# Shiv Shankar v. Board of Revenue & Ors

- **Citation:** (2014) 2 ILRA 844
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-07-17
- **Case number:** Civil Misc. Writ Petition No. 34091 of 2014
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-shankar-v-board-of-revenue-ors-42991
- **Pages:** 4

## Headnote

Constitution of India, Art.-226-Practice and
Procedure-order obtained by concealment of
dismissal of earlier suit-between same
party-held-fraud vitiate every thing-even
otherwise subsequent suit between same
parties in respect of same subject matterbarred by principle of resjudicata-petition
dismissed with cost of Rs. 25,000/-=.

Held: Para-9
It is settled law that fraud and justice
cannot live together. If something has been
obtained by playing fraud and the factum of
fraud is not disputed, then that thing
becomes non-est. Here, factum of filing of
earlier suit for the same land has not been
disputed by the petitioner's counsel

Case Law discussed:
(1994) 1 SCC 1; (2007) 4 SCC 221; SCC p. 231
para 22; (2008) 12 SCC 481; (2010) 8 SCC 383;
2011 (3) ACR 3544(SC); 2012 (6) ADJ 246.

## Text

844 INDIAN LAW REPORTS ALLAHABAD SERIES
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.07.2014

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 34091 of 2014

Shiv Shankar ...Petitioner
Versus
Board of Revenue & Ors. ...Respondents

Counsel for the Petitioner:
Sri Manish, Sri Gajala Srivastava

Counsel for the Respondents:
C.S.C., Sri Mahesh Narain Singh

Constitution of India, Art.-226-Practice and
Procedure-order obtained by concealment of
dismissal of earlier suit-between same
party-held-fraud vitiate every thing-even
otherwise subsequent suit between same
parties in respect of same subject matterbarred by principle of resjudicata-petition
dismissed with cost of Rs. 25,000/-=.

Held: Para-9
It is settled law that fraud and justice
cannot live together. If something has been
obtained by playing fraud and the factum of
fraud is not disputed, then that thing
becomes non-est. Here, factum of filing of
earlier suit for the same land has not been
disputed by the petitioner's counsel

Case Law discussed:
(1994) 1 SCC 1; (2007) 4 SCC 221; SCC p. 231
para 22; (2008) 12 SCC 481; (2010) 8 SCC 383;
2011 (3) ACR 3544(SC); 2012 (6) ADJ 246.

(Delivered by Hon'ble Ran Vijai Singh, J.)

1. Heard Sri Manish, learned counsel
for the petitioner and learned Standing
Counsel appearing for the State respondents.

2. This writ petition has been filed
for issuing a writ of certiorari quashing
the orders dated 28.3.2014 passed by the
learned Member Board of Revenue in
Revision No. 44 of 2013-14 (Shiv
Shanker Vs. State of U.P. and others) and
order dated 15.2.2014 passed by the SubDivisional Officer in Case No. 98/2004
(Gram Sabha Dhaulana and others Vs.
Shiv Shanker.

3. Vide order dated 15.2.2014,
restoration application filed by the Gaon
Sabha seeking setting aside the judgment
and decree dated 6.6.2005 has been
allowed after condoning the delay and the
case was restored to its original number.
Whereas by the subsequent order dated
28.3.2014, the petitioner's revision filed
against the order dated 15.2.2014 has
been dismissed.

4. While assailing these orders,
learned
counsel
for
the
petitioner
contends that the petitioner has filed Suit
No. 98 of 2004 (Shiv Shankar Vs. State of
U.P. and others) under Section 229-B of
U.P.Zamindari
Abolition
and
Land
Reforms Act, 1950 ( in short ' the Act')
impleading State of U.P. as well as Gaon
Sabha as defendants and both have filed
their written statement. The suit was
decreed on 6.6.2005.

5. Aggrieved by the judgment and
decree dated 6.6.2005, State of U.P. has
filed an appeal, which was numbered as
Appeal No. 64 of 2004-05. The appeal too
had been dismissed by the Additional
Commissioner (III) Meerut Division,
Meerut vide judgment and order dated
4.2.2009.

6. It is after seven years, the Gaon
Sabha has filed restoration application
under Order IX, Rule 13 of Code of Civil
Procedure seeking setting aside the
2 All]. Shiv Shankar Vs. Board of Revenue & Ors.
845
judgment and decree dated 6.6.2005 along
with an application for condonation of
delay. The delay has been condoned and
the restoration application has been
allowed. It is contended that once the
judgment and decree dated 6.6.2005 has
attained finality, by dismissal of the
appeal, on 4.2.2009, filed by the State, it
was not open for the Sub-Divisional
Officer to set aside the judgment and
decree dated 6.6.2005 and restoring the
proceeding of the suit.

