Smt.Basheerunnisa Begum and O Vs. Meer Fazeelath Hussaini and O - Court Judgment

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hon'ble sri justice m.s.ramachandra rao civil revision petition no.1758 of 2008 23-01-2014 smt.basheerunnisa begum and ors....petitioners meer fazeelath hussaini & ors....respondents counsel for the petitioners: sri v.l.n.g.k. murthy, learned counsel for sri d.arun kumar ^counsel for the r-5 : sri k.k.waghray counsel for the r-6 : sri n.ashok kumar head note: ?.cases referred:1. (2006) 3 scc6992. (2008) 8 scc4633. air2011s.c. 3137 4. 2013 (4) ald150(sc) 5. 2005 (3) ald43(sc) 6. mst. kulsoom-un-nisa vs. noor mohammed...air1936allahabad 666; kaura mal vs. mathra dassa....air1959punjab 646; and meghraj vs. jesraj kasturjee....air1975madras 137 7. 1999 (1) ald3988. 1957 (2) an.w.r. 106 (d.b.) 9. 1996 (1) ald118= 1995 (3) alt685 10. air1983s.c. 1012 11. air1960ap105= 1960 (2) an.w.r. 11 12. air1964ap26113. (1998) 7 scc12314. (2012) 11 scc574the hon'ble sri justice m.s.ramachandra rao civil revision petition no.1758 of 2008 order: this revision is filed under section 115 cpc challenging the order dt.24- 10-2004 in i.a.no.1405 of 2000 in o.s.no.198 of 1986 of the ii additional senior civil judge, ranga reddy district at hyderabad. the pleadings in the suit o.s.no.198/1986 2. the petitioners are plaintiffs in the above suit. the said suit was filed by the deceased 1st petitioner originally for partition and separate possession of 14/48th share out of an extent of ac.300.24 gts. in sy.no.1007 of kukatpally village, ranga reddy mandal, andhra pradesh. the 1st petitioner engaged sri s.m.p. mathur and s.bhooma goud, advocates on her behalf. in this suit there were originally 8 defendants. subsequently, defendant nos.2 and 3 (who are the daughters of the 1st petitioner) were transposed as plaintiff nos.2 and 3 vide order dt.20-08-1987 in i.a.no.422 of 1986. they are petitioners 2 and 3 herein.3. the plaint schedule property belonged to late nawab rais jung bahadur. the 1st petitioner claimed to be the widow of one of his sons by name mir mujtaba hussain, who died in 1972 and contended that on the death of late nawab rais jung bahadur, the petitioners are entitled to the share of mir mujtaba hussain. written statement was filed by defendant nos.1 to 4 (i.e., the original defendants 1, 4 5 and 6) opposing the suit claim contending that 1st petitioner's husband had already sold portion of land to various persons prior to his death in 1960, that the parties had already divided the property and so there cannot be any fresh partition.4. petitioner nos.2 and 3 had given a power of attorney to mir kazim hussaini, s/o.late rais jung as both of them were not available in india. the proceedings in the suit5 the 1st petitioner was examined as p.w.1 on commission on 04-09-1991 and again on 01-12-1991. the advocate-commissioner appointed by the trial court in i.a.no.610 of 1991 to take evidence of 1st petitioner (p.w.1) filed his report along with a memo on 27-01-1992.6. the 1st petitioner became sick and was advised to take rest and her daughters i.e. petitioner nos.2 and 3 advised her to come to u.s.a., where they are residing, for rest and medical attention. so, the 1st petitioner left india on 07-04-1992 informing her counsel sri s.bhooma goud and giving address etc. where she could be contacted, if necessary.7. on 29-04-1992, the suit came to be dismissed by the trial court with the following order : judgment ".counsel for plaintiff endorsed as suit is compromised out of court hence to dismiss the suit. hence the suit dismissed without costs". the pleadings in i.a.no.1828 /1998 (i.a.no.1405 / 2000) :8. i.a.no.1828 of 1998 was filed under section 151 cpc by the petitioners before the principal senior civil judge, ranga reddy district through their g.p.a. syed ali mohammed to set aside the above order dt.29-04-1992 in o.s.no.198 of 1986. this application was transferred to the ii additional senior civil judge, ranga reddy district at l.b.nagar and renumbered as i.a.no.1405 of 2000.9. in this application, the petitioners contended that 1st petitioner had executed a g.p.a. in favour of one syed ali mohammed on 29-07-1997; that petitioner nos.2 and 3 were also residing in u.s.a. and had also given a g.p.a. to the said person; that all the petitioners were being represented in the suit by sri s.bhooma goud, advocate; that petitioner nos.2 and 3 were residents of u.s.a. and the 1st petitioner also left india for u.s.a. on 07-04-1992 as mentioned above instructing the said counsel to contest the suit and giving her contact details with him; that the said counsel never informed the petitioners about endorsing that the suit was compromised out of court and to dismiss the suit; that 1st petitioner never gave instructions to get the suit dismissed as compromised out of court; and in fact there was no such compromise at all at any point of time between the parties. the petitioners contended that the 1st petitioner came to india in the last week of june, 1994 and contacted him to enquire regarding the above suit, but the said counsel informed her that the matter is pending, dates were being given by the trial court, that he would let her know as and when she has to appear in the court and she should have full faith and trust in him. according to the petitioners, in september, 1995, the 1st petitioner again went to u.s.a. after informing the counsel that she would return to india in january or february, 1996 and if her presence is required for the purpose of the suit, she may be informed so that she can come back to india and contest the suit; that she kept in touch with her counsel even from u.s.a. and he assured her not to worry; even after her return to india, she contacted her counsel on two occasions and he assured her that the matter is pending and she need not worry. according to the petitioners, in june-july, 1997 the petitioners' g.p.a. holder tried to contact the counsel on various occasions, but the counsel avoided to meet the g.p.a. holder of petitioners and vexed with that attitude, the g.p.a. holder contacted mr.bal reddy, advocate and requested him to verify the matter. according to the petitioners, in the 1st week of august, 1998, the suit record was traced out and only then the petitioners came to know about the fraud played by the counsel for petitioners in getting the suit dismissed; that sri bal reddy, advocate applied for certified copies of the judgment and decree on 08-10-1998 and handed them over to the g.p.a. holder of petitioners, who in turn sent them to the petitioners. after coming to know all these facts, i.a.no.1828 of 1998 (i.a.no.1405 of 2000) was filed within 30 days from the date of receipt of certified copy of judgment on 29-10-1998. it is also asserted by the petitioners that there was no compromise out of court at all at any point of time, that they were not aware of the alleged terms of compromise; that the counsel for petitioners sri s.bhooma goud, in collusion with 6th defendant in the suit/ 6th respondent herein, got the suit dismissed fraudulently ; that the said counsel had also appeared for 6th defendant in a suit o.s.no.581 of 1994 on the file of prl. sub-judge, ranga reddy district at saroor nagar against 1st respondent in respect of an extent of 70 acres in sy.no.1007 wherein the relief of specific performance of agreement of sale dt.13-06-1973 was sought; that written statement was filed by 1st respondent on 27-02-1996 in the said suit admitting the claim of 6th defendant and on the same day, a decree was passed in the said suit; that the counsel sri s.bhooma goud was clearly acting in collusion with the 6th respondent against the interests of the petitioners and possibly on account of this conduct, he did not inform about the dismissal of the suit to the petitioners. it is further stated that the g.p.a. holder mir kasim hussain, appointed by petitioner nos.2 and 3 in the suit, died in the year 1994 and no instructions had been given by petitioner nos.2 and 3 to the said g.p.a. holder to compromise the matter and the said g.p.a. holder also never informed the petitioners of the alleged compromise.10. counter affidavit was filed by 3rd respondent/d-3 in o.s.no.198 of 1986 opposing this application and denying the averments made by the petitioners in i.a.no.1405 of 2000. but he admitted that there were no talks of compromise and 3rd respondent and other respondents have not signed any compromise petition nor were parties to the alleged compromise and have no knowledge of it.11. the 6th respondent filed a detailed counter also opposing the prayer of the petitioners in i.a.no.1405 of 2000 to set aside the order dt.29-04-1992 in o.s.no.198 of 1986 and to restore the suit. 6th respondent contended that the g.p.a. holder is not properly authorized to represent the suit as the said g.p.a. is not a g.p.a. in the eye of law and is unregistered. he also contended that the application filed under order 23 rule 3 r/w 151 of cpc to set aside the order dt.29-04-1992 dismissing the suit, is not maintainable in law. it is specifically asserted that 1st petitioner, g.p.a. holder of petitioner nos.2 and 3, their counsels and respondent nos.1 and 6 and their counsels signed a memo stating that on the advise of elders and well-wishers of the parties, the matter was settled with regard to share of petitioners in the suit schedule property and to dismiss the suit; that the memo was filed in the court; thereafter the counsel for petitioners sri bhooma goud made an endorsement on the basis of which the suit was dismissed. it is also stated that the g.p.a. holder mir kazim hussain representing petitioner nos.2 and 3 signed the memo of compromise. it is contended that 1st petitioner did not state that she contacted sri s.m.p.madhur, sr.advocate and the allegations made by the petitioners against sri s.bhooma goud are false; that the i.a. filed by petitioners is barred by limitation and is not maintainable. they also contended that after lapse of 6 years, a suit which has been dismissed cannot be restored, particularly when the suit was dismissed when the petitioners had signed a compromise memo stating that the matter was settled out of court. it is also contended that certain payments were made to the g.p.a. holder of petitioner nos.2 and 3 and to petitioners in 1991 to 1995 relating to certain agreements of sale allegedly executed by petitioners in favour of 6th respondent in respect of an extent of 78 acres in sy.no.1007 of kukatpally village and therefore, the i.a.no.1828/1998 (ia.no.1405/2000) be rejected.12. before the court below, the g.p.a. holder of petitioners was examined as p.w.1 and exs.a-1 to a-7 were marked. the respondents did not examine any witnesses nor marked any documents. the decision of the court below in i.a.no.1828/1998 (ia.no.1405/2000) :13. the court below by order dt.24-10-2007 dismissed i.a.no.1405 of 2000 filed by the petitioners, declined to set aside the order dt.29-04-1992 passed in o.s.no.198 of 1986 and to restore the suit to it's file. it inter alia held that the evidence of 1st petitioner was completed in the suit, that the petitioners should have proceeded to lead further evidence and they cannot keep quiet till 1998 without verifying the progress of the suit by blaming their counsel sri s.bhooma goud. it also held that it is not clear whether the petitioners contacted the other counsel sri s.m.p.mathur at any time and petitioners failed to establish that they have taken action against the counsel sri s.bhooma goud for misrepresenting them. it also held that p.w.1 is a g.p.a. holder of petitioners only since 1998 and so he is not supposed to give evidence as to the facts which transpired prior to his appointment and the petitioners did not come forward to give evidence. it also held that the i.a. has been filed on 29-10-1998 when the suit was dismissed on 29-04-1992 and the petitioners did not take steps within a reasonable time for filing it and should have filed it within three years from the date of dismissal of the suit. it therefore held that the application is barred by time. although it noticed that sri s.bhooma goud filed o.s.no.585 of 1994 on behalf of 6th respondent against 1st respondent, and exs.a-1 to a-7 have been filed in support of the said plea by the petitioners, it observed that the said suit was filed in the year 1994, and so it cannot be inferred that sri s.bhooma goud, advocate played fraud and got the suit o.s.no.198 of 1986 dismissed.14. challenging the same, the present civil revision petition is filed. contentions of the rival parties in this revision :15. heard sri v.l.n.g.k. murthy, learned counsel for sri d.arun kumar, counsel for the petitioners. 