent no. 1 by committing a fraud upon the Court, the petitioner has taken an action against Mr. Shamsuddin as well as the respondent no. 1. Learned senior counsel invited my attention to the observations made by the learned trial Judge in paragraph 33 of the impugned order and submits that on one hand, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed purchaser of the suit property under Agreement for Sale dated 27th December 2013 was in possession of the suit flat or not, learned counsel invited my attention to a letter dated 19th August 2014 addressed by the alleged licensee of the suit property to the Society which letter was addressed much after execution of the alleged agreement dated 27th December 2013 claiming possession of the suit property. When this letter was pointed out by the learned counsel for the petitioner, learned counsel for the respondent no. 1, on instructions from his client who was present in Court, made a statement that though the statement was made earlier during the course of his arguments that the alleged purchaser under Agreement for Sale dated 27th December 2013 was in possession of the suit property, the suit property was in joint possession of the alleged purchaser and the alleged licensee. 64. Learned counsel submits that under both these alleged agreements relied upon by respondent no. 1 in support of her allegations that she has already created third party in respect of the suit property are ex facie fabricated and executed fraudulently to cause serious prejudice to the petitioner. It is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no. 1 had filed a suit inter alia praying for the order and injunction against M/s. Drego Enterprises from in any manner entering into and remaining upon the suit premises and/or from in any other manner interfering with or disturbing alleged physical possession of the respondent no. 1 in respect of the suit premises and/or from dispossessing the respondent no. 1 and/or her family members from the suit premises otherwise then by due process of law. A perusal of the plaint indicates that it was the case of the respondent no. 1 that she had been in use occupation and possession of the suit premises. 68. According to the respondent no. 1, on 20th August, 1974 M/s. Drego Enterprises had sold to the respondent no. 1 the suit premises for the consideration of ₹ 1,10,000/-. The respondent no. 1 had alleged to have paid a sum of ₹ 1 lakh to the said M/s. Drego Enterprises leaving balance of ₹ 10,000/- to be paid by respondent no. 1 to the said M/s. Drego Enterprises. It was the case of the respondent no. 1 that she called upon the said M/s. Drego Enterprises for possession from time to time but the possession was not handed over in respect of the suit premises to her. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have stated that Mr. Peter Drego would be removing his furniture as and when he would come back from his tour. The respondent no. 1 was called upon to collect the original agreement from his office. 71. A perusal of the record indicates that in the said suit, the respondent no. 1 had also filed a Notice of Motion bearing no. 1948 of 2012 inter alia praying for an order and injunction against the said M/s. Drego Enterprises from in any manner interfering with or disturbing with the alleged physical possession of the respondent no. 1 in respect of the suit premises and/or dispossessing the respondent no. 1 and/or his family members otherwise than by due process of law. Roznama dated 16th August, 2012 indicates that the trial court granted ad-interim injunction as prayed in terms of prayer (a) of the draft notice of motion. The alleged constituted attorney of the defendants agreed that the defendant would not dispossess the plaintiff. Appearance of Mr. Shamsuddin Qureshi, the alleged constituted attorney of defendants is shown in the said Roznama dated 16th August, 2012. Though the said matter was pertaining to Court Room No. 8, by a praecipe, the matter was mentioned before Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a peon with M/s. Drego Enterprises. Mr. Peter Drego was one of the partner of the said firm M/s. Drego Enterprises. It was also brought on record that on or about 15th November, 2002 whilst on way of Goa to attend court proceedings, Mr. Peter Drego went missing. His wife had lodged a complaint with the police. After seven years of persistent efforts to trace him out, Police Bureau of Missing Person finally declared him missing on 28th January, 2011. Mr. Shamsuddin Qureshi who was employed as a peon had access to the office keys and cupboard of the office situated at Bandra. 75. In the said application, the petitioner also highlighted and furnished the details of several FIR filed and pending against Mr. Shamsuddin Qureshi of charges of housebreaking, criminal trespass, forgery, fraud, cheating, fabrication of documents etc. In the said application, the petitioner also relied upon an order dated 31st March, 2005 in Industrial Complaint No. 332/2003. The said Mr. Shamsuddin Qureshi has used the alleged power of attorney showing the employment of cohorts who had then applied for workers compensation to the tune of ₹ 5 lacs which was contested by Kenneth Drego and the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate that it was admitted position that she was arrested number of times and was refused bail for quiet sometime and various FIRs' lodged against her and her husband are pending. 