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Andhra Pradesh High Court
Judges : NARAYANA REDDY, R.M.BAPAT
Anita - Appellant
Versus
R.Rambilas - Respondent
Decided On : 08-23-02
Family Law - Hindu Law - Hindu Marriage Act 1955 - Section 13 (b) - Dissolution of marriage – Civil Procedure Code 1908 - Section 151 - Fact that a necessary party had not been served at all and was shown as served or in ignorance of fact that a necessary party had died and estate was not represented, a judgment was obtained by fraud, a party has had no notice and a decree was made against him and such party approaches Court for setting aside decision ex deblto justified on proof of fact that there was no service - Learned senior counsel also relied upon a ruling reported in United India Insurance Co.,Ltd in which their Lordships of Supreme Court in Para’s 2, 3 and 4 have observed as under - If what appellant-Insurance Company now says is true, then a rank fraud had been played by two claimants had wangled two separate Awards from a Motor accident Claims Tribunal for a bulk sum - But neither Tribunal nor High Court of Allahabad, before which Insurance Company approached for annulling awards, opened door but expressed helpless even to look into matter and hence - Insurance company has filed these appeals by Special leave - Fraud and justice never dwell together - Pristine maxim, which has never lost its temper over all these centuries - Lord Denning observed in a language without equivocation that "no judgment of a Court, no order of a minister can be allowed to stand if it has been obtained by fraud, for, fraud unravels everything - High Court in India to say that it has no power even to consider contention that awards secured are byproducts of stark fraud played on a Tribunal, plenary power conferred on High court by Constitution may become a mirage and people s faith in efficacy of High Courts would corrode – Appreciated if Tribunal or at least High Court had considered plea and found them unsustainable on merits, if they are meritless - But when Courts preempted Insurance Company by slamming doors against them, this Court has to step in and salvage situation - Contention raised by learned counsel for petitioner was that learned Civil judge failed to exercise inherent powers vested in it under Section 151 CPC - Saving of inherent powers of Court - Nothing in this Code shall be deemed to limit or otherwise affect inherent powers of Court to make such orders as may be necessary for ends of Justice or to prevent abuse of process of Court – Held, Court has been fortified appeal by a division Bench judgment of Patna High court in Chutur wherein it was observed that there is a distinction between a fraud practiced upon a party and a fraud practiced upon Court - A Court; is not competent either in review or under its inherent power to set aside a compromise decree on ground that consent of parties to compromise was obtained by fraud - Only remedy of injured party is to institute a suit to set aside decree on ground of fraud - Court view that theory put forward by wife- appellant herein that she was made to sign Joint petition under coercion and threat is a totally concocted story - Considered view that wife-appellant herein was not able to prove the fact that husband-respondent herein had played fraud on her by obtaining signature for divorce by mutual consent - Agreement with submission made by learned senior counsel because wife-appellant herein is an educated lady - She is a graduate and used to speak and write in English, had all opportunities to complain to many people if at all husband-respondent herein played fraud on her but she did not choose to do so - Fact itself is sufficient to prove that on her own accord, she had agreed to sign divorce petition as husband- respondent herein used to give mental torture to her by demanding a dowry of Rs. 25 lakhs for doing business - Demanding dowry after so many years of marriage and that is also a huge sum, drew wife-appellant herein to go for divorce by mutual consent - If she had given up custody of child and her right of maintenance, she did so with open eyes for whatever reasons known to her - Court convinced that husband-respondent herein did not play any type of fraud in obtaining her consent for mutual divorce under Section 13{b) of the Hindu Marriage act and therefore we are of considered view that there is no merit in appeal - Court further hold that learned Judge rightly dismissed said I. A. for reviewing/recalling petition - Appeal dismissed .
( 1 ) THE wife-appellant herein and the husband-respondent herein had filed O. P. No. 259 of 1998 under Section 13 (b) of the Hindu Marriage Act before the Family Court at Secunderabad for dissolution of their marriage, which was solemnized on 14-6-1994 at Hyderabad according to Hindu Vedic Rites. After the said O. P. was filed, it was kept pending in the said court for a period of six months for reconciliation. Thereafter, the learned Judge recorded their statements on oath and finally the learned Judge dissolved the marriage of the parties by mutual consent under Section 13 (b) of the Hindu Marriage Act.
( 2 ) THE said O. P. was disposed of on 24-5-1999. After about six months of the decree in o. P. No. 259 of 1998, the wife-appellant herein Hied LA. No. 585 of 1999 in o. P. No. 259 of 1998 for recalling/reviewing the decree passed in O. P. No. 259 of 1998 on the ground that the consent to the petition was obtained by the husband-respondent herein by threat, undue influence and coercion.
( 3 ) IN the said I. A. , the wife-appellant herein examined herself on oath as P. W. 1. She examined six more witnesses on her behalf. She also filed documents Exs. A-l to A-36. On behalf of respondent, he himself examined on oath as R. W. 1 and he filed and proved certain documents and they were marked as Exs. B-1 to B-4. On hearing the matter on merits, the learned Judge dismissed the said I. A. , on 14-3-2002 and therefore the wife-appellant herein has filed the present appeal.
( 4 ) THE learned senior counsel Mr. C. Pardhasarathy representing the wife-appellant herein submitted at the Bar that the learned Judge ought to have allowed the recall petition and he ought to have set aside the decree passed in O. P. No. 259 of 1998. The learned senior counsel further submitted that the husband-respondent herein has played fraud on the wife-appellant herein and therefore the decree can be set aside by invoking the inherent powers of the Court.
( 5 ) THE learned senior counsel Mr. C. Pardhasarathy appearing on behalf of the wife-appellant herein relied upon a ruling reported in Budhia Swain v. Gopinath Deb, (1999) 4 SCC 396 : (AIR 1999 SC 2089) in order to prove the fact that recall petition is maintainable. In para (6) of the said judgment, their Lordships have observed as follows :"6) What is a power to recall? Inherent power to recall its own order vesting in Tribunals or Courts was noticed in Indian Bank v. Satyam Fibres (India) (P) Ltd. , (1996) 5 scc 550 : (AIR 1996 SC 2592) vide para 23, this Court has held that the Courts have inherent power to recall and set aside an order i) obtained by fraud practised upon the court, ii) when the Court is misled by a party, or iii) when the Court itself commits a mistake which prejudices a party. In A. R. Antulay v. R. S. Nayak, (1988) 2 scc 602 : (AIR 1988 SC 1531) (vide para 130), this Court has noticed motions to set aside judgments being permitted where i) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all and was shown as served or in ignorance of the fact that a necessary party had died and the estate was not represented, ii) a judgment was obtained by fraud; iii) a party has had no notice and a decree was made against him and such party approaches the Court for setting aside the decision ex deblto justitiae on proof of the fact that there was no service. "
( 6 ) THE learned senior counsel Mr. Pardhasarathy also relied upon a ruling reported in United India Insurance Co. , Ltd. v. Sanjay Singh (AIR 2000 SC 1165) in which their Lordships of the Supreme Court in paras 2, 3 and 4 have observed as under :"2) If what the appellant-Insurance Company now says is true, then a rank fraud had been played by two claimants ahd wangled two separate Awards from a Motor accident Claims Tribunal for a bulk sum. But neither the Tribunal nor the High Court of allahabad, before which the Insurance Company approached for annulling the awards, opened the
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