2008 Supreme(P&H) 240
PERMOD KOHLI
Surinderpal Singh – Appellant
Versus
Dhruvinderpal Singh – Respondent
Advocates Appeared:
Mr. Amit Rawal, Advocate,for the appellants.
Mr. Arun Palli, Senior Advocate, with Mr. Jai Bhagwan, Advocate.
Mr. OP Nagpal, Advocate.
Mr. Dinesh Ghai, Advocate.
Judgement Key Points
- The judgment disposes of two Regular Second Appeals (RSA No.969 of 2005 and RSA No.632 of 2005) arising from the same impugned judgment and decree dated 01.11.2004 by the Additional District Judge, Patiala. (!) [23000437720001]
- Plaintiffs filed a suit for declaration challenging the judgment and decree dated 30.03.1989 in Civil Suit No.40 of 1989, alleging it was procured by fraud and misrepresentation, and sought permanent injunction against defendants 3 and 4 taking possession from defendants 5 to 7. [23000437720002]
- Defendants 1 and 2 (Surjit Singh and Ballabh Dass Jain) obtained a Power of Attorney dated 06.01.1979 from plaintiffs to assist with land allotment claims from migration, but allegedly forged documents, including vakalatnama and agreement to sell, to grab the land. [23000437720003]
- Plaintiffs cancelled the Power of Attorney via registered deeds (No.2183 dated 24.01.1983 and 08.02.1983), sent notices to defendants 1 and 2, and published cancellation in newspaper "Arrested Voice" on 05.02.1985. [23000437720003]
- Plaintiffs (defendants 3-7 in Civil Suit No.40/1989) were never served summons, did not engage counsel, file vakalatnama or written statement; vakalatnama had signatures of deceased persons (Upinderpal Kaur d.31.10.1982, Malwinderpal Kaur d.02.11.1979) scored off. [23000437720003] (!)
- Trial court dismissed plaintiffs' suit on 20.09.2003, finding failure to prove Power of Attorney cancellation, no challenge to agreement to sell/sale deed, and suit not maintainable without possession claim. [23000437720007][23000437720008]
- Lower Appellate Court reversed trial court on 01.11.2004, holding Power of Attorneys cancelled (Exhibits P-3, P-4 admissible), notices sent/proved, agreement to sell ante-dated on plain paper, decree in Civil Suit No.40/1989 procured by fraud (no service, improper appearance by cancelled attorneys, unsigned/unverified written statement by Surinder Singh Advocate). (!) (!) (!) (!) [23000437720009]
- Lower Appellate Court set aside 30.03.1989 decree, revived Civil Suit No.40/1989 from written statement stage for trial, holding objections in execution not res judicata, possession issue for revived suit. (!) [23000437720009]
- Issues framed: Whether 27.01.1989 decree void due to fraud (OPP), entitlement to declaration/injunction (OPP), suit maintainability/res judicata (OPD), relief. (!) (!) (!) (!) (!) (!) [23000437720005]
- Evidence included Powers of Attorney (P-1, P-2), cancellations (P-3, P-4), notices/postal receipts (P-5 to P-11), death certificates (P-19, P-20), judgments. [23000437720006]
- High Court dismissed appeals, upheld Lower Appellate Court: suit maintainable under S.34 Specific Relief Act (declaration of decree nullity, not mere title; possession with tenants 5-7), sale deed void as consequential to fraudulent decree, within limitation (Art.59 Limitation Act from knowledge of fraud facts, filed 03.04.1991 <3 years from decree). [23000437720014][23000437720015][23000437720016] (!) (!) (!) (!) (!) (!) (!)
- Fraud proved: no service on plaintiffs, cancelled attorneys caused appearance/engaged counsel, written statement unsigned/unverified by parties (verified by advocate), vakalatnama misused with deceased signatures; revived suit at final stage post-evidence. [23000437720017] (!)
- Final order: Appeals dismissed, interim stay vacated, trial court to decide revived Civil Suit No.40/1989 per law. (!) [23000437720011][23000437720012]
JUDGMENT
PERMOD KOHLI, J. - This judgment of mine will dispose of as they have arisen out of the same impugned judgment and decree.
2. RSA No.969 of 2002 has been preferred by Surinderpal Singh and Satish Kumar who were defendant Nos.3 and 4 in the suit, whereas has been filed by S. Surjit Singh, Smt. Tarawanti, Padam Jain, Ashok Jain and Vinod Jain. Appellant No.1 S. Surjit Singh was defendant No.1 in the suit whereas appellant Nos. 2 to 5 are the legal representatives of Ballabh Dass Jain, defendant No.2 in the suit. Both the appeals are against the judgment and decree dated 01.11.2004 passed in Civil Appeal No.105T/16.10.2003/3.12.2003 by the learned Additional District Judge, Patiala. In RSA No.969 of 2005, Respondent Nos.1 to 4 were the plaintiffs in the suit. They are also arrayed as legal heirs of Malwinderpal Kaur, plaintiff No.3 in the suit.
3. The plaintiff-respondents herein filed a suit for declaration challenging the judgment and decree dated 30.03.1989 passed in Civil Suit No.40 of 27.01.1989 passed by Mr. N.D. Bhatara, the then Sub Judge Ist Class, Patiala, on the ground that the same has been procured by fraud and misrepresentation and not binding upon the rights of
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