1. The Review Petitioner herein is the 1st respondent in W.P.(C) No.41651/2022 and the appellant in W.A.No.858/2023. The judgments in the said Writ Petition and Writ Appeal are sought to be reviewed by the instant proceedings, on the allegation of fraud having been perpetrated on the Court by suppression of a material fact.

2. As per the judgment dated 04.04.2023 in the Writ Petition, the 2nd respondent therein, KINFRA, was directed to consider the petitioners' claim to execute a lease in favour of the 1st petitioner therein. In the Writ Appeal, we made a minimal modification to the judgment enabling the Review Petitioner herein (1st respondent in the Writ Petition) an opportunity of being heard, while considering the petitioners' claim as directed by the learned Single Judge. The fact allegedly suppressed is the existence of an interim Order of status quo in a commercial suit, C.S.No.18/2021, instituted by the Review Petitioner herein inter alia for dissolution of partnership, settlement of accounts etc.

3. This Review Petition was moved unaccompanied by an application to condone the delay, on the premise that, where a judgment is vitiated by fraud, the same can be challenged at any point of time, without there being a necessity to condone the delay. However, the Review Petitioner subsequently chose to file C.M.Application No.1/2025 seeking to condone the delay of 878 days.

4. Heard Sri. P.C.Thomas, learned counsel for the Review Petitioner; Sri. K.A.Salil Narayanan, learned counsel for respondents 1 and 2; and Sri. P.V.Shailajan, learned counsel for the 3rd respondent.

5. Having heard the learned counsel for the respective parties, we find no reason, either to condone the delay, or for that matter, to review the judgment in question, for the reasons elaborated here below:

6. The first point - Condonation of delay:-

Learned counsel for the Review Petitioner is right in contending that there is no necessity in law to condone the delay, if the Court finds that the judgment sought to be reviewed is obtained by fraud, by suppressing a material fact. However, for the reasons to be unfurled herebelow while dealing with the second point, we find no suppression of any material fact, much less any fraud, so as to entertain the Review Petition, without condoning the delay.

7. Coming  to  C.M.Application  No.1/2025,  the  solitary cause espoused for condonation of delay is an averment in paragraph no.3 of the affidavit that the petitioner could not file the Review Petition within the prescribed period due to various reasons, beyond her control. Needless to say that, the said averment can hardly constitute any sufficient cause to condone a whopping delay of 878 days. The fact that the Review Petitioner was aware of the so called suppression; that she did not choose to rake up that issue while filing the Writ Appeal; that she had attorned and acquiesced to the directions contained in the judgment sought to be reviewed (about which aspects, detailed reference will be made while dealing with the second point) also dissuade us from condoning the delay of 878 days. The C.M.Application will therefore stand dismissed.

8. Though we are not bound to look into the merits of the matter, inasmuch as the delay is not condoned, we deem it proper to consider the allegation of fraud alleged in the Review Petition, for, a finding in that regard in favour of the Review Petitioner may possibly tilt the balance, rendering the delay inconsequential.

9. The second point – Fraud, by suppression of material fact:-

The impact of fraud, if any, on a judgment or Order has been settled three centuries back, when Chief Justice Edward Coke held thus:

                  “Fraud avoids all judicial acts, ecclesiastical or temporal”

10.    In Lazarus Estates Ltd. V. Beasley [1956 (1) All ER 341], Lord Denning observed:

                  “No judgment of a court, no order of a Minister, can be allowed to stand, if it has been obtained by fraud.”

11. On the impact of res judicata, vis-a-vis, an allegation of fraud, de Grey, C.J stated in Duchess of Kingstone, Smith's Leading Cases, 13th Edition that, though a judgment would be res judicata and not impeachable from within, it might be impeachable from without. Culling out the legal distinction between a mistake and trickery, it was held that a judgment can be set aside, if the Court was imposed upon or tricked into giving the judgment.

12. To wind up the discussion on the conceptual impact of fraud, we refer to two maxims:

                  i) fraus et jus nunquam cohabitant – fraud and justice never dwell together.

                  ii) fraus et dolus nemini patrocinari debent – fraud and deceit ought to benefit none.

