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Smt. Pushpa Pandey v. Salauddin & Ors.
Factual and Procedural Background
The revision under Section 115 of the Code of Civil Procedure challenges the order dated 12-10-2001 of the Civil Judge Class I, Ramanujganj, Ambikapur (Chhattisgarh) in M.J.C. No. 1/2001. By that order an application filed by non-applicants Nos. 1 and 2 under Order 9, Rule 13 read with Section 151 CPC was allowed and an ex parte decree dated 17-11-1997 (in Civil Suit No. 58-A/96) granted in favour of the plaintiff (the applicant in revision) was set aside.
Briefly, the plaintiff filed suit for declaration of title and related reliefs in respect of suit land Khasra No. 439/8 (area 2.023 hectares) and a house at village Balrampur Pal, District Sarguja. The plaintiff pleaded possession for 30–32 years and that a Patta had been granted by the Tehsildar on 14-7-1986 but was subsequently cancelled by the Additional Collector by order dated 22-8-1992; the suit attacked that cancellation and sought a declaration that the Additional Collector's order was illegal and void and sought permanent injunction.
At trial the State (defendant) was proceeded against ex parte and an ex parte decree was passed on 17-11-1997 under Order 8, Rule 10 CPC. The decree attained finality as against the State since no application under Order 9, Rule 13 nor appeal was preferred by the State. Non-applicants Nos. 1 and 2 (strangers to the original suit) then filed an application under Order 9, Rule 13 read with Section 151 CPC alleging that the plaintiff colluded with revenue authorities to record the suit land in her name and that the decree was obtained by fraud; the trial Court allowed that application on 12-10-2001 and set aside the ex parte decree. This revision proceeded from that order and culminated in the present opinion restoring the ex parte decree.
Legal Issues Presented
- Whether non-applicants Nos. 1 and 2, being strangers to the judgment and decree passed ex parte in favour of the plaintiff, have locus standi to file an application to set aside that decree under Order 9, Rule 13 CPC (read with Section 151 CPC).
Arguments of the Parties
Applicant's Arguments (on revision)
- There is nothing on record to show that the applicant (plaintiff) committed any fraud or colluded with State authorities.
- An inference of collusion with the State authorities could not be drawn from the facts and circumstances of the case.
- Non-applicants Nos. 1 and 2 are strangers to the suit and therefore lack locus standi to maintain an application under Order 9, Rule 13 CPC; the trial Court's order allowing their application is illegal and should be set aside.
- Reliance was placed on decisions including Gopal Dhimar v. State of M.P (2003 (3) MPHT 360) and Subahu (Subahu) Kumar Jain v. Jagdish Prasad Choudhury (AIR 1990 Gauhati 66) holding that ordinarily only a defendant can apply under Order 9, Rule 13 CPC.
Non-applicants Nos. 1 and 2 (Respondents in Revision) Arguments
- The ex parte decree in favour of the plaintiff was a collusive decree obtained by the plaintiff in collusion with State authorities and therefore was obtained by playing fraud upon the Court.
- Because the decree was obtained by fraud, strangers (non-applicants Nos. 1 and 2) have locus standi to apply under Order 9, Rule 13 read with Section 151 CPC to set it aside.
