P. Vijaya Laxmi Vs. Joint Collector and ors. - Court Judgment

Excerpt:
- all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default.ordern.v. ramana, j.1. by this application filed under section 151 of the code of civil procedure, 1908 (for short 'cpc') the petitioner prays to recall the order dated 17.10.2008 passed by this court in c.r.p. m.p. no. 5532 of 2008 in c.r.p. (sr) no. 20935 of 2008.2. the learned counsel for the petitioner submits that respondent nos. 9 and 12 who are co-purchasers of the land in dispute have tampered with the revenue records and played fraud upon the authority in obtaining orders, and since they have obtained the orders by playing fraud upon the authorities, having regard to the judgments of the apex court in s.p. chengalvaraya naidu v. jagannath : (1994) 1 scc 1 : 1994 (1) alt 1 (dn sc) and united india insurance co ltd. v. rajendra singh : air 2000 sc 1165 : 2000 (4) alt 14.2 (dnsc), the orders of the joint collector, ranga reddy district, which the petitioner has assailed in the revision are liable to be set aside. hence, he prayed that the order dated 17.10.2008 passed by this court, refusing to grant leave to prefer revision against the orders assailed therein, be recalled and the c.r.p. be heard on merits.3. having heard the learned counsel for the petitioner and having regard to the facts and circumstances of the case, the following question arises for consideration:whether the court in exercise of its inherent powers under section 151 of the code of civil procedure, 1908 can recall its own order based on an application filed by the petitioner seeking to recall the order under the premise that the proceedings under challenge was obtained by the opposite party in a fraudulent manner?4. though the present application seeks to recall the order passed by this court earlier, but in fact, seeks review of the said order. an application filed under section 151 cpc cannot be treated or equated with that of an application filed for review under order 47 rule 1 cpc. the remedy of review of orders passed by the courts, is provided to a party under order 47 rule 1 cpc. the party, who does not resort to that remedy, cannot invoke inherent powers of the court to recall and review its own order. the question of exercising power to recall by necessary implication in order to prevent abuse of process of court, would arise only when the opposite party had obtained an order by playing fraud upon the court, but an application under section 151 cpc, seeking to recall an order, based on fraud alleged to have been committed by the other party on him, certainly cannot be a ground to recall the order.5. a similar and identical question, as is involved in the present case, came up for consideration before the apex court on more than one occasion. in indian bank v. satyam fibres (india) (p) ltd. : (1996) 5 scc 550 : 1997 (4) alt 14 (d.n.), the apex court having considered the said question held that the court has power to decide the question relating to fraud by recording evidence in appropriate cases, and it can recall its order. that in cases of fraud on a party to the suit or proceedings, the court may direct the affected party to file a separate suit or proceedings, direct the affected party to file a separate suit for setting aside the decree obtained by fraud. on the question of exercising power under section 151 cpc or under article 226 of the constitution of india, the apex court held that the power of recall is necessary for orderly administration of the court's business. since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of the court, the courts have been held to have inherent power to set aside an order obtained by fraud practised upon that court.6. relying on the above judgment and also its earlier judgment in a.r. anthulay v. r.s. naik : (1988) 2 scc 602, the apex court in budhia swain and ors. v. gopinath deb and ors. : (1999) 4 scc 396, held that when the court is misled by a party or when the court itself commits a mistake, which prejudices a party, the courts have inherent power to recall and set aside the order that is obtained by fraud practised upon the court. the apex court further held that the court may recall the order earlier made by it, if (i) the proceedings culminating in the order suffer from inherent lack of jurisdiction which is patent; (ii) fraud or collusion have been used to obtain the judgment; (iii) there has been a mistake by the court prejudicing a party; or (iv) a judgment has been rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented. the apex court further held that the power to recall the judgment will not be exercised when the ground for re-opening the proceedings or vacating the judgment was available to be pleaded in the original action or where a proper remedy in some other proceedings such as appeal was available, but not availed of, then in such a case, the power to recall the judgment will not be exercised. that a party, who has not intended to participate in the proceedings till it attains finality, has no right to question the said order at a subsequent stage on the ground that he was not a party to such proceedings. that distinction is required to be drawn between lack of jurisdiction and mere error in exercise of jurisdiction. the lack of jurisdiction leads to an irresistible conclusion that it goes to the very root of the matter as the court has no jurisdiction to entertain such matter, and the order passed by such court, is a nullity, and in such cases, the court can exercise inherent power under section 151 cpc. however, mere error in the exercise of jurisdiction does not vitiate the legality and validity of the proceedings and the order passed therein unless the order is set aside by a challenge in prescribed manner, and in such cases, the question of exercising the inherent jurisdiction under section 151 cpc does not arise.7. a division bench of this court in anita v. r. rambilas 2002 (5) alt 604 : 2002 (5) ald 502 (d.b) similar question in the light of various judgments of the apex court and other high courts held as follows:by reading the judgments of the apex court, we have no hesitation in holding that the review/recall petition would not lie. if the evidence on record discloses that one party has played fraud on the other party, in such event the only remedy left over to the party against whom the fraud is played to file a separate suit for setting aside the decree obtained by fraud. but if it is proved that one of the party has played fraud on the court, then only the review petition is maintainable under section 151 c.p.c.8. thus from the proposition of law, as laid down by the apex court and the judgment of a division bench of this court, referred to supra, it is clear that there is clear distinction between fraud practised upon the court and fraud committed by a party on the other party to the suit or proceedings. in view of the clear distinction, and having regard to the fact that it is the specific case of the petitioner that respondent nos. 9 and 12 had played fraud upon him before the authority, i am of the considered opinion that the question of exercising power under section 151 cpc to recall the order, based on the allegation made by the petitioner that respondent nos. 9 and 12 had obtained order by committing fraud upon him, does not arise, and reliance placed by the petitioner on the judgments of the apex court in s.p. chengalvaraya naidu v. jagannath and united india insurance co. ltd. v. rajendra singh, would not be of any assistance to the petitioner, inasmuch as the said decisions dealt with the question of fraud practiced upon the court and not against a party.9. hence, the present application is not maintainable, and the same is accordingly dismissed.

