RAGHURAMA RAO Vs. FATHIMABI

JUDGEMENT

(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.

(2.) THE predecessor of the plaintiffs filed R. C. P. 37 of 1980 under S. 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 S. 125 (3) of the Land Reforms Act read in the light of S. 125 (8) of that Act referred the question of kudikidappu to the concerned Land 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 S. 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 the 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.

(3.) S. 40 of the Evidence Act makes relevant a judgment or decree which prevents any court from taking cognisance of a suit or holding a trial. The conclusiveness of a prior judgment inter parties is also embodied in s. 51 of the Code of Civil Procedure. S. 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, resentdefendants, 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 infmitum. . " Jenkins C. J. in Nanda Kumar v. Ram Jiban (ILR 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". Justice Madhavan Nair in the decision in Subramonian 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 definitions 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)