judgements

5/25/2018 Judgements

1/35

READ HIGHLIGHTED POINT-11 REGARDING VIEW OF COURTS FOR MIS-

REPRESENTATION OF FACTS AND FRAUDS

THIS JUSDMENT REFERING TO THE VARIOUS JUDGEMENTS ( JAPANI SAHOO VSCHANDRASHEKHAR MOHANTY CASE) AND OTHERS AND DEFINING THE

LIMITATION PERIOD

VERY USEFUL JUDGEMENT FOR THOSE WHO ARE FACING DOMESTIC VIOLENCECASE FILED AFTER A LONG PERIOD OF TIME..EVERY LINE OF THIS JUDGEMENT IS

WORTH READING

DV LIMITATION

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1635 of 2011

(Arising out of SLP(Crl.) No. 7787 of 2010)

Inderjit Singh Grewal Appellant

Versus

State of Punjab & Anr. Respondents

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. Leave granted.

2. The instant appeal reveals a very sorry state of affair where the wife files a criminal complaintbefore the competent court to initiate criminal proceedings against her husband alleging that they

had obtained decree of divorce by playing fraud upon the court without realising that in such a

fact-situation she herself would be an accomplice in the crime and equally responsible for the

offence. More so, the appeal raises a substantial question of law as to whether the judgment anddecree of a competent Civil Court can be declared null and void in collateral proceedings, that

too, criminal proceedings.

3. This criminal appeal arises from the judgment and final order dated 9.8.2010 in Criminal

Misc. No. M-29339 of 2009 (O&M) passed by the High Court of Punjab & Haryana atChandigarh, by which the High Court has dismissed the application filed by the appellant under

Section 482 of Code of Criminal Procedure, 1973 (hereinafter called as `Cr.P.C.) for quashingthe complaint No. 87/02/09 dated 12.6.2009 filed by respondent no. 2 under Section 12 of the

Protection of Women from Domestic Violence Act, 2005 (hereinafter called the `Act 2005 ).

4. Facts and circumstances giving rise to present case are as under: A. That the appellant and

respondent no. 2 got married on 23.9.1998 at Jalandhar as per Sikh rites and from the said


2/35

wedlock a son, namely, Gurarjit Singh was born on 5.10.1999. The parties to the marriage could

not pull on well together because of temperamental differences and decided to get divorce and,therefore, filed HMA Case No. 168 of 19.9.2007 before the District Judge, Ludhiana under 2

Section 13-B of Hindu Marriage Act, 1955 (hereinafter called the `Act 1955) for dissolution of

marriage by mutual consent. In the said case, statements of appellant and respondent no. 2 were

recorded on 19.9.2007 and proceedings were adjourned for a period of more than six months toenable them to ponder over the issue. B. The parties again appeared before the court on

20.3.2008 on second motion and their statements were recorded and both of them affirmed that it

was not possible for them to live together and, therefore, the learned District Judge, Ludhianavide judgment and order dated 20.3.2008 allowed the said petition and dissolved their marriage.

C. Respondent no. 2 filed a complaint before Senior Superintendent of Police, Ludhiana against

the appellant on 4.5.2009 under the provisions of the Act 2005 alleging that the decree of divorceobtained by them was a sham transaction. Even after getting divorce, both of them had been

living together as husband and wife. She was forced to leave the matrimonial home. Thus, she

prayed for justice. The said complaint was sent to SP, City-I, Ludhiana for conducting inquiry.The said SP, City-I conducted the full-fledged inquiry and submitted the report on 4.5.2009 to

the effect that the parties had been living 3separately after divorce and, no case was made out against the present appellant. However, he

suggested to seek legal opinion in the matter. D. Accordingly, legal opinion dated 2.6.2009 wassought, wherein it was opined that the parties had obtained the divorce decree by mutual consent

and the allegations made by respondent no. 2 against the appellant were false and baseless and

the purpose of filing the complaint was only to harass the appellant.E. Respondent no. 2 subsequently filed a complaint under the Act 2005 on 12.6.2009. The

learned Magistrate issued the summons to the appellant on the same date. The Magistrate vide

order dated 3.10.2009 summoned the minor child for counseling. The appellant, being aggrievedof the order of Ld. Magistrate dated 12.6.2009, filed application dated 13.10.2009 under Section

482 Cr.P.C. for quashing the complaint dated 12.6.2009.

F. In the meanwhile, respondent no. 2 filed Civil Suit on 17.7.2009 in the court of Civil Judge(Senior Division), Ludhiana, seeking declaration that the judgment and decree dated 20.3.2008,

i.e. decree of divorce, was null and void as it had been obtained by fraud. The said suit is stillpending.

G. Respondent no. 2 also filed application dated 17.12.2009 under Guardians and Wards Act,

1890 for grant of custody and guardianship of the minor child Gurarjit Singh and the same is

pending for consideration before the Additional Civil Judge (Senior Division), Ludhiana.H. Respondent no. 2 on 11.2.2010 also lodged an FIR under Sections 406, 498-A, 376, 120-B of

the Indian Penal Code, 1860 (hereinafter called `IPC) against the appellant and his mother and

sister.I. The High Court vide impugned judgment and order dated 9.8.2010 dismissed the application

filed by the appellant. Hence, this appeal.

5. Shri Ranjit Kumar, learned senior counsel appearing for the appellant has submitted that the

High Court erred in rejecting the application of the appellant under Section 482 Cr.P.C., as none

of the reliefs claimed by the respondent no.2 could be entertained by the criminal court whiledealing with the complaint; the complaint itself is time barred, thus, the Magistrate Court could

not take cognizance thereof. The complaint has been filed because of malice in order to extractmoney from the appellant. More so, the plea of fraud alleged 5


3/35

by the respondent no.2 in the complaint for obtaining the decree of divorce before the Civil

Court as per her own version, succinctly reveals that she herself had been a party to this fraud.The High Court failed to appreciate as to what extent her version could be accepted as she

herself being the accomplice in the said offence of fraud committed upon the court. Even if the

allegations made therein are true, she is equally liable for punishment under Section 107 IPC.

More so, the reliefs claimed by the respondent no. 2 in the civil suit for declaring the decree ofdivorce as null and void and in another suit for getting the custody of the child referred to

hereinabove, would meet her requirements. Thus, the appeal deserves to be allowed.

6. On the contrary, Shri Manoj Swarup, learned counsel appearing for the respondent no.2 hasvehemently opposed the appeal contending that decree of divorce is a nullity as it has been

obtained by fraud. The relationship of husband and wife between the appellant and respondent

no.2 still subsists and thus, complaint is maintainable. The court has to take the complaint on itsface value and the allegations made in the complaint require adjudication on facts. The issue of

limitation etc. can be examined by the Magistrate Court itself. The appeal lacks merit and is

liable to be dismissed. 6

7. We have considered the rival submissions made by learned counsel for the parties and perused

the record.

8. Before we proceed to determine the case on merit, it is desirable to highlight the admitted facts

of the case:

I. Appellant and respondent no.2 are highly qualified persons. Both of them are employed andeconomically independent. Appellant is an Assistant Professor and respondent no. 2 is a

Lecturer. The appellant is Ph.D and respondent no.2 has registered herself for Ph.D. They are

competent to understand the complications of law and other facts prevailing in the case.

II. Both of them got married in year 1998 and had been blessed with a son in year 1999. There

was no complaint by respondent no.2 against the appellant of any cruelty, demand of dowry etc.before getting the decree of divorce dated 20.3.2008 by mutual consent. III. The decree ofdivorce has been obtained under Section 13-B of the Act 1955. Respondent no.2 was examined

by the court on first motion on 19.9.2007 wherein she stated, inter-alia, as under: We are living

separately from each other since 23.9.2005. Now there is no chance of our livingtogether as husband and wife.

IV. Respondent no.2 was examined in the second motion by the learned District Judge, Ludhiana

on 20.3.2008, wherein she stated as under:My statement was recorded on 19.9.2007 alongwith the statement of my husband Inderjit Singh

Grewal. Six months time was given to us to ponder over the matter but we could not reconcile.

