TaxTMI 
TaxTMI 
2021 (2) TMI 1408
X X X X Extracts X X X X
X X X X Extracts X X X X
....e of Anirudh Prasad and Ram Lali wife of Swami Dayal @ Dhondhey. Both the daughters had half share each in the property of Brij Mohan after his death. The respondent has claimed half of the property on the basis of sale deed executed on 18.04.1978 by Raj Rani. Rajeshwari @ Raj Rani had filed a suit for cancellation of the said sale deed vide R.S.No.229 of 1978. The Suit was decreed ex parte on 26.03.1980. The respondent had filed an application under Order 9 Rule 13 of the Civil Procedure Code, which was rejected on 02.12.1981. Thereafter the Misc. Appeal filed by the respondent was also dismissed on 20.01.1983. Consequently the respondent had filed Regular Suit No.40 of 1983 for cancellation of ex-parte decree dated 26.03.1980 and permanent injunction. The injunction was sought for whole of the property of late Brij Mohan on the ground that one of his daughter Raj Rani had executed a sale deed of the half portion and in regard to the remaining half portion the second daughter Ram Lali had executed a Will deed in favour of the respondent. The suit was decreed by means of judgment and decree dated 18.07.1987. The appellants filed a First Appeal on 22.01.2014 alongwith an application....
X X X X Extracts X X X X
X X X X Extracts X X X X
....order dated 18.07.1987 on 03.01.2014 and obtained the same. Thereafter applied for copies of all other documents on 09.01.2014 and 13.01.2014 to file the appeal and after receipt of the same the appeal was got prepared from 17.01.2014 to 19.01.2014 and thereafter filed the same on 22.01.2014 with an application for condonation of delay. But without considering the grounds raised by the appellants and that the Regular Suit was filed and the judgment and decree dated 18.07.1987 was obtained by playing fraud without impleading the appellants, who are legal heirs of Ram Lali the application for condonation of delay has been rejected merely on the ground that after passing of the judgment and decree dated 18.07.1087 in Regular Suit No.40 of 1983 many cases, relating to it, were contested by the parties of the said suit in various courts and revenue courts. While the appellants were admittedly not a party in the said suit. It was also submitted that the respondent herself had got filed an application for impleadment by some one impersonating as their mother Ram Lali, which was rejected, therefore, the appellants had no knowledge of it also. 6. He further submitted that in view of Sect....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pondent; AIR 1998 Supreme Court 3222. 8. Per contra, learned counsel for the respondent does not dispute that Brij Mohan had two daughters, namely Raj Rani and Ram Lali. But he submitted that Raj Rani had executed a sale deed of her half portion in favour of the respondent and Ram Lali had executed a Will deed of her half portion in favour of respondent. He further submitted that since Ram Lali had already died, which was mentioned in the plaint, therefore, there was no occasion to implead her or her legal heirs. He further submitted that though the marriage of Ram Lali was settled but the groom had died on the date of marriage so she had not married and she died unmarried. The appellants were the sons of Kokila who was impleaded and not of Ram Lali. Kokila had also filed an application for impleadment by impersonating her as Ram Lali in R.S.No.40 of 1983, but her application was dismissed in default on 07.03.1984 as she did not appear to give evidence. Kokila, the mother of the appellants was impleaded as Kokila was the wife of Dhondhey and the appellants are the sons of Dhondhey, which is apparent from the entries made in the electoral roll of 1975, a copy of which has been fi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and decree dated 18.07.1987 on the ground that the decree was obtained by playing fraud by not impleading the appellants, who are the legal heirs of Ram Lali, therefore, they had no knowledge of the judgment and decree. On coming to know about the same on 26.12.2013, when it was filed by the respondent in an appeal under Section 11(2) of the U.P. Consolidation of Holdings Act, the appeal was filed therefore it was within time from the date of knowledge. The learned appellate court has not considered the plea of fraud raised by the appellants and the application for condonation of delay in filing the appeal has been rejected merely on the ground that after passing of the judgment and decree many cases were contested in various courts and revenue court between the parties of Regular Suit No.40 of 1983, but has not considered that the appellants were not party in the said suit and also whether the said judgment and decree was brought before the court in any proceeding by the respondent prior to 26.12.2013. 13. Section 17 of the Indian Limitation Act provides the effect of fraud or mistake, which is reproduced below: "17. Effect of fraud or mistake.-(1) Where, in the case ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l the fraud is discovered by the person who is aggrieved. 14. Article 123 of the Limitation Act provides the limitation in the case where the summons or notice was not duly served, which is 30 days from the date of knowledge of the ex-parte decree. Article 123 is reproduced below: 123. To set aside a decree passed ex parte or to rehear an appeal decreed or heard ex parte. Explanation.- For the purpose of this article, substituted service under Rule 20 of Order V of the Code of Civil Procedure, 1908 shall not be deemed to be due service. Thirty days. The date of the decree or where the summons or notice was not duly served, when applicant knowledge decree. of the had the decree. 