1st respondent died even prior to filing of the c.r.p. and his wife had also died prior to filing of the c.r.p. respondent nos.7 and 8 in the c.r.p. are their legal representatives. respondent nos.2, 3, 4, 7 and 8 have been served, but none appears on their behalf. 5th respondent is represented by sri k.k.waghray, counsel. notice sent to the 6th respondent was returned with an endorsement ".unclaimed"..16. this revision was heard on 02-01-2014 and 03-01-2014. on 03-01-2014 sri n.ashok kumar, learned counsel appeared and stated that he had entered appearance for 6th respondent and stated that he would file written submissions by 06-01-2014. on 06-01-2014 he filed written submissions and these have been considered in this order.17. the learned counsel for petitioners contended that the order of the court below is erroneous and unsustainable. he contended that the application under section 151 cpc would be maintainable to set aside the order permitting withdrawal of the suit as there is no provision in the c.p.c. dealing with the matter, particularly when such withdrawal is made on the basis of misrepresentation of the counsel. he relied upon the decision in jet ply wood (p) ltd. and another vs. madhukar nowlakha and others1. he also contended that a separate application seeking condonation of delay under section 5 of the limitation act, 1963 is not necessary particularly when the reasons given for the delay are stated in the affidavit filed in support of the application to set aside the order dismissing the suit, and the said reasons appear to be bonafide. he relied on movva anjamma and another vs. abhineni anasuya and another2 in support of this plea. he also contended that the counsel for petitioners sri s.bhooma goud, without any instructions from the petitioners or the g.p.a. holder of petitioner nos.2 and 3, fraudulently misrepresented to the court that the matter was compromised out of court and got dismissed the suit; the fact that the said counsel also appeared for 6th respondent in o.s.no.581 of 1994 filed against 1st respondent, also indicates that the said counsel had colluded with 6th respondent and acted against the interests of petitioners. he also contended that a complaint was filed against the said counsel for petitioners in complaint case no.52 of 1999 before the bar council of state of a.p., hyderabad but the said complaint was closed on 1.7.2000 stating that the parties can approach the bar council after decision in i.a.no.1828 of 1998 (i.a.no.1405 of 2000); that the said order dt.01-07-2000 in complaint case no.52 of 1999 of the bar council of state of a.p., hyderabad has been filed as additional evidence in c.r.p.m.p.no.2327 of 2008 and the said application had been allowed on 26-06- 2009; therefore, it cannot be said that the petitioners had not proceeded against the counsel in the bar council of state of a.p., hyderabad; that although there is a specific plea by 6th respondent that there was a compromise memo signed by 1st petitioner and the g.p.a. holder of petitioner nos.2 and 3 and that the same was filed into court by the sri s.bhooma goud, such a compromise memo was not found in the suit record or produced by 6th respondent; that the court below perversely ignored this and held against the petitioners erroneously; that the court below also did not take into account the fact that respondents had adduced no evidence before it in support of their plea; in any event, since property of substantial value is the subject matter of the suit, and prima facie there is no evidence of any compromise memo having been signed by petitioners, or the petitioners having instructed their counsel sri s.bhooma goud to withdraw the suit, the order passed by the court below has to be set aside.18. the learned counsel for 5th respondent sri k.k.waghray contended that the order of the court below is correct and did not warrant any interference by this court since 1st petitioner had acted negligently and so did the g.p.a. holder of petitioner nos.2 and 3. he also contended that the application filed by petitioners is barred by time since it is not filed within 3 years from the date of withdrawal of suit i.e., 29.4.1992, when the right to file an application to set aside the said order petitioner accrued to petitioners. he relied on the decision kunvarjeet singh khandpur vs. kirandeep kaur and others3 in support of the said plea. he also contented that the counsel for a party had an authority to make any statement on behalf of the parties including one seeking withdrawal of the suit or the appeal and therefore, no objection can be taken to the conduct of the counsel in withdrawing the suit. he relied upon the decision in bakshi dev raj and anr. vs. sudheer kumar4.19. in the written submissions filed by 6th respondent's counsel, it is contended that the order passed by the court below is correct; that the g.p.a. holder of the petitioners in his deposition as p.w.1 did not make any specific allegation against sri s.bhooma goud; that the g.p.a. holder of the petitioners did not state whether the 1st petitioner had contacted sri s.m.p. mathur, advocate or sri s.bhooma goud, advocate; that the g.p.a. holder in his evidence did not state whether petitioner nos.2 and 3 or their g.p.a. holder mir khasim hussain contacted the counsels after dismissal of the suit; no material is placed by the g.p.a. holder about the communication between petitioner no.1 and the counsels; that the said g.p.a. holder having been appointed under a g.p.a. executed on 29-07-1997, is not supposed to depose about the things prior to the execution of the said g.p.a. in his favour as he had no personal knowledge of the said facts; that no affidavits are filed by petitioners in support of this application. he also relied upon s.kesari hanuman goud vs. anjum jehan and others5 and janki vashdeo bhojwani and another vs. indusind bank ltd. and others6. in addition, it is also stated that the application filed by petitioners is barred by limitation as the application for restoration was not filed within 30 days from the date of dismissal of the suit and it is not stated specifically when the counsel for petitioners filed an application for issuance of the certified copy of the judgment and when the petitioners came to know about dismissal of the suit. it is also contended that the suit o.s.no.581 of 1994 is different from o.s.no.198 of 1986 and mere fact that sri s.bhooma goud, advocate appeared for 6th respondent cannot be held against 6th respondent. it is further submitted that 6th respondent is a bonafide purchaser of the land for valuable consideration, that it has sold plots to several of its members under registered sale deeds and great hardship would be caused to them if the order dt.29.4.1992 is set aside.20. i have noted the submissions of the counsel for parties. the consideration by this court :21. in my opinion, the following points arise for consideration : i) whether the petitioners' application i.a.no.1405 of 2000 filed under order xxiii rule 3 cpc r/w section 151 cpc, to set aside the order dt.29-04-1992 passed in o.s.no.198 of 1986, is maintainable?. ii) if yes, whether the said application, without an application under section 5 of the limitation act, 1963, can be considered?. iii) whether in the facts and circumstances of the case, the petitioners have made out a case for setting aside the order dt.29-04-1992 in o.s.no.198 of 1986?. point no.(i):- 22. it is the admitted case of both sides that on 29-04-1992, the suit o.s.no.198 of 1986 was dismissed by the trial court with the following endorsement: ".counsel for plaintiff endorsed as suit is compromised out of court hence to dismiss the suit. hence suit is dismissed with costs.".23. to set aside this above order, i.a.no.1405 of 2000 (previously i.a.no.1828 of 1998) was filed on 29-10-1998 by the petitioners under order xxiii rule 3 cpc r/w section 151 cpc.24. while the petitioners assert that such an application is maintainable, the respondents contend that such application is not maintainable.25. this issue is covered by the decision in jet ply wood (p) limited and another (1 supra) of the supreme court. in the said decision, the respondent withdrew a suit for specific performance of a contract through mistake occasioned by misrepresentation/subterfuge by the appellants that they would sell him the suit property provided he withdrew the suit. believing the said representation, the respondent did not seek liberty to file another suit at the time of withdrawal of the suit. subsequently the appellants resiled from their stand and conveyed the property in question to another party. the respondent's application for recall of the said order by which the suit had been permitted to be withdrawn was rejected by the trial court. this was challenged in a revision under article 227 of the constitution of india by the respondent before the high court which allowed it. the order of the high court was upheld by the supreme court holding that even if there was no specific prayer for leave to file a fresh suit on the same cause of action, the high court was right in restoring the suit. the supreme court held: ".25...............there is no doubt in our minds that in the absence of a specific provision in the code of civil procedure providing for the filing of an application for recalling of an order permitting withdrawal of a suit, the provisions of section 151 of the civil procedure code can be resorted to in the interest of justice. the principle is well established that when the code of civil procedure is silent regarding a procedural aspect, the inherent power of the court can come to its aid to act ex debito justitiae for doing real and substantial justice between the parties. this court had occasion to observe in manohar lal chopra v. rai bahadur rao raja seth hiralal (air1962s.c. 527) as follows: (scr p. 459) ".it is well settled that the provisions of the code are not exhaustive for the simple reason that the legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them.".26. based on the aforesaid principle, the division bench of the calcutta high court, in almost identical circumstances in rameswar sarkar case, allowed the application for withdrawal of the suit in exercise of inherent powers under section 151 of the code of civil procedure, upon holding that when through mistake the plaintiff had withdrawn the suit, the court would not be powerless to set aside the order permitting withdrawal of the suit.".26. so when the suit is withdrawn by counsel for plaintiff ostensibly on instructions of a party or on a representation by the counsel for the plaintiff that the matter was settled out of court, but it is proved to the satisfaction of the court that such instructions from party were non-existent or there was no such settlement out of court as represented by counsel, and the party was a victim of fraud played on him by counsel, i am of the view that the court can invoke it's inherent powers u/s.151 cpc and can set aside the order permitting withdrawal of the suit. in view of the above decision, i have no doubt in my mind that the trial court rightly entertained i.a.no.1405 of 2000 filed by petitioners under order xxiii rule 3 r/w section 151 cpc to set aside the order dt.29-04-1992 passed in o.s.no.198 of 1996. point no.