- Reliance was placed on the decision of the Allahabad High Court in Suraj Dev v. Board of Revenue, U.P. (AIR 1982 All 23) and on Raghunath Tambe v. M.P. Electricity Board, Jabalpur ((1997) 2 MPLJ 423) in support of the proposition that a stranger may seek setting aside of a decree obtained by fraud/collusion.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Suraj Dev v. Board of Revenue, U.P. (AIR 1982 All 23) | That when a decree is obtained by playing fraud, even a stranger can apply under Order 9, Rule 13 read with Section 151 CPC to set aside such decree. | Relied upon by the trial Court to set aside the ex parte decree on ground of alleged collusion; relied upon by non-applicants as authority for stranger's locus standi. The revising Court noted this reliance but ultimately did not accept that the facts established fraud permitting a stranger to act under Order 9, Rule 13. |
| Gopal Dhimar v. State of M.P. (2003 (3) MPHT 360) | Support for the proposition that, looking to language of Order 9, Rule 13 CPC, only a defendant can file an application under that provision and a stranger has no locus standi. | Placed before the Court by counsel for the applicant (revision petitioner) to support the view that non-applicants had no right to apply; the Court treated this as supporting the ordinary rule that only a defendant can move under Order 9, Rule 13. |
| Subahu (Subahu) Kumar Jain v. Jagdish Prasad Choudhury (AIR 1990 Gauhati 66) | Held that, read literally, Order 9, Rule 13 CPC permits only a defendant to apply and a person not a defendant has no locus standi; it expressed disagreement with Suraj Dev. | Relied upon by applicant's counsel; used by the Court to support the proposition that ordinarily a stranger cannot maintain an application under Order 9, Rule 13 CPC. |
| Mrs. Santosh Chopra…Petitioner v. S/Shri Teja Singh Sardul Singh…S (AIR 1977 Delhi 110) | Interpreted in the opinion as supporting the view that ordinarily only a defendant can apply under Order 9, Rule 13 CPC. | Mentioned among authorities supporting the restricted view of locus standi under Order 9, Rule 13; relied on by the revising Court for that proposition. |
| Raghunath Tambe v. M.P. Electricity Board, Jabalpur ((1997) 2 MPLJ 423) | Cited by parties; in the opinion it is referenced among decisions supporting the proposition that ordinarily only a defendant may move under Order 9, Rule 13 CPC. | Relied upon by non-applicants in their submissions and also cited by the Court as part of authorities indicating the ordinary limitation of Order 9, Rule 13 to defendants. |
| Rupchand Gupta v. Raghuvanshi (Private) Ltd. (AIR 1964 SC 1889) | Clarifies that the mere fact that a third party was not impleaded, or that a defendant did not contest, does not by itself render a decree collusive; gives a working definition of collusion in judicial proceedings. | Applied by the Court to hold that absence of contest by State and non-impleadment did not, on the record before the Court, establish collusion or fraud vitiating the decree. |
Court's Reasoning and Analysis
The Court proceeded in a stepwise manner:
- Fact-finding: The record showed that the State did not effectively contest the suit and an ex parte decree was passed under Order 8, Rule 10 CPC on 17-11-1997; the decree remained unchallenged by the State and thus attained finality as to the State.
- Trial Court action and its basis: The trial Court set aside the decree on 12-10-2001 on the basis that there was collusion between the plaintiff and State authorities and placed reliance on the Allahabad High Court decision in Suraj Dev (AIR 1982 All 23), which supports the proposition that a decree obtained by fraud may be set aside by a stranger.
- Legal construction of Order 9, Rule 13 CPC: The revising Court examined the language of Order 9, Rule 13 CPC and concluded that the provision, by its terms, permits only a defendant to apply to set aside an ex parte decree against him. The Court observed that this ordinary rule is supported by decisions such as Subahu Kumar Jain, Gopal Dhimar, Mrs. Santosh Chopra and Raghunath Tambe.
- Examination of fraud/collusion allegation: The Court considered the non-applicants' contention that the decree was obtained by fraud/collusion. It found no material on record from which fraud upon the Court could be inferred. The Court reiterated that while fraud vitiates everything and a court has inherent power to set aside orders obtained by fraud, fraud must be pleaded and proved; mere non-contest by the State does not automatically establish collusion.
- Application of apex authority on collusion: The Court applied the principle from Rupchand Gupta v. Raghuvanshi (AIR 1964 SC 1889) that the mere fact of non-impleadment or non-contest does not render a decree collusive. The Court quoted the Apex Court's description of collusion as a "secret arrangement" intended to obtain a judicial decision for some sinister purpose.
