Dismissed

Aman Kumar @ Aman Agrawal and Another v. State of U.P. and 7 Others

Allahabad HC23 Jan 2023WRIC/36565/2022

Case brief

AI extract

What is this about?

This court dismissed a writ petition challenging an order recalling a mutation order obtained allegedly by fraud. The court held that where an order is obtained by fraud or misrepresentation, the authority has the inherent power to recall it.

What did the court decide?

Writ petition dismissed; impugned order recalling mutation order upheld.

Aman Kumar @ Aman Agrawal and Another Vs… — Civil Procedure and Limitation | Allahabad HC (2023)

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Judgment Reserved on 3.1.2023 Delivered on 23.1.2023.

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Court No. - 34

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Case :- WRIT - C No. - 36565 of 2022

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Petitioner :- Aman Kumar @ Aman Agrawal And Another Respondent :- State Of U.P. And 7 Others Counsel for Petitioner :- Praveen Kumar,Shambhawi Shukla Counsel for Respondent :- C.S.C.,A.P.Singh,Abhishek Krishna

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Hon'ble Saurabh Shyam Shamshery,J.

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Heard Shri. Praveen Kumar, learned counsel for the petitioners, Shri.Abhishek Krishna for respondent no.3 and Shri.A.P.Singh on behalf of respondent no.4.

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Petitioners’ application for mutation of their names in place of their father in regard to property in question submitted under Section 147 of Uttar Pradesh Municipalities Act, 1916 (hereinafter called the ‘Act, 1916’) was allowed vide order dated 9.10.2019 on basis of a registered will dated 18.10.2008 in their favour executed by their father as well as despite publication of notice, no objection was filed on behalf of contesting private respondents.

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Contesting respondents instead of filing an appeal as provided under Section 160 of the, Act, 1916 filed a recall application for recalling above referred order dated 9.10.2019 on ground that it was a case of misrepresentation as petitioners despite knowledge have not disclosed that subsequently a will dated 3.6.2014 was executed in favour of private respondents and therefore said application was allowed by impugned order dated

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9.10.2019 and appeal thereof was dismissed by the other impugned order dated 5.9.2022.

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Learned counsel for petitioners submitted that authority under Section 147 of the Act, 1916 has no power to review its own order and remedy available to the private respondents was to file an appeal under Section 160 of the Act, 1916 as provided under Section 147 (4) of the Act, 1916. Petitioner has not misled the authority as he had no knowledge about any subsequent Will and subsequently has availed appropriate remedy available to him to challenge the same by way of filing a civil suit.

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Learned counsel for petitioners has placed reliance on a judgment passed by Division Bench of this Court in Smt. Sushila Devi Vs. Nagar Palika Parishad, Hathras & Anr, 2005 (3) AWC 2140, that “a close reading of Sub-section (4) of Section 147 shows that the amendment and alteration of the annual list is final and subject to the result of an appeal under Section 160 of the Act. Admittedly, the petitioner has not preferred an appeal under Section 160 of the Act, therefore, the order passed by the Tax Committee has attained finality and it will relate back to the date of the notice.”

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Learned counsel for petitioners has also placed reliance on a judgment passed by Co-ordinate Bench of this Court in Abdul Hameed & Anr. Vs. Nagar Palika Parishad Bela Patapgarh & Ors, 2019 0 Supreme (All) 237 and relevant paragraph nos.24,25 and 26 are mentioned hereinafter:

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“24. This Court has already held in Awadhesh Singh Vs. Additional Commissioner, 2017 (9) ADJ 378 that writ petitions against Mutation Proceedings can be entertained, but on two grounds only (a) if the order impugned has been passed without jurisdiction or going beyond the jurisdiction that is vested in the authority by the Act and the Rules (b) if the order impugned creates, rights in favour of the parties or liabilities against the parties, which are against the settled provisions of the Statute or against a decision given interparties by a Competent Court of law.

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The orders passed in Mutation Proceedings being summary in nature, writ petitions are usually not entertained, except for the exception carved out as referred to herein above.