(ii):27. it is true that there is no formal application filed by the petitioners seeking condonation of delay in filing the above application i.a.no.1405 of 2000 (previously i.a.no.1828 of 1998) although it was filed on 29-10-1998 to set aside the order dt.29-04-1992 passed in o.s.no.198 of 1986. but in the affidavit filed in support of it, it is contended by petitioners that they had no knowledge of the dismissal of the suit on 29-04- 1992 on account of fraud played by their counsel sri s.bhooma goud; that in the first week of august 1998, through another advocate sri bal reddy, the records in the suit were traced; they obtained certified copies of the order dt.29-04- 1992 on 08-10-1998 and within 30 days thereafter i.e. 29-10-1998, they filed the above application.28. the question is whether a formal application is necessary for condonation of delay. courts have held7 that the language of section 5 of the limitation act, 1963, does not expressly or by necessary implication mandate the filing of a written application to obtain a relief under the said section; that it vests a judicial discretion in courts to exercise their inherent power and excuse the delay even on an oral application, having regard to the circumstances of a particular case. in ramachandra row vs. seshaiah8, this court held that it is not necessary that there should be a formal petition to excuse the delay; that it is always open to the court or tribunal to condone the delay, if the person concerned is able to convince that there are justifiable grounds for the delay in presenting an appeal or a petition; and that the filing of a formal petition for excusing the delay is not sine qua non for the exercise of that power. in movva anjamma and another (2 supra) an application to set aside an order dismissing the suit for default was not accompanied by an application for condonation of delay although 9 months had elapsed in the meanwhile. this court followed the division bench decision in ramachandra row (8 supra) and held that if the affidavit filed in support of the application for restoration of a suit dismissed for default makes out sufficient cause for condonation of delay, it can be taken into account and there is no necessity to file a separate application for condonation of delay. in that case the court accepted the pleas of plaintiffs therein that they were women residing at far off places and that there was no communication from counsel. in a.govindaiah vs. v.venkatamma9 also, this court held that delay can be condoned even without filing a separate application for condonation of delay, if the delay is otherwise explained in the affidavit filed in support of the application made to set aside ex parte decree. in that case, the petitioner was a rustic villager residing in a remote village and he was an illiterate person. an ex parte decree was passed owing to a communication gap between him and his advocate. having regard to the said facts, the court held that the petitioner had made out a sufficient cause for condonation of delay in filing the application to set aside the ex parte decree.29. in this view of the matter, i reject the submission of the counsel for 5th respondent that it was mandatory for the petitioners to file an application under section 5 of the limitation act, 1963 along with i.a.no.1405 of 2000 and because such application is not filed by the petitioners, the said i.a. cannot be entertained. one has to only see whether the reasons given by the petitioners in the affidavit filed along with the said i.a. are convincing and indicate ".sufficient cause". for condonation of delay as per section 5 of the limitation act, 1963 or not. this issue will be considered under the next point. point no.(iii):30. it is pertinent to point out that the compromise memo allegedly signed by petitioners or by the g.p.a. holder of petitioner nos.2 and 3 and 1st petitioner has not been filed by 6th respondent in the court below. it is not stated when the said compromise was filed and what were the terms of said compromise. in para-4 of counter-affidavit of 6th respondent, it is stated that the compromise memo signed by the parties ".was filed in the court"., which plea is contrary to the endorsement dt.29-04-1992 dismissing the suit which recites that there was a compromise ".out of court"..31. it is the case of the petitioners that they had not authorized the said counsel to make such endorsement and in fact there was no such compromise out of court at all at any point of time. even 3rd respondent/3rd defendant in the suit asserted that there were no talks of compromise of the suit and he had not signed on any compromise petition nor was he a party to any compromise.32. the 5th respondent did not file any counter to i.a.no.1405 of 2000.33. strangely 6th respondent/6th defendant asserted in para 4 of its counter that the 1st petitioner, the gpa holder of petitioners 2 and 3, their counsel, respondent no.1 and 6 and their counsel, signed a memo stating that on the advice of elders and well wishers of the parties, they had settled the matter with regard to the petitioners' share in the plaint schedule property and requested to dismiss the suit and such memo was also filed in the court. according to 6th respondent, only thereafter, the counsel sri s.bhooma goud made such an endorsement as noted in the order dt.29-04-1992 on the basis of which the suit was dismissed. thus, the 6th respondent is pleading about the existence of a written compromise memo signed by the 1st petitioner and gpa holder of petitioners 2 and 3 and that such memo was also filed in the court.34. but the 6th respondent has not filed such a memo before the court below in i.a.no.1405 of 2000 nor has it examined its office bearers or the counsel sri s.bhooma goud or its counsel who allegedly signed the said memo in the court as witnesses in the i.a.no.1405 of 2000. in the absence of any proof adduced by 6th respondent in support of the above pleas raised in its counter, it has to be taken that no such written compromise memo signed by the 1st petitioner or gpa of petitioners 2 and 3 exists and that it has taken a false plea in that regard.35. the counsel for 5th respondent relied upon the decision of the supreme court in bakshi dev raj and another (4 supra), and sought to contend that a counsel appearing for a party has the implied authority to make a statement on instructions from the party to withdraw a suit or appeal, and that if really the counsel had not acted in the interest of a party or against the instructions of a party, the necessary remedy is elsewhere. but 5th respondent has not filed any counter before the court below taking the stand that on oral instructions of the petitioners, their counsel sri s.bhooma goud had withdrawn the suit. this decision and the other decisions cited in it deal with a situation where there is no written compromise or written instructions from a party to it's counsel to withdraw the suit or the appeal as the case may be. once a specific plea is taken by 6th respondent that there was a written compromise memo signed by the 1st petitioner and the gpa holder for petitioners 2 and 3 and also respondents no.1 and 6 and their counsel, and the said memo is not produced by them and is also not available in the court record, this decision cannot come to the aid of the respondents. they cannot now turn around and plead that on oral instructions of the 1st petitioner and the gpa holder of petitioners 2 and 3, their counsel endorsed that the suit was compromised and may be dismissed. such a plea, contrary to the pleadings of 6th respondent, cannot be entertained.36. admittedly the petitioners had also lodged a complaint before the bar council of the state of andhra pradesh against sri s.bhooma goud, their counsel in the suit o.s.no.198 of 1986. the said complaint was registered as complaint case no.52 of 1999 but the it was rejected as premature on 01-07-2000 on the ground that i.a.no.1828 of 1998 was still pending before the court below and it is better to await the outcome of the said application since the authority of the counsel to make the said endorsement on 29-04-1992 and getting the suit dismissed, would be decided in the said i.a.37. in my considered opinion, in the absence of proof of existence of the alleged written compromise memo signed by the 1st petitioner and the gpa holder of petitioners 2 and 3 (stating that the matter is settled out of court and praying the court to dismiss the suit), as alleged by the 6th respondent, it has to be presumed that the counsel sri s.bhooma goud had not been authorized by the petitioners to withdraw the suit. so the counsel sri s.bhooma goud misrepresented to the court that there was a compromise out of court, got the suit dismissed and played fraud on petitioners by misleading them that the suit was still pending.38. the petitioners examined p.w.1, their gpa holder and through him marked the certified copies of the plaint in o.s.no.581 of 1994 (ex.a-5), the written statement therein (ex.a-6) and the judgment therein (ex.a-7). he categorically stated that he advised 1st petitioner to appoint sri bal reddy, advocate and through him got verified the suit records and discovered the fraud played by the counsel s.bhooma goud on the petitioners by not only withdrawing the suit without instructions but also not informing about it to the petitioners and later appearing for 6th respondent in o.s.581/1994. ex.a5-7 prove that sri s.bhooma goud had filed o.s.no.581 of 1994 on the file of the i additional subordinate judge, ranga reddy district on behalf of 6th respondent against 1st respondent and his wife in respect of an extent of ac.70.00 gts. in sy. no.1007 of kukatpally village (which forms part of the property which is the subject matter of o.s.no.198 of 1986).39. admittedly the petitioners' and 6th respondent's interests were in conflict in o.s.no.198 of 1986 and therefore sri s.bhooma goud could not have appeared for 6th respondent in o.s.no.581 of 1994 having filed vakalat for petitioners in o.s.no.198/1986. prima facie this amounts to improper conduct raising strong suspicion that the said counsel colluded with the 6th respondent even in o.s.no.198 of 1986 and made the endorsement therein leading to the dismissal of the said suit on 29-04-1992 to benefit 5th and 6th respondents.40. in chandra shekhar soni vs. bar council of rajasthan and others10, the supreme court held: ".2...........it is unprofessional to represent conflicting interests except by express consent given by all concerned after a full disclosure of the facts. ......counsel's paramount duty is to the client and where he finds that there is conflict of interests, he should refrain from doing anything which would harm any interest of his client.".41. a division bench of this court in the public prosecutor vs. venkata reddy11, observed: ".even apart from any contractual obligation, the court will, in the exercise of their powers to maintain the highest traditions of the bar and the profession, preclude advocates from appearing for the opposite party if that is likely to embarrass the advocate or raise a suspicion in the mind of the client with respect to the conduct of his erstwhile advocate or that it is not gentlemanly conduct or that it is improper to do so, or the circumstances are such from which an inference of imparting of confidential nature of information can he raised. ............ ......in mary lilian hira devi v. digbijai singh, air1917pc80 sir john edge observed at page 84 thus : ".before concluding, their lordships must express their complete assent to the observations of the learned judges of the high court on the impropriety of a legal practitioner who has acted for one party in a dispute, such as there was in this case, acting for the other party in subsequent litigation between them relating to or arising out of that dispute. such conduct is, to say the least of it, open to misconception and is likely to raise suspicion in the mind of the original client and to embitter the subsequent litigation. as the learned judges of the high court have said in this case. ".this is a matter which concerns the honour of the profession'.". in a case where a person appeared for the defendant to have an ex parte decree set aside and later appeared for the opposite party namely for the plaintiff in that suit in a title suit filed by the defendant in that suit, a special bench of the patna high court consisting of courtney-terrell, c. j.mohammad noor and varma, jj.in s. p. a. pleader, in the matter of, manu/bh/0168/1934 observed that the pleader had taken instructions from the defendant and received his confidence in the matter of the genuineness of the small causes court suit and notwithstanding that confidence he accepted the instructions of the other side, which conduct was improper. ".proper professional conduct is not a mere matter of compliance with technical rules. it is one of which every one who aspires to be called a gentleman should have an instinctive appreciation.". in tajen-dra chandra v. tajendra lal, air1939rang. 183, (sb); a special bench of rangoon high court consisting of roberts, c. j.mya bu and mosely, jj.after considering the several authorities including the observations of the privy council in air1917pc80 observed that it is clear that an advocate or pleader who has appeared on behalf of one party in a suit ought not to allow himself to be placed in the position in which there might become suspicion, whether well or ill founded, that his knowledge of his client's case would be used by him on a subsequent occasion in appearing for another party and against his original client.....". (emphasis supplied) 42. this decision was also followed by another division bench of this court in the