- Conclusion from combined analysis: Because (a) Order 9, Rule 13 ordinarily confers the specific right to apply only on a defendant, and (b) there was no evidence on record to establish that the decree had been procured by fraud or collusion that would justify a stranger's application, the revising Court concluded that the application by non-applicants Nos. 1 and 2 under Order 9, Rule 13 CPC was incompetent. The trial Court's order setting aside the ex parte decree on that application was accordingly held to be a gross illegality causing manifest injustice to the applicant.
Holding and Implications
Holding: The revision is allowed; the order dated 12-10-2001 passed by the Civil Judge Class I, Ramanujganj, Ambikapur (CG) in MJC No. 1/2001 is set aside and the ex parte decree dated 17-11-1997 in Civil Suit No. 58-A/96 in favour of the applicant is restored.
Implications:
- Direct effect: The trial Court's setting aside of the ex parte decree (by its 12-10-2001 order) is undone and the original ex parte decree in favour of the plaintiff (applicant in revision) stands restored.
- On legal principle: The Court reinforced the ordinary rule that, under the language of Order 9, Rule 13 CPC, the right to apply to set aside an ex parte decree is vested in a defendant; a stranger ordinarily has no locus standi to invoke that provision unless clear, proven fraud upon the Court is shown. In this case, the Court found no such proven fraud and therefore did not extend Order 9, Rule 13 to strangers.
- Costs: The Court directed that in the facts and circumstances, there shall be no order as to costs.
- Precedential impact: The opinion applies and follows existing authorities on the scope of Order 9, Rule 13 and on the standard for proving collusion/fraud. The decision resolves the dispute before it by applying established authorities; the opinion does not purport to create a new rule beyond the reasoning expressly stated.
Petition allowed.
Instant revision under Section 115 of the Code of Civil Procedure is directed against the order dated 12-10-2001 passed by the Civil Judge Class I, Ramanujganj, Ambikapur (CG) in M.J.C No. 1/2001, whereby the application filed by the non-applicants Nos. 1 and 2 under Order 9, Rule 13 read with Section 151 of CPC was allowed and ex parte decree passed on 17th November, 1997 in Civil Suit No. 58-A/96 in favour of the applicant was set aside.
2. Brief facts of the case are that the plaintiff (applicant herein) filed a civil suit against the non-applicants Nos. 3 and 4 for the relief of declaration of title over the suit land Khasra No. 439/8 area 2.023 hectare and house constructed thereon at village Balrampur Pal Distt. Sarguja; for declaration to the effect that the order of the Additional Collector, Ambikapur dated 22-8-1992 in Revenue Case No. 98-A-19/91-92 whereby Patta granted by the Tehsildar in favour of the applicant, plaintiff was cancelled is illegal and void and deserves to be cancelled. Further, relief of permanent injunction was also claimed against any disturbance in the peaceful possession of the plaintiff.
3. As per the plaintiff, she is in possession of the suit land since 30 to 32 years and based on possession, Patta was granted by the Tehsildar in Revenue Case No. 38-A- 19/85-86 on 14-7-1986 and the suit land was settled in her favour but the Additional Collector illegally cancelled the said Patta. It was further pleaded that threat is being given by the defendant No. 2 (non-applicant No. 3 herein) to damage the crop sown by the plaintiff.
4. In the said suit, the non-applicant-State was proceeded ex parte and in terms of the provisions contained in Order 8, Rule 10 of CPC in ex parte decree dated 17-11-1997 was passed by the trial Court. The decree so passed attained finality against the State since the State had not preferred any application under Order 9, Rule 13 of CPC to set aside the said decree nor preferred any appeal, however the non-applicants Nos. 1 and 2 who are strangers preferred an application under Order 9, Rule 13 read with Section 151 of CPC on the ground that the suit land was kept reserved for the purpose of construction of mini stadium and other Government purposes; the applicant in collusion with one Virendra Pandey and also in collusion with the revenue authorities got recorded the suit land in her name in revenue record without there being any revenue proceedings for grant of Patta and the alleged revenue case for grant of Patta was taken. It was further pleaded that although the plaintiff got recorded her name in the revenue record over the suit land but in fact, she could not get possession over it and therefore, she started interfering in possession of the non-applicants Nos. 1 and 2 herein over the land bearing Khasra No. 439/5, 439/6 and 439/7, which were in possession of the non-applicants Nos. 1 and 2 by showing those lands as suit land bearing Khasra No. 489/8. The plaintiff obtained judgment and decree by practising fraud upon the Court and therefore, the decree deserves to be set aside.