One child was born from our wedlock namely Gurarjit Singh Grewal whose custody has been

handed over by me to my husband Inderjit Singh Grewal and he shall look after the welfare ofthe said child. We have settled all our disputes regarding dowry articles and past and future

permanent alimony. Now there is nothing left out against each other. A draft of Rs.3,00,000/-

.has been received by me towards permanent alimony and maintenance and in lieu of dowryarticles left by me in the matrimonial home. We are living separately since 23.9.2005. After that

there is no co-habitation between us. There is no scope of our living together as husband and

wife. I will remain bound by the terms and conditions as enshrined in the petition. I have leftwith no claim against petitioner No.1. Our marriage may be dissolved by passing a decree of


4/35

divorce by mutual consent. V. The learned District Judge, Ludhiana granted the decree of

divorce dated 20.3.2008 observing as under:They have settled all their disputes regarding dowry articles, past and future alimony.They

are living separately from each other since 23.9.2005The petitioners have not been able to

reconcile.The petitioners have settled all their disputes regarding dowry, stridhan and past and

8future permanent alimony.The custody of the son of the petitioners is handed over to Inderjit

Singh Grewal by Amandeep Kaur. The petition is

allowed. The marriage between the petitioners is henceforth declared dissolved.VI. The complaint dated 4.5.2009 filed by respondent no. 2 before the Senior Superintendent of

Police, Ludhiana was investigated by the Superintendent of Police, City-I, Ludhiana. He

recorded statements of several neighbours and maid servant working in appellants house andsubmitted the report to the effect that as the husband and wife could not live together, they

obtained the decree of divorce by mutual consent. However, the complainant Amandeep Kaur

had alleged that she was induced by her husband to get divorce for settling in the United Statesand it was his intention to kick her out from the house. However, the husband stated that she had

been paid Rs.3,00,000/- in the court by draft and Rs.27,00,000/- in cash for which the husbandInderjit Singh Grewal had entered into an agreement to sell his ancestral property. The

complainant had not been living with the appellant after the decree of divorce and they were nothaving physical relationship with each other. It was further suggested in the report that legal

opinion may also be taken.

VII. Legal opinion dated 2.6.2009 had been to the effect that the parties had taken divorce bymutual consent due to their differences. The allegation to the extent that they had been living

together even after divorce were false and baseless and had been labelled only to harass the

appellant.

9. The instant case is required to be considered in the aforesaid factual backdrop.

So far as the complaint dated 12.6.2009 is concerned, there had been allegation of mis-behaviouragainst the appellant during the period of year 2005. Respondent no. 2 alleged that during that

period she had not been treated well by the appellant, thus, she had to take shelter in the house ofher parents; all her belongings including the dowry articles were kept by the appellant and his

parents. She has further given details how both of them have obtained decree of divorce by

mutual consent as they wanted to settle in United States and therefore, they had decided to getdivorce on paper so that the appellant may go to U.S.A. and get American citizenship by

negotiating a marriage of convenience with some U.S. citizen and divorce her and again re-marry

the complainant. She further alleged that even after decree of divorce she had been living withthe appellant till 7.2.2009 1

and continued co-habitation with him. They had visited several places together during this

period. The child had been forcibly snatched from her by the appellant. Therefore, she wasentitled to the custody of the minor child along with other reliefs.

10. The question does arise as to whether reliefs sought in the complaint can be granted by the

criminal court so long as the judgment and decree of the Civil Court dated 20.3.2008 subsists.

Respondent no.2 has prayed as under:It is therefore prayed that the respondent no.1 be directed to hand over the custody of the minor

child Gurarjit Singh Grewal forthwith. It is also prayed that the respondent no.1 be directed to


5/35

pay to her a sum of Rs.15,000/- per month by way of rent of the premises to be hired by her at

Ludhiana for her residence. It is also prayed that all the respondents be directed to restore to herall the dowry articles as detailed in Annexure A to C or in the alternative they be directed to pay

to her a sum of Rs.22,95,000/- as the price of the dowry articles. Affidavit attached.

Thus, the reliefs sought have been threefolds:

(a) Custody of the minor son; (b) right of residence; and (c) restoration of dowry articles.

11. It is a settled legal proposition that where a person gets an order/office by making

misrepresentation or playing fraud 1

upon the competent authority, such order cannot be sustained in the eyes of the law as fraudunravels everything. Equity is always known to defend the law from crafty evasions and new

subtleties invented to evade law. It is a trite that Fraud and justice never dwell together (fraus

et jus nunquam cohabitant). Fraud is an act of deliberate deception with a design to securesomething, which is otherwise not due. Fraud and deception are synonymous. Fraud is an

anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or

saved by the application of any equitable doctrine. An act of fraud on court is always viewed

seriously. (Vide: Meghmala & Ors. v. G. Narasimha Reddy & Ors., (2010) 8 SCC 383)

12. However, the question does arise as to whether it is permissible for a party to treat the

judgment and order as null and void without getting it set aside from the competent court.

The issue is no more res integra and stands settled by a catena of decisions of this Court. Forsetting aside such an order, even if void, the party has to approach the appropriate forum. (Vide:

State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) & Ors., AIR

1996 SC 906; and Tayabbhai M. 1

Bagasarwalla & Anr. v. Hind Rubber Industries Pvt. Ltd., AIR 1997 SC 1240).

13. In Sultan Sadik v. Sanjay Raj Subba & Ors., AIR 2004 SC 1377, this Court held that there

cannot be any doubt that even if an order is void or voidable, the same requires to be set aside bythe competent court.

14. In M. Meenakshi & Ors. v. Metadin Agarwal (dead) by Lrs. & Ors., (2006) 7 SCC 470, thisCourt considered the issue at length and observed that if the party feels that the order passed by

the court or a statutory authority is non-est/void, he should question the validity of the said order

before the appropriate forum resorting to the appropriate proceedings. The Court observed asunder:-

It is well settled principle of law that even a void order is required to be set aside by a

competent Court of law, inasmuch as an order may be void in respect of one person but may be

valid in respect of another. A void order is necessarily not non-est. An order cannot be declared

to be void in collateral proceedings and that too in the absence of the authorities who were theauthors thereof. (Emphasis added)

Similar view has been reiterated by this Court in Sneh Gupta v. Devi Sarup & Ors., (2009) 6SCC 194.

From the above, it is evident that even if a decree is void ab initio, declaration to that effect has

to be obtained by the person aggrieved from the competent court. More so, such a declaration

cannot be obtained in collateral proceedings.


6/35

15. Respondent no.2 herself had been a party to the fraud committed by the appellant upon the

civil court for getting the decree of divorce as alleged by her in the impugned complaint. Thus,according to her own admission she herself is an abettor to the crime. A person alleging his own

infamy cannot be heard at any forum as explained by the legal maxim allegans suam

turpetudinem non est audiendus. No one should have an advantage from his own wrong

(commondum ex injuria sua memo habere debet). No action arises from an immoral cause (exturpi cause non oritur action). Damage suffered by consent is not a cause of action (volenti non

fit injuria). The statements/allegations made by the respondent no.2 patently and latently involve

her in the alleged fraud committed upon the court. Thus, she made herself disentitled for any

equitable relief. 1

16. The offence of abetment is complete when the alleged abettor has instigated another or

engaged with another in a conspiracy to commit offence. (Vide: Faguna Kanta Nath v. The Stateof Assam, AIR 1959 SC 673; and Jamuna Singh v. State of Bihar AIR 1967 SC 553). If more

than one person combining both in intent and act, commit an offence jointly, each is guilty, as if

he has done the whole act alone. Offence has been defined under Section 40 IPC and Section 43

IPC defines illegality. Making false statement on oath before the court is an offence underSection 191 IPC and punishable under Section 193 IPC.

17. While granting the decree of divorce, the statement of respondent no.2 had been recorded in

the first as well as in the second motion as mentioned hereinabove. Period of more than 6 monthswas given to her to think over the issue. However, she made a similar statement in the second

motion as well.

18. As per the statutory requirement, the purpose of second motion after a period of six months is

that parties may make further efforts for reconciliation in order to save their marriage. There is

also obligation 1

on the part of the court under Section 23(2) of the Act 1955 to make every endeavour to bringabout a reconciliation between the parties. In Jagraj Singh v. Birpal Kaur, AIR 2007 SC 2083,this Court held that conjugal rights are not merely creature of statute but inherent in the very

institution of marriage. Hence, the approach of a court of law in matrimonial matters should be

much more constructive, affirmative and productive rather than abstract, theoretical ordoctrinaire. The court should not give up the effort of reconciliation merely on the ground that

there is no chance for reconciliation or one party or the other says that there is no possibility of

living together. Therefore, it is merely a misgiving that the courts are not concerned and

obligated to save the sanctity of the institution of marriage.

19. In Smt. Sureshta Devi v. Om Prakash, AIR 1992 SC 1304, this Court held that mere filing

the petition for divorce by mutual consent does not authorise the court to make a decree fordivorce. The interregnum waiting period from 6 to 18 months is obviously intended to give time

and opportunity to the parties to reflect on their move and seek advice from relations and friends.In this transitional period one of the parties may have a second thought and change the mind not

to proceed with the petition. The court must be satisfied about the bona 1

fides and the consent of the parties for the reason that court gets jurisdiction to make a decree fordivorce only on mutual consent at the time of enquiry. The consent must continue to decree nisi

and must be valid subsisting consent when the case is heard. Thus, withdrawal of consent can be


7/35

unilateral prior to second motion. The Court further observed:

The living separately for a period of one year should be immediately preceding thepresentation of the petition. It is necessary that immediately preceding the presentation of

petition, the parties must have been living separately. The expression living separately,

connotes to our mind not living like husband and wife. It has no reference to the place of living.

