TaxTMI 
TaxTMI 
2011 (6) TMI 983
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....39;s/Appellant's peaceful possession and enjoyment of the suit property. 2. Initially the suit was filed against Mohamed Idris, the first Respondent alone showing him to be the sole Defendant. Subsequently, as per order dated 20.10.2008 made in A. No. 1347/2008, Respondents 2 and 3 were impleaded as Defendants 2 and 3. The suit was resisted by the first Defendant by filing a written statement. After their impleadment Defendants 2 and 3 also filed written statement and thereafter the Appellant/Plaintiff filed a reply statement. At the conclusion of the trial, the learned single judge of this Court dismissed the suit with costs by judgment and decree dated 26.07.2010 and the said decree is impugned in this appeal. 3. The plaint averments in brief, are as follows: i) The suit property bearing old door No. 13 and the present door No. 148, Portuguese Church Street in George Town, Chennai - 600 001 belonged to one Thayub Begum. During her life time, she mortgaged the said property by a registered simple Mortgage Deed dated 09.01.1970 bearing document No. 14/1970 in favour of one Indra Kanvar Bai Taleda for a sum of Rs. 9,000/-agreeing to repay the said amount with an i....
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.... and Mohamed Idris, the first Defendant/first Respondent in the appeal was impleaded as the legal heir of Ayisha Begum. Subsequently, the same came to be numbered as O.S. No. 9869 of 1990 on the file of the VII Assistant Judge, City Civil Court, Chennai on 07.11.1990. On 06.11.1991 the said suit was decreed ex-parte against Ziauddin and T.M. Abdul Rahman, the Defendants therein. Mohanam, the Appellant herein/Plaintiff was not a party to the said suit and he was not aware of the same. After his purchase, the Plaintiff Mohanam came to know about the decree, when service of summons was effected on him in a subsequent suit O.S. No. 9822/1992 filed by Mohamed Idris, the first Respondent herein/first Defendant, on the file of the City Civil Court, Chennai for redemption of the mortgage executed under the deed dated 09.01.1970. Mohanam, the Appellant herein/Plaintiff, was arrayed as the 4th Defendant in the said redemption suit,. Mohamed Idris, the first Respondent herein/first Defendant did not have any locus standi to file the said suit for redemption of mortgage and he had filed the suit by falsely claiming to be the legal heir of Thayub Begum. Subsequently, Mohanam, the Appellant here....
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....he learned VIII Assistant Judge, City Civil Court, Chennai, passed an order on 08.11.2004 dismissing the said petition with an observation that no liberty was required for filing a fresh suit for the same relief after the disposal of the other suit O.S. No. 9869/1990, which would constitute a different cause of action and thus, in effect granted the very same relief sought for. Therefore, Mohanam, the Appellant herein/Plaintiff filed a petition in I.A (SR) No. 47183 of 2004 under Section 21(2) of Code of Civil Procedure praying for determination of pecuniary jurisdiction relating to the suit property as a preliminary issue. The learned VII Assistant Judge, City Civil Court, Chennai passed an order in the said petition on 18.11.2004 to the effect that the same could be taken up after the disposal of I.A. No. 20239/2004, a petition filed for reception of additional written statement in O.S. No. 9869/1990. The said IA No. 20239/2004 in O.S. No. 9869/1990 was allowed on 29.11.2004. But the application filed under Section 21(2) of Code of Civil Procedure was not taken on file and on the other hand, the judge suo motu framed a preliminary issue and closed the petition. Hence the Plaintif....
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....through her mother over the suit property, the first Defendant has no locus standi to seek to set aside the sale deed executed in favour of the Appellant's/Plaintiff's vendor by the assignee/mortgagee along with the adopted daughter of Thayub Begum, namely Nasreen Begum, who signed it as a confirming party. Further, the act on the part of the first Respondent/first Defendant filing the suit O.S. No. 9822/1992 for redemption of mortgage and withdrawing the said suit after 14 years with liberty to file a fresh suit on the same cause of action is nothing but gross abuse of process of law. Therefore, the Appellant/Plaintiff is entitled to the above said reliefs sought for in the plaint. 3. The suit was resisted by the first Defendant by raising the following contentions in his written statement: i) Mrs. Thayub Begum, the original owner of the suit property had rented out her house consisting of ground floor, first floor and second floor to one Pukhraj Jain for a monthly rent of Rs. 3,000/-exclusive of electricity charges. After the death of Thayub Begum, the tenant stopped making payment of rent to anybody and the said tenant Pukhraj Jain filed R.C.O.P. No. 699/1985....
