YOG RAJ Vs. KULDEEP RAJ GUPTA

JUDGEMENT

(1.) A declaration to the effect that a decree dated 2-12-1983 passed by Sub-Registrar (Munsiff), Jammu in Civil Suit No. 515 instituted on 30-11-1983 is null and void without jurisdiction, inoperative and inexecutable and not binding on the plaintiff-appellant was sought. A civil suit was filed. This suit stands dismissed. Now this first appeal has been preferred.

(2.) The circumstances under which this suit came to be filed be noticed.

(3.) The appellant is in possession of a shop. This is situate at Shalamar Road Jammu. The description of this shop and the terms and conditions of the alleged tenancy are given in para 1 of the plaint. It is stated that the monthly rent was settled at Rs. 300.00. This tenancy is said to have been in the year 1971. This shop is owned by defendant-respondent No. 1. The appellant submits that he was carrying on business in this shop in partnership with other persons. The names of these partners are Rajinder Kumar, Partool Chand, Sita Devi and Shanti Devi. It is the case of the appellant that respondent No. 1 insisted upon getting a deed executed which should indicate that his wife Susheela Gupta is a partner with the plaintiff-appellant and other partners. This deed was executed. The period to which this deed pertains is said to be 1971. In this partnership deed it is alleged that nothing was said as to the payment of rent. This document as per the appellant-plaintiff was benami. The share of Smt. Susheela Gupta wife of Kuldeep Raj respondent No. 1 was indicated as 0.8 paise. It is the case of the appellant that the shop continued to be in his possession as a tenant. In the year 1973 a deed of dissolution of partnership is said to have been executed dissolving the partnership with the appellant and other partners including the wife of the defendant. This is dated 12-4-1973. This deed contains a recital that the partnership stood dissolved with effect from 31-3-1973. Copies of this partnership deed as also the dissolution deed stand appended to the plaint as Annexures P/1 and P/2. It is the further case of the appellant that by practising a fraud on him a document which was annexed as Annexure P/3 with the plaint was got executed on 31-3-1973. That deed has made to operate as a mortgage deed. The mortgage deed is also said to be a sham transaction. It is suggested that there was absolute no need and no occasion for executing the mortgage deed for a meagre sum of Rupees five thousand when the value of the shop was more than rupees three lakhs. In para 8 of the plaint it is mentioned that there was no need for the defendant No. 1 for obtaining a petty amount of rupees five thousand from the plaintiff. It is stated that defendant No. 1 is a practising Advocate. He had sufficient income of his own. This aspect of the matter is being projected with a view to show that so far as mortgage deed is concerned, this was a device with a view to later on corner the plaintiff-appellant. The meagre mortgage consideration mentioned for executing mortgage is projected as a factor to be taken note of with a view to establish that the whole transaction was fraudulent. Further plea as projected by the appellant in the plaint was that even after the execution of the mortgage deed, the defendant No. 1 continued to receive rent but receipt was not being issued. Such is the stand taken in paragraph 9 of the plaint. It is alleged that with a view to give effect to the fraudulent intention referred to in paragraphs 8 and 9 of the plaint, it is submitted that defendant No. 1 filed a suit being civil suit No. 515-Civil on 30-11-1983. This was for redemption of mortgage in respect of the said shop. Copy of the plaint in the said suit was appended with the plaint out of which the present appeal has arisen. This was marked as Annexure P/4. This suit was valued at Rs. 10.00. It is submitted that if the mortgage amount was Rs. 5000.00 then it was supposed to be valued accordingly. In the plaint, as per the appellant, there was a recital that the total interest on the rent received by the defendant in terms of the mortgage deed up to 30-10-1983 came to Rs. 12,700.00. It is submitted that defendant No. 1 who was a practising Advocate knew fully well that the Court of the Sub-Registrar Jammu had no pecuniary jurisdiction nevertheless he filed a suit in that Court. It is sought to be urged that this was done by furnishing a meagre value for the purposes of Court-fees and jurisdiction at Rs. 10.00. It is further projected that this valuation of the suit and further matter filing of the suit was kept a guarded secret from the appellant. This was so stated