matter of sri a.gurubasappa, advocate, rayadurg12.43. in view of the above decisions it is clear that sri s.bhooma goud ought not to have appeared for 6th respondent in o.s.no.581 of 1994 having appeared against 6th respondent and for petitioners in o.s.no.198 of 1986. he conducted himself highly improperly and unprofessionally.44. therefore the contention of the respondent no.6 that the petitioners did not examine themselves personally as witnesses in the i.a and they only examined their gpa (who had been appointed on 29.7.1997) and the said gpa cannot speak about the events prior to his appointment, has no legs to stand. i do not therefore consider it necessary to deal with the decisions in s.kesari hanuman goud (4 supra) and janki vashdeo bhojwani (5 supra) cited by counsel for respondent no.6.45. in n. balakrishnan v. m. krishnamurthy13, an application to set aside an ex parte decree dt.28-10-1991 filed by the defendant was dismissed for default on 17-02-1993. another application filed by him on 19-08-1995 to set it aside along with application for condonation of delay was accepted by the trial court but it was set aside in revision by the high court. this was challenged in the supreme court by the defendant. he contended that he had engaged an advocate to file application to set aside the ex parte decree but the said advocate did not inform him about its dismissal for non-prosecution on 17-02-1993 and when he got summons from the execution side on 05-07-1995, he again approached the advocate; the advocate told him that since there was no stay against execution proceedings, the decree holder had filed the e.p.; that on the advise of the counsel he signed some papers including vakalatnama for resisting the execution proceedings and also paid him some fee but the said advocate did not do anything; on 04-08-1995, when he received warrant of execution from the court, he checked up and came to know about the dismissal of the application to set aside the ex parte decree for non-prosecution on 17-02-1993 and that his advocate did not do anything and later left the profession for a job. the supreme court held that the conduct of the defendant/appellant before it was not such as to castigate him as an irresponsible litigant and what he did in defending the suit was not very much far from what a litigant would broadly do. it observed that although he could have been more vigilant by visiting his advocate at short intervals to check up the progress of litigation, he cannot be treated as an irresponsible litigant since today everybody is fully occupied with his own avocation in life and omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities and to visit him with drastic consequences. it observed: ".11.rules of limitation are not meant to destroy the rights of parties. they are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. the object of providing a legal remedy is to repair the damage caused by reason of legal injury. the law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. time is precious and wasted time would never revisit. during the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. so a lifespan must be fixed for each remedy. unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. the law of limitation is thus founded on public policy. it is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). rules of limitation are not meant to destroy the rights of the parties. they are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. the idea is that every legal remedy must be kept alive for a legislatively fixed period of time.12. a court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. there is no presumption that delay in approaching the court is always deliberate. this court has held that the words ".sufficient cause". under section 5 of the limitation act should receive a liberal construction so as to advance substantial justice vide shakuntala devi jain v. kuntal kumari1 and state of w.b. v. administrator, howrah municipality2.13. it must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. that alone is not enough to turn down his plea and to shut the door against him. if the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. but when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. while condoning the delay, the court should not forget the opposite party altogether. it must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. it would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss.".46. in my opinion, this decision applies on all fours to this case. the 1st petitioner was an elderly lady and the other two petitioners, who were her daughters, were living abroad. the petitioners had engaged sri s.bhooma goud, counsel along with sri s.m.p.mathur to represent them in the suit o.s.no.198 of 1986. but in the absence of the petitioners from india, sri s.bhooma goud, their counsel, in collusion with 6th respondent and without any written instructions from the petitioners, misrepresented to the court that the matter was settled out of court and got the suit dismissed by making an endorsement. the facts on record show that he did not inform the petitioners about the dismissal of the suit and instead misled them into believing that the suit was still pending. not only that, he also filed a suit o.s.no.581 of 1994 on behalf of the 6th respondent against the 1st respondent in respect of property which is part of the plaint schedule in o.s.no.198 of 1986, having appeared for the petitioners and against the 6th respondent in o.s.no.198 of 1986. the fraud played by the counsel on the petitioners and his obvious collusion with the 6th respondent clearly provide ".sufficient cause". for condonation of delay in filing application to set aside the order dt.29-04-1992 in o.s.no.198 of 1986.47. in my opinion, the court below acted perversely in overlooking the above circumstances. it erred in holding that the petitioners did not explain why they kept quiet till 1998 without verifying the progress in the suit. it also erroneously held that they were blaming sri s.bhooma goud without explaining why they did not contact sri s.m.p.mathur. admittedly, sri s.m.p.mathur was a senior advocate according to the 6th respondent and sri s.bhooma goud was his junior. a senior advocate would not directly deal with the clients and would only deal with the junior on record sri s.bhooma goud. in any event the facts on record conclusively show the collusion of sri s.bhooma goud with 6th respondent and the fraud played by him on the petitioners to benefit the respondents 5 and 6. the court below also erred in holding that the application filed by the petitioners on 29-10-1998 to set aside the suit which was dismissed on 29-04-1992 is hopelessly barred by time. once fraud played by the counsel on the petitioners is established and his collusion with the 6th respondent is apparent, period of limitation, if any, can only be counted from the date of discovery of fraud. section 17 of the limitation act, 1963 specifically provides that where any person having a right to make an application has, by means of fraud, been kept from the knowledge of such right on which it is founded, the time limited for making such application against the person guilty of fraud or accessory thereto shall be computed from the time when the fraud first became known to the person injuriously affected thereby. in this view of the matter, i am fully satisfied that the petitioners are entitled to calculate the period of limitation from the date of knowledge of the fraud.48. in badami v. bhali14, the supreme court summed up the law relating to fraud and collusion in obtaining court orders in the following manner: ".29. presently, we shall refer as to how this court has dealt with concept of fraud. in s.b. noronah v. prem kumari khanna (1980(1) scc52) while dealing with the concept of estoppel and fraud a two-judge bench has stated that: (scc p. 58, para 20) ".20. it is an old maxim that estoppels are odious, although considerable inroad into this maxim has been made by modern law. even so, 'a judgment obtained by fraud or collusion, even, it seems, a judgment of the house of lords, may be treated as a nullity'. (see halsbury's laws of england, vol. 16, 4th edn., para 1553.) the point is that the sanction granted under section 21, if it has been procured by fraud or collusion, cannot withstand invalidity because, otherwise, high public policy will be given as hostage to successful collusion.".30. in s.p. chengalvaraya naidu v. jagannath (1994 (1) scc1this court commenced the verdict with the following words: (scc p. 2, para 1) ".1. 'fraud avoids all judicial acts, ecclesiastical or temporal' observed chief justice edward coke of england about three centuries ago. it is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eye of the law. such a judgment/decree-by the first court or by the highest court-has to be treated as a nullity by every court, whether superior or inferior. it can be challenged in any court even in collateral proceedings.". in the said case it was clearly stated that the courts of law are meant for imparting justice between the parties and one who comes to the court, must come with clean hands.31. a person whose case is based on falsehood has no right to approach the court. a litigant who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. if a vital document is withheld in order to gain advantage on the other side he would be guilty of playing fraud on court as well as on the opposite party.32. in shrisht dhawan v. shaw bros.(1992 1 scc534 it has been opined that the fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. it has been defined as an act of trickery or deceit. the aforesaid principle has been reiterated in roshan deen v. preeti lal (2002 1 scc100, ram preeti yadav v. u.p. board of high school and intermediate education (2003 8 scc311 and ram chandra singh v. savitri devi (2003 8 scc319.33. in state of a.p. v. t. suryachandra rao (2005 6 scc149 after referring to the earlier decision this court observed as follows: (scc p. 155, para 16) ".16. in lazarus estates ltd. v. beasley (1956 1 qb702 lord denning observed at qb p. 712: '... no judgment of a court, no order of a minister, can be allowed to stand if it has been obtained by fraud. fraud unravels everything.' in the same judgment lord parker, l.j.observed that fraud 'vitiates all transactions known to the law of however high a degree of solemnity' (lazarus case, qb p. 722).".34. yet in another decision hamza haji v. state of kerala (2006 7 scc416 it has been held that no court will allow itself to be used as an instrument of fraud and no court, by way of rule of evidence and procedure, can allow its eyes to be closed to the fact it is being used as an instrument of fraud. the basic principle is that a party who secures the judgment by taking recourse to fraud should not be enabled to enjoy the fruits thereof.35. it would not be an exaggeration, but on the contrary an understatement, if it is said that all the facets of fraud get attracted to the case at hand. a rustic and illiterate woman is taken to court by a relation on the plea of creation of a lease deed and magically in a hurried manner the plaint is presented, written statement is drafted and filed, statement is recorded and a decree is passed within three days. on a perusal of the decree it is manifest that there is no reference of any kind of family arrangement and there is total non-application of mind. it only mentions there is consent in the written statement and hence, suit has to be decreed. be it noted, it was a suit for permanent injunction. there was an allegation that the respondent was interfering with the possession of the plaintiff. what could have transpired that the defendant would go with the plaintiff and accede to all the reliefs. it not only gives rise to a doubt but on a first look one can feel that there is some kind of foul play. however, the learned trial judge who decreed the first suit on 27-11-1973 did not look at these aspects.".(emphasis supplied) 49. applying the above decision, i have no hesitation to hold that the petitioners had made out sufficient cause to set aside the order dt.29.4.1992 in o.s.no.198/1986 and the court below acted perversely in dismissing i.a.no.1405/2000. therefore, the impugned order is set aside and the c.r.p. is allowed with costs of rs.5,000/- payable by respondent no.6 to petitioners.50. as a sequel, the miscellaneous petitions, if any pending, shall stand closed. __________________________________ justice m.s.ramachandra rao date:23. 01-2014