79. A perusal of the order dated 31st October, 2012 passed by the learned Session Judge in Anticipatory Bail Application No. 1299 of 2012 filed by the respondent no. 1 and her husband indicates that even the said Sessions Judge while rejecting the anticipatory bail filed by the respondent no. 1 and her husband took cognizance of the fact that Mr. Peter Drego was already missing since 2002. Respondent no. 1 did not produce any document except showing the photocopy of the agreement of 1974 in respect of the disputed flat before the investigating agency. It is observed that the case papers revealed that respondent no. 1 had trespassed into the said flats and had forged the signatures of Mr. Peter Drego who was declared to be missing on the documents. 80. A perusal of the order dated 6th February, 2013 passed by the Additional Sessions Judge in anticipatory bail application filed by Mr. Shamsuddin Kasamali Qureshi indicates that the learned Judge has noticed that Mr. Peter Drego was missing since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding against respondent no. 1 and the said Mr. Shamsuddin Kasamali Qureshi for various crimes alleged to have been committed by them. The records produced by both the parties before the trial court clearly indicated the pendency of such criminal cases against respondent no. 1 and the said Mr. Shamsuddin Kasamali Qureshi. The statement made by the Honorary Secretary of the society and also the report submitted by the concerned police station, pursuant to the order passed by the trial court was on record of the proceedings before the trial court. 83. According to the age of the respondent no. 1 disclosed on the record of the proceedings before the trial court, in the year 1974 when the alleged agreement for sale was entered into between M/s. Drego Enterprises and the respondent no. 1 in respect of the suit premises, she was 17 years old. The respondent no. 1 did not produce any record before the trial court showing the payment of the alleged consideration of ₹ 1 lac. It is not possible to accept the case of the respondent no. 1 that out of the alleged consideration of ₹ 1,10,000/-, the respondent no. 1 had already paid ₹ 1 lac as far back as in the year 1974, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n behalf of the registered partnership firm to file vakalatnama and the consent terms within the short span of filing such suit. 86. Learned trial court totally ignored the factum of the registered agreement referred to and relied upon by the petitioner in Writ Petition No. 4797 of 2013 in his favour by the then owners of the suit premises and put the seal of the court on such fabricated documents of the 1974 which was neither registered nor any proof of payment of consideration was shown to the satisfaction of the court. The trial court also ignored the fact that much before filing of the suit by the respondent no. 1 in respect of the suit premises, the society had already transferred the suit premises and the shares in favour of the petitioner. Though all these facts were brought to the notice of the learned trial court in support of the plea raised by both the petitioners in their respective applications that the fraud was committed upon the court by the respondent no. 1 in collusion with Mr. Shamsuddin Kasamali Qureshi, the trial court totally ignored such crucial documents and refused to look into it. 87. Even in the present proceedings, this court called upon the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s relevant, it is clear that no power of attorney was ever executed by M/s. Drego Enterprises in favour of Mr. Shamsuddin Kasamali Qureshi. 90. A copy of the alleged power of attorney also clearly indicates that there was no reference to the suit premises at all in the said power of attorney which could be dealt with by the alleged constituted attorney and in respect of which he could have filed vakalatnama and consent terms as done fraudulently in collusion with the respondent no. 1. In my view under the provisions of Partnership Act, even a partner could not have executed such power of attorney in favour of the third party when other partners had not retired and were available and without their consent. 91. The learned trial court clearly ignored crucial fact that it was established on record that Mr. Peter Drego was missing since 2002. A certificate in that regard issued by Bureau of Missing Persons of the year 2011 was already on record before the trial court. Though such certificate of missing certifying the fact that the said Mr. Peter Drego was missing since 2002 was on record before the trial court, the trial court in my view could not have ignored this fact while dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ok into the seriousness of such allegations and to look into as to how the vakalatnama of Mr. Shamsuddin Kasamali Qureshi came to be taken on record without original power of attorney and how could such consent terms on behalf of the registered partnership firm be taken on record of the court and the seal of the court was affixed on such fraudulently obtained consent decree. 94. The question now arises for consideration of this court is whether any of the petitioners filing miscellaneous application for setting aside and/or stay of consent decree had locus to file such application for the relief's as claimed under section 151 of the Code of Civil Procedure or under any other provisions of law. 95. In so far as Writ Petition No. 4797 of 2013 is concerned, admittedly the petitioner was not made a party to the suit though in the facts of this case was atleast a proper party in view of the petitioner having vested interest and right in the suit premises under a registered agreement for sale, name of the petitioner having been already recorded in the record of the society in respect of the suit premises and in the shares allotted. 