Judgement

R. M. BAPAT, J. :- The wife-appellant herein and the husband-respondent herein had filed O.P. No. 259 of 1998 under Section 13(b) of the Hindu Marriage Act before the Family Court at Secunderabad for dissolution of their marriage, which was solemnized on 14-6-1994 at Hyderabad according to Hindu Vedic Rites. After the said O.P. was filed, it was kept pending in the said Court for a period of six months for reconciliation. Thereafter, the learned Judge recorded their statements on oath and finally the learned Judge dissolved the marriage of the parties by mutual consent under Section 13(b) of the Hindu Marriage Act.

2. The said O.P. was disposed of on 24-5-1999. After about six months of the decree in O.P. No. 259 of 1998, the wife-appellant herein filed I.A. No. 585 of 1999 in O.P. No. 259 of 1998 for recalling/reviewing the decree passed in O.P. No. 259 of 1998 on the ground that the consent to the petition was obtained by the husband-respondent herein by threat, undue influence and coercion.

3. In the said I.A., the wife-appellant herein examined herself on oath as P.W.1. She examined six more witnesses on her behalf. She also filed documents Exs. A-1 to A-36. On behalf of respondent, he himself examined on oath as R.W.1 and he filed and proved certain documents and they were marked as Exs.B-1 to B-4. On hearing the matter on merits, the learned Judge dismissed the said I.A., on 14-3-2002 and therefore the wife-appellant herein has filed the present appeal.

4. The learned senior counsel Mr. C. Pardhasarathy representing the wife-appellant herein submitted at the Bar that the learned Judge ought to have allowed the recall petition and he ought to have set aside the decree passed in O.P. No. 259 of 1998. The learned senior counsel further submitted that the husband-respondent herein has played fraud on the wife-appellant herein and therefore the decree can be set aside by invoking the inherent powers of the Court.

5. The learned senior counsel Mr. C. Pardhasarathy appearing on behalf of the wife-appellant herein relied upon a ruling reported in Budhia Swain v. Gopinath Deb, (1999) 4 SCC 396 : (AIR 1999 SC 2089) in order to prove the fact that recall petition is maintainable. In para (6) of the said judgment, their Lordships have observed as follows :

"6) What is a power to recall? Inherent power to recall its own order vesting in Tribunals or Courts was noticed in Indian Bank v. Satyam Fibres (India) (P) Ltd., (1996) 5 SCC 550 : (AIR 1996 SC 2592) vide para 23, this Court has held that the Courts have inherent power to recall and set aside an order

i) obtained by fraud practised upon the Court,

ii) when the Court is misled by a party, or

iii) when the Court itself commits a mistake which prejudices a party.

In A. R. Antulay v. R. S. Nayak, (1988) 2 SCC 602 : (AIR 1988 SC 1531) (vide para 130), this Court has noticed motions to set aside judgments being permitted where

i) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all and was shown as served or in ignorance of the fact that a necessary party had died and the estate was not represented,

ii) a judgment was obtained by fraud;

iii) a party has had no notice and a decree was made against him and such party approaches the Court for setting aside the decision ex debito justitiae on proof of the fact that there was no service."

6. The learned senior counsel Mr. Pardhasarathy also relied upon a ruling reported in United India Insurance Co., Ltd. v. Sanjay Singh (AIR 2000 SC 1165) in which their Lordships of the Supreme Court in paras 2, 3 and 4 have observed as under :

"2) If what the appellant-Insurance Company now says is true, then a rank fraud had been played by two claimants and wangled two separate Awards from a Motor Accident Claims Tribunal for a bulk sum. But neither the Tribunal nor the High Court of Allahabad, before which the Insurance Company approached for annulling the awards, opened the door but expressed helpness even to look into the matter and hence, the insurance company has filed these appeals by Special leave.

