Poppat Jamal and Sons Rep. by Its Managing Partner Mahmud Jamal Vs. N.M. Venkatachalapathy @ Babulal and - Court Judgment

SooperKanoon Citationsooperkanoon.com/836849
SubjectProperty
CourtChennai High Court
Decided OnDec-20-2006
Case NumberCRP (PD) No. 1519 of 2006 and MP. No. 1 of 2006
JudgeS. Ashok Kumar, J.
Reported in2006(5)CTC251; (2007)2MLJ379
AppellantPoppat Jamal and Sons Rep. by Its Managing Partner Mahmud Jamal
RespondentN.M. Venkatachalapathy @ Babulal and ;n.M. Krishnamoorthy
Advocates:Abudukumar Rajarathinam, Adv.
DispositionPetition allowed
Cases ReferredAshok Leyland Ltd. v. State of T.N. and State of A.P. and Anr.
Excerpt:
- land acquisition act, 1894 [c.a. no. 1/1894]. sections 5a & 4; [p. sathasivam, m.e.n. patrudu & s. manikumar, jj] land acquisition (tamil nadu) rules, rule 4 time limit for filing objections held, time limit prescribed under section 5-a for filing objections cannot be further enlarged by form b notice issued under rule 4. authorities were directed to modify form b. sections 5a (2); [ hearing of objectors - held, it is mandatory and making a further enquiry by the collector is discretionary. if the objectors have not filed any objection with8in 30 days but come forward with oral objection, even then, the collector must hear. the hearing is mandatoryorders. ashok kumar, j.1. as against the dismissal of the interlocutory application filed by the first defendant to reject the plaint, the present crp has been filed.2. inspite of private notice, the respondents/plaintiffs have not taken steps to appear either in person or through advocates. 3. the respondents are the plaintiffs in o.s. no. 2154 of 2005 on the file of the ii assistant judge, city civil court, chennai. the suit is filed for permanent injunction restraining the defendant from interfering with the possession and enjoyment of the suit property. according to the plaintiffs the alleged sale deed dated 15.2.1943 by the third parties in favour of the first defendant is not binding on the true owners as it is a sham and nominal transaction which illegal sale deed was subsequently set aside by this court in o.a. no. 553 of 1943 which was filed by the plaintiffs' predecessors in title. according to the plaintiffs, by stating all the illegalities and the high court's allowing the application by setting aside the said sale, no title passed on to the first defendant and prayed for permanent injunction against the defendant.4. the defendant filed a written statement denying all the averments in the plaint.5. in paragraph 15 of the plaint, it is stated that in the year 2002 the plaintiffs found an unregistered will dated 13.10.1948 in a old trunk box, said to have been executed by n.r. rengachary. it is based on the said will the suit is said to have been filed within time.6. learned counsel for the revision petitioner would contend that the will was first of all not propounded and cannot be marked as a document. further the plaintiffs have filed the suit based on the order of this court dated 15.4.1943, passed in o.a. no. 553 of 1943, by which the sale in favour of the first defendant was set aside. but the said order was not produced in the court and therefore, the petitioner filed i.a. no. 4859 of 2006 to direct the respondents/plaintiffs to produce copy of the order in said o.a. no. 553 of 1943 passed by this court and if not to reject the plaint as there is no cause of action arises in such a case. but the learned ii assistant judge, city civil court, by the impugned order, rejected the interlocutory application holding that the plaintiffs will produce the same at a later point of time and if the defendants are sure that there is no such order passed by the high court, they can very well apply for certified copy of the same and produce the same. aggrieved over the same, the present crp is filed.7. it is pertinent to note that the plaintiffs based their suit claim on a specific averment that this court in o.a. no. 553 of 1943 had cancelled the auction sale held on 2.2.1941. though the respondents/plaintiffs failed to produce the order before the learned ii additional judge, city civil court, chennai, the revision petitioner/first defendant has produced the order dated 15.4.1943 passed in application no. 553 of 1943 which would show that the said application which was filed to set aside the auction sale on 2.2.1941 was dismissed. but it is based on the said order as if the application has been allowed, the suit has been filed.8. learned counsel for the revision petitioner also produced copy of the sale deed dated 15.2.1943 which has been registered on 20.2.1943 as document no. 296 of 1943 in the office of the sub-registrar, sembium following the auction sale on 2.2.1941 whereunder the first defendant purchased the suit property in an auction sale consideration of rs. 14,000/- and paid an advance of rs. 3500 on 2.2.1941 and on 1.4.1941 paid the balance of rs. 10,500/- and after vacating the occupiers of the property by obtaining a decree in o.s. no. 455 of 1942 from the chingleput district munsif's court, the first defendant was put in possession.9. moreover, the contention of the learned counsel for the respondents/plaintiffs is that they found the unregistered will in the year 2002 from an old trunk box is so mentioned only to file the suit which is hopelessly barred by limitation.10. the above facts would only go to show that the respondents by playing fraud and misrepresentation have filed the suit. the plaintiffs have not approached the court with clean hands and are guilty of fraud, suppression of facts and misrepresentation and as such they are not entitled for any relief. fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false. fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. although negligence is not fraud but it can be evidence on fraud. a 'fraud' is an act of deliberate deception with the design of securing something by taking unfair advantage of another. it is a deception in order to gain by another's loss. it is a cheating intended to get an advantage as has been held by the apex court in s.p. chengalvaraya naidu v. jagannath reported in . this aspect of the matter has also been considered by the hon'ble supreme court in its decisions in roshan deen v. preeti lal ; ram preeti yadav v. u.p. board of high school and intermediate education ; ashok leyland ltd. v. state of t.n. and state of a.p. and anr. v. t. suryachandra rao . in view of the settled legal position of law, the case of the plaintiffs has to be thrown out at the threshold and in this case, it is the duty of the court to reject the plaint.11. in the result, the crp is allowed setting aside the order passed in i.a. no. 4859 of 2006 on the file of the learned ii assistant judge, city civil court, chennai and consequently rejecting the plaint in o.s. no. 2154 of 2005.12. in view of the order passed in the main crp, no order need be passed in the miscellaneous petition. no costs.
Judgment:
ORDER

