RELITIGATION AND ABUSE OF PROCESS OF COURT
Now a days there is tendency among the advocates to file cases in wrong forum or re-agitate the same issue by applying different shape and different color to the already disposed case even in collusion with the opposite advocate. The judges should be very careful in dealing with such type of cases and should take stern action to nip the same in the budding stage itself. I have come across one instance in this regard.
The application filed by the Defendant to condone the delay of more than 1000 days in filing the application to set aside exparte decree against him was pending for Respondent's arguments for a long time. There was formal counter denying all the allegations of the petitioner about the delay. In spite of several adjournments, the Respondent's counsel did not appear and put forth his objections. Having reserved the order, I perused the case records one by one as usual and I got doubt, as there was change of Vakalath for the Petitioner/defendant, which led me presume that the Defendant had already filed an application before filing this petition to condone the delay. On further careful scrutiny of case records, I found that the Petitioner/ Defendant had previously filed application to set aside the exparte decree along with application to condone the delay and both the applications were already dismissed.
There was no mention in the Respondent's counter with regard to dismissal of the previous applications and the Petitioner/Defendant had cleverly (?) filed this application, concealing the dismissal of his earlier applications and assigning reasons different to those reasons that were mentioned in his earlier applications!
The fate of the applications, filed by the Petitioner/Defendant need not be mentioned, as every judicial officer knows! Please imagine what would happen, if I had passed order only on the basis of the averments contained both in the Petitions and Counter!
The worst abuse of process of the court is re-litigation. Re-litigation is taken up by the unsuccessful litigants to prevent the decree holders from realizing the fruits of the decree. Re-litigation can also be done by filing a suit to set aside the decree (Even it be passed by the appellate court) on the ground of fraud. The unsuccessful and unscrupulous litigants will usually resort to this type of re-litigation, when they also fail before appellate forums and the decrees passed against them have become final. The courts must be very careful while admitting this type of suits and the pleadings should be thoroughly checked up and only if there is primafacie materials to show such FRAUD that the concerned party is prevented from putting forth his/her case, such type of suits can be entertained. If the suits to set aside the decree on the ground of fraud are easily admitted, there will be an endless wait for the litigants to reap the fruits of the decree and they will not in position to see the end of their litigation.
The case described hereunder is the best example of re-litigation:
The landlord filed HRCOP before the Rent Controller for eviction of a tenant and a sub-tenant from the demised premises on the ground of demolition and reconstruction. The landlord's case is that the demised property was in dilapidated condition due to wear and tear and after purchase of the said property by him from the previous owner; some tenants in the said premises vacated and handed over vacant possession of the same to him. The sub-tenant did not vacate the demised premises. The HRCOP, filed by the landlord was dismissed by the Rent Controller. The landlord preferred Rent Control Appeal before the appellate authority against the order of dismissal of his HRCOP. The Honorable Appellate Authority passed an order setting aside the dismissal of HRCOP and also allowing HRCOP by directing the sub-tenant to vacate the demised premises within one month before the date of said order. The suit filed by the sub-tenant to restrain the landlord from evicting him except under due process of law was also dismissed. As per the order passed by Honorable Appellate Authority, the sub-tenant is bound to vacate the demised premises within one month from the date of the said order. Similarly, the Civil Revision Petition, filed by the sub-tenant against impleading of LRs of the original tenant was also dismissed by Honorable High Court. The order passed by the Appellate Authority in RCA has become final. Being unsuccessful before all the forums, the sub-tenant has finally filed a suit for declaration that the decree passed in RCA is null and void on the ground of fraud.
The main contention of the sub-tenant is that the petitioner has concealed the death of original tenant and filed the RCOP against the dead respondent. The landlord filed an application to implead a legal representative of the deceased tenant and the legal representative of the deceased tenant was made as 3rd respondent as per the order passed in the application, filed by the landlord. Under the circumstances stated above, the sub-tenant had raised another contention that person impleaded as 3rd respondent is not the legal representative of the deceased tenant. The issue with regard to death of original tenant and her legal representative was already agitated and also decided by the Rent Controller. The sub-tenant filed Civil Revision Petition against the inclusion of the legal representative of the original tenant as 3rd respondent. The said CRP was also dismissed by Honorable High Court. The inclusion of the legal representative of the original tenant as 3rd respondent was confirmed by Honorable High Court. In other words, the contention of the sub-tenant with regard to death of original tenant and her legal representative was already rejected. The issue raised by the sub-tenant was already decided by the Appellate Authority and also by Honorable High Court. The sub-tenant could not succeed in both the forums and the unsuccessful sub-tenant filed a suit, re-agitating the same issue with regard to death of original tenant and her legal representative. As stated above, the landlord duly disclosed death of original tenant and also brought her legal representative on record. There is nothing to suggest that the landlord has practiced fraud upon the Court in getting the judgment from the Appellate Authority in RCA. The landlord did not either hide anything or plead any falsehood to get the judgment favourable to him.
In the above said case, it is evident that by filing the suit in a court of original jurisdiction to set aside the decree, that too passed by the appellate court on the ground of fraud, the unsuccessful litigant was able to cause the delay in the court’s process of carrying the decree/order in to effect. It need not be mentioned that this type of delay could have been avoided, provided there was careful scrutiny of plaints before admitting them on file. The hardship caused to the genuine litigants and the delay caused by the unsuccessful litigants in the litigation can be put an end to and the courts have to ensure that there is no unnecessary and unlawful obstacle in the execution of any final decree/order.
It is now well established that decree cannot be set aside as fraudulent on the allegations that it was obtained by perjured evidence or that claim was false. It must be shown that plaintiff was prevented by some fraud or contrivance from placing his case before the Court. Only under the circumstances stated above, the plaintiff can file a suit for declaration that the Judgment and Decree was obtained by fraud.
In the judgment of Honorable Madras High Court reported in 2003 (4) CTC 347 (delivered by Honorable Justice. R. Banumathy), it has been held as follows: “There will be no possibility of putting an end to a litigation, if the parties to the litigation are allowed to re-agitate the same issue which has been decided by the competent court by bringing fresh suit on the ground that the perjury has been committed or false answers have been given to interrogatories in the earlier litigation”. In the same judgment, it has also been held that thousands of suits are tried every day and the same are disposed of on letting in evidence. If all those unsuccessful litigants are to allege that the judgment and decree passed against them is fraudulently obtained on forgery, there would be no finality of the litigations. If such suits are allowed to be filed, the court's proceeding to hear the same would amount to supervision of Judicial system by the onslaught from within the system. Therefore, this type of suits has to be sternly dealt with”.
If the practice of filing this type of suits is not stopped, every unsuccessful litigant will approach the Court by filing the suit for declaration that the judgment and decree against him/her was obtained by fraud and there will be no finality to the litigation. Therefore, I request the judicial officers to bestow their best effort and attention to curb this type of Re-litigation at the beginning stage itself.
N.S.SRIVATHSAN
Sub Judge
Maduranthakam