3. Fraud and justice never dwell together. (Frans etjus nunguam cohabitant) is a pristine maxim, which has never lost its temper over all these centuries? Lord Denning observed in a language without equivocation that

"no judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for, fraud unravels everything"

4. For a High Court in India to say that it has no power even to consider the contention that the awards secured are the by-products of stark fraud played on a Tribunal, the plenary power conferred on the High Court by the Constitution may become a mirage and peoples faith in the efficacy of the High Courts would corrode. We would have appreciated if the Tribunal or at least the High Court had considered the plea and found them unsustainable on merits, if they are meritless. But when the Courts pre-empted the Insurance Company by slamming the doors against them, this Court has to step in and salvage the situation."

7. The learned senior counsel further relied upon a ruling reported in Roshan Deen v. Preeti Lal., (2002) 1 CLT (SC) 1 : (AIR 2002 SC 33). At para 18 their Lordships were pleased to observe as follows :

"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."

8. Further reliance was kept by the learned senior counsel in a ruling reported in Smt. Puspalata Rout v. Damodar Rout, AIR 1987 Orissa 1. It is a ruling of the learned single Judge of the said Court. In para 4 His Lordships was pleased to observe as follows :

"4. There is almost unanimity in views amongst High Courts in India that where fraud is practised on a party in contradiction of fraud practiced on Court, the remedy of the aggrieved party lies in filing a separate suit and not by invoking the inherent jurisdiction of the Court. Where, however, fraud is practiced upon the Court, the matter can be set right in exercise of powers under Section 151, C.P.C. See Sadho Saran Rai v. Anant Rai, AIR 1923 Patna 483; Sabitri Thakurain v. F. A. Savi, AIR 1927 Patna 354 (2) and Basudeo Misir v. Mt. Pandharo Kaur, AIR 1934 Patna 41 and Sheodhar Prasad Singh v. Ramdeo Prasad Singh, AIR 1934 Patna 229, I quote from Sadho Sarans case AIR 1923 Patna 483 :

The question then arises whether the Court had power to set aside the compromise decree either in review or in the exercise of its inherent power. There is a long list of cases of the Calcutta High Court, of the Bombay High Court and of the Madras High Court in which it has been broadly laid down that a Court has inherent power to correct its own proceedings when it is satisfied that in passing a particular order it was misled by one of the parties. It was urged before us on behalf of the defendants-appellants that the only remedy is by suit and that once the decree has been signed there is no jurisdiction in the Court to set it aside on the ground of fraud. A distinction has been drawn in the cases of the Indian Courts between a fraud practiced upon a party and a fraud practiced upon the Court. It has been laid down that where the question is whether there was a consent in fact, there is power in the Court to investigate the matter in a properly constituted application and to set aside the decree if it is satisfied that a party never in fact consented to it but that the Court was induced to pass the decree on the fraudulent representation made to it that the party had consented to it, but that where there is a consent in fact, that is to say, where the parties have filed a compromise petition and they admit that they have filed it but one of the parties alleges that his consent was procured by fraud, the Court cannot investigate the matter either in review or in the exercise of its inherent power and that the only remedy of the party is to institute a suit to set aside the decree on the ground of fraud. In other words, the factum of the consent can be investigated in summary proceedings, but the reality of the consent cannot be so investigated. In Hakimair v. Basdeo Sahi, (1913) 17 Cal WN 631 it was held by Mookerjee and Caspers, JJ. That where an order is obtained from the Court on the allegation that both parties had assented to it and it is asserted by one of the parties that he never consented to the order in question, it is open to the Court to review the order and recall it. In the case of Peary Choudhury v. Sonoory Das (1915) 19 Cal WN 41 : (AIR 1915 Cal 622) it was held by Chatterjee and Greaves, JJ. That, it is the inherent power of every Court to correct its own proceedings when it has been misled and that it has complete jurisdiction to recall the order on being apprised of the true facts . . . . . . . . . . . . . Though no doubt in AIR 1985 Patna 55 (Maimum Nosa v. Mohammad Khodabin), it has been held that an application under S. 151, C.P.C. is maintainable to set aside a consent decree obtained by practice of fraud on a party, the case turned on its peculiar facts upon a consideration of which it was held :- . . . . . . . . . . . . . . . . . If it is found that any fraud has been committed upon the party and as a result of that fraud the Court was misled into passing certain orders which otherwise the Court would not have passed, then it must be held that a fraud has been practiced upon the Court itself. In such a situation the Court must act under its inherent powers."

