The court underscored that judgments cannot be dismissed on jurisdictional grounds absent proof of fraud, and issues regarding authority to sue must be established in trial.

JUDGMENT

Rajiv Shakdher, J.

I.A. No.4114/2020

Preface:

1. This is an application filed on behalf of defendant nos. 1 and 2 under Section 44 of the Indian EVIDENCE ACT , 1872 [hereafter referred to as the " EVIDENCE ACT "].

1.1. Defendants nos. 1 and 2, thus, rely upon the provisions of Section 44 of the EVIDENCE ACT to seek, in brief, the following directions:

i. Firstly, "ignore" the judgement of the Division Bench dated 30.07.2013, passed in FAO (OS) 57/2013 and FAO (OS) 60/2013, on the ground of lack of jurisdiction.

ii. Secondly, "ignore" the judgement of the learned Single Judge dated 03.01.2013, which was passed in I.A. No. 8812/11 in CS (OS) No. 118/2007, once again, on the ground of lack of jurisdiction.

(ii) (a) It may be relevant to note that the learned Single Judge had, via judgement dated 03.01.2013, disposed of not only I.A. No. 8812/2011 but also I.A. Nos. 4985/2011 and 16842/2011.

1.2. Alternate reliefs have also been sought in the captioned application.

i. The first alternate prayer made is that order dated 03.01.2013, passed in I.A. No. 8812/2011, should be recalled on the ground that it was obtained by practicing fraud on this Court.

ii. Second, recall the order dated 22.01.2007 via which summons were issued in the suit i.e. CS (OS) 118/2007 on the ground that it was founded on fraud practiced on this Court inasmuch as the suit was instituted, purportedly, by the Power of Attorney [in short "POA"] holder of the plaintiff namely Mr. Mangat Rai who had no such authority vested in him.

1.3. Two other reliefs are also sought which are dressed up as consequential reliefs.

i. First, recall all orders passed in CS (OS) 118/2007 post 22.01.2007 on the principle of "cadit opus fondamento sublato"

ii. Second, reject the suit on the ground of limitation, lack of authority and want of demonstrable cause of action.

Prefatory Facts:

2. Before I proceed further, let me etch out the broad contours of the suit which would be useful in appreciating the context in which the captioned application has been filed.

3. The plaintiff before this court is one, Mr. Dayal D Shahdadpuri [hereafter referred to as "Mr. Dayal"]. Mr. Dayal has filed the instant suit for declaration and permanent injunction. The reliefs sought for by Mr. Dayal concern his rights as a shareholder and a member of defendant no. 1 company i.e. C.N.A. Exports Pvt. Ltd. [hereafter referred to as "CNA"].

3.1. The other defendants in the suit, save and except, defendant no. 3 namely Mr. C.S. Batra [hereafter referred to as "Mr. Batra"], are members of the Datwani family. The patriarch of the family is one, Mr. Jamnadas Datwani [hereafter referred to as "Mr. Jamnadas"] who passed away on 09.07.2004. Defendant no. 5 is his wife Mrs. Jamna Datwani [hereafter referred to as "Mrs. Jamna"].

3.2. Defendant no. 2 i.e. Mr. Anand Datwani [hereafter referred to as "Mr. Anand"], defendant no. 4 i.e. Mr. Kishore Datwani [hereafter referred to as "Mr. Kishore"], defendant no. 6 Mr. Janak Datwani [hereafter referred to as "Mr. Janak"], defendant no. 7 i.e. Kishin Datwani [hereafter referred to as "Mr. Kishin"] and defendant no. 8 i.e. Ms. Nitya Bharany [hereafter referred to as "Ms. Nitya"] are the progenies of the deceased Mr. Jamnadas and Mrs. Jamna.

4. Mr. Dayal i.e. the plaintiff is the brother-in-law of the deceased Mr. Jamnadas. It is Mr. Dayal's assertion that he had purchased 2,500 shares in CNA and that these shares have been sold to him by Ms. Nitya for a total consideration of USD 6,000/-.

4.1. It is averred by Mr. Dayal that approval, in this behalf, was obtained from the Reserve Bank of