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2020 Supreme(Chh) 361
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Sanjay K. Agrawal, J.
Abubakar - Appellant
Versus
State Of Chhattisgarh - Respondent
Second Appeal No.207 of 2009
Decided On : 20-03-2020
Mr.Sanjay Agrawal and Mr. Shivanshu Pandey, Advocates, for the Appellant; Mr.Ravi Bhagat, Dy.G.A, for the Respondent
The judgment emphasizes the principle that obtaining a decree by suppressing material facts and playing fraud upon the Court can lead to the decree being set aside.
Headnote:
fraud - Land Allotment - Chhattisgarh Land Revenue Code, 1959 - Civil Procedure Code - Order 6 Rule 4 - Electrical Rengali Hydro Electric Project v. Giridhari Sahu, (2019) 10 SCC 695 - State of Orissa and another v. Fakir Charan Sethi (dead through legal representatives) and others, (2015) 1 SCC 466 - Bhanu Kumar Jain v. Archana Kumar and another, (2005) 1 SCC 787 - Hamza Haji v. State of Kerala and another, (2006) 7 SCC 466 - State of Orissa v. Harapriya Bisoi, (2009) 12 SCC 378 - Saroja v. Chinnusamy (Dead) by LRS. and another, (2007) 8 SCC 329 - Lynette Fernandes v. Gertie Mathias since deceased by legal representatives, (2018) 1 SCC 271
Fact of the Case:
The defendant obtained a decree for land allotment, which was later challenged by the plaintiff on the grounds of fraud and ineligibility of the defendant for land allotment.
Finding of the Court:
The trial Court and first appellate Court held that the defendant obtained the decree by playing fraud upon the Court and suppressed material facts regarding his eligibility for land allotment.
Issues: The main issue was whether the defendant obtained the decree by playing fraud upon the Court and whether the lower Courts were justified in setting aside the decree.
Ratio Decidendi: The Courts held that the defendant's suppression of material facts regarding his eligibility for land allotment constituted fraud, leading to the setting aside of the decree.
Final Decision: The second appeal was dismissed, affirming the lower Courts' decision to set aside the decree obtained by the defendant through fraud.
JUDGMENT
1. The substantial question of law involved, formulated and to be answered in this second appeal preferred by the appellant/defendant is as under:
''Whether both the courts below were justified in setting aside the judgment and decree dated 05.12.96 passed in Civil Suit No.6A/95 by First Civil Judge, Class I, Mahasamund, without looking into the aspect of pleadings and proof regarding fraud in its legal & proper perspective ?''
[For the sake of convenience, the parties would be referred hereinafter as per their status shown in the suit before the trial Court].
2. The suit land bearing Khasra No.70/3C area 1.214 hectares was allotted by NaibTahsildar, Basna in favour of defendant No.1 on 9.11.92 (Ex.P9) under the provisions of the Revenue Book Circular, which was revoked by the Additional Collector, Raipur in exercising of suo moto jurisdiction on 10.4.95 (Ex.P 10) and the land was directed to be mutated in the name of the State/plaintiff, against which, the defendant preferred Civil Suit No.6A/95 (Abubakar v. State of of Madhya Pradesh and another) for declaring the Additional Collector''s order dated 10.4.95 as void and ineffective, which was ultimately granted by decree of Civil Court dated 5.12.96 (Ex.P1). Thereafter, the State Government/plaintiff filed Civil Suit NO.62A/2003 (State of Madhya Pradesh v. Abubakar) for declaring the judgment and decree dated 5.12.96 (Ex.P1) as null and void stating interalia that decree has been obtained by fraud as the defendant was not entitled for allotment of said land being nonresident of village Basna under the provisions of the Revenue Book Circular, which was seriously opposed by the defendant by filing written statement stating interalia that decree has been granted on valid ground and no fraud was practiced upon the Court by the defendant while obtaining decree from jurisdictional civil Court, as such, the suit deserves to be dismissed.
3. The trial Court after appreciating oral and documentary evidence available on record, by its judgment and decree dated 20.9.2004, decreed the suit holding that decree dated 5.12.96 (Ex.P1) obtained by the defendant is null and void and it was obtained by playing fraud on the Court, against which, the defendant preferred first appeal under Section 96 of the CPC , which was also dismissed by the first appellate Court by the impugned judgment and decree. Questioning the judgment and decree of the first appellate court, this second appeal under Section 100 of the CPC has been filed by the appellant/defendant, in which substantial question of law has been formulated by this Court, which has been setout in opening paragraph of this judgment.
4. Mr.Sanjay Agrawal, learned counsel for the appellant/defendant, would submit that both the Courts below have committed jurisdictional error in holding that the decree dated 5.12.96 (Ex.P1) was obtained by fraud as there was no pleading of fraud in express terms in the suit now filed by the State/plaintiff in terms of Order 6 Rule 4 of the Code of Civil Procedure read with judgment of the Supreme Court in the matter of Electrical Rengali Hydro Electric Project v. Giridhari Sahu, (2019) 10 SCC 695 and in absence of that, decree dated 5.12.96 (Ex.P1) could not have been set aside by both the Courts below particularly when the order passed by the Additional Collector, Raipur dated 10.4.1995 (Ex.P10) in exercise of suo moto jurisdiction was absolutely without jurisdiction and without authority of law, as such, the judgment and decree of both the Courts below deserve to be set aside and the plaintiff''s suit be dismissed.
5. Mr.Ravi Bhagat, learned Deputy Government Advocate for the respondent/plaintiff, would submit that the trial Court has rightly granted decree in favour of the plaintiff as Ex.P1 was exparte judgment and decree and against which the plaintiff has right and remedy to file suit for setting aside exparte decree in terms of judgment of the Supreme Court in the matter of State of Orissa and anot
