Dismissed

Smt.Sonali Jain v. Samyak Jain and 4 Others

Allahabad HC4 Jul 2023A227/6568/2023

Case brief

AI extract

What is this about?

This Article 227 petition challenged orders rejecting interim injunctions in a property suit. The High Court dismissed the petition, holding that the petitioner concealed subsequent sale deeds and approached the court without clean hands, thereby committing fraud and abusing court process.

What the court decided

AI extract

Smt.Sonali Jain Vs Samyak Jain and 4 Others — Property and Title | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:131129

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Court No. - 1

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Case :- MATTERS UNDER ARTICLE 227 No. - 6568 of 2023

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Petitioner :- Smt.Sonali Jain Respondent :- Samyak Jain And 4 Others Counsel for Petitioner :- Ashish Agrawal Counsel for Respondent :- Rajneesh Tripathi

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Hon'ble Jayant Banerji,J.

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Heard Shri Ashish Agrawal, learned counsel for the plaintiffpetitioner and Shri Nitin Sharma, learned counsel for the defendantrespondent No.3.

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This petition has been filed seeking the following reliefs:

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"i) Issue an order or direction in exercise of supervisory power of Hon'ble High Court under Article 227 of the Constitution of India setting aside the impugned order dated 18.05.2023 passed by District Judge, Mainpuri in Misc. Appeal No. 23 of 2023 (Sonali Jain Vs. Samyak Jain and others) [ Annexure No. 10 to the petition] by which the stay application, paper no. 5- C-2 has been rejected as well as the order dated 27.04.2023 passed by Civil Judge (Junior Division), Mainpuri in Original Suit No. 136 of 2023 (Sonali Jain Vs. Samyak Jain and others) [ Annexure No. 6 to the petition];

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ii) Issue an order or direction in exercise of supervisory power of Hon'ble High Court under Article 227 of the Constitution of India restraining the defendants/respondents from interfering into actual and physical possession of the shop in question during the pendency of the Original Suit No. 136 of 2023 (Sonali Jain Vs. Samyak Jain and others)."

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The aforementioned orders are under challenge by the plaintiff-petitioner, who had filed a suit (O.S. No.136 of 2023) for injunction against the defendants/respondents. In that suit the plaintiff-petitioner filed an application paper No.6-C-2 praying for an interim injunction. The defendant-respondent Nos. 3 to 5 filed their objection paper No.33-C-1.

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The trial Court observed that the plaintiff-petitioner had filed a certified copy of a sale deed dated 19.2.2011 by means of which the property in dispute was transferred to her. The defendant/respondents had filed an attested copy of the sale deed dated 26.8.2019 whereby, the plaintiff-petitioner had transferred the property in dispute to the defendant-respondents Nos. 1 and 2. It was also noticed that the another attested copy of a sale deed dated 25.8.2021 was filed, whereby the defendant-respondent No.1 transferred his portion of the property in dispute to the defendantrespondent No.3. Another attested copy of a sale deed dated 23.2.2022 was filed which reflected that the defendant-respondent No.2 had transferred her portion of property in dispute in favour of the defendant-respondent No.3. It was noted that, as such, the property in dispute was transferred in favour of the defendantrespondent No.3. It was observed that, prima facie, the owner of the property in dispute was the defendant-respondent No.3 and the plaintiff-petitioner did not appear to be the owner of any part of the said property.

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It was observed that the plaintiff-petitioner had not come with clean hands before the trial Court, and had concealed the fact that after execution of the sale deed in her favour on 19.2.2011 the property in dispute was transferred several times. That it was also concealed that the property in dispute was transferred by her on 26.8.2019 to the defendant-respondent Nos. 1 and 2. That there was no denial by the plaintiff-petitioner of the sale deeds dated 25.08.2021 and 23.02.2022. It was also observed that the plaintiffpetitioner has also not clarified that what is her status and the plaintiff-petitioner appeared to be a trespasser. Relying upon the judgements of the Supreme Court and High Court, the application for temporary injunction was rejected.

