JUDGEMENT OF SUDHIR AGRAWAL ALLAHABAD HIGH COURT JUDGE PERPITUATING A FRAUD UPON POWER OF HIGH COURT

1.

HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 7
Case :- WRIT - A No. - 20502 of 1996

Petitioner :- Smt.Rama Dubey
Respondent :- Vi A.D.J.& Others
Petitioner Counsel :- A.K.Singh
Respondent Counsel :- C.S.C.,Ashish Bansal,D. Naraina,R.K.Parwal,Rama Goel Bansal,Y.K.Saxena

Hon'ble Sudhir Agarwal,J.
Heard Sri A.K.Singh, Advocate, for the petitioner and Sri (Dr.) Y.K.Saxena for the respondents no. 3 and 4. None has appeared on behalf of respondent no. 5 though the case has been called in revised.
The petitioner is aggrieved by ex-parte decree dated 31.3.1989 passed by Small Cause Court/ Civil Judge, Etawah in SCC Suit No. 38 of 1977 decreeing ex-parte suit filed by the plaintiff-respondents no. 3 and 4 against the petitioner and respondent no. 5. The petitioner filed recall application under Order IX, Rule 13 read with Section 151 C.P.C., which was rejected by trial court vide order dated 11.7.1995 where against petitioner filed SCC revision no. 14 of 1995 which has been dismissed by revisional court vide judgment dated 14.3.1996. This writ petition has been filed challenging the aforesaid three orders.
Sri Y.K. Saxena stated that in view of the stand of his client in whose favour ex-parte decree has been passed, the Court may not be required to held up the proceedings for long and the matter can be disposed of/ decided after considering his stand. Sri Saxena further stated that ex-parte decree dated 31.3.1989 should be treated and confined only against defendant no. 1 in the suit and if that decree, in any manner affects defendant no. 2, the same should be deemed null and void since he is pressing his case against defendant no. 1 only and the observation made in the ex-parte decree dated 31.3.1989 be treated to be modified accordingly.
Sri A.K.Singh, learned counsel for the petitioner stated that if the decree in question is not treated to have been passed against the petitioner and is not made executable against him, he would have no objection to contest the stand of respondents no. 4 and 5 through their counsel Sri Saxena and this Court may clarify the position accordingly.
In view of the above specific stand taken by the learned counsel appearing on behalf of the respondents no. 3 and 4, i.e. the landlords, I modify the judgement and order dated 31.3.1989 and it is held that the aforesaid decree shall be treated to have been passed against defendant no. 1 Mahesh Dutta son of Shiv Dutta Pathak only. It shall neither be binding nor shall be executed against the petitioner defendant no. 2.
With the aforesaid modification, writ petition is disposed of.
Order Date :- 10.9.2012
A.K.Srivastava

   the present writ petition has been filed by making an abuse of process in a calculated manner through the reprehensible conduct of the petitioner and thereby exercising the pernicious influence beyond the parties to action on the following submissions made hereinafter:-

a.      That Smt. Rama Dubey wife of Sri Radha Raman Dubey, has herself accepted in her own written statement (C.A.-1), admitting therein that she remained the sub-tenant of Mahendra Dutt in the premises belonging to the petitioner. She was the teacher in Nehru Vidyalaya, which was running in the premises of the landlord.

b.     That the petitioner has adopted an evasive tactics, not to reply the averment made in Para-4 and 5 of the counter affidavit. She did not mention any reply to the averments made in reply to the Para- 6 and 7 of the Counter affidavit.

c.      In para-4,5,6 and 7 the composite effect of the averments stated in these paragraphs is;- the petitioner has expressly stated that Mahendra Dutt (respondent no.5) who was the tenant in the property in dispute had put the petitioner in possession on a representation that Mahendra Dutt would surrender his tenancy and get the petitioner made the tenant in-chief . The petitioner had also expressly stated in paragraph no.14 of her Written statement that she had been regularly paying rent to the defendant no.1 in reply to the averment made in suit no. 38 of 1977 i.e. Mahendra Dutt, the tenant arrayed respondent no.5 in the writ petition. There is no pleading whatsoever either that the tenant surrender his tenancy and  got her accepted as tenant in chief, nor is there any pleading to the effect that Mahendra Dutt paid any rent to the landlord on her behalf.