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....Appellant herein/Plaintiff. The alleged sale deed dated 10.06.1988 is not a true one and the same is void in law. The Appellant herein/Plaintiff has no locus standi to file the suit based on the said sale deed and the present suit is a vexatious one. Respondents 2 and 3/Defendants 2 and 3 are the lawful owners of the suit property, having purchased it from the first Respondent/first Defendant. The first Respondent herein/first Defendant had filed a suit against the Plaintiff in O.S. No. 9869/1990 on the file of the VII Assistant Judge, City Civil Court, Chennai. The suit was decreed against the present Appellant/Plaintiff on 14.06.2006. Appellant herein/Plaintiff has not filed any appeal against the judgment and decree passed in O.S. No. 9869/1990 on the file of the VII Assistant Judge, City Civil Court, Chennai and the said decree will operate as res judicata. Before the said ex-parte decree was passed on an application filed by the Appellant herein (6th Defendant in the said suit), the court passed an order directing valuation of the suit for the relief of declaration at Rs. 2,00,000/-and payment of a deficit court fee of Rs. 9,375/-as against the claim made by the Appellant here....
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....s resisted by the Appellant/Plaintiff on the premise that he was in possession of the suit property. The value of the land on the date of sale in favour of Respondents 2 and 3/Defendants 2 and 3 was Rs. 1,800/- per sq.ft. Even the land value as per the guideline value fixed by the Registration Department comes to Rs. 15,12,000/-. The building was also valued at a lower rate of Rs. 7,01,330/-. The Respondents 2 and 3/Defendants 2 and 3 paid a sum of Rs. 81,072/-by way of deficit stamp duty and got the document numbered and registered despite the objections raised by the Appellant/Plaintiff. The first Respondent/first Defendant falsely declared as if he delivered vacant possession of the suit property to the purchasers. He has also falsely declared that he paid all public outgoings in respect of the suit properties. This Court had also granted interim injunction restraining the Defendants from proceeding with the execution petition. As such, a false recital was incorporated in the sale deed as if possession was handed over to the purchasers, namely Respondents 2 and 3/Defendants 2 and 3. The first Respondent/first Defendant, who had no locus standi to file the suit O.S. No. 9869/1990....
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.... In the trial, the Appellant/Plaintiff figured as the sole witness (P.W.1) and marked 42 documents as Exs.P1 to P42, on his side. On the side of the Respondents/Defendants, the Defendants 1 and 2 figured as D Ws.1 and 2 respectively and 10 documents were marked as Exs.D1 to D10. At the conclusion of trial, the learned single judge considered the pleadings and evidence in the light of the points raised on both sides in the arguments advanced by the counsel and upon such consideration, came to the conclusion that the Appellant/Plaintiff was not entitled to any of the reliefs sought for in the plaint and dismissed the suit with cost by judgment and decree dated 26.07.2010. 8. Aggrieved by and challenging the same, the unsuccessful Plaintiff in the civil suit C.S. No. 434/2007 has filed the present Original Side Appeal on the grounds set out in the Memorandum of Grounds of Original Side Appeal. 9. The points that arise for consideration in this appeal are: i) Whether the Appellant/Plaintiff is entitled to the relief of cancellation of ex parte decree dated 14.6.2006 passed in the suit in OS No. 9869/1990 by the VII Assistant City Civil Judge, Chennai, since the same was ....