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In the appeal filed by the plaintiff-petitioner, an application No. 5C-2 was moved on her behalf in which an interim relief was sought for restraining the defendant-respondents from interfering in her peaceful possession. Objection to that application was filed by the defendant respondents stating about the concealment of facts by the plaintiff-petitioner and about the sale deeds subsequent to the sale deed dated 19.02.2011. It was stated that the possession of the plaintiff-petitioner over the property in dispute is completely illegal as neither the plaintiff-petitioner is the owner nor tenant nor licensee and that she is a mere trespasser.

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The appellate court noted the observations of the trial court and observed that since the plaintiff-petitioner had transferred the shop in dispute in favour of the defendant-respondents by means of a sale deed dated 26.8.2019, no temporary relief can be granted to her. Accordingly, the application was dismissed.

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The contention of learned counsel for the petitioner is that the defendant-respondent Nos.3 to 5, in paragraph Nos. 20 and 23 of their written statement had admitted the consensual possession of the plaintiff-petitioner. It is stated that when it is admitted by the defendant-respondents that the plaintiff-petitioner was in actual possession of the shop in dispute, they cannot forcibly evict her. Learned counsel for the plaintiff-petitioner has referred to the supplementary affidavit dated 31.5.2023, and the supplementary affidavit filed today in an attempt to demonstrate that the plaintiffpetitioner is being forcibly dispossessed and, therefore, an order of temporary injunction ought to have been passed. Learned counsel, in support of his case, has relied upon the various judgements of the Supreme Court, which are as follows: Rame Gowda (D) Vs. M. Varadappa Naidu (D)¹ ; Krishna Ram Mahale (dead) Vs. Mrs. Shobha Venkat Rao² ; Subramaniaswamy Temple, Ratnagiri Vs.

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1 (2004) 1 SCC 769

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2 (1989) 4 SCC 131

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V. Kanna Gounder (Dead)³ and Aarti Vs. Aruna Gautam⁴ , in support of his contention, that even though the plaintiff-petitioner may not have title in property in dispute, and even if she is a trespasser, the trespass being consensual and continuous, she could not be evicted from the property in dispute without recourse to law.

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Shri Nitin Sharma, learned counsel for the defendantrespondent No.3 has strongly opposed the petition and stated that the plaintiff-petitioner had filed the suit concealing material facts. It is stated that even in the present petition, the petitioner has not denied the fact that the signatures appearing on the sale deed executed in favour of the defendant-respondents are not hers. It is stated that even in the grounds of appeal filed by the plaintiffpetitioner, execution of the sale deeds dated 26.8.2019, 25.8.2021 and 23.2.2023 have not been specifically denied. It is, therefore, contended that the trial court and the appellate court were justified in refusing the temporary injunction to the plaintiff-petitioner.

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The plaint of the original suit filed by the plaintiff-petitioner is enclosed as Annexure No.1 to this petition. A perusal of the plaint reveals that the plaintiff-petitioner has only revealed about the sale deed dated 19.2.2011 executed in her favour and there is no whisper therein with regard to the subsequent sale deeds, one of which, dated 26.8.2019, is stated to have been executed by the plaintiff-petitioner herself. As a matter of fact in the plaint, the defendant-respondents have been described as land grabbers, who are forcibly trying to occupy the shop in dispute from the plaintiffpetitioner without any title or authority.