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Also, it is not that the petitioners are left remedyless in such matters. The petitioners can approach the competent Court of law for declaration of their rights on the basis of family settlement, if any, that was entered into between the parties in 1966.”

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Per contra, learned counsel for respondent nos.3 and 4 have opposed aforesaid submissions and submitted that an order passed on basis of a fraud could be recalled by the authority who has passed the order. Claim of private respondents was based on their individual right i.e. a Will in their favour, therefore, it would fall within the purview of an application filed under Section 147 of the Act, 1916 for amendment and alteration of list. It was not mandatory to file an appeal as the order was based on a fraud played by the petitioners.

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Heard learned counsel for parties and perused the records.

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On basis of facts of present case as well as rival submissions raised on behalf of contesting parties there is an issue before this Court for consideration:

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As to whether authority concerned has power to recall its own order passed under Section 147 of the Act, 1916 being an order obtained on fraud.

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It is well settled that fraud vitiates every solemn act and fraud and justice never dwell together, therefore, if in the present case, petitioners have committed fraud by misrepresentation or withholding a material information that subsequently a Will was executed in favour of private respondents, the authority concerned may recall it.

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Supreme Court has dealt with issue to recall an order obtained by fraud in Smriti Madan Kansagra Vs. Perry Kansagra, 2021 SCC OnLine SC 909 and held in paragraph nos.49, 50 and 55 which are as under:

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“ 49. In Indian Bank v. Satyam Fibres (India) (P) Ltd., (1996) 5 SCC 550 the principles were stated thus:—

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“21. In Smith v. East Elloe Rural Distt. Council the House of Lords , [1956 AC 736 : (1956) 1 All ER 855 : (1956) 2 WLR 888] held that the effect of fraud would normally be to vitiate any act or order. In another case, Lazarus Estates Ltd. v. Beasley, [(1956) 1 QB 702 : (1956) 1 All ER 341 : (1956) 2 WLR 502] (QB at p. 712) Denning, L.J. said:

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‘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.’

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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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Since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of court, the courts have been held to have inherent power to set aside an order obtained by fraud practised upon that court. Similarly, 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. (See : Benoy Krishna Mukerjee v. Mohanlal Goenka, [AIR 1950 Cal 287] ; Gajanand Sha v. Dayanand Thakur, [AIR 1943 Pat 127 : ILR 21 Pat 838] ; Krishnakumar v. Jawand Singh, [AIR 1947 Nag 236 : ILR 1947 Nag 190] ; Devendra Nath Sarkar v. Ram Rachpal Singh, [ILR (1926) 1 Luck 341 : AIR 1926 Oudh 315] ; Saiyed Mohd. Raza v. Ram Saroop, [ILR (1929) 4 Luck 562 : AIR 1929 Oudh 385

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(FB)] ; Bankey Behari Lal v. Abdul Rahman, [ILR (1932) 7 Luck 350 : AIR 1932 Oudh 63] ; Lekshmi Amma Chacki Amma v. Mammen Mammen, [1955 Ker LT 459] , The court has also the inherent power to set aside a sale brought about by fraud practised upon the court ( Ishwar Mahton v. Sitaram Kumar, [AIR 1954 Pat 450] or to set aside the order recording compromise obtained by fraud. ( Bindeshwari Pd. Chaudhary v. Debendra Pd. Singh, [AIR 1958 Pat 618 : 1958 BLJR 651] ; Tara Bai v. V.S. Krishnaswamy Rao, [AIR 1985 Kant 270 : ILR 1985 Kant 2930] ”

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50 . In United India Insurance Co. Ltd. v. Rajendra Singh, (2000) 3 SCC 581, this Court observed:—

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“16. Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly-discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim.

