At, High Court of Karnataka
By, THE HONOURABLE MR. JUSTICE KRISHNA S. DIXIT
For the Petitioner: K.S. Ponnappa, M.V. Sundara Raman, Advocates. For the Respondents: -----------
(Prayer: This Writ petition is filed Under Article 227 of the Constitution of India praying to set aside the decree dated 31.05.2018 passed by the XX Addl. Small Cause Judge, Small Causes Court, Bengaluru in S.C.No.678 of 2018 and signed by the Asst. Registrar, court of Small Causes, Bengaluru vide Annexure-A and consequently direct the XX Addl. Small Cause Judge to put the petitioner in possession of the property vide Annexure-A; and etc.)Through Video Conference:1. Petitioner a non-party to the suit proceedings is invoking the extraordinary jurisdiction constitutionally vested in this Court for assailing a judgment & decree dated 31.05.2018 in S.C.No.678/2018 clandestinely obtained by the respondents 1 & 2 herein by fraud.2. Service of notice to respondent nos. 1 to 3 is held sufficient by a co-ordinate Judge of this Court; notice to respondent no.4- State is dispensed with; respondent no.5 being the Registrar of the Court below is served and unrepresented.3. Having heard the learned counsel for the petitioner and having perused the petition papers, this Court is inclined to grant indulgence in the matter because:(a) Petitioner apparently has been in the possession and enjoyment of the subject property by virtue of two registered lease deeds both dated 23.01.1954; his assertion as to this is strengthened by the tax paid receipts for decades, the latest being of the year 2019-2020; the contesting respondents despite service of notice having remained unrepresented, the version of the petitioner which is supported by an affidavit and the accompanying documents remains unrebutted.(b) In respect of subject property the suit in S.C.No.678/2018 was filed by 1st respondent-Mr.B.Mani represented by 3rd respondent-GPA Holder Mr.Sendil Kumar against the 2nd respondent-Mr.Arun on 26.04.2018; strangely a compromise decree has been obtained on 31.05.2018, absolutely without any explanation for this rocket speed, even when the ink on the pleadings had not yet dried up; what intrigues the mind of this court is that the learned Judge of the Court below has not given a thought to this doubtful swiftness with which the parties to the suit have acted.(c) Apparently, petitioner a registered partnership firm is a huge stakeholder in the matter and that he has not been impleaded as one of the defendants to the suit, obviously because it would have resisted the suit being decreed on the basis of a fraudulent compromise; as already mentioned above the allegations of fraud and duplication have remained unrebutted, there being no contra pleadings nor controvertion thereof; in fact, the parties to the suit as also the 3rd respondent GPA Holder have chosen to remain unrepresented and this conduct itself shows prima facie fraud that has victimized the petitioner.(d) Learned counsel for the petitioner is more than justified in banking upon decision of the Apex Court in S.P.CHANGALVARAYA NAIDU vs. JAGANNATH, AIR 1994 SC 853 in support of his contention that fraud vitiates everything; his reliance on MEGHAMALA & OTHERS vs. G.NARASIMHA REDDY & OTHERS, JT (2010) 8 SC 658 also aides the case of the petitioner; at para 33 the Apex Court observed:"Fraud is an intrinsic, collateral act, and fraud of an egregious nature would vitiate the most solemn proceedings of courts of justice. Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. The expression "fraud" involves two elements, deceit and injury to the person deceived. It is a cheating intended to get an advantage".(e) Learned counsel for the petitioner submits and I think it right that the possession of the suit premises needs to be restored since it was thrown out from the same on the basis of the impugned judgment & decree which are a nullity in the eye of law, having been tainted by fraud and duplicity; he is also justified in seeking a direction to the respondent-Registrar of the Court below for initiating police proceedings in the matter of fraud in a time bound way, inasmuch as several such fraudulent decrees & orders are stated to have been obtained.In the above circumstances, this writ petition succeeds:(i) a Writ of Certiorari issues quashing the impugned judgment & decree, and dismissing the subject suit with an exemplary cost of Rs.1 lakh (rupees one lakh) payable by the respondents 1 & 2 each, and Rs.50,000/- payable by respondent no.3;(ii) the learned Judge of the Court below shall take all steps for restoring possession of the subject property in favour of the petitioner-firm within
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an outer limit of eight weeks, if necessary, by taking the aid of State Power.(iii) the 5th respondent-Registrar of the Court below is directed to institute a police investigation in this serious matter and cause a domestic enquiry against the suspect officials of the court, since fraud, forgery and fabrication ordinarily do not happen without the involvement of insiders.A copy of this judgment shall be submitted to the Registrar General of this Court for taking necessary follow up action in the matter.