The parties may live under the same roof by force of circumstances, and yet they may not beliving as husband and wife. The. parties may be living in different houses and yet they could live

as husband and wife. What seems

to be necesssary is that they have no desire to perform marital obligations and with that mentalattitude they have been living separately for a period of one year immediately preceding the

presentation of the petition. The second requirement that they have not been able to live

together seems to indicate the concept of broken down marriage and it would not be possible toreconcile themselves. The third requirement is that they have mutually agreed that the marriage

should be dissolved. (Emphasis added)

20. For grant of divorce in such a case, the Court has to be satisfied about the existence of mutual

consent between the parties on some 1tangible materials which demonstrably disclose such consent. (Vide: Hitesh Bhatnagar v. Deepa

Bhatnagar, AIR 2011 SC 1637).

21. Respondent no.2, who did not change her stand in the second motion and obtained a shamdecree of divorce as alleged by her asked the criminal court to sit in appeal against the judgment

and decree of the competent Civil Court. The complaint was filed before the Magistrate,

Jalandhar while the decree of divorce had been granted by the District Judge, Ludhiana i.e. ofanother district. Therefore, it is beyond our imagination as under what circumstances a

subordinate criminal court can sit in appeal against the judgment and order of the superior Civil

Court, having a different territorial jurisdiction.

22. In the facts and circumstances of the case, the submission made on behalf of respondent no.2that the judgment and decree of a Civil Court granting divorce is null and void and they

continued to be the husband and wife, cannot be taken note of at this stage unless the suit filed by

the respondent no.2 to declare the said judgment and decree dated 20.3.2008 is decided in herfavour. In view thereof, the evidence adduced by her particularly the record of the telephone

calls, photographs attending a wedding together and her signatures in school 1

diary of the child cannot be taken into consideration so long as the judgment and decree of theCivil Court subsists. On the similar footing, the contention advanced by her counsel that even

after the decree of divorce, they continued to live together as husband and wife and therefore the

complaint under the Act 2005 is maintainable, is not worth acceptance at this stage.

23. In D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469, this Court considered theexpression domestic relationship under Section 2(f) of the Act 2005 placing reliance on earlier

judgment in Savitaben Somabhai Bhatiya v. State of Gujarat & Ors., (2005) 3 SCC 636 and held

that relationship in the nature of marriage is akin to a common law marriage. However, thecouple must hold themselves out to society as being akin to spouses in addition to fulfilling all

other requisite conditions for a valid marriage.

The said judgments are distinguishable on facts as those cases relate to live-in relationshipwithout marriage. In the instant case, the parties got married and the decree of Civil Court for


8/35

divorce still subsists. More so, a suit to declare the said judgment and decree as a nullity is still

pending consideration before the competent court. 1

24. Submissions made by Shri Ranjit Kumar on the issue of limitation, in view of the provisions

of Section 468 Cr.P.C., that the complaint could be filed only within a period of one year from

the date of the incident seem to be preponderous in view of the provisions of Sections 28 and 32of the Act 2005 read with Rule 15(6) of The Protection of Women from Domestic ViolenceRules, 2006 which make the provisions of Cr.P.C. applicable and stand fortified by the

judgments of this court inJapani Sahoo v. Chandra Sekhar Mohanty, AIR 2007 SC 2762; and

Noida Entrepreneurs Association v. Noida & Ors., (2011) 6 SCC 508.

25. In view of the above, we are of the considered opinion that permitting the Magistrate to

proceed further with the complaint under the provisions of the Act 2005 is not compatible and in

consonance with the decree of divorce which still subsists and thus, the process amounts to abuseof the process of the court. Undoubtedly, for quashing a complaint, the court has to take its

contents on its face value and in case the same discloses an offence, the court generally does not

interfere with the same. However, in the backdrop of the factual matrix of this case, permittingthe court to proceed with the complaint would 2

be travesty of justice. Thus, interest of justice warrants quashing of the same.

26. The appeal succeeds and is allowed. The impugned judgment and order dated 9.8.2010 is

hereby set aside. Petition filed by the appellant under Section 482 Cr.P.C. is allowed. ComplaintNo. 87/02/09 pending before the Magistrate, Jalandhar and all orders passed therein are quashed.

Before parting with the case, we clarify that respondent no.2 shall be entitled to continue with

her other cases and the court concerned may proceed in accordance with law without beinginfluenced by the observations made herein. The said observations have been made only to

decide the application under Section 482 Cr.P.C. filed by the appellant.

(P. SATHASIVAM)(Dr. B.S. CHAUHAN)New Delhi

August 23, 2011


9/35

Supreme Court of India

Supreme Court of India

Meghmala & Ors vs G.Narasimha Reddy & Ors on 16 August, 2010

Author: . B Chauhan

Bench: P. Sathasivam, B.S. Chauhan

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal Nos. 6656-6657 of 2010

(Arising out of SLP (C) Nos. 14447-14448 of 2007) Meghmala & Ors. ..Appellants Versus

G. Narasimha Reddy & Ors. ..Respondents JUDGMENT

Dr. B.S. CHAUHAN, J.

1. Leave granted.

2. Judicial pronouncements unlike sand dunes are known for their stability/finality. However, in this case

spite of the completion of several rounds of litigation upto the High Court, and one round of litigation bef

this Court, the respondents claim a right to abuse the process of the Court with the perception that whate

may be the orders of the High Court or this Court, inter-se parties the dispute shall be protracted and w

never come to an end.

3. These appeals have been preferred against the Judgment and Order dated 26.04.2007 of the High Cour

Andhra Pradesh, at Hyderabad, passed in Writ Petition Nos. 19962-19963 of 2006, by which the High Co

has allowed the said petitions against the Judgment and order of the Special Court under the Andhra PradeLand Grabbing (Prohibition) Act, 1982 (hereinafter called, "Act 1982"), dismissing the review application N

397/2005 in LGC No. 76/1996 and in LGCSR 357/2005.

4. Facts and circumstances giving rise to the present cases are as under :- (A) V. Ram Chandra Reddy and

brother (vendors) had a huge chunk of land and a part of it could have been the subject matter of t

provisions of Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter called the Act 1976). The s

vendors entered into an agreement to sell dated 23.01.1976 for selling a part of the land (hereinafter cal

`suit land') to a cooperative society namely, Gruha Lakshmi Cooperative Housing Society Ltd. (hereinaf

called, "the Society"). The vendors, V. Ram Chandra Reddy and his brother executed a sale deed in favour

A. Sambashiva Rao (hereinafter called the appellant/applicant) which was registered on 21.05.1980 v

document No. 4758/80 and the appellants were put in possession of the suit land.

2

(B) The appellant/applicant- vendee filed LGC No. 76/1996 against the respondents under the provisions

the Act, 1982 alleging that he had been working in Andhra Pradesh State Road Transport Corporation and w

mostly out of station, and the respondents had forcibly grabbed his land and raised construction thereon. Th

he sought the relief of their dispossession and action against them under the provisions of the Act, 1982.

After complying with the requirements of the statutory provisions i.e. taking the sanction etc., the responde

were issued a show cause notice. The respondents filed their reply submitting that in respect of the suit la

there was an agreement to sell, dated 23.01.1976, in favour of the society and once such an agreement to

had been executed, vendors had no right to transfer the land in favour of the appellant/applicant. The soci


Indian Kanoon - http://indiankanoon.org/doc/1329151/


10/35

had allotted the suit land in their favour, therefore, the application was liable to be rejected.

(D) The Special Court after appreciating the evidence, vide Judgment and order dated 4.11.1997 came to

conclusion that the appellant/applicant was the owner of the suit land and that the respondents had no rig

title or claim over the suit land. They had forcibly occupied the land and they were land grabbers, thus, th

were liable to be evicted and orders for that purpose were passed.

3

(E) Being aggrieved by the order of the Special Court dated 4.11.1997, the respondents preferred writ petit

No. 33572/1997 before the High Court of Andhra Pradesh, which was dismissed vide Judgment and Or

dated 3.07.2001.

(F) Being aggrieved by the order of the High Court, the respondents preferred Special Leave Petition (c) N

18218/2001 before this Court, which was dismissed as withdrawn vide order dated 2.11.2001 giving liberty

the respondents to file review petition before the High Court. (G) The respondents filed review petition N

31506/2002 before the High Court. However, the said review petition was dismissed by the High Court v

order dated 16.12.2002.