13.    However, it is pivotal that the suppression of any and every fact will not amount to fraud, rendering the judgment a nullity. It is only the suppression of a material fact – which, if disclosed, would have impacted the outcome/result of the proceedings – that will vitiate the judgment by reason of fraud. The issue had received the consideration of the Hon'ble Supreme Court in S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Others [(2004) 7 SCC 166]. The following observations in paragraph no.13 of the Judgment are eloquent and extracted here below:

                  “As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the courts to deter a litigant from abusing the process of court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material for the consideration of the court, whatever view the court may have taken."

                  (Underlined, for emphasis)

                  On the facts of that case, the Hon'ble Supreme Court held that non-disclosure of availing a statutory remedy, while filing a Writ Petition, is not a fact, the suppression of which, could have affected the final disposal of the Writ Petition on merits.

14. In Arunima Baruah v. Union of India and Others [(2007) 6 SCC 120], the concept is considered in paragraph no.12, extracted here below:

                  “It is trite law that so as to enable the court to refuse to exercise its discretionary jurisdiction suppression must be of material fact. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction. It is also trite that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But even if the said dirt is removed and the hands become clean, whether the relief would still be denied is the question.”

15. With this prelude, we will now examine whether there is any suppression of a fact; and if the answer is in the affirmative, whether the fact suppressed is material, so as to vitiate the judgment sought to be reviewed.

16. For a correct understanding and appreciation of the issue, the following facts are required to be stated. Writ Petition, W.P.(C)No.41651/2022, was filed by one M/s.ALKARSF  Apparels  Pvt.  Ltd.  and  one  S.R.Sreejith (Respondents 1 and 2 herein) against Dr.Usha Umesh (the Review Petitioner herein) and the KINFRA (the 3rd respondent herein). The Writ Petition speaks about a proprietary concern, Poojaa Garments, set up by Dr.Usha Umesh; about the lease of 50 cents of land from KINFRA; about a memorandum of understanding between the said Dr.Usha Umesh and one Mr.K.Nirmalan; about a partnership deed between the wife of the said K.Nirmalan; about an alleged suppression by Dr.Usha Umesh while entering into a lease arrangement with KINFRA; about one Premnath being admitted as a partner to Poojaa Garments; about a retirement agreement executed by Dr.Usha Umesh from the partnership firm; about the formation of a Company in the name and style of M/s.Kanyakumari Exports (P) Ltd. and dissolution of the partnership firm; about a tripartite agreement executed between Dr.Usha Umesh (representing Poojaa Garments) and S.R.Sreejith (representing Kanyakumari Exports (P) Ltd) etc., which factual aspects are not of any significance in considering the instant Review Petition. Suffice to note that the relief sought for in the Writ Petition was for issuance of a writ of mandamus commanding the KINFRA to execute a tripartite agreement, transferring the leasehold property held by Kanyakumari Exports (P) Ltd. in the name of the 1st petitioner/ALKARSF Apparels Pvt. Ltd. By the judgment sought to be reviewed, the learned Single Judge directed the KINFRA to consider the petitioners' claim for executing a lease deed in favour of the 1st petitioner. The pendency of Civil Suit No.18/2021 before the Commercial Court, Thiruvananthapuram, was very much pleaded in the Writ Petition and taking stock of the same, the learned Single Judge held that the decision to be taken by the 2nd respondent, on the question of execution of lease in favour of the 1st petitioner/ALKARSF Apparels Pvt. Ltd. will be subject to the result of the said suit. For the purpose of review, suppression is alleged by Dr.Usha Umesh, the Review Petitioner herein, in the context of the observation made by the learned Single Judge that the Commercial Court has not passed any interim Order interdicting 'any such action', thereby meaning the consideration of execution of lease as claimed by the 1st petitioner. This observation was made on the basis of the submissions made at the Bar. The Review Petitioner, Dr.Usha Umesh, chose to remain ex parte in the Writ Petition, and therefore, according to the Review Petitioner, the said submission was made at the Bar by the Counsel for the 1st petitioner/ALKARSF Apparels Pvt. Ltd. and the Counsel for KINFRA, based on their instructions. It is the definite case of the Review Petitioner that there was, in fact, an Order of status quo passed by the Commercial Court, which was deliberately suppressed by the petitioners and the 2nd respondent before the Writ Court, thereby playing fraud upon the Court and thus, vitiating the judgment in the above Writ Petition.