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....cussion, the sustainability of the third prayer at the first instance. 13. Admittedly one Thayub Begum was the original owner of the suit property and she had let out the property to one Pukhraj Jain. At the time of induction of said tenant, the property had a building with ground plus two floors .Subsequently, the third floor was also constructed. In respect of the suit property, Thayub Begum had created a simple mortgage by executing Ex.P1 Mortgage deed dated 09.01.1970 in favour of Indra Kanvar Bai Telada. The amount secured by the mortgage was Rs. 9000/-. It is also an admitted fact that the mortgagor, namely Thayub Begum, without redeeming the mortgage, died on 01.04.1978. The mortgage deed Ex.P1 also contains a clause enabling the mortgagee to bring the property for sale either in public action or by private negotiation in terms of Section 69 of the Transfer of Property Act for the realisation of the debt secured by the mortgage, in case of failure on the part of the mortgagor to discharge the mortgage debt. 14. Section 69 of the Transfer of Property Act, 1882 prescribes the conditions for such a power of sale to be valid. It reads as follows: 69. Power of sale....
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.... contract to the contrary, be held by him in trust to be applied by him, first, in payment of all costs, charges and expenses properly incurred by him as incident to the sale or any attempted sale; and, secondly, in discharge of the mortgage-money and costs and other money, if any, due under the mortgage; and the residue of the money so received shall be paid to the person entitled to the mortgaged property, or authorised to give receipts for the proceeds of the sale thereof. (5) Nothing in this section or in Section 69A applies to powers conferred before the first day of July, 1882. The power granted to the mortgagee under Ex.P1 mortgage deed squarely falls within the ambit of Section 69(1)(c) of the Transfer of Property Act, 1882 since the property situates within the town of Chennai, formerly known as Madras. 15. The original mortgagee Indra Kanvar Bai Taleda seems to have assigned the mortgage in favour of one Abdul Rahman under Ex.P4 Assignment Deed dated 07.01.1985 on receipt of a sum of Rs. 25,000/-from him as consideration for such assignment. The said assignee Abdul Rahman, purporting to exercise the power of sale conferred under Section 69 of the Transfer o....
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....ee set aside and got impleaded as 6th Defendant in O.S. No. 9869/1990. In the said suit O.S. No. 9822 of 1992, all other persons, who had been made as co-Defendants remained ex parte and Mohanam, the Plaintiff herein who figured as the fourth Defendant therein alone contested the suit. Since recovery of possession was also sought for, he raised a preliminary objection as to the correctness of the valuation of the reliefs and payment of court fee and presented a petition praying for the return of the plaint for presentation in proper Court on the premise that the City Civil Court did not have the pecuniary jurisdiction since the value of the property, as per the test report of Amin, was Rs. 20.00 Lakhs. The said application was dismissed by the learned VII Assistant Judge, City Civil Court, Chennai with the observation that a decision regarding the value of the suit had not been taken by the Court by then. However, based on the plea made by the Plaintiff herein (4th Defendant in the said case) regarding valuation and payment of Court fee, the said Court framed an issue and considered the same as a preliminary issue. By a judgment and decree regarding the preliminary issue, the said ....
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....00/-out of the total cost awarded therein to Mohammed Idris, the first Respondent/first Defendant and the payment of the balance Rs. 2500/-to the Tamil Nadu Mediation and Conciliation Centre, High Court, Madras within four weeks from the date of order. Prior to the disposal of the said civil revision petition, another Civil Revision Petition in CRP No. 934 of 2004 came to be filed and the same was disposed of with a direction to dispose of the original suit O.S. No. 9869 of 1990 expeditiously, in any event not later than 30.06.2004. Taking note of the said order, the learned Single Judge in the order dated 12.04.2006 made in C.R.P.(PD) No. 54/2005 extended the time for disposal of the suit and directed disposal of the suit on merits and in accordance with law on or before 29.09.2006. In the very same order, it was also directed that the defence of Mohanam, the sixth Defendant in O.S. No. 9869/1990 (the Plaintiff herein) would be struck off, if the direction regarding payment of cost was not complied with within four weeks from the date of order. 17. Admittedly, the said direction was not complied with. On the other hand, the Plaintiff herein chose to file an application in Revie....