(H) In the intervening period, when the review petition was pending before the High Court, t

appellant/applicant filed execution proceedings by moving IA No. 518/2002. The Respondents also moved

application to summon the record of the Revenue Divisional Officer, Secundrabad, pertaining to the survey

the suit land along with an application for the stay of Execution proceedings. The Special Court vide or

dated 7.11.2002 allowed the Execution Application filed by the appellant/applicant but dismissed

application filed by respondents directing the Revenue Divisional Officer to implement the order da

4.11.1997. 4

(I) The respondents being aggrieved by the common order dated 7.11.2002, filed writ petition nos. 22953 a

23105 of 2002, which were, dismissed by the High Court vide order dated 17.12.2002. (J) In pursuance of

order in Execution Proceedings dated 7.11.2002, the appellants were put into possession of the suit land16.12.2002. (K) The respondents being aggrieved by the order of the High Court dated 17.12.2002, prefer

review petitions before the High Court, which were dismissed by the Court vide order dated 17.11.2003.

The respondents filed Review Application no. 397/2005 in LGC No. 76 after an inordinate delay, seek

review of the order dated 4.11.1997. The respondents subsequently filed an application in LGCSR N

357/2005 before the Special Court for fresh declaration that they were the owners and that the appellants, w

had succeeded throughout the litigation, were the land grabbers. The respondents in the said applicati

impleaded persons other than the appellant/applicant also, i.e. the vendors of the appellant/applicant and go

officials etc., who are the other appellants in these cases. The Special Court dismissed the said applicati

vide orders dated 6.7.2006 and 11.7.2006.

(M) The respondents, being aggrieved by both the orders, filed Writ Petition Nos. 19962 and 19963 of 20which have been allowed by the 5

High Court vide impugned Judgment and order dated 26.04.2007, directing the Special Court to decide b

the applications afresh on merit, as in the opinion of the High Court, the applications required certain inqu

on factual matters and the claim of the respondents could not have been rejected merely on the determinat

and attaining finality of orders in earlier proceedings. Hence, these appeals.

5. Sh. P. Vishwanatha Shetty, learned senior counsel appearing for the appellants, has submitted that eve

there was an agreement to sell by the vendor of the appellants in favour of the society, such an agreement

not confer any title in the suit land in their favour. The respondents had not been the members of the s

Society, nor had any allotment ever been made by the Society in their favour. The earlier proceedings came




11/35

an end after having several rounds of litigation upto the High Court and one round upto this Court. The ord

passed therein attained finality and in pursuance of the same, the appellant/applicant came into possession

the suit land. Issues of fraud and identification of land had been in issue in some of the earlier proceedin

Once the respondents had approached this Court, the question of entertaining the review petition after

inordinate delay of 7-8 years does not arise. The respondents have no locus standi to ask the Special Cour

determine under what circumstances the 6

appellant/applicant had obtained the suit land. An application to call for certain records in respect of the s

land from 1972 to 2002, the survey reports etc. cannot be made by them. The High Court has gravely erred

interfering with the orders of the Special Court rejecting both the applications. Thus, the appeals deserve to

allowed.

6. Per contra, Sh. M.V. Durga Prasad, learned counsel appearing for the respondents submitted that

transfer of land in favour of the appellant/applicant vide registered sale deed dated 21.05.1980 was itsel

fraudulent transaction and material in this regard was suppressed from the Special Court while obtaining

orders in their favour. Fraud vitiates everything. The respondents have raised the issue of the identification

the suit land. Thus, the applications filed by the respondents were maintainable and the High Court has righ

reversed the orders passed by the Special Court. The appeals lack merit and no interference is warranted

this Court.

7. We have considered the rival submissions made by the learned counsel for the parties and perused

record.

Admittedly, there is a registered sale deed in favour of the appellant/applicant dated 21.05.1980 and there m

be an agreement to sell in favour of the society dated 23.01.1976. It is settled legal proposition that 7

an agreement to sell does not create any right, or title in favour of the intending buyer. The Society did not f

suit for specific performance against the vendors prior to the execution of sale deed in favour of

appellant/applicant on 21.05.1980. The Special Court, after appreciating the entire evidence on record, ca

to the conclusion that the appellant/applicant was the owner and was in actual physical possession of the laand that the respondents had grabbed the said land. The Special Court has observed as under :-

"In the cross-examination, RW1 (respondent No.1

herein) had to admit that they have not filed any document to show that the said plot was allotted in th

favour by the society and that they have not filed any document to show that they are the

members of the said society. He also admitted that without any municipal sanction or permission, they rai

the construction in the scheduled land."

The Special Court further held that the respondents were land grabbers within the meaning of the Act, 19and thus, they were directed to restore the premises to the appellant/applicant. These findings of fact had be

affirmed upto the High Court.

8. The record of the case reveals that respondents have filed review petitions before the Special Court as w

as before the High Court. However, all the applications had been dismissed by the Courts concerned. 8

The respondents again filed an application seeking review of the order dated 4.11.1997. Section 17-A of

Act, 1982 provides that in order to prevent the miscarriage of justice, a review application can be entertain

on the grounds that the order has been passed under a mistake of fact, ignorance of any material fact or

error apparent on the face of law. Limitation for filing the review application before the Special Court h

been prescribed under Rule 18 of the Andhra Pradesh Land Grabbing (Prohibition) Rules, 1988, as 30 d




12/35

from the date of the order of which the review is sought. The respondents had earlier challenged the said or

dated 4.11.1997 before the High Court, as well as before this Court. Review petitions had been filed bef

the Special Court, as well as before the High Court. Thus, question does arise as to whether it is permissi

for a litigant to file a review application after approaching the superior forum/court. Review - Af

approaching the Higher Forum:-

9. In M/s. Kabari Pvt. Ltd. Vs. Shivnath Shroff & Ors. AIR 1996 SC 742, this Court had taken a view that

court cannot entertain an application for review if before making the review application, the superior co

had been moved for getting the self-same relief, for the reason that for 9

the self-same relief two parallel proceedings before the two forums cannot be taken.

10. In State of Maharashtra & Anr. Vs. Prabhakar Bhikaji Ingle AIR 1996 SC 3069, this Court held that wh

a special leave petition from the order of the Tribunal was dismissed by a non-speaking order, the main or

was confirmed by the Court. Thereafter, the power of review cannot be exercised by the Tribunal as it wo

be "deleterious to the judicial discipline".

11. Same view has been reiterated by this Court in Raj Kumar Sharma Vs. Union of India (1995) 2 Scale

Sree Narayana Dharmasanghom Trust Vs. Swami Prakasananda & Ors. AIR 1997 SC 3277; K. Ajit BabuOrs. Vs. Union of India & Ors. (1997) 6 SCC 473; and Gopabandhu Biswal Vs. Krishna Chandra Mohanty

Ors. AIR 1998 SC 1872.

12. In Abbai Maligai Partnership Firm & Anr. Vs. K. Santhakumaran & Ors. AIR 1999 SC 1486, a th

Judge Bench of this Court considered the issue afresh and held that filing of the review petition after dismis

of the special leave petition by it against the self-same order amounted to an abuse of process of the court a

the entertainment of such a 1

review application was in affront to its order and it was subversive of judicial discipline.

13. In Kunhayammed & Ors. Vs. State of Kerala & Anr. AIR 2000 SC 2587, a three Judge Bench of tCourt reconsidered the issue and all above referred judgments and came to the conclusion that dismissal

special leave petition in limine by a non-speaking order may not be a bar for entertaining a review petition

the court below for the reason that this Court may not be inclined to exercise its discretion under Article

of the Constitution. The declaration of law will be governed by Article 141 where the matter has been decid

on merit by a speaking judgment. In that case doctrine of merger would come into place and lay down

following principles:-

(i) Where an appeal or revision is provided

against an order passed by a court, tribunal or

any other authority before superior forum and

such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by

subordinate forum merges in the decision by

the superior forum and it is the latter which

subsists, remains operative and is capable of

enforcement in the eye of law.




13/35

(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. The first stage

upto the disposal of prayer for special leave to file an appeal. The second stage

commences if and when the leave to appeal is

1

granted and the special leave petition is converted into an appeal.

(iii) Doctrine of merger is not a doctrine of

universal or unlimited application. It will depend on the nature of jurisdiction exercised by the

superior forum and the content or subject-matter of challenge laid or capable of being laid shall

determinative of the applicability of merger. The superior jurisdiction should be capable of

reversing, modifying or affirming the order put in issue before it. Under Article 136 of the

Constitution the Supreme Court may reverse,

modify or affirm the judgment-decree or order

appealed against while exercising its appellate

jurisdiction and not while exercising the

discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger

can therefore be applied to the former and not to the latter.

