Patna High Court C.R. No.171 of 2011 (12) dt.14-02-2014

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IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Revision No.171 of 2011

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Md. Ghayasuddin

.... .... Petitioner/s

Versus

Abbas & Ors

.... .... Respondent/s

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Appearance :

For the Petitioner/s : Mr. Binod Kumar

For the Respondent/s : Mr.

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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR

SAHOO

ORAL ORDER

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14-02-2014

Heard the learned counsel, Mr. Yogendra Mishra

appearing on behalf of the petitioner, Mr. Shabbir Ahmad

appearing on behalf of the opposite parties 1^st set and Mr.

L.K.Tiwary appearing on behalf of the opposite party 2^nd set.

This revision application has been filed by the

plaintiff-petitioner against the order dated 30.05.2011 passed by

the learned Munsif, Araria in title suit No.149 of 2000 whereby

the learned court below dismissed the plaintiff’s suit on the ground

that he has no jurisdiction to set aside the judgment and decree

passed by the Subordinate Judge in title suit No.139 of 1998.

It appears that father of opposite party filed title suit

no.139 of 1998 for declaration of title and confirmation of

possession wherein the vendors of the present petitioner were

Patna High Court C.R. No.171 of 2011 (12) dt.14-02-2014

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party. The said suit was decreed ex parte. Thereafter, the present

suit being title suit No.149 of 2000 has been filed by the petitioner

before the Court of Munsif. It is admitted fact that the evidences

have been adduced on behalf of both the parties and the case has

been closed and thereafter, the case was posted for argument. At

this stage, by the impugned order, the court below held that

because the plaintiff-petitioner is praying for setting aside the

decree passed by the Subordinate Judge in title suit No.139 of

1998, the Munsif has got no jurisdiction to set aside the same,

therefore, held that the suit is not maintainable and dismissed it.

The present plaint being title suit No.149 of 2000 has

been annexed as Annexure 1 to this writ application. At paragraph

12 of the plaint, the plaintiff-petitioner categorically stated that by

playing fraud on the Court as well as on the defendants, the father

of the opposite party has obtained an ex parte decree, therefore,

relief was claimed for setting aside of the decree passed by the

Subordinate Judge.

The main contention of the opposite parties in this

revision application is that when the decree has been passed by the

Subordinate Judge, the Court of Munsif which is lower grade in

comparison to the Subordinate Judge has no jurisdiction to set

aside the judgment and decree passed by the Subordinate Judge.

Patna High Court C.R. No.171 of 2011 (12) dt.14-02-2014

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As stated above, in the present case at paragraph 12,

the plaintiff clearly stated that the plaintiff of title suit No.139 of

1998 has obtained the decree fraudulently by playing fraud on the

Court, therefore, this is a question to be decided in the present suit.

So far the question raised by the learned counsel for the opposite

party that the defendant of title suit No.139 of 1998 did not

challenge the said decree is concerned, it may be mentioned here

that on that ground, it cannot be said that the present suit is not

maintainable. The Court, on the basis of the evidence, that may be

brought on record, record any finding on the issue framed.

The Hon’ble Supreme Court in the case of

S.P.Chengalvaraya Naidu(Dead) by LRs. v. Jagannath(Dead)

by LRs. and others, (1994) 1 Supreme Court Cases 1 = AIR

1994 Supreme Court 853 held that “a fraud is an act of deliberate

deception with the design of securing something by taking unfair

advantage of another. It is a deception in or