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....ll judicial acts whether in rem or in personam and that a judgment, decree or order obtained by fraud has to be treated as non est and nullity, whether by the Court of first instance or by the final Court and that the same can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings. In North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (dead) By L.Rs. reported in (2008) 8 SCC 511, the Hon'ble Supreme Court has again reiterated the point that a judgment or decree obtained by fraud either in the first court or in the highest Court, is a nullity in the eye of law. 20. Per contra, the learned Counsel for the Respondent relied on the decision of the Hon'ble Supreme Court in Afsar Sheikh and Anr. v. Soleman Bibi and Ors. reported in (1976) 2 SCC 142, wherein the Hon'ble Supreme Court has made the following observation: While it is true that `undue influence', `fraud', `misrepresentation' are cognate vices and may, in part, overlap in some cases, they are in law distinct categories, and are in view of Order 6, Rule 4, read with Order 6, Rule 2, of the Code of Civil Procedure, required to be separa....
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....n of the Appellant is to the effect that the decree was obtained by virtue of the deliberate misrepresentation amounting to fraud made by the original Plaintiff in O.S. No. 9869 of 1990, namely Ayisha Begum that she was the legal heir of the original mortgagor Thayub Begum. It is the contention of the Appellant herein/Plaintiff that Ayisha Begum could not have become a legal heir of the original mortgagor Thayub Begum as the said Thayub Begum had been married to one Sheik Abdul Khadir and though she was divorced by her husband, she was survived by her four children (two sons and two daughters) and that hence Ayisha Begum, who claimed to be the sister of Thayub Begum could not have become the legal heir of the original mortgagor Thayub Begum. In short, the claim of Ayisha Begum to be the legal heir of Thayub Begum was claimed to be fraudulent, insofar as it was made with a clear knowledge that she could not have become a legal heir of Thayub Begum, while her children were alive. 22. In this regard, it is pertinent to note that neither Ayisha Begum nor her son Mohamed Idris suppressed any material fact. In fact, in paragraph 3 of the plaint in O.S. No. 9869 of 1990, a certified co....
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....of the plaint in O.S. No. 9822 of 1992 to the effect that Thayub Begum was married to Sheik Abdul Khadir, who divorced her and then left to Pakistan with all his children and permanently settled there. Making a claim, correctly stating the facts, will not amount to a misrepresentation, much less a fraud on the Court. There must be a statement which is not believed to be true by its maker or a statement which the maker knows to be false or else there should be a deliberate suppression of a fact when the circumstances warrant revelation of the fact. In this case, there is no suppression of fact and no incorrect or false statement is proved to have been made either by Ayisha Begum or by her son Mohammed Idris. Making a claim which may not be sustainable in law based on actual facts, is one thing which cannot be termed either misrepresentation or fraud and the same is to be distinguished from a claim based on a representation/statement of fact which the maker either believes to be false or does not believe to be true or based on a deliberate suppression of a fact with the knowledge that such a suppression will make the Court believe the existence of the fact opposite to the facts suppr....
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....nied the suggestion that the first Defendant, son of Ayisha Begum is not the legal heir of Thayub Begum. 27. It should be noticed that one Nasreen Begum had been added to Ex.P4 sale deed as a confirming party on the premise that she was the fostered daughter of Thayub Begum. Ayisha Begum and Mohammed Idris, in their respective plaints, had made clear averments to the effect that Nasreen Begum was not the adopted/fostered daughter of Thayub Begum and on the other hand, she was a stranger to the family. The said Nasreen Begum, who is projected as an adopted /fostered daughter of Thayub Begum and who was made to sign the sale deed Ex.P4 as a confirming party, has been made a party to the present suit, namely C.S. No. 434 of 2007 and has been arrayed as Defendant No. 3. But she did not contest the suit and chose to remain ex parte. She was not examined as a witness on the side of the Appellant herein/Plaintiff either. No one having acquaintance with the original mortgagor Thayub Begum and her family circle has been examined on the side of the Appellant herein/Plaintiff. Under such circumstances, the learned Single Judge, after going through the pleadings and evidence, came to a corr....