Judgment:

HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO CIVIL REVISION PETITION No.1758 of 2008 23-01-2014 Smt.Basheerunnisa Begum and Ors....Petitioners Meer Fazeelath Hussaini & Ors....Respondents Counsel for the Petitioners: Sri V.L.N.G.K. Murthy, learned Counsel for Sri D.Arun Kumar ^Counsel for the R-5 : Sri K.K.Waghray Counsel for the R-6 : Sri N.Ashok Kumar HEAD NOTE: ?.Cases referred:

1. (2006) 3 SCC6992. (2008) 8 SCC4633. AIR2011S.C. 3137 4. 2013 (4) ALD150(SC) 5. 2005 (3) ALD43(SC) 6. Mst. Kulsoom-Un-Nisa Vs. Noor Mohammed...AIR1936Allahabad 666; Kaura Mal Vs. Mathra Dassa....AIR1959Punjab 646; and Meghraj Vs. Jesraj Kasturjee....AIR1975Madras 137 7. 1999 (1) ALD3988. 1957 (2) An.W.R. 106 (D.B.) 9. 1996 (1) ALD118= 1995 (3) ALT685 10. AIR1983S.C. 1012 11. AIR1960AP105= 1960 (2) An.W.R. 11 12. AIR1964AP26113. (1998) 7 SCC12314. (2012) 11 SCC574THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO CIVIL REVISION PETITION No.1758 of 2008

ORDER

: This Revision is filed under Section 115 CPC challenging the order dt.24- 10-2004 in I.A.No.1405 of 2000 in O.S.No.198 of 1986 of the II Additional Senior Civil Judge, Ranga Reddy District at Hyderabad. THE PLEADINGS IN THE SUIT O.S.NO.198/1986 2. The petitioners are plaintiffs in the above suit. The said suit was filed by the deceased 1st petitioner originally for partition and separate possession of 14/48th share out of an extent of Ac.300.24 gts. in Sy.No.1007 of Kukatpally village, Ranga Reddy Mandal, Andhra Pradesh. The 1st petitioner engaged Sri S.M.P. Mathur and S.Bhooma Goud, Advocates on her behalf. In this suit there were originally 8 defendants. Subsequently, defendant Nos.2 and 3 (who are the daughters of the 1st petitioner) were transposed as plaintiff Nos.2 and 3 vide order dt.20-08-1987 in I.A.No.422 of 1986. They are petitioners 2 and 3 herein.

3. The plaint schedule property belonged to late Nawab Rais Jung Bahadur. The 1st petitioner claimed to be the widow of one of his sons by name Mir Mujtaba Hussain, who died in 1972 and contended that on the death of late Nawab Rais Jung Bahadur, the petitioners are entitled to the share of Mir Mujtaba Hussain. Written statement was filed by defendant Nos.1 to 4 (i.e., the original defendants 1, 4 5 and 6) opposing the suit claim contending that 1st petitioner's husband had already sold portion of land to various persons prior to his death in 1960, that the parties had already divided the property and so there cannot be any fresh partition.

4. Petitioner Nos.2 and 3 had given a Power of Attorney to Mir Kazim Hussaini, s/o.late Rais Jung as both of them were not available in India. THE PROCEEDINGS IN THE SUIT5 The 1st petitioner was examined as P.W.1 on Commission on 04-09-1991 and again on 01-12-1991. The Advocate-Commissioner appointed by the trial Court in I.A.No.610 of 1991 to take evidence of 1st petitioner (P.W.1) filed his report along with a memo on 27-01-1992.

6. The 1st petitioner became sick and was advised to take rest and her daughters i.e. petitioner Nos.2 and 3 advised her to come to U.S.A., where they are residing, for rest and medical attention. So, the 1st petitioner left India on 07-04-1992 informing her counsel Sri S.Bhooma Goud and giving address etc. where she could be contacted, if necessary.

7. On 29-04-1992, the suit came to be dismissed by the trial Court with the following order :

JUDGMENT

".Counsel for plaintiff endorsed as suit is compromised out of court hence to dismiss the suit. Hence the suit dismissed without costs". THE PLEADINGS IN I.A.NO.1828 /1998 (I.A.No.1405 / 2000) :

8. I.A.No.1828 of 1998 was filed under Section 151 CPC by the petitioners before the Principal Senior Civil Judge, Ranga Reddy District through their G.P.A. Syed Ali Mohammed to set aside the above order dt.29-04-1992 in O.S.No.198 of 1986. This application was transferred to the II Additional Senior Civil Judge, Ranga Reddy District at L.B.Nagar and renumbered as I.A.No.1405 of 2000.

9. In this application, the petitioners contended that 1st petitioner had executed a G.P.A. in favour of one Syed Ali Mohammed on 29-07-1997; that petitioner Nos.2 and 3 were also residing in U.S.A. and had also given a G.P.A. to the said person; that all the petitioners were being represented in the suit by Sri S.Bhooma Goud, Advocate; that petitioner Nos.2 and 3 were residents of U.S.A. and the 1st petitioner also left India for U.S.A. on 07-04-1992 as mentioned above instructing the said counsel to contest the suit and giving her contact details with him; that the said counsel never informed the petitioners about endorsing that the suit was compromised out of Court and to dismiss the suit; that 1st petitioner never gave instructions to get the suit dismissed as compromised out of Court; and in fact there was no such compromise at all at any point of time between the parties. The petitioners contended that the 1st petitioner came to India in the last week of June, 1994 and contacted him to enquire regarding the above suit, but the said counsel informed her that the matter is pending, dates were being given by the trial Court, that he would let her know as and when she has to appear in the Court and she should have full faith and trust in him. According to the petitioners, in September, 1995, the 1st petitioner again went to U.S.A. after informing the counsel that she would return to India in January or February, 1996 and if her presence is required for the purpose of the suit, she may be informed so that she can come back to India and contest the suit; that she kept in touch with her counsel even from U.S.A. and he assured her not to worry; even after her return to India, she contacted her counsel on two occasions and he assured her that the matter is pending and she need not worry. According to the petitioners, in June-July, 1997 the petitioners' G.P.A. Holder tried to contact the counsel on various occasions, but the counsel avoided to meet the G.P.A. Holder of petitioners and vexed with that attitude, the G.P.A. Holder contacted Mr.Bal Reddy, Advocate and requested him to verify the matter. According to the petitioners, in the 1st week of August, 1998, the suit record was traced out and only then the petitioners came to know about the fraud played by the counsel for petitioners in getting the suit dismissed; that Sri Bal Reddy, Advocate applied for certified copies of the judgment and decree on 08-10-1998 and handed them over to the G.P.A. Holder of petitioners, who in turn sent them to the petitioners. After coming to know all these facts, I.A.No.1828 of 1998 (I.A.No.1405 of 2000) was filed within 30 days from the date of receipt of certified copy of judgment on 29-10-1998. It is also asserted by the petitioners that there was no compromise out of Court at all at any point of time, that they were not aware of the alleged terms of compromise; that the counsel for petitioners Sri S.Bhooma Goud, in collusion with 6th defendant in the suit/ 6th respondent herein, got the suit dismissed fraudulently ; that the said counsel had also appeared for 6th defendant in a suit O.S.No.581 of 1994 on the file of Prl. Sub-Judge, Ranga Reddy District at Saroor Nagar against 1st respondent in respect of an extent of 70 acres in Sy.No.1007 wherein the relief of specific performance of agreement of sale dt.13-06-1973 was sought; that written statement was filed by 1st respondent on 27-02-1996 in the said suit admitting the claim of 6th defendant and on the same day, a decree was passed in the said suit; that the counsel Sri S.Bhooma Goud was clearly acting in collusion with the 6th respondent against the interests of the petitioners and possibly on account of this conduct, he did not inform about the dismissal of the suit to the petitioners. It is further stated that the G.P.A. Holder Mir Kasim Hussain, appointed by petitioner Nos.2 and 3 in the suit, died in the year 1994 and no instructions had been given by petitioner Nos.2 and 3 to the said G.P.A. Holder to compromise the matter and the said G.P.A. Holder also never informed the petitioners of the alleged compromise.

10. Counter affidavit was filed by 3rd respondent/D-3 in O.S.No.198 of 1986 opposing this application and denying the averments made by the petitioners in I.A.No.1405 of 2000. But he admitted that there were no talks of compromise and 3rd respondent and other respondents have not signed any compromise petition nor were parties to the alleged compromise and have no knowledge of it.

11. The 6th respondent filed a detailed counter also opposing the prayer of the petitioners in I.A.No.1405 of 2000 to set aside the order dt.29-04-1992 in O.S.No.198 of 1986 and to restore the suit. 6th respondent contended that the G.P.A. Holder is not properly authorized to represent the suit as the said G.P.A. is not a G.P.A. in the eye of law and is unregistered. He also contended that the application filed under Order 23 Rule 3 r/w 151 of CPC to set aside the order dt.29-04-1992 dismissing the suit, is not maintainable in law. It is specifically asserted that 1st petitioner, G.P.A. Holder of petitioner Nos.2 and 3, their counsels and respondent Nos.1 and 6 and their counsels signed a memo stating that on the advise of elders and well-wishers of the parties, the matter was settled with regard to share of petitioners in the suit schedule property and to dismiss the suit; that the memo was filed in the Court; thereafter the counsel for petitioners Sri Bhooma Goud made an endorsement on the basis of which the suit was dismissed. It is also stated that the G.P.A. Holder Mir Kazim Hussain representing petitioner Nos.2 and 3 signed the memo of compromise. It is contended that 1st petitioner did not state that she contacted Sri S.M.P.Madhur, Sr.Advocate and the allegations made by the petitioners against Sri S.Bhooma Goud are false; that the I.A. filed by petitioners is barred by limitation and is not maintainable. They also contended that after lapse of 6 years, a suit which has been dismissed cannot be restored, particularly when the suit was dismissed when the petitioners had signed a compromise memo stating that the matter was settled out of Court. It is also contended that certain payments were made to the G.P.A. Holder of petitioner Nos.2 and 3 and to petitioners in 1991 to 1995 relating to certain agreements of sale allegedly executed by petitioners in favour of 6th respondent in respect of an extent of 78 acres in Sy.No.1007 of Kukatpally village and therefore, the I.A.No.1828/1998 (IA.No.1405/2000) be rejected.