S. Ashok Kumar, J.

1. As against the dismissal of the Interlocutory Application filed by the first defendant to reject the Plaint, the present CRP has been filed.

2. Inspite of private notice, the respondents/plaintiffs have not taken steps to appear either in person or through advocates.

3. The respondents are the plaintiffs in O.S. No. 2154 of 2005 on the file of the II Assistant Judge, City Civil Court, Chennai. The suit is filed for permanent injunction restraining the defendant from interfering with the possession and enjoyment of the suit property. According to the plaintiffs the alleged sale deed dated 15.2.1943 by the third parties in favour of the first defendant is not binding on the true owners as it is a sham and nominal transaction which illegal sale deed was subsequently set aside by this Court in O.A. No. 553 of 1943 which was filed by the plaintiffs' predecessors in title. According to the plaintiffs, by stating all the illegalities and the High Court's allowing the application by setting aside the said sale, no title passed on to the first defendant and prayed for permanent injunction against the defendant.

4. The defendant filed a written statement denying all the averments in the Plaint.

5. In Paragraph 15 of the Plaint, it is stated that in the year 2002 the plaintiffs found an unregistered Will dated 13.10.1948 in a old trunk box, said to have been executed by N.R. Rengachary. It is based on the said Will the suit is said to have been filed within time.

6. Learned Counsel for the revision petitioner would contend that the Will was first of all not propounded and cannot be marked as a document. Further the plaintiffs have filed the suit based on the order of this Court dated 15.4.1943, passed in O.A. No. 553 of 1943, by which the sale in favour of the first defendant was set aside. But the said order was not produced in the court and therefore, the petitioner filed I.A. No. 4859 of 2006 to direct the respondents/plaintiffs to produce copy of the order in said O.A. No. 553 of 1943 passed by this Court and if not to reject the plaint as there is no cause of action arises in such a case. But the learned II Assistant Judge, City Civil Court, by the impugned order, rejected the Interlocutory Application holding that the plaintiffs will produce the same at a later point of time and if the defendants are sure that there is no such order passed by the High Court, they can very well apply for certified copy of the same and produce the same. Aggrieved over the same, the present CRP is filed.

7. It is pertinent to note that the plaintiffs based their suit claim on a specific averment that this Court in O.A. No. 553 of 1943 had cancelled the auction sale held on 2.2.1941. Though the respondents/plaintiffs failed to produce the order before the learned II Additional Judge, City Civil Court, Chennai, the revision petitioner/first defendant has produced the order dated 15.4.1943 passed in Application No. 553 of 1943 which would show that the said application which was filed to set aside the auction sale on 2.2.1941 was dismissed. But it is based on the said order as if the application has been allowed, the suit has been filed.

8. Learned Counsel for the revision petitioner also produced copy of the sale deed dated 15.2.1943 which has been registered on 20.2.1943 as Document No. 296 of 1943 in the office of the Sub-Registrar, Sembium following the auction sale on 2.2.1941 whereunder the first defendant purchased the suit property in an auction sale consideration of Rs. 14,000/- and paid an advance of Rs. 3500 on 2.2.1941 and on 1.4.1941 paid the balance of Rs. 10,500/- and after vacating the occupiers of the property by obtaining a decree in O.S. No. 455 of 1942 from the Chingleput District Munsif's Court, the first defendant was put in possession.

9. Moreover, the contention of the learned Counsel for the respondents/plaintiffs is that they found the unregistered Will in the year 2002 from an old trunk box is so mentioned only to file the suit which is hopelessly barred by limitation.

10. The above facts would only go to show that the respondents by playing fraud and misrepresentation have filed the suit. The plaintiffs have not approached the court with clean hands and are guilty of fraud, suppression of facts and misrepresentation and as such they are not entitled for any relief. Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. Although negligence is not fraud but it can be evidence on fraud. A 'fraud' is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage as has been held by the Apex Court in S.P. Chengalvaraya Naidu v. Jagannath reported in . This aspect of the matter has also been considered by the Hon'ble Supreme Court in its decisions in Roshan Deen v. Preeti Lal ; Ram Preeti Yadav v. U.P. Board of High School and intermediate Education ; Ashok Leyland Ltd. v. State of T.N. and State of A.P. and Anr. v. T. Suryachandra Rao . In view of the settled legal position of law, the case of the plaintiffs has to be thrown out at the threshold and in this case, it is the duty of the court to reject the Plaint.

11. In the result, the CRP is allowed setting aside the order passed in I.A. No. 4859 of 2006 on the file of the learned II Assistant Judge, City Civil Court, Chennai and consequently rejecting the Plaint in O.S. No. 2154 of 2005.

12. In view of the order passed in the main CRP, no order need be passed in the Miscellaneous Petition. No costs.