17. Whether there is any suppression as alleged:-

                 

                

                  We notice that W.P.(C) No.41651/2022 is filed by ALKARSF Apparels Pvt. Ltd., represented by its Managing Director, S.R.Sreejith as the 1st petitioner; and S.R.Sreejith, in his individual capacity, as the 2nd petitioner. However, ALKARSF Apparels Pvt. Ltd. is not a party to the commercial suit, C.S. No.18/2021. Insofar as S.R.Sreejith is concerned, he was originally the 2nd plaintiff in that commercial suit, along with Dr.Usha Umesh. However, on an application filed by S.R.Srejith, vide I.A. No.7/2021, he was removed from the array of plaintiffs, with the result, Dr.Usha Umesh became the sole plaintiff. Now, it is relevant to note that the suit, C.S. No.18/2021, was instituted on 30.01.2021. Sri. S.R.Sreejith, the original 2nd plaintiff withdrew from the suit as per Orders passed in I.A No.7/2021 dated 31.03.2022. However, the relevant Order of status quo - which is alleged to have been suppressed - was passed only on 26.08.2022.

18. It is  therefore  seriously  at  doubt  whether Sri. S.R.Sreejith was aware of the issuance of the status quo Order. The Writ Petition was filed on 10.12.2022, whereas the said Sreejith got subsequently impleaded in the suit, C.S. No.18/2021, as the 10th defendant only on 07.11.2024. The judgment in W.P.(C) No.41651/2022 was rendered on 04.04.2023. It could thus be seen that Sri.S.R.Sreejith  was  not  a  party  to  the  suit, C.S. No.18/2021, at the time when the Commercial Court passed the Order of status quo and he got himself impleaded as the 10th defendant, much after the judgment was rendered by the learned Single Judge in the above Writ Petition. It  is settled that unless the person, against whom suppression is alleged, was aware of the so-called suppressed fact, no imputation can be made against him.

19.    Whether the fact alleged to have been suppressed is material or not?

The Order in C.S. No.18/2021 - allegedly suppressed by the petitioners - is produced at Annexure-A1 along with the Review Petition, which only directed the parties to maintain the status quo as on the date of instituting the suit. To understand the scope of the suit and ambit of the status quo Order, one should necessarily refer to the pleadings in the interim application, in which the Order of status quo has been passed. The said Interlocutory Application is produced at Annexure-A2. The prayer sought for in Annexure-A2 is extracted here below:

                  “For the reasons set forth in the accompanying affidavit it is humbly prayed that his Hon'ble court be pleased to pass an order of interim injunction restraining and prohibiting the defendants 2 to 5 and 9 from intercepting the plaintiffs from entering the factory buildings of Poojaa Garments situated in plot No:16-A and plot No.17-A of KINFRA International Apparel Park in Survey No.311/1 of Menamkulam Village and from resuming the business of manufacture of readymade garments and from doing anything detrimental to the interest and peaceful possession of the plaintiffs over the plaint 'A' and 'B' schedule properties till the final disposal of this suit.”

20. As could be seen from paragraph no.1 of Annexure-A2, the suit instituted by Dr.Usha Umesh was one for declaration, dissolution of partnership, settlement of accounts etc. The allegations constituting apprehension against the 2nd defendant/K.Nirmalan is contained in paragraph no.14 of Annexure-A2, which is also extracted here below:

                  “14) As I being the exclusive owner of the factory building and the machineries installed therein and I am the Managing Director and the 2nd plaintiff is the partner, we have got every right to do the business of manufacture of readymade garments in the factory buildings. Even though the 2nd defendant is on his hideout, if I start the business he will interfere and intercept me to do the business in the factory buildings of the Poojaa Garments with his muscle power and money power.”

                  Of course, reliefs are sought for against defendants 2 to 5 and 9, of which, the 9th defendant is the Chief Executive Officer of KINFRA.

21. It could be seen from the above that an injunction was sought for vide Annexure-A2 I.A. apprehending mischief at the hands of the 2nd defendant by interfering with the business of the Review Petitioner/plaintiff. It is relevant to note that the question of execution of a lease deed by KINFRA in favour of ALKARSF Apparels Pvt. Ltd. was not the subject matter of the commercial suit. Therefore, Annexure-A1 Order of status quo is of little relevance, insofar as the issues, which were agitated in W.P.(C) No.41651/2022 are concerned. In other words, the judgment in the said Writ Petition - now sought to be reviewed - would not have undergone any change in its outcome, had Annexure-A1 status quo Order been produced before the High Court. It is true that in the judgment sought to be reviewed, learned Single Judge took stock of the existence of the commercial suit and that, no interim Order has been granted therein. The following observation of the learned Single Judge is relevant and extracted here below:

                  “...I also make it clear that the direction as above is issued since it is submitted at the Bar that there is no interim order passed by any civil court interdicting any such action.”