(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In

either case it does not attract the doctrine of

merger. An order refusing special leave to appeal does not stand substituted in place of the order un

challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow

appeal being filed.

(v) If the order refusing leave to appeal is a

speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two

implications. Firstly, the statement of law

contained in the order is a declaration of law by the Supreme Court within the meaning of Article

141 of the Constitution. Secondly, other than the 1

declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court

which would bind the parties thereto and also the court, tribunal or authority in any proceedings




14/35

subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the

country. But, this does not amount to saying that the order of the court, tribunal or authority below has sto

merged in the order of the Supreme

Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding

res judicata in subsequent proceedings between the parties.

14. The Court came to the conclusion that where the matter has been decided by a non-speaking order

limine the party may approach the High Court by filing a review petition.

Similar view has been reiterated in National Housing Coop. Society Ltd. Vs. State of Rajasthan & Ors. (200

12 SCC 149.

15. In K. Rajamouli Vs. A.V.K.N. Swamy AIR 2001 SC 2316, this Court considered the ratio of the judgm

in Kunhayammed (supra); and Abbai Maligai Partnership Firm (supra) and held that if a review applicat

has been filed before the High Court prior to filing the special leave petition before this Court and revi

petition is decided/rejected, special leave petition against that order of review would be maintainable. In c

the review application has been filed subsequent to dismissal of the 1

special leave petition it would amount to abuse of process of the court and shall be governed by the ratio

the judgment in Abbai Maligai Partnership Firm (supra). The said judgment has been approved and follow

by this Court in M/s. Green View Tea & Industries Vs. Collector, Golaghat, Assam & Anr. AIR 2004

1738.

16. In Kumaran Silk Trade (P) Ltd. Vs. Devendra AIR 2007 SC 1185, this Court held as under :-

"As a matter of fact at the earlier stage this Court did not consider the question whether one of the appe

against the order dismissing the Review Petition on merits was maintainable. At best the order of remand a

the decision in Kunhayammed & Ors. v. State of Kerala & Anr. (2000) 6 SCC 359 would enable the

petitioner to get over the ratio of the three Judge Bench decision in Abbai Maligai Partnership Firm & Anr

K. Santhakumaran & Ors. (1998) 7 SCC 386 that the seeking of a review after the petition for special leave

appeal was dismissed without reserving any liberty in the petitioner was an abuse of process."

17. Thus, the law on the issue stands crystallized to the effect that in case a litigant files a review petit

before filing the Special Leave Petition before this Court and it remains pending till the Special Leave Petit

stands dismissed, the review petition deserves to be considered. In case it is filed subsequent to dismissa

the Special Leave Petition, the process of filing review application amounts to abuse of process of the court

18. In view of the above, we are of the considered opinion that filing of such a review application by respondents at a belated stage amounts to abuse of process of the Court and such an application is

maintainable. Thus, the High Court ought not to have entertained the writ petition against the order

dismissal of the review application by the Special Court and the order of the High Court to that extent is liab

to be set aside.

19. So far as the other application filed by the respondents before the Special Court is concerned, it is ba

on the grounds that earlier judgment and order had been obtained by the appellant/applicant suppress

material facts and the suit land had not been identified properly, and therefore, the judgment of the Spec

Court duly affirmed by the High Court stood vitiated.

Fraud/Misrepresentation: -




15/35

20. It is settled proposition of law that where an applicant gets an order/office by making misrepresentation

playing fraud upon the competent Authority, such order cannot be sustained in the eyes of law. "Fraud avo

all judicial acts ecclesiastical or temporal." (Vide S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagann

(dead) by L.Rs. & Ors. AIR 1994 SC 853). In Lazarus Estate Ltd. Vs. Besalay 1956 All. 1

E.R. 349), the Court observed without equivocation that "no judgment of a Court, no order of a Minister

be allowed to stand if it has been obtained by fraud, for fraud unravels everything."

21. In Andhra Pradesh State Financial Corporation Vs. M/s. GAR Re-Rolling Mills & Anr. AIR 1994

2151; and State of Maharashtra & Ors. Vs. Prabhu (1994) 2 SCC 481. this Court observed that a writ Co

while exercising its equitable jurisdiction, should not act as to prevent perpetration of a legal fraud as

courts are obliged to do justice by promotion of good faith. "Equity is, also, known to prevent the law fr

the crafty evasions and sub-letties invented to evade law."

22. In Smt. Shrisht Dhawan Vs. M/s. Shaw Brothers. AIR 1992 SC 1555, it has been held as under:-

"Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It

concept descriptive of human conduct."

23. In United India Insurance Co. Ltd. Vs. Rajendra Singh & Ors. AIR 2000 SC 1165, this Court observ

that "Fraud and justice never dwell together" (fraus et jus nunquam cohabitant) and it is a pristine max

which has never lost its temper over all these centuries. 1

24. The ratio laid down by this Court in various cases is that dishonesty should not be permitted to bear

fruit and benefit to the persons who played fraud or made misrepresentation and in such circumstances

Court should not perpetuate the fraud. (See District Collector & Chairman, Vizianagaram Social Welf

Residential School Society, Vizianagaram & Anr. Vs. M. Tripura Sundari Devi (1990) 3 SCC 655; Union

India & Ors. Vs. M. Bhaskaran (1995) Suppl. 4 SCC 100; Vice Chairman, Kendriya Vidyalaya Sangathan

Anr. Vs. Girdharilal Yadav (2004) 6 SCC 325; State of Maharashtra v. Ravi Prakash Babulalsing Parm

(2007) 1 SCC 80; Himadri Chemicals Industries Ltd. Vs. Coal Tar Refining Company AIR 2007 SC 27and Mohammed Ibrahim & Ors. Vs. State of Bihar & Anr. (2009) 8 SCC 751).

25. Fraud is an intrinsic, collateral act, and fraud of an egregious nature would vitiate the most sole

proceedings of courts of justice. Fraud is an act of deliberate deception with a design to secure somethin

which is otherwise not due. The expression "fraud" involves two elements, deceit and injury to the pers

deceived. It is a cheating intended to get an advantage. (Vide Dr. Vimla Vs. Delhi Administration AIR 19

SC 1572; Indian Bank Vs. Satyam Fibres (India) Pvt. Ltd. (1996) 5 SCC 550; State of Andhra Pradesh Vs.

Suryachandra Rao AIR 2005 SC 3110; K.D. 1

Sharma Vs. Steel Authority of India Ltd. & Ors. (2008) 12 SCC 481; and Regional Manager, Central Bank

India Vs. Madhulika Guruprasad Dahir & Ors. (2008) 13 SCC 170).

26. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive

rights of the others in relation to a property would render the transaction void ab initio. Fraud and decept

are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to

equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of a

equitable doctrine including res judicata. Fraud is proved when it is shown that a false representation has b

made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or fal

Suppression of a material document would also amount to a fraud on the court. (Vide S.P. Changalvar

Naidu (supra); Gowrishankar & Anr. Vs. Joshi Amba Shankar Family Trust & Ors. AIR 1996 SC 2202; R

Chandra Singh Vs. Savitri Devi & Ors. (2003) 8 SCC 319; Roshan Deen Vs. Preeti Lal AIR 2002 SC 33; R

Preeti Yadav Vs. U.P. Board of High School & Intermediate Education AIR 2003 SC 4628; and Ash




16/35

Leyland Ltd. Vs. State of Tamil Nadu & Anr. AIR 2004 SC 2836).

1

27. In kinch Vs. Walcott (1929) AC 482, it has been held that "....mere constructive fraud is not, at all eve

after long delay, sufficient but such a judgment will not be set aside upon mere proof that the judgment w

obtained y perjury."

Thus, detection/discovery of constructive fraud at a much belated stage may not be sufficient to set aside

judgment procured by perjury.

28. From the above, it is evident that even in judicial proceedings, once a fraud is proved, all advanta

gained by playing fraud can be taken away. In such an eventuality the questions of non-executing of

statutory remedies or statutory bars like doctrine of res judicata are not attracted. Suppression of any mate

fact/document amounts to a fraud on the court. Every court has an inherent power to recall its own or

obtained by fraud as the order so obtained is non est.

29. The instant case required to be examined in the light of the aforesaid settled legal propositions.

The case of the respondents has been that transfer by the vendor in favour of the appellant was not genui

Material information had been suppressed from the Special Court. More so, there was no proper identificat

of the suit land in the earlier litigation. The reports submitted in this regard were not correct.

1

30. Respondents have never been able to show as under what circumstances they are interested in the suit la

because before the Special Court in the first round they failed to show any document that land had ever b

transferred by the tenure holders/owners in favour of the Society or the Society had made any allotment

their favour or they were member of the said Society or they obtained any sanction from statutory authority

raise the construction.