5. The applicant herein filed her reply and denied the allegations and pleaded that the Additional Collector had wrongly cancelled her Patta granted in her favour by Tehsildar and therefore, she filed the suit claiming the relief of declaration that the order of the Additional Collector be declared void and illegal. No fraud has been committed by the applicant herein and the suit has been rightly decreed ex parte in her favour. It was further pleaded that the non-applicants Nos. 1 and 2 being strangers to the suit have no locus standi to prefer the application and the application filed by the non-applicants Nos. 1 and 2 herein deserve to be dismissed.
6. Learned trial Court vide order dated 12-10-2001 allowed the application of the non-applicants Nos. 1 and 2 and set aside the decree passed in applicant's favour by holding that the applicant illegally obtained the Patta of the suit land; the order passed by the Additional Collector cancelling Patta is still in force; State authorities in collusion with the applicant herein did not contest the suit and therefore the ex parte decree deserves to be set aside. Learned trial Court placed reliance on the decision of Allahabad High Court in Suraj Dev v. Board of Revenue, U.P, (reported in AIR 1982 All 23) and held that when a decree is obtained by playing fraud, then even a stranger can apply under Order 9, Rule 13 read with Section 151 of CPC for setting aside such decree.
7. Shri H.B Agrawal, learned senior counsel would submit that there is nothing on record suggesting that the applicant committed any fraud and in the fact and circumstances of the case, inference of collusion with State authorities could not be drawn. The non-applicants Nos. 1 and 2 have no locus standi to challenge such decree and, therefore, the order passed by the trial Court whereby the application of the non-applicants Nos. 1 and 2 under Order 9, Rule 13 of CPC was allowed, is wholly illegal and deserves to be set aside. For this, Shri Agrawal placed reliance on decisions of M.P High Court in Gopal Dhimar v. State of M.P, reported in 2003 (3) MPHT 360 and judgment of Gauhati High Court in Sabahu Kumar Jain v. Jagdish Prasad Choudhury, reported in AIR 1990 Gauhati 66 wherein Their Lordships have held that looking to the language of Order 9, Rule 13 of CPC, only defendant can file such application and a person who was not a defendant in the suit decided ex parte, has no locus standi to prefer such application and such application is not maintainable. In the judgment of Gauhati High Court in Subahu Kumar Jain (supra), the judgment of Allahabad High Court in Suraj Dev (supra) was referred and Their Lordships of Gauhati, High Court expressed their disagreement with the ratio laid down, in the said judgment.
8. Per contra, Shri Shalttiraj Sinha, learned counsel appearing for the non-applicants Nos. 1 and 2 submitted that the said ex parte decree was a collusive decree obtained by the applicant in hand-in-glove with the State authorities and, therefore, the said decree has been obtained by playing fraud upon the Court and, the non-applicants Nos. 1 and 2 though strangers to the decree, have the locus standi to prefer application under Order 9, Rule 13 of CPC read with Section 151 of CPC and the learned trial Court has rightly set aside the ex parte decree on their application. For this, learned counsel for the appellant placed reliance on the decision of Allahabad High Court in the case of Suraj Dev, (AIR 1982 All 23) (supra), and decision of Madhya Pradesh High Court in the case of Raghunath Tambe v. M.P Electricity Board, Jabalpur, reported in (1997) 2 MPLJ 423.