12. Before the Court below, the G.P.A. Holder of petitioners was examined as P.W.1 and Exs.A-1 to A-7 were marked. The respondents did not examine any witnesses nor marked any documents. THE DECISION OF THE COURT BELOW IN I.A.NO.1828/1998 (IA.No.1405/2000) :

13. The Court below by order dt.24-10-2007 dismissed I.A.No.1405 of 2000 filed by the petitioners, declined to set aside the order dt.29-04-1992 passed in O.S.No.198 of 1986 and to restore the suit to it's file. It inter alia held that the evidence of 1st petitioner was completed in the suit, that the petitioners should have proceeded to lead further evidence and they cannot keep quiet till 1998 without verifying the progress of the suit by blaming their counsel Sri S.Bhooma Goud. It also held that it is not clear whether the petitioners contacted the other counsel Sri S.M.P.Mathur at any time and petitioners failed to establish that they have taken action against the counsel Sri S.Bhooma Goud for misrepresenting them. It also held that P.W.1 is a G.P.A. Holder of petitioners only since 1998 and so he is not supposed to give evidence as to the facts which transpired prior to his appointment and the petitioners did not come forward to give evidence. It also held that the I.A. has been filed on 29-10-1998 when the suit was dismissed on 29-04-1992 and the petitioners did not take steps within a reasonable time for filing it and should have filed it within three years from the date of dismissal of the suit. It therefore held that the application is barred by time. Although it noticed that Sri S.Bhooma Goud filed O.S.No.585 of 1994 on behalf of 6th respondent against 1st respondent, and Exs.A-1 to A-7 have been filed in support of the said plea by the petitioners, it observed that the said suit was filed in the year 1994, and so it cannot be inferred that Sri S.Bhooma Goud, Advocate played fraud and got the suit O.S.No.198 of 1986 dismissed.

14. Challenging the same, the present Civil Revision Petition is filed. CONTENTIONS OF THE RIVAL PARTIES IN THIS REVISION :

15. Heard Sri V.L.N.G.K. Murthy, learned counsel for Sri D.Arun Kumar, counsel for the petitioners. 1st respondent died even prior to filing of the C.R.P. and his wife had also died prior to filing of the C.R.P. Respondent Nos.7 and 8 in the C.R.P. are their legal representatives. Respondent Nos.2, 3, 4, 7 and 8 have been served, but none appears on their behalf. 5th respondent is represented by Sri K.K.Waghray, counsel. Notice sent to the 6th respondent was returned with an endorsement ".unclaimed"..

16. This Revision was heard on 02-01-2014 and 03-01-2014. On 03-01-2014 Sri N.Ashok Kumar, learned counsel appeared and stated that he had entered appearance for 6th respondent and stated that he would file written submissions by 06-01-2014. On 06-01-2014 he filed written submissions and these have been considered in this order.

17. The learned counsel for petitioners contended that the order of the Court below is erroneous and unsustainable. He contended that the application under Section 151 CPC would be maintainable to set aside the order permitting withdrawal of the suit as there is no provision in the C.P.C. dealing with the matter, particularly when such withdrawal is made on the basis of misrepresentation of the counsel. He relied upon the decision in Jet Ply Wood (P) Ltd. And another Vs. Madhukar Nowlakha and others1. He also contended that a separate application seeking condonation of delay under Section 5 of the Limitation Act, 1963 is not necessary particularly when the reasons given for the delay are stated in the affidavit filed in support of the application to set aside the order dismissing the suit, and the said reasons appear to be bonafide. He relied on Movva Anjamma and Another Vs. Abhineni Anasuya and Another2 in support of this plea. He also contended that the counsel for petitioners Sri S.Bhooma Goud, without any instructions from the petitioners or the G.P.A. Holder of petitioner Nos.2 and 3, fraudulently misrepresented to the Court that the matter was compromised out of Court and got dismissed the suit; the fact that the said counsel also appeared for 6th respondent in O.S.No.581 of 1994 filed against 1st respondent, also indicates that the said counsel had colluded with 6th respondent and acted against the interests of petitioners. He also contended that a complaint was filed against the said counsel for petitioners in complaint case No.52 of 1999 before the Bar Council of State of A.P., Hyderabad but the said complaint was closed on 1.7.2000 stating that the parties can approach the Bar Council after decision in I.A.No.1828 of 1998 (I.A.No.1405 of 2000); that the said order dt.01-07-2000 in Complaint Case No.52 of 1999 of the Bar Council of State of A.P., Hyderabad has been filed as additional evidence in C.R.P.M.P.No.2327 of 2008 and the said application had been allowed on 26-06- 2009; therefore, it cannot be said that the petitioners had not proceeded against the counsel in the Bar Council of State of A.P., Hyderabad; that although there is a specific plea by 6th respondent that there was a compromise memo signed by 1st petitioner and the G.P.A. Holder of petitioner Nos.2 and 3 and that the same was filed into Court by the Sri S.Bhooma Goud, such a compromise memo was not found in the suit record or produced by 6th respondent; that the Court below perversely ignored this and held against the petitioners erroneously; that the Court below also did not take into account the fact that respondents had adduced no evidence before it in support of their plea; in any event, since property of substantial value is the subject matter of the suit, and prima facie there is no evidence of any compromise memo having been signed by petitioners, or the petitioners having instructed their counsel Sri S.Bhooma Goud to withdraw the suit, the order passed by the Court below has to be set aside.

18. The learned counsel for 5th respondent Sri K.K.Waghray contended that the order of the Court below is correct and did not warrant any interference by this Court since 1st petitioner had acted negligently and so did the G.P.A. Holder of petitioner Nos.2 and 3. He also contended that the application filed by petitioners is barred by time since it is not filed within 3 years from the date of withdrawal of suit i.e., 29.4.1992, when the right to file an application to set aside the said order petitioner accrued to petitioners. He relied on the decision Kunvarjeet Singh Khandpur Vs. Kirandeep Kaur and others3 in support of the said plea. He also contented that the counsel for a party had an authority to make any statement on behalf of the parties including one seeking withdrawal of the suit or the appeal and therefore, no objection can be taken to the conduct of the counsel in withdrawing the suit. He relied upon the decision in Bakshi Dev Raj and Anr. Vs. Sudheer Kumar4.

19. In the written submissions filed by 6th respondent's counsel, it is contended that the order passed by the Court below is correct; that the G.P.A. Holder of the petitioners in his deposition as P.W.1 did not make any specific allegation against Sri S.Bhooma Goud; that the G.P.A. Holder of the petitioners did not state whether the 1st petitioner had contacted Sri S.M.P. Mathur, Advocate or Sri S.Bhooma Goud, Advocate; that the G.P.A. Holder in his evidence did not state whether petitioner Nos.2 and 3 or their G.P.A. Holder Mir Khasim Hussain contacted the counsels after dismissal of the suit; no material is placed by the G.P.A. Holder about the communication between petitioner No.1 and the counsels; that the said G.P.A. Holder having been appointed under a G.P.A. executed on 29-07-1997, is not supposed to depose about the things prior to the execution of the said G.P.A. in his favour as he had no personal knowledge of the said facts; that no affidavits are filed by petitioners in support of this application. He also relied upon S.Kesari Hanuman Goud Vs. Anjum Jehan and others5 and Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd. and others6. In addition, it is also stated that the application filed by petitioners is barred by limitation as the application for restoration was not filed within 30 days from the date of dismissal of the suit and it is not stated specifically when the counsel for petitioners filed an application for issuance of the certified copy of the judgment and when the petitioners came to know about dismissal of the suit. It is also contended that the suit O.S.No.581 of 1994 is different from O.S.No.198 of 1986 and mere fact that Sri S.Bhooma Goud, Advocate appeared for 6th respondent cannot be held against 6th respondent. It is further submitted that 6th respondent is a bonafide purchaser of the land for valuable consideration, that it has sold plots to several of its members under registered sale deeds and great hardship would be caused to them if the order dt.29.4.1992 is set aside.

20. I have noted the submissions of the counsel for parties. THE CONSIDERATION BY THIS COURT :

21. In my opinion, the following points arise for consideration : i) Whether the petitioners' application I.A.No.1405 of 2000 filed under Order XXIII Rule 3 CPC r/w Section 151 CPC, to set aside the Order dt.29-04-1992 passed in O.S.No.198 of 1986, is maintainable?. ii) If yes, whether the said application, without an application under Section 5 of the Limitation Act, 1963, can be considered?. iii) Whether in the facts and circumstances of the case, the petitioners have made out a case for setting aside the Order dt.29-04-1992 in O.S.No.198 of 1986?. Point No.(i):- 22. It is the admitted case of both sides that on 29-04-1992, the suit O.S.No.198 of 1986 was dismissed by the trial Court with the following endorsement: ".Counsel for plaintiff endorsed as suit is compromised out of Court hence to dismiss the suit. Hence suit is dismissed with costs.".

23. To set aside this above order, I.A.No.1405 of 2000 (previously I.A.No.1828 of 1998) was filed on 29-10-1998 by the petitioners under Order XXIII Rule 3 CPC r/w Section 151 CPC.

24. While the petitioners assert that such an application is maintainable, the respondents contend that such application is not maintainable.

25. This issue is covered by the decision in Jet Ply Wood (P) Limited and Another (1 supra) of the Supreme Court. In the said decision, the respondent withdrew a suit for specific performance of a contract through mistake occasioned by misrepresentation/subterfuge by the appellants that they would sell him the suit property provided he withdrew the suit. Believing the said representation, the respondent did not seek liberty to file another suit at the time of withdrawal of the suit. Subsequently the appellants resiled from their stand and conveyed the property in question to another party. The respondent's application for recall of the said order by which the suit had been permitted to be withdrawn was rejected by the trial Court. This was challenged in a Revision under Article 227 of the Constitution of India by the respondent before the High Court which allowed it. The order of the High Court was upheld by the Supreme Court holding that even if there was no specific prayer for leave to file a fresh suit on the same cause of action, the High Court was right in restoring the suit. The Supreme Court held: ".25...............There is no doubt in our minds that in the absence of a specific provision in the Code of Civil Procedure providing for the filing of an application for recalling of an order permitting withdrawal of a suit, the provisions of Section 151 of the Civil Procedure Code can be resorted to in the interest of justice. The principle is well established that when the Code of Civil Procedure is silent regarding a procedural aspect, the inherent power of the court can come to its aid to act ex debito justitiae for doing real and substantial justice between the parties. This Court had occasion to observe in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal (AIR1962S.C. 527) as follows: (SCR p. 459) ".It is well settled that the provisions of the Code are not exhaustive for the simple reason that the legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them.".

26. Based on the aforesaid principle, the Division Bench of the Calcutta High Court, in almost identical circumstances in Rameswar Sarkar case, allowed the application for withdrawal of the suit in exercise of inherent powers under Section 151 of the Code of Civil Procedure, upon holding that when through mistake the plaintiff had withdrawn the suit, the court would not be powerless to set aside the order permitting withdrawal of the suit.".