15. The Hon'ble Apex Court considered the Article 123 in the case of Gauhati University Versus Niharlal Bhattacharjee (Supra) and held that the limitation begins to run only when the appellant had knowledge of ex parte decree. 16. This court, in the case of Yashoda Devi and others Versus Special/Additional District Judge, Pratapgarh and others (Supra), has held that the period of limitation will start to run from the date of knowledge of contents of exparte decree and not from the da....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... such allotment envisaged under Section 198(4) of the Act for the reason that Section 198(4) comes into play in the limited sphere where the allotment is found to be irregular and not otherwise. Accordingly, in my considered opinion cancellation of allotment/lease on account of fraud is altogether an separate exercise which can be undertaken by the authorities concerned irrespective of Section 198(4) of the Act. However, proceedings for cancellation of allotment of land/lease on the ground of fraud has to be exercised with great care & caution and not blindly or on unilateral version. It is only when the concerned authority on the basis of relevant material has a reason to believe that the allotment is based upon fraud it may proceed in the matter. In so determining the stand, a distinction has to be made between fraud played by the beneficiary or the fraud committed by the officers or the authorities. Where the authority is of the opinion that the allottee is responsible for the alleged fraud it can initiate proceedings for cancellation of the allotment/lease and after giving opportunity of hearing to him may cancel the same. In the event the authority feels otherwise and the invo....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the final Court has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings. 39. In para-39 of the judgment of A.V. Papayya Sastry (supra), it has been laid down that it is established that when an order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non-existent and non est and cannot be allowed to stand. This is the fundamental principle of law and needs no further elaboration. Therefore, it has been said that a judgment, decree or order obtained by fraud has to be treated as nullity, whether by the court of first instance or by the final court. And it has to be treated as non est by every Court, superior or inferior." 23. The Hon'ble Apex Court, in the case of S.P. Chengalvaraya Naidu (Dead) By LRs Versus Joganath (Dead) by LRs and others (Supra), about fraud and the effect of decree obtained by fraud has held as under in paragraph 1: "1. Fraud avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y of the fraud. It is obvious also because unless a party comes to know about the fraud played by the other party he would not have any cause of action to challenge the same. Similarly in the case of ex parte decree unless the concerned party comes to know about the ex party proceeding and decree passed against him he cannot challenge the same. When a person has not been imleaded in any proceeding it is not expected that he would be knowing about the proceedings unless it is specifically shown by the other party as to how it was in the knowledge of the person who is challenging and when it was known to him. 27. In the present case Lower Appellate Court, without ascertaining as to whether the appellants had any knowledge about the passing of the decree before 26.12.2013, has rejected the application while there was no specific denial by the other side except that many cases were contested between the parties in regard to the property in question. It has never been disclosed as to whether the impugned jugement and decree was ever brought before the appellants in any such proceedings before 26.12.2013. 28. A plea was taken by the opposite party that Ram Lali had executed the all....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as held that unless want of bonafides of such inaction or negligence as would deprive a party of the protection of section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned. 32. This court, in the case of Manoj Kumar Versus Commissioner, Lucknow Division, Lucknow and another (Supra), after considering several judgments of the Hon'ble Apex court, has held in paragraph 14 as under: "14- In view of the decision of the Apex Court it is abundantly clear that while considering the delay condonation application the court has to see the merit of the case also as the law of limitation is not meant to take away the right of Appeal. The courts are meant for imparting justice and not to scuttle the justice on technicalities. The length of delay is also not very much material if there is a substance on merit." 33. Similar view has been taken by this court in the case of Dodram Versus Collector, Pilibhit and others (Supra) and Ram Newas Singh and others Versus Deputy Director of Consolidation, Gorakhpur and others (Supra), relevant paragraph 7 of which is extracted below: "7. Otherwise also the law of limitation is not m....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ted below: "8. Appellant's conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences. 9. It is axiomatic that condonation of delay is a matter of discretion of the court Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as su....
X X X X Extracts X X X X
X X X X Extracts X X X X
....advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]. 13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss." 37. The Hon'ble Apex Court, in the case of G. Ramegowda, Major and others Versus Special Land Acquisition O....