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In the written statement filed by the defendant-respondent Nos. 3 to 5, the defendant-respondents have referred to the aforesaid sale deed registered on 19.2.2011 in favour of the

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4 MANU/SC/1239/2014

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3 (2009) 3 SCC 306

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plaintiff-petitioner. The subsequent sale deeds including those executed by the defendant-respondent Nos.1 and 2 in favour of the defendant-respondent No.3 have been referred too. It has also been stated therein that the name of the defendant-respondent No.3 has already been mutated in the records of the Nagar Palika. That both the defendant-respondent Nos. 1 and 2 had stated that they will give possession of the shop to the defendant-respondent No.3, shortly. It is stated that before the execution of the sale deeds in his favour, the defendant-respondent No.3 had spoken to the plaintiff-petitioner and to the defendant-respondent Nos. 1 and 2 and they had said that after another two months, possession of the shop would be given to the defendant-respondent No.3 as soon as an alternative arrangement is made. It is stated that the sale deed dated 23.2.2023 was got executed in good faith. It is stated that despite getting the entire amount of sale consideration, in order to defraud defendantrespondent No.3, the plaintiff petitioner is refusing to give possession and, as such, the possession of the plaintiff-petitioner is unlawful. It is stated that a registered notice dated 28.2.2023 was sent to the plaintiff-petitioner and her husband and that the defendant-respondent No.3 reserves his right to file a suit before the competent Court.

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It appears that on the date when the suit was presented by the plaintiff-petitioner before the trial court on 27.1.2023, an interim injunction application No.6C-2 was also filed by her in which the contents of the plaint were reiterated and temporary injunction was sought. Considering the facts as reflected in the plaint as well as in the application for the temporary injunction, the trial court issued notice to the defendant-respondents fixing 3.3.2023 and directed that till the next date of listing, peaceful possession of the plaintiffpetitioner be not disturbed. The interim order was extended on the subsequent dates and then the matter was heard on 27.4.2023. After hearing the counsel for the parties, the trial court rejected the

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applications paper No.6C-2 by the impugned order dated 27.4.2023. Thereafter, the appeal was filed by the plaintiff-petitioner.

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A perusal of the grounds of appeal that have been filed as Annexure No.7 to the petition reveal that the sale deeds dated 26.8.2019, 25.8.2021 and 23.2.2022 have not been specifically denied. However, while referring to the contents of the written statements/objections filed by the defendant-respondent Nos. 3 to 5 in the suit, a case was sought to be set up in the appeal that in collusion with the bank authorities, a fraudulent sale deed has been set up for availing credit limit from the bank. It is stated in the appeal that the possession of the plaintiff-petitioner is established from the report of the Commissioner and, therefore, the plaintiffpetitioner is entitled to an injunction.

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The appellate court noticed the observations and findings of the trial court including the fact that the plaintiff-petitioner had not come before the Court with clean hands and that she had concealed the actual facts with regard to the property in dispute and had presented false and misleading facts. It was observed that the plaintiff-petitioner was not able to make out a prima facie case. It was also observed that if any temporary injunction is granted to the plaintiff-petitioner, it would result in irreparable injury to the defendant-respondent. It was noted that the plaintiff-petitioner had no concern with the shop in dispute inasmuch as she had already executed a sale deed dated 26.8.2019 in favour of the defendantrespondents. It was held that the appellant was not entitled to any interim relief. The application No.5-C was rejected and the record was directed to be put up on 10.7.2023.

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It is evident that the appeal is pending and only an interim relief has been refused. The allegation that in collusion with the bank authorities, a fraudulent sale deed has been set up by the defendant respondent for availing credit limit from the bank, has

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been raised for the first time in the appeal. The plaintiff-petitioner, in the appeal, only referred to the sale deed dated 19.2.2011 that was executed in her favour.

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The judgements cited by the learned counsel for the plaintiffpetitioner are in support of his contention that since the plaintiffpetitioner trespasser was in actual physical possession of the property in dispute over a sufficiently long period, which fact was in the knowledge of the owner, she cannot be evicted except in accordance with law and therefore, temporary injunction is required to be granted. However, there is no material to contradict the observation of the trial and appellate courts that the plaintiffpetitioner did not approach the trial court with clean hands and did not make a full and complete disclosure of the sale deed executed with respect to property in dispute by means of which she had transferred the property in dispute to the defendant-respondent Nos. 1 and 2.