2.           That the petitioner own brother has admitted that the petitioner is a sub-tenant. The affidavit of the petitioner further discloses her stand that she was no tenant of the answering respondent. The deponent of the counter affidavit namely Shankar Lal never entered in any agreement, nor Annexure-1 to the writ petition contains any signature of the deponent Shankar Lal. The contents of paragraph no.2 of the writ petition are directly contrary to the pleading of the petitioner as contained in her written statement.

3.         That the forged agreement referred to in paragraph no.2 of the writ petition has not been filed in the court below.

4.      That  all these contents referred to above have been admitted in rejoinder affidavit on account of evasive reply of these averments .

5.      That the contents of paragraph no.25 of the counter affidavit has not been replied and admitted by the petitioner in the rejoinder affidavit, which is reproduced as under;-

              “25.  That the petitioner having been an unlawful sub-tenant without any permission of the answering respondents, un-authorisedly inducted in illegal possession of the property in dispute by respondent no.5 without any permission of the answering respondent, on the own pleadings of the petitioner, contained in her written statement, is unauthorised and unlawful occupant of the premises and is neither legally affected by the ex-parte decree nor is possessed of any locus standi to have move the application under Order 9 Rule 13 C.P.C. what ever.”

                                                                            

6.        That the decree of eviction passed on 31.3.1989 has been passed after striking the defence of the tenant under Order 15 Rule 5 of the C.P.C. as Mahendra Dutt had not deposited the entire rent within time on the date fixed for the aforesaid purposes. The order passed on 11.1.1978 is reproduced as under:-

                  “ 11.1.78    15.C application u/s 15 rule 5 C.P.C. for striking off the defence on the ground that the defendant did not deposit the agreed due rent and the interest thereon the first day of hearing.

                   I have heard the learned counsel for the parties the learned counsel for the defendant argued that the defendant moved an application 16-C for passing the tender of the defendant for depositing the rent, thus the defendant intended to deposit the agreed rent on the first date of hearing and therefore, the application 15-C should be rejected.

                  I have gone through the record of the case and I find that the first date of hearing was fixed on 14.9.77, but on 14.7.77 the defendant No.1 applied for time to file the W.S. and the time was allowed by this court.

                  The counsel granted time upto 29.9.77 for filing the W.S. The defendant filed the W.S. on 29.9.77 and moved this application 16-C for passing his tender to deposit the rent on the same day. It may be presumed that since on W.S. was filed on 14.9.77 and the counsel granted time. The defendant may deposit the rent upto the date fixed for W.S. because in the absence of W.S. the hearing can not be taken up. If the defendant was given time to file W.S. but the perusal of the tender shows that the defendant did not enter the amount of interest at the rate of 9% which is contemplated in law, to be deposited along with the rental amount. Therefore, the question of passing of the tender did not arise. The defendant to have deposit the entire rent along with the interest at the rate of 9% on the date of first hearing, but instead of depositing the whole amount the defendant simply moved application in office to pass his tender which was for inadequate amount. Thus I am of the view that the defendant never intended the deposit the whole amount along with the interest on the first day of hearing. Therefore, I do not agree with the arguments of the learned counsel for the defendant and the W.S. is, therefore, struck off. The case to proceed exparte against the defendant.

                 Put up on 1.2.78 for exparte hearing.

                                                           Sd/-  J.S.C.C.

       14-C   application for staying the proceedings of this suit u/s 10 C.P.C.

        17-C is objection.