9. The question arises for decision making in this revision is that in the facts and circumstances of the case whether the non-applicants Nos. 1 and 2 being strangers to the judgment and decree passed ex parte in favour of the applicant, have any locus standi to file an application to set aside the said decree.
10. A bare perusal of record would reveal that the suit was not effectively, contested by the State authorities and, therefore, the ex parte decree was passed by the trial Court under Order 8, Rule 10 of CPC. The said decree remained unchallenged and attained finality as far as defendant State is concerned. Learned trial Court placing reliance on the judgment of Allahabad High Court in Suraj Dev, (AIR 1982 All 23) (supra) set aside the said judgment and decree on the ground of collusion between the plaintiff and the State authorities.
11. Rule 13 of Order 9 of the CPC which provides for setting aside the decree passed ex parte against the defendant reads as follows :—
“13. Setting aside decree ex parte against defendant.— In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside, and if he satisfies the Court that the summons was not duly served, or that he was pre vented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit :
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also :
Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim.
12. A bare perusal of Order 9, Rule 13 of the CPC makes it clear that an application under the said provisions can be filed only by as defendant and not by any other person. This view gets support from the decisions in the cases of Subahu Kumar Jain (supra), Gopal Dheemer (supra), Mrs. Santosh Chopra…Petitioner v. S/Shri Teja Singh Sardul Singh…S, (AIR 1977 Delhi 110) and Raghunath Tambe (supra) and thereore, ordinarily a stranger has no right to file an application under Order 9, Rule 13 of CPC for setting aside the decree.
13. As far as the contention raised by the non-applicants Nos. 1 and 2 with regard to alleged fraud committed by the applicant upon Court, I could not find any material in this regard, suggesting any fraud practised upon Court. It is true that fraud vitiates everything and if fraud has been practised upon Court, then the Court would have inherent power to set aside its order and decree solely on that ground but in this case, there is no material from which it can be inferred that any fraud has been played upon the Court. As far as the cases in which it is alleged that fraud has been practised upon the parties, it is for the party to plead and prove such a fraud in a regular suit and get the relief, but looking to the language of Order 9, Rule 13, CPC, it is crystal clear that the right has been given only to the defendant to apply under the said provision. Merely because the State authorities did not contest the case-properly, it cannot be said that there is collusion between the plaintiff and the State authorities. Moreover, the non-applicant Nos. 1 and 2 could not get any locus standi on such pleading to apply under Order 9, Rule 13 of the CPC for setting aside the ex parte decree. Hon'ble Apex Court in case of Rupchand Gupta v. Raghuvanshi (Private) Ltd., (AIR 1964 SC 1889) where the suit was filed by landlord against lessee for ejectment after serving valid notice to quit, and that sub-lessee was not impleaded as defendant, and ex parte decree was passed without contest by lessee, on the question whether sub-lessee can challenge the decree as collusive, held that the mere fact that the sub-lessee was not impleaded or that the lessee did not actually contest the suit did not render the decree passed in the suit as collusive. The Apex Court in para 9 held as under :—
“……………Collusion in judicial proceedings is a secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose…..”
14. In view of the aforesaid legal proposition, I have no hesitation to hold that application under Order 9, Rule 13 of CPC was incompetent and the learned trial Court by setting aside the decree on the application of non-applicants Nos. 1 and 2 committed a gross illegality leading to manifest injustice to the applicant. The said order dated 12-10-2001 cannot be sustained and the same deserves to be set aside and therefore, this revision deserves to be allowed.
15. Accordingly, this revision is allowed. The order dated 12-10-2001 passed by the Civil Judge Class I, Ramanugganj, Ambikapur (CG) in MJC No. 1/2001 is set aside and ex parte decree passed on 17th November, 1997 in Civil Suit No. 58-A/96 in favour of the applicant is restored.
16. In the facts and circumstances of the case, no order as to costs.
Petition allowed.
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