Shri M.V. Durga Prasad, Ld. Counsel appearing for the said respondents was repeatedly asked by us to sh

any document on record linking the said respondents with the suit land. Though, he argued for a long tim

raised large number of issues but could not point out a single document which may reflect that responde

could have any claim on the suit land. Therefore, we are of the considered opinion that the application at th

behest was not maintainable.

31. The issue of mis-representation/fraud, suppression of material fact and identification of land had been

issue in earlier review petitions before the Special Court and in the Writ Petitions before the High Court

this regard, the Special Court in execution proceedings was fully satisfied regarding the identity of land on

basis of revenue record and came to the conclusion that there was no mis-representation or fraud on the parthe 2

appellant/applicant. The order of the Special Court dated 11th July, 2006 made it clear that all these issues h

been agitated in earlier proceedings. The Special Court has held as under:

"The applicants herein as contended in this L.G.C. have filed IA No.869/2002 for stay of proceedings and

No. 861/2002 for summoning the record in File No.B/9815/97 from the office of the Revenue Divisio

Officer on the ground of alleged fraud played by the Mandal Revenue Officer and the Mandal Survey

Those petitions were heard at length and were dismissed holding that the alleged fraud as contended by

applicants herein was not made out and the property which is the subject matter of L.G.C. No.76/96 should

delivered to the respondents herein by evicting the applicants. As mentioned already, in execution of the s




17/35

order, applicants herein were evicted and possession was delivered to the respondents. Admittedly,

common order passed in IA Nos.

518/2002, 861/2002 and 869/2002, by this Court was questioned by the applicants herein by filing W

Petitions before the Hon'ble High Court of A.P. and the same was also dismissed holding that the applica

herein are trying to protract the litigation and to delay the delivery of possession of the property in question

the respondents."(emphasis added)

32. In another case decided by the Special Court vide order dated 6th July, 2006 the Court had taken note

the pleadings in respect of identification of land and mis-representation/fraud/collusion in the earl

proceedings and the observations made by the Writ Court in its order dated 17th December, 2002 that the s

respondents were interested in protracting the litigation and obstructing the implementation of the order of

Special Court dated 2

4.11.1997. The said order had been passed in Application No. 51 of 2002 where one of the main grounds h

been that the appellant/applicant had played fraud in obtaining the said order as is taken note of in paragra

13 of the said order by the Special Court. The Special Court also took note of earlier direction to the Reven

Divisional Officer to identify the land and possession of the same was delivered to the decree holder. The s

order was under challenge before the High Court in Writ Petition Nos. 22953/2002 and 23105/2002 wherpleading of the alleged fraud and mis-identification of suit land were taken. The Special Court came to

conclusion that there was no suppression of any fact by the revenue authorities or the court was misled at

time of obtaining such orders.

33. There is a registered sale deed dated 21.5.1980 in favour of the appellant/applicant. Nobody has ever fi

any application before the competent court to declare said sale deed as null and void. Respondents have

right or interest in the suit property. The Society claimed to have an agreement to sell in its favour which

not confer any title in favour of the Society. A finding of fact had been recorded in earlier proceedings that

appellant/applicant was in actual physical possession of the land and he was illegally/forcibly dispossessed

the respondents. 2

Forcible dispossession:-

34. Even a trespasser cannot be evicted forcibly. Thus, a person in illegal occupation of the land has to

evicted following the procedure prescribed under the law. (Vide Midnapur Zamindary Co. Ltd. Vs. Nare

Narayan Roy AIR 1924 PC 124; Lallu Yeshwant Singh Vs. Rao Jagdish Singh & Ors. AIR 1968 SC 62

Ram Ratan Vs. State of U.P. AIR 1977 SC 619; Express Newspapers Pvt. Ltd. & Ors. Vs. Union of India

Ors. AIR 1986 SC 872; and Krishna Ram Mahale Vs. Mrs. Shobha Vankat Rao AIR 1989 SC 2097) .

35. In Nagar Palika, Jind Vs. Jagat Singh AIR 1995 SC 1377, this Court observed that Section 6 of

Specific Relief Act 1963 is based on the principle that even a trespasser is entitled to protect his possess

except against the true owner and purports to protect a person in possession from being dispossessed excepdue process of law.

36. Even the State authorities cannot dispossess a person by an executive order. The authorities can

become the law unto themselves. It would be in violation of the rule of law. Government can resu

possession only in a manner known to or recognised by law and not otherwise. (Vide Bishan Das Vs. State

Punjab AIR 1961 SC 1570; Express Newspapers Pvt. Ltd. (supra); State of U.P. & Ors. Vs. Mahar

Dharmander Prasad Singh 2

& Ors. AIR 1989 SC 997; and State of West Bengal & Ors. Vs. Vishnunarayan & Associates (P) Ltd. & A

(2002) 4 SCC 134).




18/35

37. The forcible eviction of the appellant/applicant by the respondents was unwarranted and unlaw

Proceedings had been initiated under the Act, 1982. It is a special Act to prevent illegal activities of la

grabbing. The Legislature, in its wisdom, constituted a Special Court presided over by a person who is

eligible to be the Judge of the High Court, and consisting of the Members who are or eligible to beco

District Judge and District Collector. Therefore, persons having enough experience and who have acquire

higher status have been given responsibility to adjudicate upon the disputes under the Act 1982. That Spec

Court has been conferred with the powers of Civil or Criminal Courts.

As per the provisions of Section 10 of the Act 1982, the burden of proof is on the accused to prove that h

not guilty. Thus, it is not like any other criminal case where accused is presumed to be innocent unless

guilt is proved. The presumption of innocence is a human right, however, subject to the statutory exceptio

the said principle forms the basis of Criminal Jurisprudence. For this purpose, the nature of offence,

seriousness and gravity thereof has to be taken into consideration. Statutes like Negotiable Instruments A

1881; Prevention of Corruption Act, 1988; 2

and Terrorist and Disruptive Activities (Prevention) Act, 1987, provide for presumption of guilt if

circumstances provided in those Statutes are found to be fulfilled and shift the burden of proof of innoce

on the accused. Thus, the Legislature has adopted a deviating course from ordinary criminal law shifting

burden on the accused to prove that he was not guilty. The High Court while deciding these cases has considered the issue of the locus standi of the respondents to maintain the application for eviction of

appellant/applicant. Chagrined and frustrated litigants should not be permitted to give vent to their frustratio

by cheaply invoking the jurisdiction of the court. The court proceedings ought not to be permitted

degenerate into a weapon of harassment and persecution.

38. In view of the above factual position, we reach the following conclusions:

(i) There has been a registered sale deed in favour of the appellant/applicant by the vendors which w

registered on 21.5.1980 and he was put in possession.

(ii) Prior to the execution of the said sale deed there has been an agreement to sell dated 23.1.1976 in favof the Society. 2

(iii) In respect of the said agreement to sell the litigation remained pending before the Civil Court but there

nothing on record to show as to what had been its outcome.

(iv) An agreement to sell did not confer any right on the Society, though the appellant acquired the title o

the suit land by execution and registration of the sale deed dated 21.5.1980.

(v) The respondents had not been the members of the Society nor Society made any allotment in their favou

(vi) Before the Special Court, the respondents could not show as under what circumstances they could sttheir claim on the suit land and no document worth the name could be shown which may link them to the s

land.

(vii) Respondents grabbed the suit land forcibly and raised a construction without any authorisation.

(viii) In spite of our repeated queries, learned counsel for the respondents could not point out a sin

document on record to show that they could have any right, interest or title in the suit land. (ix) The litigati

completed several rounds before the High Court and this is the second round of litigation before this Court.

(x) All the courts proceedings reveal that after proper adjudication the declaration had been made that s

land belonged to the appellant/applicant and respondents were merely land grabbers.




19/35

(xi) In earlier review petitions filed by the respondents before the Special Court and further taking the mat

to the High Court in Writ Petitions and Review Applications before the High Court the issue of m

representation/fraud/collusion and mis-identification of the suit land had been raised but they could

succeed.

(xii) In execution proceedings, the appellant/applicant succeeded and came in possession of the suit land

2002.

(xiii) Respondents filed frivolous application raising the issue of fraud and mis-identification of the suit la

which had earlier been adjudicated upon. The review application was filed at much belated stage. (xiv) T

review application was certainly not maintainable as the respondents had approached the higher forum an

merely amounted to abuse of process of the court.

(xv) The respondents had been interested only to protract the litigation by one way or the other.