22. However, we hardly find any misrepresentation or suppression in the submission above referred, inasmuch as ALKARSF Apparels Pvt. Ltd. was not a party to the commercial suit and Sri. S.R.Sreejith was neither a plaintiff, nor a defendant at the time, when Annexure-A1 status quo Order was passed. It is after Sri. S.R.Sreejith got himself removed from the array of plaintiffs and before seeking impleadment as the 10th defendant, Annexure-A1 status quo Order was passed. His impleadment as the 10th defendant was even after the disposal of the Writ Petition. Thus, apart from the fact that there is no suppression, this Court is of the opinion that the suppression is not in respect of a material fact, which could have influenced the outcome/result of W.P.(C) No.41651/2022. Point found accordingly.

23. Absence of bonafides  on  the part of the  Review Petitioner:-

The most important factor, which persuades us to dismiss the instant Review Petition is that the Review Petitioner carried an appeal against the judgment of the learned Single Judge, as W.A. No.858/2023. In this regard, it is relevant to point out that the Review Petitioner remained ex parte in W.P.(C) No.41651/2022, despite she being served with notice by special messenger. It is curious to note that no contention based on the so-called suppression of a material fact is seen canvassed in the Writ Appeal. Instead, the suppression alleged in Ground-E of the Writ Appeal is the dismissal of I.A.No.11/2022, seeking disposal of the suit by a summary judgment in terms of Section 16 of the Commercial Courts Act, read with Order XIIIA of the Code of Civil Procedure. It is this Order, which is allegedly not brought to the notice of the learned Single Judge, while disposing the Writ Petition. There is no whisper, whatsoever, about Annexure-A1 status quo Order. If that be so, it is too late at the moment for the Review Petitioner to urge suppression of a material fact, which the Review Petitioner, herself, failed to point out at the writ appellate stage. At any rate, the Review Petitioner cannot claim that she was not aware of Annexure-A1 status quo Order, she being the plaintiff in the suit C.S. No.18/2021. Profitable reference in this regard can be made in Pushpam Pharmaceuticals Company v. Collector of Central Excise, Bombay [1995 Suppl. (3) SCC 462], wherein the Hon'ble Supreme Court held that, where facts are known to both the parties, the omission by one does not render it suppression. The above legal position was reiterated in Anand Nishikawa Company Limited v. Commissioner of Central Excise, Meerut – [AIR 2005 SC 3660]; Uniworth Textiles Limited v. Commissioner of Central Excise, Raipur [(2013) 9 SCC 753]. Absence of bonafides is writ large and the Review Petition is liable to be dismissed on this count, as well.

24.    An Afterthought:-

The learned Single Judge, by the judgment sought to be reviewed, only directed consideration of the claim of the petitioners therein for executing a lease in favour of the 1st petitioner/ALKARSF Apparels Pvt. Ltd. It was made clear in the judgment that the decision to be taken by KINFRA will be subject to the result of the commercial suit, C.S. No.18/2021. In the Writ Appeal, a minimal modification was made by the Division Bench, affording an opportunity of hearing to the appellant (Review Petitioner herein), while a decision was to be taken by KINFRA, as directed by the learned Single Judge. Thereafter, the Review Petitioner, accompanied by her lawyer, participated in the hearing conducted by the Managing Director of KINFRA, in which proceeding, Annexure-R1 A Order dated 23.05.2023 has been passed against the Review Petitioner. It is thereafter only the Review Petitioner chose to seek a review of the judgment dated 04.04.2023, with a delay of 878 days, alleging fraud. We are of the opinion that the same is nothing, but an afterthought, with an eye fixed on resurrecting the claims of the Review Petitioner, that too, upon realising that Annexure-R1 A Order has been rendered against her.

                  We find no merits in the instant Review Petition. Accordingly, C.M.Application No.1/2025 will stand dismissed, and consequently, the Review Petition will follow suit.