Orissa High Court: Dr A.K. Rath J., quashed the order passed by Civil Judge (Junior Division) and order by Tahsildar due to fraudulent practices of the parties in a consolidation matter.
In the present case, a plot of land came into the purview of consolidation operation, wherein the Opposite Party 1 filed a consolidation revision before the Commissioner. The Commissioner had remanded the matter to the Consolidation Officer for effecting a compromise. The Opposite Party 2 had filed a compromise petition along with a trace map for partition and the Consolidation Officer had allotted 1/3rd of land to each in accordance with the trace map. The Opposite Party 2 had filed another application before the Tahsildar for the conversion of the agricultural land into a homestead.
Senior Advocate, Rajat Kumar Rath and Advocate, Sandipani Nayak representing the petitioners, submitted before the High Court that the trace map which was submitted by the Opposite Party 1 was a fraudulent copy. He put forth that the copy was forged and was an imaginary vertical sketch map; therefore the orders passed by the respective authorities were based on fabricated factual scenarios. The Senior Advocate also placed reliance on two apex court decisions which were discussed by the High Court in its order.
The Advocate representing the Opposite Party 1, Bikram Rath submitted that they were constrained in filing for a permanent injunction due to the disturbed possession in the land by the Opposite Party 2.
The High Court, before delving into the matter, discussed the two apex court decision in order to distinguish between when proceedings shall be considered “collusive and fraudulent”. It stated that in Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593, the apex court had come to a decision that in “collusive proceedings the combat is a mere sham, in a fraudulent suit it is real and earnest.” Thus stating that in collusive proceedings the claim is fictitious in nature whereas, in a fraudulent suit, the claim is untrue. Placing reliance to another two Supreme Court decisions it stated that both in S.P. Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1 and Badami v. Bhali, (2012) 11 SCC 574, the Apex Court had stated that a judgment obtained by fraudulent means should be treated with nullity notwithstanding the hierarchy of court, whether superior or inferior court passing the order/decree. It quoted Chief Justice Edward Coke of England, “Fraud avoids all judicial acts, ecclesiastical or temporal.” The Court upon perusal of documents produced stated that it was evident that the diagram produced in the compromise petition was diametrically opposite to the consolidation case. Therefore, the court quashed both the orders passed by the Civil Judge and Tahsildar, stating that the Opposite party 1 had fraudulently induced the authorities for a favourable order and also provided an option for the Opposite Party 1 to make a fresh application for conversion of land.[Prafulla Kumar Nayak v. Khetramohan Nayak, 2019 SCC OnLine Ori 238, decided on 10-07-2019]