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In Badami v. Bhali , (2012) 11 SCC 574 , a discussion was as under:—

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“29. Presently, we shall refer as to how this Court has dealt with concept of fraud. In S.B. Noronah v. Prem Kumari Khanna, [(1980) 1 SCC 52 : AIR 1980 SC 193] while dealing with the concept of estoppel and fraud a two-Judge Bench has stated that : (SCC p. 58, para 20)

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“20. It is an old maxim that estoppels are odious, although considerable inroad into this maxim has been made by modern law. Even so, ‘a judgment obtained by fraud or collusion, even, it seems, a judgment of the House of Lords, may be treated as a nullity’. (See Halsbury's Laws of England, Vol. 16, 4 Edn., para 1553.) The point is that the sanction granted under Section 21, if it has been procured by fraud or collusion, cannot withstand invalidity because, otherwise, high public policy will be given as hostage to successful collusion.”

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In S.P. Chengalvaraya Naidu v. Jagannath, [(1994) 1 SCC 1] this Court commenced the verdict with the following words : (SCC p. 2, para 1)

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“1. ‘Fraud avoids all judicial acts, ecclesiastical or temporal’ observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eye of the law. Such a judgment/ decree—by the first court or by the highest court—has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.”

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In the said case it was clearly stated that the courts of law are meant for imparting justice between the parties and one who comes to the court, must come with clean hands.”

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In Shrisht Dhawan v. Shaw Bros., [(1992) 1 SCC 534 : AIR 1992 SC 1555], it has been opined that the fraud and

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collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It has been defined as an act of trickery or deceit. The aforesaid principle has been reiterated in Roshan Deen v. Preeti Lal, [(2002) 1 SCC 100 : 2002 SCC (L&S) 97 : AIR 2002 SC 33] , Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education, [(2003) 8 SCC 311] and Ram Chandra Singh v. Savitri Devi, [(2003) 8 SCC 319].

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In State of A.P. v. T. Suryachandra Rao, [(2005) 6 SCC 149], after referring to the earlier decision this Court observed as follows : (SCC p. 155, para 16)

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“16. In Lazarus Estates Ltd. v. Beasley, [(1956) 1 QB 702 : (1956) 2 WLR 502 : (1956) 1 All ER 341] , Lord Denning observed at QB p. 712:

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‘… 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.’

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In the same judgment Lord Parker, L.J. observed that fraud ‘vitiates all transactions known to the law of however high a degree of solemnity’ ( Lazarus case , [(1956) 1 QB 702 : (1956) 2 WLR 502 : (1956) 1 All ER 341] QB p. 722).”

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Yet in another decision Hamza Haji v. State of Kerala, [(2006) 7 SCC 416 : AIR 2006 SC 3028], it has been held that no court will allow itself to be used as an instrument of fraud and no court, by way of rule of evidence and procedure, can allow its eyes to be closed to the fact it is being used as an instrument of fraud. The

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basic principle is that a party who secures the judgment by taking recourse to fraud should not be enabled to enjoy the fruits thereof.

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All these reasonings are absolutely non-plausible and common sense does not even remotely give consent to them. It is fraudulent all the way. The whole thing was buttressed on the edifice of fraud and it needs no special emphasis to state that what is pyramided on fraud is bound to decay. In this regard we may profitably quote a statement by a great thinker:

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“Fraud generally lights a candle for justice to get a look at it; and rogue's pen indicts the warrant for his own arrest.”

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From facts of present case, it is evident that a registered Will was executed on 3.6.2014 in favour of contesting respondents after withdrawing earlier Will executed in favour of petitioners on 8.10.2008. There is no material before this Court that petitioners had no knowledge about subsequent Will and that the Will on which petitioners rests his claim, was already been revoked, therefore, petitioners have withheld material information and played fraud. Therefore, in light of Smriti Madan Kansagra (supra), that order based on fraud was rightly recalled as such, there is no ground to interfere with the impugned order.

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The writ petition is dismissed.

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Order Date :-23 . 1.2023 SB

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Digitally signed by :- SANDEEP BHATTACHARYA High Court of Judicature at Allahabad

Aman Kumar @ Aman Agrawal and Another v. State of U.P. and 7 Others

Case brief

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Aman Kumar @ Aman Agrawal and Another v. State of U.P. and 7 Others

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