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As a matter of fact, the plaintiff-petitioner has accused the defendant-respondents No.3 to be a land grabber, totally concealing the fact that the defendant-respondents No.3 had acquired title by means of sale deeds dated 25.8.2021 and 23.2.2022 with regard to the property in dispute. Misrepresentation, concealment and suppression of facts from the Court in order to extract unlawful advantage is an abuse of the process of Court and would also amount to fraud upon the Court.

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In the case of Ram Chandra Singh v. Savitri Devi⁵ , it has been observed by the Supreme Court as follows:-

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“15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well known vitiates every solemn act. Fraud and justice never dwell together.

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5 (2003) 8 SCC 319

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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 word or letter.

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It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.

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A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad.

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Recently this Court by an order dated 3-9-2003 in Ram Preeti Yadav v. U.P. Board of High School & Intermediate Education [(2003) 8 SCC 311 : JT 2003 Supp (1) SC 25] held: (SCC pp. 316-317, paras 13-15)

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“13. 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. (See Derry v. Peek [ Arising out of SLP (C) No. 20273 of 2000] .)

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In Lazarus Estates Ltd. v. Beasley [(1956) 1 All ER 341 : (1956) 2 WLR 502 : (1956) 1 QB 702 (CA)] the Court of Appeal stated the law thus: (All ER p. 345 C-D)

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‘I cannot accede to this argument for a moment. No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever;’

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In S.P. Chengalvaraya Naidu v. Jagannath [(1994) 1 SCC 1] this Court stated that fraud avoids all judicial acts, ecclesiastical or temporal.”

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An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous.

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In Indian Bank v. Satyam Fibres (India) (P) Ltd. [(1996) 5 SCC 550] this Court after referring to Lazarus Estates [(2003) 8 SCC 311 : JT 2003 Supp (1) SC 25] and other cases observed that since fraud

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affects the solemnity, regularity and orderliness of the proceedings of the court it also amounts to an abuse of the process of the court, that the courts have inherent power to set aside an order obtained by practising fraud upon the court, and that where the court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order (SCC p. 563, para 23). It was further held: (SCC pp. 562-63, para 22)

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“22. The judiciary in India also possesses inherent power, specially under Section 151 CPC, to recall its judgment or order if it is obtained by fraud on court. In the case of fraud on a party to the suit or proceedings, the court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the tribunals or courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the court's business.”

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In Chittaranjan Das v. Durgapore Project Ltd. [(1995) 99 CWN 897 : (1995) 2 Cal LJ 388] it has been held: (Cal LJ p. 402, paras 57-58)

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“57. Suppression of a material document which affects the condition of service of the petitioner, would amount to fraud in such matters. Even the principles of natural justice are not required to be complied with in such a situation.

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It is now well known that a fraud vitiates all solemn acts. Thus, even if the date of birth of the petitioner had been recorded in the service returns on the basis of the certificate produced by the petitioner, the same is not sacrosanct nor the respondent company would be bound thereby.”

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20. In the case of S.P. Chengalvaraya Naidu v. Jagannath⁶ , the Supreme Court observed:-

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“5. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that “there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence”. The principle of “finality of litigation” cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has

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6 (1994) 1 SCC 1

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no right to approach the court. He can be summarily thrown out at any stage of the litigation.

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The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. 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. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Ex. B-15) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Nonproduction and even non-mentioning of the release deed at the trial is tantamount to playing fraud on the court. We do not agree with the observations of the High Court that the appellants-defendants could have easily produced the certified registered copy of Ex. B-15 and non-suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party. ”

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(emphasis supplied)

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Therefore, under the facts and circumstances of the case, the plaintiff-petitioner deserves no indulgence. This petition is, accordingly, dismissed .

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Order Date :- 4.7.2023 K.K.Tiwari

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(Jayant Banerji, J.)

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Digitally signed by :- KRISHNA KANT TIWARI High Court of Judicature at Allahabad

Smt.Sonali Jain v. Samyak Jain and 4 Others

Case brief

What is this about?

What the court decided

Smt.Sonali Jain v. Samyak Jain and 4 Others

Case brief

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