Judgment:
ORDER

N.V. Ramana, J.

1. By this application filed under Section 151 of the Code of Civil Procedure, 1908 (for short 'CPC') the petitioner prays to recall the order dated 17.10.2008 passed by this Court in C.R.P. M.P. No. 5532 of 2008 in C.R.P. (SR) No. 20935 of 2008.

2. The learned Counsel for the petitioner submits that respondent Nos. 9 and 12 who are co-purchasers of the land in dispute have tampered with the revenue records and played fraud upon the authority in obtaining orders, and since they have obtained the orders by playing fraud upon the authorities, having regard to the judgments of the apex Court in S.P. Chengalvaraya Naidu v. Jagannath : (1994) 1 SCC 1 : 1994 (1) ALT 1 (DN SC) and United India Insurance Co Ltd. v. Rajendra Singh : AIR 2000 SC 1165 : 2000 (4) ALT 14.2 (DNSC), the orders of the Joint Collector, Ranga Reddy District, which the petitioner has assailed in the revision are liable to be set aside. Hence, he prayed that the order dated 17.10.2008 passed by this Court, refusing to grant leave to prefer revision against the orders assailed therein, be recalled and the C.R.P. be heard on merits.

3. Having heard the learned Counsel for the petitioner and having regard to the facts and circumstances of the case, the following question arises for consideration:

Whether the Court in exercise of its inherent powers under Section 151 of the Code of Civil Procedure, 1908 can recall its own order based on an application filed by the petitioner seeking to recall the order under the premise that the proceedings under challenge was obtained by the opposite party in a fraudulent manner?

4. Though the present application seeks to recall the order passed by this Court earlier, but in fact, seeks review of the said order. An application filed under Section 151 CPC cannot be treated or equated with that of an application filed for review under Order 47 Rule 1 CPC. The remedy of review of orders passed by the Courts, is provided to a party under Order 47 Rule 1 CPC. The party, who does not resort to that remedy, cannot invoke inherent powers of the Court to recall and review its own order. The question of exercising power to recall by necessary implication in order to prevent abuse of process of Court, would arise only when the opposite party had obtained an order by playing fraud upon the Court, but an application under Section 151 CPC, seeking to recall an order, based on fraud alleged to have been committed by the other party on him, certainly cannot be a ground to recall the order.