9. The learned senior counsel further relied upon a ruling reported in Smt. Garima Singh v. Sanjai Singh, (1996) 2 DMC 422 (All). In para 29 their Lordships were pleased to observe as under :

"29. Scope of inherent powers under Section 151 of Code of Civil Procedure. The main contention raised by the learned counsel for the petitioner was that the learned Civil Judge failed to exercise the inherent powers vested in it under Section 151 of the Code of Civil Procedure, which reads as follows :

"151. Saving of inherent powers of Court : Nothing in this Code shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."

10. The learned counsel further relied upon a ruling reported in S. P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs., AIR 1994 SC 853. In para 8 their Lordships were pleased to hold as under :

"8. 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 anothers loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk 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 (Exhibit 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 partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non-mentioning of the release deed at the trial tantamounts 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 Exhibit 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 than he would be guilty of playing fraud on the Court as well as on the opposite party."

11. While rebutting the aforesaid arguments of the learned senior counsel Mr. C. Pardhasarathy, the learned counsel Mr. Vilas v. Afzulpurkar appearing on behalf of the husband-respondent herein relied upon a ruling reported in G. K. Prabhakaran and Co., Irinjalakuda v. David Traders, Trichur, AIR 1973 Ker 1. It is a judgment of Full Bench. In para 3 of the judgment their Lordships were pleased to hold as under :

"3. No party has a right to insist on the Court exercising its inherent jurisdiction. This jurisdiction is to be exercised by the Court in very exceptional circumstances for which the Code lays down no procedure. The Legislature has made detailed provisions in the Code for various matters. If there are express provisions in the Code covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. The power under the Code need not even be express. It may be implied or can even be implicit from the very nature of the provisions made for covering the contingencies to which they relate."

12. The learned counsel Mr. Vilas v. Afzulpurkar relied upon a ruling reported in Zahirul Said Alvi v. Lachhmi Narayan, AIR 1932 PC 251. Their Lordships were pleased to hold as under :

"Their Lordships have now been, informed by the Court of the Judicial Commissioner in a report made to the Board, that its judgment of 21st October 1926, and the decree appealed from following thereon, were professedly made with the consent of the parties; that is to say, the decree was consensual and did not, except so far as authorized by consent, embody and judicial finding by the Court itself. Accordingly the decree is one from which no appeal to His Majesty in Council can be entertained. Only in substantive proceedings appropriate to that particular remedy can it, if at all, be set aside."

13. The learned counsel Mr. Vilas v. Afzulpurkar further relied upon a ruling reported in Union of India v. M/s. Chaturbhai M. Patel and Co., AIR 1976 SC 712. Their Lordships in para 7 of their judgment were pleased to hold as under :

"7. The High Court has carefully considered the various circumstances relied upon by the appellant and has held that they are not at all conclusive to prove the case of fraud. It is well settled that fraud like any other charge of a criminal offence whether made in civil or criminal proceedings, must be established beyond reasonable doubt : per Lords Atkin in A.L.N. Narayanan Chettyar v. Official Assignee, High Court Rangoon, AIR 1941 PC 93. However, suspicious may be the circumstances however strange the coincidences and however grave the doubts, suspicion alone can never take the place of proof. In our normal life we are sometimes faced with unexplainable phenomenon and strange coincidences, for, as it is said, truth is stranger than fiction. In these circumstances, therefore, after going through the judgment of the High Court we are satisfied that the appellant has not been able to make out a case of fraud as found by the High Court. As such the High Court was fully justified in negativing the plea of fraud and in decreeing the suit of the plaintiff."