26. So when the suit is withdrawn by Counsel for plaintiff ostensibly on instructions of a party or on a representation by the Counsel for the plaintiff that the matter was settled out of Court, but it is proved to the satisfaction of the Court that such instructions from party were non-existent or there was no such settlement out of court as represented by counsel, and the party was a victim of fraud played on him by counsel, I am of the view that the Court can invoke it's inherent powers u/s.151 CPC and can set aside the order permitting withdrawal of the suit. In view of the above decision, I have no doubt in my mind that the trial Court rightly entertained I.A.No.1405 of 2000 filed by petitioners under Order XXIII Rule 3 r/w Section 151 CPC to set aside the order dt.29-04-1992 passed in O.S.No.198 of 1996. Point No.(ii):

27. It is true that there is no formal application filed by the petitioners seeking condonation of delay in filing the above application I.A.No.1405 of 2000 (previously I.A.No.1828 of 1998) although it was filed on 29-10-1998 to set aside the order dt.29-04-1992 passed in O.S.No.198 of 1986. But in the affidavit filed in support of it, it is contended by petitioners that they had no knowledge of the dismissal of the suit on 29-04- 1992 on account of fraud played by their counsel Sri S.Bhooma Goud; that in the first week of August 1998, through another advocate Sri Bal Reddy, the records in the suit were traced; they obtained certified copies of the order dt.29-04- 1992 on 08-10-1998 and within 30 days thereafter i.e. 29-10-1998, they filed the above application.

28. The question is whether a formal application is necessary for condonation of delay. Courts have held7 that the language of Section 5 of the Limitation Act, 1963, does not expressly or by necessary implication mandate the filing of a written application to obtain a relief under the said Section; that it vests a judicial discretion in Courts to exercise their inherent power and excuse the delay even on an oral application, having regard to the circumstances of a particular case. In Ramachandra Row Vs. Seshaiah8, this Court held that it is not necessary that there should be a formal petition to excuse the delay; that it is always open to the Court or Tribunal to condone the delay, if the person concerned is able to convince that there are justifiable grounds for the delay in presenting an appeal or a petition; and that the filing of a formal petition for excusing the delay is not sine qua non for the exercise of that power. In Movva Anjamma and Another (2 supra) an application to set aside an order dismissing the suit for default was not accompanied by an application for condonation of delay although 9 months had elapsed in the meanwhile. This court followed the Division Bench decision in Ramachandra Row (8 supra) and held that if the affidavit filed in support of the application for restoration of a suit dismissed for default makes out sufficient cause for condonation of delay, it can be taken into account and there is no necessity to file a separate application for condonation of delay. In that case the Court accepted the pleas of plaintiffs therein that they were women residing at far off places and that there was no communication from Counsel. In A.Govindaiah Vs. V.Venkatamma9 also, this Court held that delay can be condoned even without filing a separate application for condonation of delay, if the delay is otherwise explained in the affidavit filed in support of the application made to set aside ex parte decree. In that case, the petitioner was a rustic villager residing in a remote village and he was an illiterate person. An ex parte decree was passed owing to a communication gap between him and his Advocate. Having regard to the said facts, the Court held that the petitioner had made out a sufficient cause for condonation of delay in filing the application to set aside the ex parte decree.

29. In this view of the matter, I reject the submission of the counsel for 5th respondent that it was mandatory for the petitioners to file an application under Section 5 of the Limitation Act, 1963 along with I.A.No.1405 of 2000 and because such application is not filed by the petitioners, the said I.A. cannot be entertained. One has to only see whether the reasons given by the petitioners in the affidavit filed along with the said I.A. are convincing and indicate ".sufficient cause". for condonation of delay as per Section 5 of the Limitation Act, 1963 or not. This issue will be considered under the next point. Point No.(iii):

30. It is pertinent to point out that the compromise memo allegedly signed by petitioners or by the G.P.A. Holder of petitioner Nos.2 and 3 and 1st petitioner has not been filed by 6th respondent in the Court below. It is not stated when the said compromise was filed and what were the terms of said compromise. In para-4 of counter-affidavit of 6th respondent, it is stated that the compromise memo signed by the parties ".was filed in the Court"., which plea is contrary to the endorsement dt.29-04-1992 dismissing the suit which recites that there was a compromise ".out of Court"..

31. It is the case of the petitioners that they had not authorized the said counsel to make such endorsement and in fact there was no such compromise out of Court at all at any point of time. Even 3rd respondent/3rd defendant in the suit asserted that there were no talks of compromise of the suit and he had not signed on any compromise petition nor was he a party to any compromise.

32. The 5th respondent did not file any counter to I.A.No.1405 of 2000.

33. Strangely 6th respondent/6th defendant asserted in para 4 of its counter that the 1st petitioner, the GPA holder of petitioners 2 and 3, their counsel, respondent No.1 and 6 and their counsel, signed a memo stating that on the advice of elders and well wishers of the parties, they had settled the matter with regard to the petitioners' share in the plaint schedule property and requested to dismiss the suit and such memo was also filed in the Court. According to 6th respondent, only thereafter, the counsel Sri S.Bhooma Goud made such an endorsement as noted in the order dt.29-04-1992 on the basis of which the suit was dismissed. Thus, the 6th respondent is pleading about the existence of a written compromise memo signed by the 1st petitioner and GPA Holder of petitioners 2 and 3 and that such memo was also filed in the Court.

34. But the 6th respondent has not filed such a memo before the Court below in I.A.No.1405 of 2000 nor has it examined its office bearers or the counsel Sri S.Bhooma Goud or its counsel who allegedly signed the said memo in the Court as witnesses in the I.A.No.1405 of 2000. In the absence of any proof adduced by 6th respondent in support of the above pleas raised in its counter, it has to be taken that no such written compromise memo signed by the 1st petitioner or GPA of petitioners 2 and 3 exists and that it has taken a false plea in that regard.

35. The counsel for 5th respondent relied upon the decision of the Supreme Court in Bakshi Dev Raj and Another (4 supra), and sought to contend that a counsel appearing for a party has the implied authority to make a statement on instructions from the party to withdraw a suit or appeal, and that if really the counsel had not acted in the interest of a party or against the instructions of a party, the necessary remedy is elsewhere. But 5th respondent has not filed any counter before the Court below taking the stand that on oral instructions of the petitioners, their counsel Sri S.Bhooma Goud had withdrawn the suit. This decision and the other decisions cited in it deal with a situation where there is no written compromise or written instructions from a party to it's counsel to withdraw the suit or the appeal as the case may be. Once a specific plea is taken by 6th respondent that there was a written compromise memo signed by the 1st petitioner and the GPA holder for petitioners 2 and 3 and also respondents No.1 and 6 and their counsel, and the said memo is not produced by them and is also not available in the court record, this decision cannot come to the aid of the respondents. They cannot now turn around and plead that on oral instructions of the 1st petitioner and the GPA holder of petitioners 2 and 3, their counsel endorsed that the suit was compromised and may be dismissed. Such a plea, contrary to the pleadings of 6th respondent, cannot be entertained.

36. Admittedly the petitioners had also lodged a complaint before the Bar Council of the State of Andhra Pradesh against Sri S.Bhooma Goud, their counsel in the suit O.S.No.198 of 1986. The said complaint was registered as complaint case No.52 of 1999 but the it was rejected as premature on 01-07-2000 on the ground that I.A.No.1828 of 1998 was still pending before the Court below and it is better to await the outcome of the said application since the authority of the counsel to make the said endorsement on 29-04-1992 and getting the suit dismissed, would be decided in the said I.A.

37. In my considered opinion, in the absence of proof of existence of the alleged written compromise memo signed by the 1st petitioner and the GPA Holder of petitioners 2 and 3 (stating that the matter is settled out of Court and praying the Court to dismiss the suit), as alleged by the 6th respondent, it has to be presumed that the counsel Sri S.Bhooma Goud had not been authorized by the petitioners to withdraw the suit. So the counsel Sri S.Bhooma Goud misrepresented to the Court that there was a compromise out of court, got the suit dismissed and played fraud on petitioners by misleading them that the suit was still pending.

38. The petitioners examined P.W.1, their GPA holder and through him marked the certified copies of the plaint in O.S.No.581 of 1994 (Ex.A-5), the written statement therein (Ex.A-6) and the judgment therein (Ex.A-7). He categorically stated that he advised 1st petitioner to appoint Sri Bal Reddy, Advocate and through him got verified the suit records and discovered the fraud played by the Counsel S.Bhooma Goud on the petitioners by not only withdrawing the suit without instructions but also not informing about it to the petitioners and later appearing for 6th respondent in O.S.581/1994. Ex.A5-7 prove that Sri S.Bhooma Goud had filed O.S.No.581 of 1994 on the file of the I Additional Subordinate Judge, Ranga Reddy District on behalf of 6th respondent against 1st respondent and his wife in respect of an extent of Ac.70.00 gts. in Sy. No.1007 of Kukatpally village (which forms part of the property which is the subject matter of O.S.No.198 of 1986).

39. Admittedly the petitioners' and 6th respondent's interests were in conflict in O.S.No.198 of 1986 and therefore Sri S.Bhooma Goud could not have appeared for 6th respondent in O.S.No.581 of 1994 having filed vakalat for petitioners in O.S.No.198/1986. Prima facie this amounts to improper conduct raising strong suspicion that the said counsel colluded with the 6th respondent even in O.S.No.198 of 1986 and made the endorsement therein leading to the dismissal of the said suit on 29-04-1992 to benefit 5th and 6th respondents.

40. In Chandra Shekhar Soni Vs. Bar Council of Rajasthan and Others10, the Supreme Court held: ".2...........It is unprofessional to represent conflicting interests except by express consent given by all concerned after a full disclosure of the facts. ......Counsel's paramount duty is to the client and where he finds that there is conflict of interests, he should refrain from doing anything which would harm any interest of his client.".

41. A Division Bench of this Court in the Public Prosecutor Vs. Venkata Reddy11, observed: ".Even apart from any contractual obligation, the Court will, in the exercise of their powers to maintain the highest traditions of the Bar and the profession, preclude advocates from appearing for the opposite party if that is likely to embarrass the advocate or raise a suspicion in the mind of the client with respect to the conduct of his erstwhile advocate or that it is not gentlemanly conduct or that it is improper to do so, or the circumstances are such from which an inference of imparting of confidential nature of information can he raised. ............ ......In Mary Lilian Hira Devi v. Digbijai Singh, AIR1917PC80 Sir John Edge observed at page 84 thus : ".Before concluding, their Lordships must express their complete assent to the observations of the learned Judges of the High Court on the impropriety of a legal practitioner who has acted for one party in a dispute, such as there was in this case, acting for the other party in subsequent litigation between them relating to or arising out of that dispute. Such conduct is, to say the least of it, open to misconception and is likely to raise suspicion in the mind of the original client and to embitter the subsequent litigation. As the learned Judges of the High Court have said in this case. ".This is a matter which concerns the honour of the profession'.". In a case where a person appeared for the defendant to have an ex parte decree set aside and later appeared for the opposite party namely for the plaintiff in that suit in a title suit filed by the defendant in that suit, a special Bench of the Patna High Court consisting of Courtney-Terrell, C. J.