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....990 by the VII Assistant Judge, City Civil Court, Chennai. When a judgment, decree or order is challenged as one obtained by misrepresentation or by playing fraud on the Court and the party thus challenging the decree by way a separate suit fails to substantiate such a case of misrepresentation or fraud, it cannot be allowed to enlarge the scope of the subsequent suit by converting such a suit virtually into an appeal against the judgment or decree passed in another case by challenging the decree on other grounds which ought to have been raised as plea of defence in the former suit or proceedings in which the impugned judgment, decree or order came to be passed. 29. In this case, though the Appellant/Plaintiff had chosen to make the plea of misrepresentation and fraud as the foundation for the present suit seeking cancellation of the decree dated 14.06.2006 made in O.S. No. 9869 of 1990 on the file of the VII Assistant Judge, City Civil Court, without substantiating the same by making necessary pleading with details of misrepresentation or fraud as contemplated under Order VI Rule 4 Code of Civil Procedure and substantiating the same by reliable evidence, the Appellant/Plaintiff....
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....ruck off, he would be placed in a position equal to that of a Defendant who has not filed any written statement and as such he would not be entitled to lead any evidence of his own, but at the same time, would be entitled to cross examine the witnesses examined on the side of the Plaintiff for the limited purpose of showing the unreliability of such evidence or the failure to prove the case of the Plaintiff. It has also been observed therein that while such Defendant can be permitted to cross examine the witnesses of the Plaintiff, he cannot be permitted to traverse beyond the very limited objective of pointing out the falsity or weakness of the Plaintiff's case and that in any event such cross examination cannot be permitted to travel beyond the legitimate scope, so as to convert the cross examination itself virtually into a presentation of the defence plea either directly or indirectly in the form of suggestions put to the Plaintiff's side witnesses. The Hon'ble Supreme Court has made the following observations in this regard: The right of the defence to cross examine the Plaintiff's witnesses can, therefore, be looked upon not as a part of its own strate....
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....e under Section 69 of the Transfer of Property Act. The mortgage is a simple mortgage in which possession was not delivered to the mortgagee and it remained with the mortgagor. The property had been rented out to one Pukhraj Jain. After the death of the original mortgagor Thayub Begum, the tenant was uncertain about the person entitled to receive the rent, pursuant to which he filed a Rent Control Original Petition in R.C.O.P. No. 699 of 1985 on the filed of the Rent Controller, namely X Judge, Court of Small Causes arraying Ziauddin and Ayisha Begum, mother of the first Defendant as Respondents and seeking an order permitting him to deposit the rent into Court. The order passed in the said RCOP has been produced as Ex.P3, from which it is obvious that the said petition was dismissed on 31.03.1996 for non-appearance. Till then neither the mortgagee nor his assignee got possession of the subject matter of mortgage. Even in Ex.P4 sale deed dated 07.01.1985, there is nothing to show that possession was taken by Ziauddin, the purchaser under Ex.P4. Only after the execution of the said sale deed, since there was a dispute regarding the title to the property between Ziauddin and Ayisha B....
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.... on par with a Defendant who did not file his plea of defence. The fact that a Defendant fails to file plea of defence within the time stipulated in the code or within the time extended by the court leading to the closure of the gates for such Defendant to put in his specific case of defence, does not mean that the case of the Plaintiff deserves to be accepted as proved and in such cases, an ex-parte trial recording ex-parte evidence shall be conducted. Even in such cases, if the Defendant appears at a later stage, he cannot be precluded from taking part in the proceedings from the stage at which he enters appearance. The Code of Civil Procedure under Order IX Rule 7 provides for setting aside an order setting him ex-parte and allowing him to contest the case as if he had appeared on the date fixed for his hearing. Order IX Rule 6 enables the court to hear the suit ex-parte, if the Defendant does not appear on the date appointed for his appearance. Similarly Order VIII Rule 10 is the provision enabling the court to pronounce judgment against the Defendant when he fails to file written statement. It reads as follows: 10. Procedure when party fails to present written stateme....
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....Plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of Court's satisfaction and, therefore only on being satisfied that there is no fact which need be proved on account of deemed admission, the Court can conveniently pass a judgment against the Defendant who has not filed the written statement. If the plaint itself indicates that there are disputed questions of fact involved in the case, regarding which two different versions are set out in the plaint itself, it would not be safe for the Court to pass a judgment without requiring the Plaintiff to prove the fact so as to settle the factual controversy. Such a case would be covered by the expression "the court may, in its discretion, require any such fact to be proved" or the expression "may make such order in relation to the suit as it thinks fit" used in Sub-rule (2) of Rule 5 of Order 8,. v) Order VI Rule 5 provides for striking out of any plea. Order XI Rule 21 provides for dismissal of the suit or for the striking out of the defence in case of failure to answer interrogatories as a punitive measure. By analogy, this Court in C.R.P.(PD) No. 54 of 2005 has passed an order directin....
