1. The petitioners herein are the legal representatives of the original defendant in O.S 373 of 1987 filed by the plaintiffs, the respondents herein. The predecessor of the plaintiffs filed R.C.P 37 of 1980 under Section 11 of the Kerala Buildings (Lease and Rent Control) Act before the Rent Controller for eviction from a building occupied under him by the defendant. The defendant while resisting that application contended that he was a kudikidappukaran as defined in the Kerala Land Reforms Act and was not liable to be evicted under the Rent Control Act. It is to be noted that a kudikidappukaran as defined in the Land Reforms Act is taken out of the definition of a tenant under the Rent Control Act. A question of kudikidappu having arisen for decision, the Rent Controller in view of the mandate contained in Section 125(3) of the Land Reforms Act read in the light of Section 125(8) of that Act referred the question of kudikidappu to the concerned Land Tribunal for decision. The Land Tribunal returned a finding that the building involved was a hut and the defendant was a kudikidappukaran. Accepting that finding, the Rent Controller dismissed the application for eviction filed under Section 11 of the Rent Control Act. The predecessor of the plaintiffs filed an appeal R.C.A 7 of 1984 before the Appellate Authority under the Rent Control Act. The predecessor of the plaintiffs-appellants died pending that appeal. The legal representatives did not come on record within the time permitted by law and ultimately R.C.A 7 of 1984 was dismissed as abated. Thus the order of the Rent Controller upholding the claim of the defendant that he is a kudikidappukaran became final.

2. The present suit was filed by the plaintiffs for a declaration that the finding of the Land Tribunal in the reference made from the Rent Control Court and accepted by the Rent Controller in R.C.J.P 37 of 1980 was vitiated by mistake, fraud and collusion and was hence null and void and not binding on the plaintiffs or their rights over the plaint A schedule property. In paragraph 5 of the plaint it was averred that the report of the Special Revenue Inspector which was relied on by the Land Tribunal was filed to favour the defendant and the Special Revenue Inspector had colluded with the defendant while making that report. Since the order of the Land Tribunal was based on that report, the same was void. In paragraph 21 of the plaint it was averred that there was no valuation statement filed by the Special Revenue Inspector and the plaintiffs had no knowledge of the fraud earlier and on discovery of the fraud the present suit was being filed. The defendant raised a contention that the suit was not maintainable, that it was barred by resjudicata and by Section 125 of the Land Reforms Act and that the suit was liable to be dismissed. Since in this revision we are not concerned with the merits of the various contentions, I am not referring to the averments in the plaint and the answers in the written statement in detail on the other aspects.

3. In the suit among other issues the following two issues were also raised; (1) Whether the suit is maintainable? (2) Whether this court has jurisdiction to try the suit?. These issues were taken up for decision at the preliminary stage and have been answered by the trial court in favour of the plaintiffs. This is questioned in this revision by the legal representatives of the defendant who were impleaded as additional defendants in the suit on the death of the original defendant. Normally this court could have refused to intervene at this stage by leaving the defendants to canvass the correctness of the finding on these preliminary issues also in any appeal they may have to file against the decree in case the decree ultimately went against them. But considering the nature of the questions involved and seeing that such suits are now being frequently filed without proper advertance to the relevant aspects involved, I have thought it appropriate to consider the correctness of the finding rendered by the court below on the preliminary issues even at this stage. Of course if my conclusions were to be in favour of the defendants, my order in revision would finally dispose of the suit and even under the strict confines of the proviso to Section 115 of the Code of Civil Procedure, this court will have the jurisdiction to go into that question here and now.

4. Section 40 of the Evidence Act makes relevant a judgment or decree which prevents any court from taking cognizance of a suit or holding a trial. The conclusiveness of a prior judgment inter parties is also embodied in Section 51 of the Code of Civil Procedure. Section 44 of the Evidence Act makes it possible for a party to a prior adjudication to show that that prior adjudication or decree proved by the adverse party was delivered by a court not competent to deliver it or was obtained by fraud or collusion. James L.J observed in Flower v. Lloyd (L.R 10 Ch.D 327):

“Assuming all the alleged falsehood and fraud to have been substantiated, is such a suit as the present sustainable? That question would require very grave consideration indeed before it is answered in the affirmative. Where is litigation to end if a judgment obtained in an action fought out adversely between two litigants sui juris and at arm's length could be set aside by a fresh action on the ground that perjury had been committed in the first action, or that false answers had been given to interrogatories, or a misleading production of documents, or of a machine, or of a process had been given? There are hundreds of actions tried every year in which the evidence is irreconcilably conflicting, and must be on one side or other wilfully and corruptly perjured. In this case, if the plaintiffs had sustained on this appeal the judgment in her favour, the present defendants, in their turn, might bring a fresh action to set that judgment aside on the ground of perjury of the principal witness and subornation of perjury; and so the parties might go on alternately ad infinitum.”