Mohammad Noor and Varma, JJ.

in S. P. A. Pleader, In The Matter of, MANU/BH/0168/1934 observed that the pleader had taken instructions from the defendant and received his confidence in the matter of the genuineness of the Small Causes Court suit and notwithstanding that confidence he accepted the instructions of the other side, which conduct was improper. ".Proper professional conduct is not a mere matter of compliance with technical rules. It is one of which every one who aspires to be called a gentleman should have an instinctive appreciation.". In Tajen-dra Chandra v. Tajendra Lal, AIR1939Rang. 183, (SB); a Special Bench of Rangoon High Court consisting of Roberts, C. J.

Mya Bu and Mosely, JJ.

after considering the several authorities including the observations of the Privy Council in AIR1917PC80 observed that it is clear that an advocate or pleader who has appeared on behalf of one party in a suit ought not to allow himself to be placed in the position in which there might become suspicion, whether well or ill founded, that his knowledge of his client's case would be used by him on a subsequent occasion in appearing for another party and against his original client.....". (emphasis supplied) 42. This decision was also followed by another Division Bench of this Court In the matter of Sri A.Gurubasappa, Advocate, Rayadurg12.

43. In view of the above decisions it is clear that Sri S.Bhooma Goud ought not to have appeared for 6th respondent in O.S.No.581 of 1994 having appeared against 6th respondent and for petitioners in O.S.No.198 of 1986. He conducted himself highly improperly and unprofessionally.

44. Therefore the contention of the respondent no.6 that the petitioners did not examine themselves personally as witnesses in the I.A and they only examined their GPA (who had been appointed on 29.7.1997) and the said GPA cannot speak about the events prior to his appointment, has no legs to stand. I do not therefore consider it necessary to deal with the decisions in S.Kesari Hanuman Goud (4 supra) and Janki Vashdeo Bhojwani (5 supra) cited by counsel for respondent no.6.

45. In N. Balakrishnan v. M. Krishnamurthy13, an application to set aside an ex parte decree dt.28-10-1991 filed by the defendant was dismissed for default on 17-02-1993. Another application filed by him on 19-08-1995 to set it aside along with application for condonation of delay was accepted by the trial Court but it was set aside in Revision by the High Court. This was challenged in the Supreme Court by the defendant. He contended that he had engaged an advocate to file application to set aside the ex parte decree but the said advocate did not inform him about its dismissal for non-prosecution on 17-02-1993 and when he got summons from the Execution side on 05-07-1995, he again approached the advocate; the advocate told him that since there was no stay against Execution proceedings, the decree holder had filed the E.P.; that on the advise of the counsel he signed some papers including vakalatnama for resisting the execution proceedings and also paid him some fee but the said advocate did not do anything; on 04-08-1995, when he received warrant of execution from the Court, he checked up and came to know about the dismissal of the application to set aside the ex parte decree for non-prosecution on 17-02-1993 and that his advocate did not do anything and later left the profession for a job. The Supreme Court held that the conduct of the defendant/appellant before it was not such as to castigate him as an irresponsible litigant and what he did in defending the suit was not very much far from what a litigant would broadly do. It observed that although he could have been more vigilant by visiting his advocate at short intervals to check up the progress of litigation, he cannot be treated as an irresponsible litigant since today everybody is fully occupied with his own avocation in life and omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities and to visit him with drastic consequences. It observed: ".11.Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words ".sufficient cause". under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari1 and State of W.B. v. Administrator, Howrah Municipality2.

13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss.".

46. In my opinion, this decision applies on all fours to this case. The 1st petitioner was an elderly lady and the other two petitioners, who were her daughters, were living abroad. The petitioners had engaged Sri S.Bhooma Goud, counsel along with Sri S.M.P.Mathur to represent them in the suit O.S.No.198 of 1986. But in the absence of the petitioners from India, Sri S.Bhooma Goud, their counsel, in collusion with 6th respondent and without any written instructions from the petitioners, misrepresented to the Court that the matter was settled out of Court and got the suit dismissed by making an endorsement. The facts on record show that he did not inform the petitioners about the dismissal of the suit and instead misled them into believing that the suit was still pending. Not only that, he also filed a suit O.S.No.581 of 1994 on behalf of the 6th respondent against the 1st respondent in respect of property which is part of the plaint schedule in O.S.No.198 of 1986, having appeared for the petitioners and against the 6th respondent in O.S.No.198 of 1986. The fraud played by the counsel on the petitioners and his obvious collusion with the 6th respondent clearly provide ".sufficient cause". for condonation of delay in filing application to set aside the order dt.29-04-1992 in O.S.No.198 of 1986.

47. In my opinion, the Court below acted perversely in overlooking the above circumstances. It erred in holding that the petitioners did not explain why they kept quiet till 1998 without verifying the progress in the suit. It also erroneously held that they were blaming Sri S.Bhooma Goud without explaining why they did not contact Sri S.M.P.Mathur. Admittedly, Sri S.M.P.Mathur was a Senior Advocate according to the 6th respondent and Sri S.Bhooma Goud was his junior. A Senior Advocate would not directly deal with the clients and would only deal with the Junior on record Sri S.Bhooma Goud. In any event the facts on record conclusively show the collusion of Sri S.Bhooma Goud with 6th respondent and the fraud played by him on the petitioners to benefit the respondents 5 and 6. The court below also erred in holding that the application filed by the petitioners on 29-10-1998 to set aside the suit which was dismissed on 29-04-1992 is hopelessly barred by time. Once fraud played by the counsel on the petitioners is established and his collusion with the 6th respondent is apparent, period of limitation, if any, can only be counted from the date of discovery of fraud. Section 17 of the Limitation Act, 1963 specifically provides that where any person having a right to make an application has, by means of fraud, been kept from the knowledge of such right on which it is founded, the time limited for making such application against the person guilty of fraud or accessory thereto shall be computed from the time when the fraud first became known to the person injuriously affected thereby. In this view of the matter, I am fully satisfied that the petitioners are entitled to calculate the period of limitation from the date of knowledge of the fraud.

48. In Badami v. Bhali14, the Supreme Court summed up the law relating to fraud and collusion in obtaining court orders in the following manner: ".29. Presently, we shall refer as to how this Court has dealt with concept of fraud. In S.B. Noronah v. Prem Kumari Khanna (1980(1) SCC52) while dealing with the concept of estoppel and fraud a two-Judge Bench has stated that: (SCC p. 58, para 20) ".20. It is an old maxim that estoppels are odious, although considerable inroad into this maxim has been made by modern law. Even so, 'a judgment obtained by fraud or collusion, even, it seems, a judgment of the House of Lords, may be treated as a nullity'. (See Halsbury's Laws of England, Vol. 16, 4th Edn., para 1553.) The point is that the sanction granted under Section 21, if it has been procured by fraud or collusion, cannot withstand invalidity because, otherwise, high public policy will be given as hostage to successful collusion.".

30. In S.P. Chengalvaraya Naidu v. Jagannath (1994 (1) SCC1this Court commenced the verdict with the following words: (SCC p. 2, para 1) ".1. 'Fraud avoids all judicial acts, ecclesiastical or temporal' observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eye of the law. Such a judgment/decree-by the first court or by the highest court-has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.". In the said case it was clearly stated that the courts of law are meant for imparting justice between the parties and one who comes to the court, must come with clean hands.

31. A person whose case is based on falsehood has no right to approach the court. A litigant who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If a vital document is withheld in order to gain advantage on the other side he would be guilty of playing fraud on court as well as on the opposite party.

32. In Shrisht Dhawan v. Shaw Bros.(1992 1 SCC534 it has been opined that the fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It has been defined as an act of trickery or deceit. The aforesaid principle has been reiterated in Roshan Deen v. Preeti Lal (2002 1 SCC100, Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education (2003 8 SCC311 and Ram Chandra Singh v. Savitri Devi (2003 8 SCC319.

33. In State of A.P. v. T. Suryachandra Rao (2005 6 SCC149 after referring to the earlier decision this Court observed as follows: (SCC p. 155, para 16) ".16. In Lazarus Estates Ltd. v. Beasley (1956 1 QB702 Lord Denning observed at QB p. 712: '... No judgment of a court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.' In the same judgment Lord Parker, L.J.

observed that fraud 'vitiates all transactions known to the law of however high a degree of solemnity' (Lazarus case, QB p. 722).".

34. Yet in another decision Hamza Haji v. State of Kerala (2006 7 SCC416 it has been held that no court will allow itself to be used as an instrument of fraud and no court, by way of rule of evidence and procedure, can allow its eyes to be closed to the fact it is being used as an instrument of fraud. The basic principle is that a party who secures the judgment by taking recourse to fraud should not be enabled to enjoy the fruits thereof.

35. It would not be an exaggeration, but on the contrary an understatement, if it is said that all the facets of fraud get attracted to the case at hand. A rustic and illiterate woman is taken to court by a relation on the plea of creation of a lease deed and magically in a hurried manner the plaint is presented, written statement is drafted and filed, statement is recorded and a decree is passed within three days. On a perusal of the decree it is manifest that there is no reference of any kind of family arrangement and there is total non-application of mind. It only mentions there is consent in the written statement and hence, suit has to be decreed. Be it noted, it was a suit for permanent injunction. There was an allegation that the respondent was interfering with the possession of the plaintiff. What could have transpired that the defendant would go with the plaintiff and accede to all the reliefs. It not only gives rise to a doubt but on a first look one can feel that there is some kind of foul play. However, the learned trial Judge who decreed the first suit on 27-11-1973 did not look at these aspects.".(emphasis supplied) 49. Applying the above decision, I have no hesitation to hold that the petitioners had made out sufficient cause to set aside the order dt.29.4.1992 in O.S.No.198/1986 and the Court below acted perversely in dismissing I.A.No.1405/2000. Therefore, the impugned order is set aside and the C.R.P. is allowed with costs of Rs.5,000/- payable by respondent No.6 to petitioners.

50. As a sequel, the miscellaneous petitions, if any pending, shall stand closed. __________________________________ JUSTICE M.S.RAMACHANDRA RAO Date:

23. 01-2014