14. Further reliance was kept by the learned counsel Mr. Vilas V. A. Afzulpurkar on a ruling reported in Krishan Lal v. Gulab Ram, AIR 1985 Punj and Har 157. His Lordship in his judgment in para 6 at the end and also at para 7 was pleased to hold as under :

"6 . . . . . . . . . . . . . . . . . . . . . . . . . .It is well settled that if one of the parties to a litigation obtains a favourable order from the Court on the basis of a compromise, which is alleged by the other party to have been obtained by fraud, the wronged party can seek redress by instituting a suit, . . . . . . . . . . . . . . ."

"7. In the above view, I am fortified by a Division Bench judgment of Patna High Court in Chutur Prasad Sah v. Mt. Bishuni Kuer, AIR 1943 Patna 13 wherein it was observed that there is a distinction between a fraud practiced upon a party and a fraud practiced upon the Court. A Court is not competent either in review or under its inherent power to set aside a compromise decree on the ground that the consent of the parties to the compromise was obtained by fraud. The only remedy of the injured party is to institute a suit to set aside the decree on the ground of fraud. . . . . . . . . . . . . . . ."

15. By reading all the judgments referred to above and the arguments advanced before this Court, the following point arises for our consideration.

Whether the review/recall petition is maintainable against the consent decree?

16. Section 151 of the Code of Civil Procedure reads as under :

"151. Saving of inherent powers of Court:- Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the Court."

17. The inherent powers of the Court under Section 151, C.P.C. are very wide and are not in any way controlled by the provisions of the Code. They are in addition to the powers specially conferred on the Court by the Code and the Courts are free to exercise them. The only limitation put on the exercise of the inherent powers is that when exercised, they are not in conflict with what has been expressly provided for, or those exhaustively covering a particular topic, or against the intention of the Legislature. These limitations are not due to the fact that the inherent power is controlled by the Code, but because it should be presumed that the procedure specifically provided for orders in certain circumstances is dictated by the interests of justice. Inherent powers are to be exercised where specific provision does not meet the necessities of the case.

18. By reading the judgments of the Apex Court, we have no hesitation in holding that the review/recall petition would not lie. If the evidence on record discloses that one party has played fraud on the other party, in such event the only remedy left over to the party against whom the fraud is played to file a separate suit for setting aside the decree obtained by fraud. But if it is proved that one of the party has played fraud on the Court, then only the review petition is maintainable under Section 151, C.P.C.

19. Now we proceed to consider in the present case whether the fraud has been played by the husband-respondent herein on the Court or on the party. For the aforesaid purpose we have to scrutinize the evidence, which was led by the parties to the litigation.

20. As stated earlier, the wife-appellant herein herself, examined on oath as P.W.1. According to her evidence, she was married to the husband-respondent herein in Hyderabad on 14-6-1994. About 15 days prior to the marriage, there were marriage talks between her parents and the parents of the husband-respondent herein. The husband-respondent herein demanded rupees three lakhs towards dowry. But the parents of the wife-appellant herein expressed their inability to meet the huge demand of three lakhs. They promised to give some amount in cash and some in kind and the marriage was solemnized. According to the version of the wife-appellant herein, 2 or 3 months after the delivery, the husband-respondent herein demanded Rs. 25 lakhs from her parents for his business. The wife-appellant herein was sent to her parents house to bring money. Thereafter the mediations took place and the wife-appellant herein was take to the house of the husband-respondent herein. She lived in the matrimonial house for three years till January 1999 at "Alliance house". Then they were shifted to the house at West Marredpally. According to her version she went to Lathur along with her husband to attend the marriage of wifes uncles daughter named Rama. Videos and photos were taken. With this part of evidence, the learned senior counsel Mr. C. Pardhasarathy pointed out certain documents filed by the wife-appellant herein. Exs. A-1 and A-2 are the letters written on two occasions on 29-9-1994 and 12-7-1995. The wife-appellant herein wrote these letters to her mother stating that the husband-respondent herein is demanding money. The learned senior counsel further pointed out Ex.A-3 certified copy of F.I.R. in Cr.No. 264/98 in which the residential address of the husband-respondent herein was given. It is also a complaint filed by both of them alleging that the parents of the wife-appellant herein had kidnapped their son. Ex.A-4 is the office copy of the notice dt. 13-9-1999. Advanced wedding card is Ex.A-6 inviting the husband-respondent herein to attend the marriage of Rama. Exs.A-9 to A-32 are the photographs with negatives. Ex.A-33 is the corresponding negative of the programme. With these documents on record; it was contended by the learned counsel that if there was a divorce, there was no necessity for the relations of the wife-appellant herein to invite the husband-respondent herein to attend the marriage of Rama.