                 Heard the learned counsel for the parties on this application also. In 14-C it has been alleged that a suit relating to the same subject matter between the parties has been pending in the Hon’ble High Court. Therefore, this case should be stayed. The perusal of the application shows that the defendant has neither given any number of that suit on the appeal nor has filed any document relating to that suit. Therefore, I am of the view that the application should be rejected for want of proper evidence in the support of this application. Therefore, the application is rejected.

                                                      Sd/- P.N. Rai

                                                      J.S.C.C. (Civil Judge)

7.   That on the basis of the aforesaid discussion made in the counter affidavit, the documents annexed as Annexure no.1 said to have been written on 27.3.1971 by the deponent is a forged document. The same was not even the part of the document filed before the court below. Thus the offence of the perjury as well as criminal contempt of court has been committed by Smt. Rama Dubey in filing the forged document dated 27.3.1971 in the writ petition.

8.      That in the rejoinder affidavit, another forged document purported to be executed on 19.5.1979 has been manufactured under the forged signature of the deponent, in which the attesting witness are shown to be the witnesses of District Jalaun and Tehsil Chhibramau, District Farrukhabad. The endorsement annexed on the 2^nd page of the said document is pertaining to some “Will” under the Notary Act, 1952 by one Prem Rudra on 19.5.1979 at serial no.37-79. Thus a device has been adopted by the petitioner, not only to mislead this Hon’ble Court, but to commit forgery. The petitioner has also committed a fraud upon the right of the Applicant/deponent being the landlord of the premises in question.

9.     That the entire device of filing the documents purported to be the agreement dated 27.3.1971, 19.5.1979 and one more alleged agreement purported to be manufactured in order to substantiate the averments made in paragraph no.5 and 7 of the plaint in another suit no. 346 of 1978 (Smt. Rama Dubey Vs. Sri Shanti Mohan and 2 others ) is lying pending in the court of Civil Judge Etawah, wherein the prayer is made not to enforce the execution on account of decree passed in present suit no. 38 of 1977 against Smt. Rama Dubey as she is continuing in occupation of the premises in question on the basis of independent right.

10.   That It is submitted that initially this Hon’ble Court was pleased to stay the further proceedings of the aforesaid suit no.346 of 1978 , but ultimately even after dismissal of aforesaid writ petition the aforesaid suit is lying pending by the petitioner as she may get the perpetuation of the illegality sought to have been conducted by filing the forged documents purported to be the alleged agreement executed by the deponent on 27.3.1971 and on 19.5.1979, which could not be remain in existence at any point of time.

11.   That the pleading made in the plaint of the suit no. 346 of 1978 filed by Smt. Rama Dubey against the deponent clearly demonstrate the existence of the averments in contradistinction to the averments made in the present writ petition claiming her to be the tenant of the deponent. Thus the conduct of the petitioner to get her occupation on the premises in question by circumventing the due administration of justice is not only reprehensible in its implication by manufacturing the false defense and concocted documents, but to play the game of ‘hide and seek’ with the majesty of this Hon’ble Court by obstructing the rule of law in the society.

12.    That It is submitted that Smt. Rama Dubey is supported by the muscle man and-mafia to grab the property left by tenant Mahendra Dutt and is now pretending herself to be the genuine tenant of the deponent in order to grab the landed property by making an abuse of process of this Hon’ble court.

13.   That it is expedient in the interest of justice that this Hon’ble Court may graciously be pleased to punish the petitioner on account of filing the forged and manufactured documents ( purported agreement dated 27.3.1971 and 19.5.1979) (bearing forged signature of Applicant/deponent) namely filed as Annexure No. 1 to writ petition and Annexure R.A. 1 respectively by the petitioner for falsely claiming/ purporting herself to be tenant of the applicant/ deponent , as the said documents by its own reading have been manufacture in contradiction of the claim of petitioner  set- up in her written statement and were filed de-novo first time in writ petition. The petitioner may also be punished for committing abuse of process tanamounting to criminal contempt. 

No.