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....f written statement. In such cases, if the court is satisfied that the Defendant was prevented by a reasonable cause from filing a written statement in time, then it can set aside the ex parte order and allow him to file a written statement and thus restoring his position in the suit as if he had appeared on the date appointed for his hearing. In case the court comes to the conclusion that he has not satisfied the court regarding the reasonable cause, then, though it may be only in minority number of cases, such Defendant shall be precluded from filing written plea of defence. But at the same time, he cannot be prevented from taking part in the subsequent proceedings. It has been held so in clear terms in AIR 2003 SC 2508 cited supra. It has been held by the Supreme Court in the said case that inspite of the fact that a Defendant is set ex parte and the case stands posted for conducting ex parte trial, such Defendant shall be entitled to appear on the adjourned date and demonstrate as of right that the Plaintiff's case is unsustainable and that an application under Order IX Rule 7 is required only if the Defendant wishes the proceedings to be relegated back to the stage of the ....
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....o participate in the subsequent proceedings, but the Appellant herein/Plaintiff being the 6th Defendant in the previous suit did not come forward to cross-examine the witness examined on the side of the Plaintiff therein, nor did he seek permission to cross-examine such witnesses by filing any memorandum or petition; that on the other hand, he expressed his unwillingness and unpreparedness to take part in the proceedings on the premise that a review petition was filed and that the trial court in O.S. No. 9869/1990, after noting the fact that no order of stay had been granted and on the other hand, there was a direction by the High Court to complete the trial within a specified time, chose to proceed with the ex parte trial and pronounce an ex parte judgment in favour of the Plaintiff therein (first Respondent herein) and against the Appellant herein. Therefore, even the challenge made to the said judgment on the ground of failure to provide opportunity to defend by cross-examining the witnesses examined on the opposite side also miserably fails. 31. A meek attempt was also made on the side of the Appellant herein/Plaintiff by contending that the judgment is a non-speaking judgme....
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....t herein/Plaintiff, that would have been done only during the pendency of the said pauper OP and such creation of rights during the pendency of the proceedings is subject to the result of the lis as it is hit by the doctrine of lis pendens. That is the reason why the court which tried the suit No. 9869/1990 allowed the amendment of pleading to incorporate additional prayers for recovery of possession, mandatory injunction for the removal of the 3rd floor portion and for mesne profits and ultimately decreed the suit. 33. We are concerned only with the question whether the decree granted in O.S. No. 9869/1990 setting aside the sale under Ex.P4 and directing recovery of possession, granting mandatory injunction and mesne profits was obtained by playing fraud on or making a misrepresentation to the court or whether the decree passed in the said suit suffers from any other vitiating factor based on which the decree can be set aside in a separate suit. The question has been answered in the negative in the foregoing discussions. Further elaboration on this aspect will amount to entering upon the discussion on the merits of the other case. Suffice to state that the suit filed in O.S. No....
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....also seen that the challenge made to the decree dated 14.06.2006 passed in O.S. No. 9869/1990 on the ground of fraud and misrepresentation has not been substantiated by the Appellant/Plaintiff; that the Appellant/Plaintiff is not entitled to the relief of cancellation of the said decree and that the said decree dated 14.06.2006 passed in O.S. No. 9869/1990 would operate as res judicata. 35. It has also been held that the mortgage is a simple mortgage and the same could not be unilaterally altered into an is usufructuary mortgage or mortgage with possession. We have also seen that possession was not given either to the mortgagee or to the assignee or to the purchaser from the assignee or to the Appellant/Plaintiff by virtue of the mortgage. On the other hand, the immediate possession that was with the tenant continued as such, which led to the filing of a RCOP for deposit of the rent by the tenant as he was in a dilemma as to who was entitled to receive the rent and only pursuant to the dismissal of the said RCOP No. 699/1985, the Appellant/Plaintiff might have chosen to collect rent and take possession of some of the portions of the building and put up an additional construction....