(xvi) Fresh proceedings taken by the respondents before the Special Court in fact, is tantamount to malicio

prosecution. 2

39. The High Court failed to take all aforesaid factors into consideration before passing impugned judgmand order.

40. In view of the above, we are of the considered opinion that judgment and order of the High Co

impugned herein, is not sustainable in the eyes of law. The appeals are allowed. The judgment of the H

Court dated 26.4.2007 is set aside and the judgments and orders dated 6.7.2006 and 11.7.2006 passed by

Special Court are restored. No costs. ..................................J.

(P. SATHASIVAM)

..................................J.

New Delhi, (Dr. B.S. CHAUHAN) August 16, 2010

2




20/35

IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : DOMESTIC VIOLENCE ACT, 2005

Date of Judgment:11.02.2014.

CRL.REV.P. 637/2013

SMT RANJANA GUPTA ..... Petitioner

Through Mr.Kuldeep Kumar, Adv.

versus

RAJNESH GUPTA & ORS ..... Respondents

Through Ms.Fizani Hussain, APP.

CORAM:

HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.(Oral)

1 The petitioner is aggrieved by the impugned order dated 29.07.2013

endorsing the finding of the learned MM dated 28.03.2012 vide which the

order passed on the complaint case (CC No.174/2003) under Section 12 of

the Protection of Women from Domestic Violence Act, 2005 (hereinafterreferred to as PWDVA) had been disposed of without granting any relief to

the petitioner. Relevant would it be to extract that part of the order passed by

the learned MM. It reads as under:-

9. Relief.

As far as relief is concerned, complainant has sought firstly protection

order u/s 18 PW DV Act. Complainant has been residing separately since

05.10.2004. There are no complaints in the intervening period or even prior

to that for commission of acts of domestic violence by the respondent.

Accordingly, no relief u/s 18 PW DV Act is made out.

Secondly complainant has prayed for relief u/s 19 & 20 PW DV Act.Admittedly, respondent is residing in the house of his parents and has no

separate accommodation. Similarly, the complainant is residing with her

parents and is financially independent. Admittedly salary of complainant is

approximately Rs. 40,000/- per month. Similarly respondent is earning a

salary of approximately Rs. 39-40 thousand per month. I feel that financially

both the parties are equally placed. Therefore, I am not inclined to pass any


21/35

maintenance order. Residence order is also declined for the reason that

complainant being a Government servant is also entitled to HRA which

should be equivalent to HRA earned by the respondent and therefore the said

relief is also declined.

Now coming to Section 22 PW DV Act. Complainant has not placed onrecord any proof that she has suffered any injury due to harassment caused

by the respondent, therefore, I am not inclined to pass any compensation

order and the same is declined.

Petition is accordingly disposed off.

2 This order was assailed before the Sessions Judge. The Sessions Judge

as noted supra has endorsed this finding passed by the trial Court.

3 Learned counsel for the petitioner is aggrieved by this fact finding.

His submission is that the order has been passed by both the two courtsbelow cursorily on surmises and conjectures without applying the settled

legal proposition; submission being that the mother-in-law of the petitioner

namely Urmil Gupta had been deleted from the complaint case on an

application filed by her without any formal order; this was on the pretext that

a female does not qualify as a respondent under the PWDVA; submission

being that this was based on a wrong proposition of law as the Honble Apex

Court in 2011 (2) SCALE 94 Sou Sandhya Manoj Wankhade Vs. Manoj

Bhimrao Wankhade & Ors. had in this context noted that the Legislature did

not intend to exclude a female relative of the husband or male partner fromthe ambit of a complaint that can be made under the provisions of

PWDVA. Submission being that in this case the allegations of the

petitioner were specific that the mother-in-law of the petitioner namely

Urmil Gupta had kept her jewellery articles and the same had not been

returned. Attention has been drawn to internal page 4 of the order of the

learned MM; submission being that a specific allegation had been made by

the petitioner that her entire jewellery articles were with her mother-in-law.

4 The Court had further noted that the test of cross-examination has

been passed by the petitioner; it thus stood proved that the jewellery articleswere with the mother-in-law but the same had not been returned and the two

courts below not directing the mother-in-law to return the jewellery articles

of the petitioner to her in terms of Section 19 (8) of the PWDVA has

committed an illegality.


22/35

5 The trial Court record had been requisitioned. The same has been

perused. Before adverting to these arguments propounded by the learned

counsel for the petitioner, it would be relevant to state that this Court is

sitting in revisional jurisdiction and unless and until, there is patent illegality

or perversity pointed out that this Court can interfere in the fact finding; thescope of interference in revisional jurisdiction is limited as the fact finding

returned by the two competent courts cannot be easily interfered with.

6 Learned MM in para 8 had framed an issued which reads as under:-

Whether prima facie case of domestic violence is made out?

7 The evidence led by the complainant and the respondent has been

discussed. It had noted that there was an allegation made by the complainant

that her jewellery is with the mother-in-law although the mother-in-law is

not a party to the present complaint. The Court had thereafter gone on tohold that the complainant has been able to prove the allegations of cruelty

and harassment meted out by the respondent to the complainant and has

proved the same; it has noted that she had resided in the house for about 8-9

months and thereafter she was living separately. It had also noted that

separate proceedings under Section 498-A and 406 of the IPC are pending

against the respondent and his family members. The fact findings returned

by the learned MM nowhere recorded a positive fact that the complainant

had been able to prove that her jewellery articles were lying with the mother-

in-law. The Sessions Judge noted these facts in the correct perspective andheld that the petitioner had taken a vacillating stand as far as her jewellery is

concerned and although in her complaint, she had stated that she had handed

over her gold jewellery on advice of her husband to him but in her cross-

examination she denied that the gold jewellery articles were being retained

by the respondent. The respondent in his evidence had categorically stated

that the gold articles had been taken back by the complainant when she had

left her matrimonial home.

8 The findings returned by the Sessions Judge read here as under:-

7. List of respondents was not filed along with application underSection 12 of PWDV Act. It is only in Domestic Investigation Report (DIR)

filed by the Protection Officer, names of four respondents i.e. Rajnesh

Gupta/husband (R-1), Satish Chand Gupta/father-in-law (R-2), Urmil

Gupta/mother-in-law(R-3) and Anju Gupta/sister-in-law (R-4) were

mentioned. An application on behalf of respondents to drop the proceedings

against respondent no. 2 to respondent no. 5 was filed. Learned Counsel for


23/35

appellant submits that names of Smt. Urmil Gupta/mother-in-law (R-3) and

Smt. Anju Gupta/sister-in-law (R-4) had been deleted from the arrays of the

parties, although both of them had filed reply before the Trial Court. He

submits that Learned Trial Court has not given any reasons in the impugned

order as to how Urmil Gupta (R-3) and Anju Gupta (R-4) were dropped andno order was passed by Learned Trial Court on the application filed on

behalf of respondent no. 2 to respondent no. 5 for dropping the proceedings

against them.

8. It is submitted that in her affidavit in evidence dated 30.11.2010,

appellant/complainant has stated that she was tortured and manhandled by

her husband/R-1, his parents, sister in law and brother in law, right from the

day one of her marriage. She deposed that on 16.01.2004, her husband had

advised her to hand over her gold ornaments which were received from her

parents side and from her in-law side and the said ornaments are still in

possession of her mother-in-law. It is stated that she was mentally tortured atall the regular intervals. On 17.01.2004, her husband, her parents and sister-

in-law abused her for not bringing car and AC. It is stated that in March

2004, her husband and mother-in-law abused appellant and told her to leave

her job. In September 2004, her husband and in-laws started increasing

pressure on her to leave her matrimonial home and to bring AC, car and Rs.

5,00,000/- . She was threatened that if their demands were not fulfilled, her

husband and parents-in-law would kill her by burning while preparing food.

It is stated that respondents with common intention used to threaten her to

kill and assault. Appellant/complainant further stated that she handed overgold jewellery on the advise of her husband (R-1). In cross examination,

appellant/complainant denied that no gold or dowry articles were retained by

respondents or that she had taken back all her gold and many costly articles

at the time of leaving of her matrimonial home. She denied the suggestion

that remaining dowry articles were returned after registration of a case under

Section 498-A/406/34 IPC. On the other hand, in his affidavit husband/R-1

deposed that appellant/complainant had deserted her matrimonial home

without any reason on 5.10.2004. She left her matrimonial home in a pre-

planned manner and she had taken away all her gold and silver jewellery. In

cross examination, he reiterated that gold articles mentioned in the list, weretaken back by appellant/complainant when she left her matrimonial home.

9. On perusal of evidence adduced by the parties, Learned Trial Court

found that complainant was a victim of domestic violence and a prima-facie

case of domestic violence was made out against husband/R-1. It was found

that there were no specific allegations against father-in-law/R-2 and no case

of domestic violence was made out against Ajay Gupta/R-5 (nandoi).