96. On the issue of locus in so far as Writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e defendant to the suit filed by the respondent no. 1 on the ground that the petitioner was a third party is ex-facie perverse and patently illegal on the face of the order passed by the trial court. In my view, the impugned order passed by the learned judge shows total non application of mind on the part of the trial judge rejecting the application filed by the partnership firm which was a party defendant to the suit. 98. Be that as it may, in my view even if such application would have been filed by a person having interest though not party to the suit, once such person having brought to the notice of the court that the fraud is committed upon the court by a party to the proceedings and had abused process of law and of the court, in my view it would be duty of the court to look into such serious allegations of fraud committed upon the court and ought to have conducted proper enquiry into such allegations of fraud before rejecting the same on merits. In my view the trial court has not taken a view seriously but has taken a very casual approach as is apparent from the two orders passed by the learned trial court in the facts of this case. 99. Be that as it may, the miscellane ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstance of a party who claims even a slightest interest in the property of the deceased. Once the allegation of fraud, fabrication or concealment is brought to the notice of the court, which is alleged to have been committed by the opposite party to the proceedings on court, it becomes the duty of the court to look into such allegation whether any such order has been obtained by the party from the court by practicing a fraud, fabrication or concealment. The court can take action even suo moto if comes to the conclusion that an order is obtained fraudulently or by making false suggestion or by concealment of such fact by a party and can set aside such order. In my view this judgment also squarely applies to the fact of this case. 102. In my view application made by the petitioner in Writ Petition No. 4797 of 2013 was also maintainable under section 151 of the Code of Civil Procedure though the petitioner was not a party to the suit. In my view, the court has inherent power to recall and set aside the order obtained by fraud practiced upon the court or when the court is mislead by the party. The court can also recall its order when a judgment is rendered in ignorance of the fact t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y behavior. This power is necessary for the orderly administration of the Court's business. Paragraphs 22 and 23 of the said judgment read thus:- 22. The judiciary in India also possesses inherent power, specially under Section 151 CPC, to recall its judgment or order if it is obtained by fraud on court. In the case of fraud on a party to the suit or proceedings, the court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the tribunals or courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the court's business. 23. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of court, the courts have been held to have inherent power to set aside an order obtained by frau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is mentioned in the application for setting aside the decree obtained by fraud, that would not be fatal to the maintainability of such application considering the relief's claimed in such application which was even otherwise falling under Order 23 Rule 3A of Code of Civil Procedure, 1908. 107. In so far as submission of the learned counsel for the respondent that Mr. Peter Drego was an acting partner of M/s. Drego Enterprises and had implied authority to represent the firm and to execute the power of attorney in favour of the third party is concerned, in my view there is no substance in this submission of the learned counsel. In my view, since there were other partners of the said firm M/s. Drego Enterprises, one partner could not have given any authority to third party on behalf of the firm without consent of the other partners to represent the firm and to settle the dispute if any by filing consent terms. Be that as it may, a perusal of the alleged power of attorney itself indicates that there was no power given in respect of the suit premises by the said Mr. Peter Drego. 108. In so far as submission of the learned counsel that the said M/s. Drego Enterprises had become ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt, the learned counsel could not produce any such payment of proof of payment of ₹ 2,60,000/-. Even otherwise there was enough evidence on record to indicate that the respondent no. 1 in collusion with Mr. Shamsuddin Kasamali Qureshi had practiced a fraud upon the court by obtaining a consent decree in respect of the suit premises in which the petitioner had claimed interest. 111. In so far as the agreements alleged to have been entered into between the respondent no. 1 and her two cousin referred to and relied upon by the respondent no. 1 is concerned, in my view since the respondent no. 1 had obtained the consent decree by practicing fraud upon the court, no rights can be conferred upon such third party also. The copies of the documents produced on record also clearly indicates that the same are fraudulent. Learned counsel appearing for the respondent no. 1 could not produce any proof of payment reflected therein for scrutiny of this court though an opportunity was rendered repeatedly by this court. The alleged agreements were entered into obviously with a view to cause prejudice to the case of the petitioners in both the writ petitions. The learned counsel has made i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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