5. Jenkins C.J in Nanda Kumar v. Ram Jiban (I.L.R 41 Calcutta 999) observed:

“The jurisdiction to impugn a previous decree for fraud is beyond question…….but it is a jurisdiction to be exercised with care and reserve, for it would be highly detrimental to encourage the idea in litigants that the final judgment in a suit is to be merely a prelude to further litigation”.

6. Justice Madhavan Nair in the decision in Subramoniam v. Nagaramma (1962 KLT 1019) after referring to the various decisions on the subject exhaustively, held that the contention that a party had secured the decree by letting in false or perjured evidence, even if true, would not amount to fraud of the kind that would nullify the decree in the suit. The falsity or truth of the claim has been or must be deemed to have been adjudicated by the court when it decreed the claim. A Division Bench of the Andhra Pradesh High Court in L.V Apte v. R.G.N Price (AIR 1962 A.P 274) after referring to series of decisions of the Madras High Court, held:

“A decree of a Court cannot be set aside on the ground of fraud on the allegations that it was obtained by perjured evidence, or that the claim was false. It must be proved that the plaintiff was prevented by some trick or contrivance of the defendant from appearing and placing his case before the Court. Mere suppression of certain facts, does not amount to a fraud that would entile a party to avoid the decree”.

(Headnote)

7. It is therefore clear that a mere averment in the plaint that previous adjudication was because of perjured evidence adduced by the successful party in that litigation or was because of the procuring of a commission report which was considered and accepted by the court by alleged improper means would not be a ground to enable the court to ignore the finality of the prior adjudication or to set it aside in a subsequent suit on the ground that the prior adjudication was vitiated by fraud. If the grievance of the present plaintiffs was that the Land Tribunal on the earlier occasion had acted on evidence which it could not have accepted, obviously the plaintiffs or their predecessor could only have challenged the said adjudication in an appeal against the final order of the Controller which accepted the answer to the reference made by the Land Tribunal. That opportunity was in fact availed of by the predecessor of the present plaintiffs by filing an appeal before the Appellate Authority under the Rent Control Act. But the present plaintiffs, the legal representatives allowed that appeal to abate with the result that the adjudication by the Rent Controller that the building was a hut and that the defendant was a kudikidappukaran became final.

8. In the present plaint there is no case for the plaintiffs that their predecessor-in-interest was prevented from contesting that proceeding or anything had been done which precluded him from agitating his contentions in that proceeding. The allegations in the present plaint that the plaintiffs have now come to know that the report of the Special Revenue Inspector acted upon by the Land Tribunal in the earlier proceeding was a procured one, is not an averment which is sufficient in law in the light of the principles indicated by Madhavan Nair, J referred to above, to make the present suit maintainable for challenging the prior adjudication on the ground that it is vitiated by fraud. On the averments in the plaint, it is clear that the present suit is not maintainable and the averments in the present plaint are not sufficient to deprive the prior adjudication of its finality on the ground that the adjudication was vitiated by fraud. The trial court was therefore in error in holding that the suit before it was maintainable on the averments in the plaint.

9. On issue No. 2 relating to the jurisdiction of the court to try the suit, I see no reason to differ from the conclusion of the trial court. The suit would be maintainable provided the averments in the plaint prima facie made out a case of fraud as understood in law as a challenge to the prior adjudication. Since this was a reference from the Rent Controller under Section 125(3) of the Land Reforms Act and the answer by the Land Tribunal forms part of the order of the Rent Controller, what is really challenged by the plaintiff in the present suit is the decision of the Rent Controller. The finding of the Land Tribunal on the refer reference has no independent existence. On the scheme of Section 125 of the Land Reforms Act it becomes part of the finding of the civil court or the Rent Controller in the present case. There is therefore no bar under Section 125(1) of the Act or under Section 125(2) of the Act to the maintainability of the present suit. In the absence of a case of fraud being set out in the plaint as understood in law, it can only be held that the prior adjudication operates as resjudicata and precludes the court from proceeding further with the trial of the suit. In the light of my findings as above, the finding rendered by the court below on issue No. 1 has to be set aside. The finding on issue No. 2 so modified. The court below is directed to finally dispose of the suit in the light of the findings rendered as above.

10. The Civil Revision Petition is thus allowed. There will be no order as to costs.