in paragraph 11 of the plaint. It is stated that no notice was served on the plaintiff before filing of the suit. It is also stated that after the suit was filed even the summons were not served on the plaintiff. The fact that in the summons issued by the Court in the civil suit it was indicated by the Process Server that the appellant was not available, is required to be taken note of. The summons, it is stated were not accompanied by the copy of the plaint. The copy of the summons stands appended with the plaint is Annexure P/5. It is accordingly submitted that service of summons on the plaintiff appellant would be no service. The further case projected is that defendant No. 1 by practising fraud on the appellant obtained his signatures on some blank papers and also on vakalatnamas of partners. A representation is said to have made that these papers were required for conducting and defending some litigation in taxation matters. It is the case of the plaintiff that these power of attornies were later on used fraudulently in the suit where decree was obtained. This aspect of the matter would be adverted to again. The further case of the appellant is that defendant No. 2 as a Practising Advocate is a close friend of respondent No. 4. Both are practising at Jammu and both belong to the same social organisation. It is stated that they were once upon a time working in the Chamber of Senior Advocate. It is accordingly submitted that respondent No. 1 used one of the power of attornies fraudulent in the Court of Sub-Registrar Jammu where defendant No. 2 was engaged as a counsel. A copy of the vakalatnama was placed on the record as Annexure P/6 with the plaint. The further case is that the appellant never engaged any counsel by the name of Rashpal Singh. This counsel was said to have been engaged by defendant No. 1, so that he could put in appearance on behalf of the appellant. The appellant submits that he had never engaged Rashpal Singh and/or defendant No. 2 to conduct his case. All this as per the appellant was a fraudulent transaction with a view to obtain a consent decree. In para 4 of the plaint it is submitted that the vakalatnama which was earlier obtained for using in the taxation Courts was utilised. A compromise deed is also said to have been brought into existence. This was a forged and false document which was brought into existence contrary to law. This compromise was utilized and filed in the Court on 2-12-1983. This date was the second date fixed by the trial Court. This compromise led to passing of the consent decree on 2-12-1983. It is submitted that this decree passed on 2-12-1983 was obtained by using documents which were fraudulently brought into existence. In a nutshell it is stated that respondent No. 1 had been obtaining signatures of the appellant on some blank papers and sometimes of the partners. These were used in the civil suit. A counsel was engaged on behalf of the appellant. It is in this manner fraud was practised on the appellant. It is with a view to substantiate the plea of fraud some further reasoning has been introduced. This would become apparent from the perusal of paragraph 15 of the plaint. It is stated that the execution of the mortgage deed and later on filing of the civil suit was part of a set design and ultimate purpose has been achieved by practising fraud, misrepresentation and a consent decree has been obtained on the basis of the forged documents. It is further submitted that the trial Court did not comply with the provisions of O. 34 of the C.P.C. It is submitted that if a decree for redemption of mortgage was to be passed then provisions of O. 34 of the C.P.C. were required to be complied with. This was not done. It is further stated that if mortgage money and the rent amount was to be adjusted then this could be done by resorting to the provisions of Restitution of Mortgaged Property Act of 1976 (hereinafter referred to as 1976 Act). It is also stated that in the face of the statutory provision i.e. Act of 1976, Civil Courts had no jurisdiction in the matter. Respondent No. 1 it is pleaded should have approached the Tribunal under the Act of 1976. This having not been done, it is stated that the decree which is basically ex parte cannot be given effect to. It is stated that it is not only ex parte but it is also without jurisdiction as the Civil Court had no jurisdiction in the matter. It is accordingly submitted that this compromise decree would confer no right on defendant No. 1. The basic argument thus urged is that the decree was obtained by practising fraud in the matter as stated above and this is required to be declared null and void.