24/35

Similarly no case is made out against Smt. Urmil Gupta (R-3) and Smt.Anju

Gupta (R-4). Learned trial Court further noted that appellant/complainant

was residing separately since 05.10.2004 and there were no complaints

during the intervening period or even prior to that for commission of

domestic violence by the respondents. I was found that husband/R-1 wasresiding in the house of his parents and had no separate accommodation.

Similarly, appellant/complainant was residing with her parents and was

financially independent. Trial Court found that both the parties were

financially equally placed, therefore, no maintenance order was passed.

Residence order was also declined for the reason that appellant/complainant

was a Government servant, who was also entitled to House Rent Allowance

(HRA). Learned Trial Court found that appellant/complainant had not placed

on record any proof that she suffered injury due to alleged harassment

caused by the respondents. In view of the aforesaid reasons, no relief was

granted to appellant/complainant.

9 These fact findings in no manner call for any interference. The scope

of misuse of proposition of law as noted in the judgment of Sou Sandhya

Manoj Wankhade (supra) would not arise as there was no fact finding that

the jewellary articles/istridhan were lying with the mother-in-law. Moreover,

on a specific query put to the learned counsel for the petitioner about the

proceedings under Sections 498-A/406 of the IPC, there has been no denial.

It is but obvious that these sections would also encompass the same relief.

10 This petition is an abuse of the process of the Court. Dismissed with

costs of Rs.5,000/-.

Sd/-

INDERMEET KAUR, J

FEBRUARY 11, 2014


25/35

Form No. J(2)

IN THE HIGH COURT AT CALCUTTA

Appellate/Revisional/Civil Jurisdiction

Present:

The Hon'ble Mr. Justice Bhaskar Bhattacharya

And

The Hon'ble Mr. Justice Prasenjit Mandal

F.A. 07 of 2007

Smt. Mousumi Banerjee

Versus

Sri Bidyut Kumar Banerjee

For the Appellant-Wife: Mr. Probal Mukherjee, Mr. Soma Priya Chowdhury.

For the Respondent-Husband: Mr. Gopal Ghosh, Mr. Om Narayan Rai.

Heard on: 20.08.09. & 27.08.09

Judgment on: 11th September, 2009.

Bhaskar Bhattacharya, J.:

This appeal is at the instance of a wife in a suit for divorce on the ground of cruelty and is directed against

judgment and decree dated 16th May, 2005 passed by the Additional District Judge, Third Court, Barassa

Matrimonial Suit No.17 of 2002 by which the learned Trial Judge granted the decree for divorce.

Being dissatisfied, the wife has come up with the present first appeal. The husband filed a suit bei

Matrimonial Suit No.1294 of 2001 in the Court of the learned District Judge, Barasat for divorce on

ground of cruelty. The said suit was subsequently transferred to the Court of the learned Additional Dist

Judge, Third Court, Barasat and was renumbered as Matrimonial Suit No.17 of 2002.

The case made out by the husband may be summed up thus: (a) After the marriage of the parties, they star

staying together at the house of the husband at 12/1, Mahajati Nagar, Birati and immediately after

marriage, the trouble started in the family of the husband at the instigation of the mother of the wife who u

to visit the house of the husband quite often. On her advice, the wife stated misbehaving with the husband a

his parents and the main object of the mother of the wife was to separate the husband from his old parent

to make him a domesticated son-in-law in the house of the wife at Salt Lake. (b) In the meantime, a child w

born on 26th November, 1994 but the wife at the instigation of her mother deprived the husband and

parents from the love and affection of the child. The wife left the matrimonial home with her child witho

informing the parent of the husband and continued to stay at Salt Lake. After long persuasion and through

intervention of the Mahila Samity, although the wife returned to her matrimonial home, when the parents

the husband approached the child, the wife reacted violently and she denied the access of the child to

Smt. Mousumi Banerjee vs Sri Bidyut Kumar Banerjee on 11 September, 2009



26/35

parents of the husband and again left the matrimonial home on 19th April, 1996 without informing

husband and his parents and then came back on 3rd May, 1996. Thereafter, the wife again left the matrimon

home on 15th August, 1996 without any information and came back after a short span and finally on 1

October, 1996 she left without informing anybody just leaving a sheet of paper indicating her departure. T

husband approached the respondent at her residence at Salt Lake for returning to her matrimonial home wh

she flatly refused. As a result, the husband filed a proceeding for restitution of conjugal right under Sectio

of the Hindu Marriage Act. However, the said petition was ultimately withdrawn by the husband. The w

however, served a notice to the employer of the husband making baseless allegation that amount of alimo

was due to her under the order of the Court and she took step for attachment of the salary. She also by go

to the office of the husband abused him in the presence of his colleagues thereby affecting his social sta

and dignity in the esteem of his colleagues. Ultimately, the wife on 10th August, 2001 again came back to

matrimonial home being armed with an order under Section 144 of the Cr.P.C. with the help of police

occupying the entire ground floor consisting five rooms by denying access to the husband and his parent

the ground floor. The respondent also used to threat the husband of initiating proceeding under Section 49

of the Indian Penal Code; as a result, the husband with his parents had left the place and started living i

rented house.

The suit was contested by the wife by filing written statement denying the material allegation made in

petition for divorce and according to her, the mother of the husband subjected the wife to cruelty and amanhandled her during her stay in the matrimonial home. According to her, she was abused in filthy langu

by the father of the husband. It was denied that she had voluntarily abandoned her matrimonial home on 14

October, 1996. She expressed her desire to stay in her matrimonial home with the male child. As indica

earlier, the learned Trial Judge on the basis of evidence on record came to the conclusion that the husband h

proved cruelty on the part of the wife and consequently, granted a decree for divorce. Being dissatisfied,

wife has come up with the present first appeal. After hearing the learned counsel for the parties and af

going through the materials on record, we find that it has been well established from the Exbt.3,

handwritten note of the wife, that she had left the house without disclosing the reason. The learned T

Judge, as it appears from the judgment impugned, rightly recorded that the mother of the wife made deliber

false statement on oath before the Court at the time of deposition. She stated that she was very mu

disappointed in the family of the applicant. She openly expressed that her daughter had no duty to take carethe old parents. The wife in her evidence stated that she did not like her in-laws and wanted her husba

separately. The learned Trial Judge has further found that in spite of specific direction for production of

child in the Court, the wife did not give access of the son to the husband. The learned Trial Judge has furt

found that a false Money Execution Case No.64 of 2000 was filed by the wife for issue of warrant of arr

against the husband and the same was issued by the Judicial Magistrate but the learned District Judge, Bara

in Criminal Revision Case No.438 of 2001 recalled said warrant of arrest with a finding that there was no su

due. It further appears that after leaving the house she came back with police and occupied the entire grou

floor consisting of five rooms and threatened the husband with initiation of proceeding under Section 498A

the Indian Penal Code, as a result, the husband was compelled to take shelter in a rented house leaving

own house.

From the aforesaid material it is clear that the act of the wife amounted to cruelty within the meaning

Section 13(1) (i)(a) of the Hindu Marriage Act and we find no reason to take different view from the o

taken by the learned Trial Judge.

At the time of hearing of this appeal, the husband produced before us his monthly salary certificate wh

shows that his monthly income is Rs.27,000/- and odd and after deduction of income-tax and other necess

deduction we can safely treat his monthly income to be Rs.25,000/-. In such circumstances, we are of the vi

that the wife should be entitled to get a onetime permanent alimony of Rs.6 lakh from the husband in f

satisfaction of the claim for future alimony.




27/35

The only son of the parties is living with the wife and is a student of class IX. After taking into considerat

the expenditure of his studies and other maintenance, we, for the time being, direct the husband to pay a s

of Rs.5,000/- for the maintenance of the son on condition that the son will stay with the husband for a day i

week. The husband should pick up the son from his wife's house on every Saturday evening and return

child in the afternoon of Sunday. He will go on sending the money by account payee cheque in the jo

account of the mother with the son. If the son refuses to comply with the direction of staying with his fat

for a day in a week, he will not be entitled to get the maintenance ordered by us by this order.

We, therefore, affirm the decree for divorce on the ground of cruelty and in addition, grant a decree

permanent alimony for the wife and also for the maintenance of the only child of the parties as indica

above. The appeal is, thus, disposed of with the aforesaid observation. In the facts and circumstances, th

will be, however, no order as to costs.

(Bhaskar Bhattacharya, J.)

I agree.

(Prasenjit Mandal, J.)




28/35

Home| Databases| WorldLII| Search| Feedback

S

judgements

Documents

criminal proceedings

competent court

court on20

competent civil court

criminal complaintbefore

said case

statements of appellant

domestic violence act