21. While rebutting the aforesaid arguments, the learned counsel Mr. Vilas v. Afzulpurkar submitted at the Bar that the wife-appellant herein and the husband-respondent herein were also otherwise related before their marriage and therefore there was nothing wrong on the part of the uncle of the wife-appellant herein to invite the husband-respondent herein to attend the marriage of his daughter Rama. When both the parties had gone to the marriage, they did not go together but in the function hall they met with each other and some photographs were taken at the time of marriage function. It does not mean that the wife-appellant herein and the husband-respondent herein went together as husband and wife to attend the marriage of Rama.

22. The learned senior counsel Mr. C. Pardhasarathy further submitted at the Bar that both the parties were living together. She was threatened from disclosing to any one that a joint petition for divorce was filed. The evidence of the wife-appellant herein discloses that she used to go outside her house for giving phone calls for her parents. She also visited her parents house on many occasions. She had also gone to the house of her Advocate. She also went along with her husband to file a joint petition for divorce. The Family Court Judge recorded her evidence. Even on that occasion she did not speak to any one regarding the threat and coercion given by the husband-respondent herein to sign the joint petition for divorce. She had also admitted that she attended several marriages of her relatives after she filed the joint petition in the Court but she did not inform to any one that her signature was obtained forcibly. She also stated in her evidence that her own brother is an Advocate by profession. In spite of this position, she did not inform even to her brother that she was forcibly made to sign the joint petition under Section 13(b) of the Hindu Marriage Act.

23. As stated earlier, the evidence of the other witnesses were also led by the wife-appellant herein on her behalf. Their evidence is of no much significance in deciding the issue in question.

24. By looking to the conduct of the wife-appellant herein, we are of the considered view that the theory put forward by the wife-appellant herein that she was made to sign the joint petition under coercion and threat is a totally concocted story. Therefore, on facts also we are of the considered view that the wife-appellant herein was not able to prove the fact that the husband-respondent herein had played fraud on her by obtaining the signature for divorce by mutual consent.

25. One more argument advanced by the learned senior counsel Mr. C. Pardhasarathy that no lady would give up the custody of the child and would also give up the right of maintenance. This fact also would prove that her consent to the divorce petition was obtained by playing fraud or coercion or threat on her. We are not in agreement with the submission made by the learned senior counsel because the wife-appellant herein is an educated lady. She is a graduate. She used to speak and write in English. She had all opportunities to complain to many people if at all the husband-respondent herein played fraud on her but she did not choose to do so. This fact itself is sufficient to prove that on her own accord, she had agreed to sign the divorce petition as the husband-respondent herein used to give mental torture to her by demanding a dowry of Rs. 25 lakhs for doing business. Demanding dowry after so many years of marriage and that is also a huge sum, drew the wife-appellant herein to go for divorce by mutual consent. If she had given up the custody of the child and her right of maintenance, she did so with open eyes for whatever reasons known to her.

26. Considering the facts on record, we are convinced that the husband-respondent herein did not play any type of fraud in obtaining her consent for mutual divorce under Section 13(b) of the Hindu Marriage Act and therefore we are of the considered view that there is no merit in the appeal. We further hold that the learned Judge rightly dismissed the said I.A. for reviewing/recalling the petition.

27. In the result, the appeal is dismissed. No costs.

Appeal dismissed.