Fraud; Madayi Syamala Vs. Sudha Sundareswaran [Kerala High Court, 15-02-2016]

Evidence Act, 1872 – Section 44 – Buildings (Lease and Rent Control) Act, 1965 (Kerala) – Section 11 (3) – Playing fraud on the court.

Fraud on Court


IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.B. SURESH KUMAR, J.

Ex.S.A. No.29 of 2015

Dated 15 th February, 2016

AGAINST THE JUDGMENT/DECREE IN AS 21/2014 OF IST ADDL. DISTRICT COURT, KOZHIKODE DATED 07/11/2015 AGAINST THE ORDER IN E.A. NO. 133/2013 IN EP NO. 183/2012 IN RCP.NO. 53/2007 OF PRINCIPAL MUNSIFF COURT-I, KOZHIKODE DATED 03/02/2014

APPELLANTS/APPELLANTS/CLAIM PETITIONERS

MADAYI SYAMALA AND ANOTHER

BY ADVS.SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE

RESPONDENTS/RESPONDENTS/DECREE HOLDER & JDS

SUDHA SUNDARESWARAN 6 OTHERS

R1 TO R4 BY ADV. SRI.P.A.HARISH R5 & R6 BY ADV. SRI.NIDHI BALACHANDRAN BY ADV. SRI. V.V. SURENDRAN

JU D G M E N T

The decision in E.A.No.133 of 2013 in E.P.No.183 of 2012 in R.C.P.No.53 of 2007 on the file of the Rent Control Court, Kozhikode, as confirmed in appeal, is under challenge in this Second Appeal.

2. The facts relevant for examining the correctness of the impugned decision are the following:

The grandfather of the second respondent filed R.C.P.No.53 of 2007 for eviction of the tenants from the petition schedule building therein, under

Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965

The need, on the basis of which eviction of the building was sought in the said proceedings, was that the second respondent, a dependent of the petitioner therein is unemployed and that she wants to run a nursery in the petition schedule building. Since the building was sought to be evicted for the requirement of the second respondent, when the eviction petition came up for trial, the second respondent also gave evidence. In her deposition as PW2, the second respondent has reiterated the stand taken in the eviction petition that she is unemployed and that therefore, she needs the petition schedule building for running a nursery. The rent control court accepted the case of the petitioner and ordered eviction. Though the matter was taken up by the tenants in appeal, the appellate court confirmed the decision of the rent control court. The tenants took up the matter in revision before this Court and this Court also confirmed the decision in the eviction petition. Thereupon, proceedings have been initiated for execution of the order of eviction by the legal representatives of the petitioner in the eviction petition including the second respondent. One Madayi Sreenivasan was the tenant of the premises. As he was no more at the time of filing of the eviction petition, the same was filed against his legal representatives. However, the appellants who were also the legal representatives of the deceased tenant were omitted to be arrayed as parties in the eviction petition. As such, the appellants filed E.A.No.133 of 2013 in the execution petition seeking a declaration that the order of eviction is void and not binding on them. According to the appellants, they are in possession of the suit premises and in so far as they are not parties to the eviction petition, the order of eviction cannot be enforced against them. In the course of the proceedings before the execution court, the appellants filed two applications, of which one was to cause production of a few documents and the other was seeking permission to serve interrogatories on the petitioners in the execution petition. In the affidavits filed in support of the above applications, it was alleged by the appellants that the second respondent was employed as an executive in a Software company called ‘IBM’ at the time of filing of the eviction petition and the order of eviction obtained suppressing the said fact is therefore void and unenforcible. According to them, the order of eviction, in the circumstances, can be construed only as one obtained by playing fraud on the court. The execution court rejected the said applications. The common order passed on the said applications was challenged by the appellants before this Court in O.P.(RC) No.2625 of 2013. This Court confirmed the decision of the execution court on the said applications holding that the case set up by the appellants in the applications, namely, that the order of eviction was obtained by playing fraud on the court has not been pleaded in E.A.No.133 of 2013. Thereupon, the appellants filed an application seeking leave of the court to amend E.A.No.133 of 2013 to incorporate therein an additional plea that the order of eviction was one obtained by playing fraud on the court. E.A.No.34 of 2014 was the application filed by the appellants for the said purpose. The execution court took the view that in so far as the application for amendment was filed after the dismissal of O.P.(RC).No.2625 of 2013 on the ground that the case that the order of eviction was one obtained by playing fraud on the court has not been pleaded in E.A.No.133 of 2013, the same cannot be entertained. Consequently, E.A.No.34 of 2014 was dismissed by the execution court. Thereupon, the execution court took up E.A.No.133 of 2013 for consideration and dismissed the same also on merits holding that the appellants are bound by the order of eviction as the estate of the deceased tenant was substantially represented in the eviction petition. The appellants challenged the decision in E.A.No.133 of 2013 in appeal. Before the appellate court, the contention advanced by the appellants was mainly that the dismissal of E.A.No.34 of 2014 was unsustainable. The appellate court confirmed the decision of the execution court in E.A.No.34 of 2014 as also in E.A.No.133 of 2013. Hence this second appeal.

3. Heard the learned counsel for the appellants as also the learned counsel for the respondents.

4. The learned counsel for the appellants did not raise any arguments against the view taken by the courts below that the appellants are bound by the order of eviction, for, the estate of the deceased tenant was substantially represented in the proceedings. On the other hand, he strenuously contended that the dismissal of E.A.No.34 of 2014 on the ground that the said application was filed after the decision of this Court in OP. (RC).No.2625 of 2013 is unsustainable. It was pointed out by the learned counsel that if a party misleads the court, misrepresents facts, suppresses facts or documents or deceives the court by setting up a false case based on non existent facts, he is guilty of fraud. According to the learned counsel, such fraud will nullify the judicial order and the court has the duty to rip open the entire matter and to investigate the allegation of fraud whenever the same is brought to its notice. The learned counsel pointed out that the concept of finality has to yield to the more important concept of purity of the legal process in appropriate cases. According to the learned counsel, the facts sought to be incorporated in E.A.No.34 of 2014 would indicate beyond doubt that the order of eviction which is being executed by the respondents was obtained by playing fraud on the court and therefore the courts below ought to have allowed the said interlocutory application. The learned counsel relied on the decisions of the Apex Court in