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1991 Supreme(Mad) 751
High Court of Judicature at Madras
SRINIVASAN
Dewan Bahadur M.O. Parthasarathy Iyengars Charities, represented by its Trustee M.A. Rajagopalan
Versus
P. Satyam, Proprietor, Sathyam Motors
S.A. No. 629 of 1985 and C.M.P. Nos. 11725 and 13010 of 1991
Decided On :Decided On : 07-10-1991
For the Appellant:T.R. Rajagopalan, Advocate.
For the Respondent:M. Raghavan, Senior Counsel, M.S. Subramanian, Advocate.
A decree is vitiated by fraud only if the fraud is extrinsic. Failure to place relevant evidence before the court does not amount to fraud.
Headnote:
DECREE - JURISDICTION - RES JUDICATA - FRAUD - LIMITATION - PUBLIC TRUST - BUILDING - RESIDENTIAL - NON-RESIDENTIAL - LEASE - SUB-LEASE - TAMIL NADU BUILDINGS (LEASE AND RENT CONTROL) ACT, 1960 - SECTION 30 - NOTIFICATION - EXEMPTION - VALIDITY - WRIT PETITION - WITHDRAWAL - ADMISSION - EVIDENCE - ORAL - DOCUMENTARY - INTERPRETATION - CONSTRUCTION - SUIT - MAINTAINABILITY - BAR - ESTOPPEL - WAIVER - DECREE - NULLITY - EXECUTION - OBSTRUCTION - REMOVAL - APPLICATION - ORDER - APPEAL - CONCLUSIVENESS - SEPARATE SUIT - JURISDICTION - CIVIL COURT - RENT CONTROLLER - COLLUSION - SECRET ARRANGEMENT - IMPROPER ACT - IMPROPER OMISSION - SUB-LESSEE - IMPLEADMENT - NECESSITY - EVICTION - BINDING EFFECT - RESIDENTIAL LEASE - NON-RESIDENTIAL LEASE - USER - UNAUTHORISED - TENANT - DEFINITION - SUB-TENANT - INJUNCTION - EXECUTION OF DECREE - DELAY - PRINTED COPY - ORIGINAL DOCUMENT - RETURN.
Fact of the Case:
The appellant, a public trust, filed a suit in a civil court for eviction of the respondent, a sub-tenant, from the suit property. The respondent contested the suit, but remained ex parte. The appellant obtained an ex parte decree. The respondent resisted the execution of the decree, and filed a suit for declaration that the decree was null and void and not binding on him due to fraud and collusion. The appellant filed a written statement and examined a witness. The respondent examined himself as a witness and filed no other evidence. The courts below held that the decree was vitiated by fraud and that the civil court had no jurisdiction to try the suit.
Finding of the Court:
The High Court held that the decree was not vitiated by fraud and that the civil court had jurisdiction to try the suit. The court found that the appellant was a public trust and that the suit property was exempted from the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. The court also held that the respondent was not a necessary party to the earlier suit and that the decree was binding on him. The court further held that the suit was barred by limitation and that the respondent was estopped from challenging the decree.
Issues: 1. Whether the decree was vitiated by fraud? 2. Whether the civil court had jurisdiction to try the suit? 3. Whether the respondent was a necessary party to the earlier suit? 4. Whether the decree was binding on the respondent? 5. Whether the suit was barred by limitation? 6. Whether the respondent was estopped from challenging the decree?
Ratio Decidendi: 1. A decree is vitiated by fraud only if the fraud is extrinsic. Failure to place relevant evidence before the court does not amount to fraud. 2. A civil court has jurisdiction to try a suit for eviction of a tenant from a building that is exempted from the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. 3. A sub-tenant is not a necessary party to a suit for eviction of the main tenant. 4. A decree obtained by a landlord against a tenant is binding on the sub-tenant, even if the sub-tenant was not impleaded as a party to the suit. 5. A suit to set aside a decree on the ground of fraud is barred by limitation if it is filed more than three years from the date when the facts entitling the plaintiff to have the decree set aside became known to him. 6. A party is estopped from challenging a decree if he has accepted the benefits of the decree or if he has taken steps to execute the decree.
Final Decision: The High Court allowed the appeal and dismissed the suit. The judgment and decrees of the courts below were set aside.
The defendant is the appellant. The suit is filed by the respondent for declaration that the appellant is not entitled to execute the decree in O.S. No. 4439 of 1975, dated 23.1.1978 on the file of the Sixth Assistant Judge, City Civil Court, Madras, as it is null and void and vitiated by fraud and collusion and not binding on him. The respondent also prays for a consequential injunction restraining the appellant from executing the decree against him.
2. The facts leading to the suit are as follows:—
The appellant is the owner of the suit property. The appellant let out the same to one T.P. Ramanathan. It filed a suit O.S. No. 4439 of 1975 on the file of the with Assistant Judge, City Civil Court, Madras, for evicting the said Ramanathan from the suit premises. The latter filed a written statement contesting the claim of the appellant and the maintainability of the suit. The contention raised by the defendant in the earlier suit was that the suit was not maintainable in the civil court. But later, he remained ex parte and a decree was passed in favour of the appellant herein on the basis of the evidence adduced by the appellant. When the decree was sought to be executed by the appellant, on 10.7.1978 the respondent resisted the execution. The appellant filed E.A. No. 3807 of 1978 for removing the obstruction caused by the respondent. It was contested by the respondent on several grounds. The grounds urged in the present suit were urged in that application for removal of obstruction. The executing court recorded evidence on both sides and passed an order on 14-7-1982 in favour of the Appellant. The respondent filed an appeal against the said order in the court of the IInd Additional Judge, City Civil Court, Madras. The appeal was dismissed on 15.12.1982. Thereafter, the present suit is filed by the respondent in January 1983.
3. In the plaint it is alleged by the respondent that he is a sub-tenant under Ramanathan and that he was let into possession on a monthly rent of Rs. 750/-. It is alleged that the appellant was aware of the sub-letting in favour of the respondent herein and he acquiesced in the same without raising any protest. It is further stated that no document was filed by the appellant in the suit against Ramanathan to prove that the appellant was a public trust and the lease deed executed between Ramanathan and the appellant was also not filed in that suit. Thus, it is alleged that the ex parte decree obtained by the appellant in O.S. No. 4439 of 1975 was vitiated by fraud. It is stated in the plaint that the appellant deliberately omitted to make the respondent a party to that suit and kept the respondent in the dark. It is also alleged that the documentary evidence in the shape of trust deed and lease deed in favour of Ramanathan which were material documents were not filed in the suit and the evidence adduced on behalf of the appellant in the earlier suit was not sufficient to sustain the decree passed in the suit. Thirdly it is stated that the appellant owed a duty to the court to disclose that the respondent was an authorised sub-tenant as Ramanathan was permitted to sub-lease. On such allegations, it is stated in the plaint that the court had no jurisdiction to pass a decree for eviction against Ramanathan and consequently, the decree is null and void.
4. In the written statement filed by the appellant the allegations in the plaint are denied and it is stated further that the trust deed was disclosed in the list of documents appended to the plaint in the suit filed by the appellant. It is also stated in the written statement that the decree was passed after evidence was let in by the appellant and the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act (Act XVIII of 1960) were not applicable to the building in question. The allegations of fraud and collusion are denied in the written statement. The appellant has raised a plea that the suit is barred by the principle of RES JUDICATA and