5. A similar and identical question, as is involved in the present case, came up for consideration before the apex Court on more than one occasion. In Indian Bank v. Satyam Fibres (India) (P) Ltd. : (1996) 5 SCC 550 : 1997 (4) ALT 14 (D.N.), the apex Court having considered the said question held that the Court has power to decide the question relating to fraud by recording evidence in appropriate cases, and it can recall its order. That in cases of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit or proceedings, direct the affected party to file a separate suit for setting aside the decree obtained by fraud. On the question of exercising power under Section 151 CPC or under Article 226 of the Constitution of India, the apex Court held that the power of recall is necessary for orderly administration of the Court's business. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of the Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practised upon that Court.

6. Relying on the above judgment and also its earlier judgment in A.R. Anthulay v. R.S. Naik : (1988) 2 SCC 602, the apex Court in Budhia Swain and Ors. v. Gopinath Deb and Ors. : (1999) 4 SCC 396, held that when the Court is misled by a party or when the Court itself commits a mistake, which prejudices a party, the Courts have inherent power to recall and set aside the order that is obtained by fraud practised upon the Court. The apex Court further held that the Court may recall the order earlier made by it, if (i) the proceedings culminating in the order suffer from inherent lack of jurisdiction which is patent; (ii) fraud or collusion have been used to obtain the judgment; (iii) there has been a mistake by the court prejudicing a party; or (iv) a judgment has been rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented. The apex Court further held that the power to recall the judgment will not be exercised when the ground for re-opening the proceedings or vacating the judgment was available to be pleaded in the original action or where a proper remedy in some other proceedings such as appeal was available, but not availed of, then in such a case, the power to recall the judgment will not be exercised. That a party, who has not intended to participate in the proceedings till it attains finality, has no right to question the said order at a subsequent stage on the ground that he was not a party to such proceedings. That distinction is required to be drawn between lack of jurisdiction and mere error in exercise of jurisdiction. The lack of jurisdiction leads to an irresistible conclusion that it goes to the very root of the matter as the Court has no jurisdiction to entertain such matter, and the order passed by such Court, is a nullity, and in such cases, the Court can exercise inherent power under Section 151 CPC. However, mere error in the exercise of jurisdiction does not vitiate the legality and validity of the proceedings and the order passed therein unless the order is set aside by a challenge in prescribed manner, and in such cases, the question of exercising the inherent jurisdiction under Section 151 CPC does not arise.

7. A Division Bench of this Court in Anita v. R. Rambilas 2002 (5) ALT 604 : 2002 (5) ALD 502 (D.B) similar question in the light of various judgments of the apex Court and other High Courts held as follows:

By reading the judgments of the apex Court, we have no hesitation in holding that the review/recall petition would not lie. If the evidence on record discloses that one party has played fraud on the other party, in such event the only remedy left over to the party against whom the fraud is played to file a separate suit for setting aside the decree obtained by fraud. But if it is proved that one of the party has played fraud on the Court, then only the review petition is maintainable under Section 151 C.P.C.

8. Thus from the proposition of law, as laid down by the apex Court and the judgment of a Division Bench of this Court, referred to supra, it is clear that there is clear distinction between fraud practised upon the Court and fraud committed by a party on the other party to the suit or proceedings. In view of the clear distinction, and having regard to the fact that it is the specific case of the petitioner that respondent Nos. 9 and 12 had played fraud upon him before the authority, I am of the considered opinion that the question of exercising power under Section 151 CPC to recall the order, based on the allegation made by the petitioner that respondent Nos. 9 and 12 had obtained order by committing fraud upon him, does not arise, and reliance placed by the petitioner on the judgments of the apex Court in S.P. Chengalvaraya Naidu v. Jagannath and United India Insurance Co. Ltd. v. Rajendra Singh, would not be of any assistance to the petitioner, inasmuch as the said decisions dealt with the question of fraud practiced upon the Court and not against a party.

9. Hence, the present application is not maintainable, and the same is accordingly dismissed.