7. On the other hand, learned
Standing Counsel has invited attention of
the Court towards the observation made
by the Sub-Divisional Officer while
allowing
the
restoration
application
wherein it is recorded that with respect to
the land in dispute i.e.Khasra No. 1345
measuring about 0.253 hectare, Khasra
No. 2204 measuring about 0.089 hectare
and Khasra No. 1401 measuring about
0.493 hectare, the petitioner had filed suit
under Section 229-B of the Act, which
was numbered as 14 of 1999 (Shiv
Shankar Vs. State ). This suit was
dismissed on 26.1.2000. Aggrieved by the
judgment and decree dated 26.1.2000, the
petitioner had filed Appeal No. 8 of 2000
(Shiv Shankar Vs. State ). The appeal was
also dismissed on 14.11.2000. Concealing
this fact, the petitioner has filed another
suit in the year 2004 with respect to the
same land, which was numbered as Suit
No. 98 of 2004 (Shiv Shankar Vs. State),
which was decreed on 6.6.2005. Against
that, State filed Appeal No. 64 of 2004-05
(State Vs. Shiv Shankar) which was
dismissed on 4.2.2009. Taking shelter of
the observation made by the SubDivisional
Officer,
learned
Standing
Counsel contends that the petitioner has
played fraud upon the courts and after
dismissal of the earlier suit on 26.1.2000,
no fresh suit for the same cause of action
could be maintained.

8. From the perusal of the judgment
dated 6.6.2005 passed in the suit filed in
the year 2004, it transpires that in the
plaint, the petitioner(plaintiff) has not
disclosed the filing of the earlier suit and
its dismissal for the same cause of action
and obtained the decree by playing fraud
upon the court. Therefore, even if the
appeal filed by the State Government was
dismissed, it will make no difference.

9. It is settled law that fraud and
justice cannot live together. If something
has been obtained by playing fraud and the
factum of fraud is not disputed, then that
thing becomes non-est. Here, factum of
filing of earlier suit for the same land has
not been disputed by the petitioner's counsel

10. In S.P. Chengal Varaya Naidu
vs. Jagannath and others, (1994) 1 SCC 1,
the Apex Court has observed as under:-

"5....The principle of "finality of
litigation" cannot be pressed to the extent
of such an absurdity that it becomes an
engine of fraud in the hands of dishonest
litigants. The courts of law are meant for
imparting justice between the parties. One
who comes to the court, must come with
clean hands. We are constrained to say
that more often than not, process of the
court is being abused. Property-grabbers,
tax-evaders, bank-loan-dodgers and other
unscrupulous persons from all walks of
life find the court-process a convenient
lever
to
retain
the
illegal-gains
indefinitely. We have no hesitation to say
that a person, who's case is based on
falsehood, has no right to approach the
court. He can be summarily thrown out at
any stage of the litigation."
846 INDIAN LAW REPORTS ALLAHABAD SERIES

11. In A.V. Papayya Sastry v. Govt.
of A.P., (2007) 4 SCC 221. Considering
English and Indian cases, one of us (C.K.
Thakker, J.) stated : (SCC p. 231, para 22)
while dealing such matter, the Apex Court
has observed as under:-

"22. It is thus settled proposition of
law that a judgement, decree or order
obtained by playing fraud on the court,
tribunal or authority is a nullity and non
est in the eye of law. Such a judgement,
decree or order--by the first court or by
the final court--has to be treated as nullity
by every court, superior or inferior. It can
be challenged in any court, at any time, in
appeal, revision, writ or even in collateral
proceedings."

The Court defined "fraud" as an act of
deliberate deception with the design of
securing
something
by
taking
unfair
advantage of another. In fraud one gains at
the loss and cost of another. Even the most
solemn proceedings stand vitiated if they are
actuated by fraud. Fraud is thus an extrinsic
collateral act which vitiates all judicial acts,
whether in rem or in personam."

12. This view has been reiterated by
the Apex Court in the case of K.D.
Sharma vs. Steel Authority of India
Limited, (2008) 12 SCC 481.

13. In Meghmala and others vs. G.
Narasimha Reddy and others (2010) 8 SCC
383, the Supreme Court in paragraphs 33
and 34 has observed as under:-

"33. Fraud is an intrinsic, collateral
act, and fraud of an egregious nature
would
vitiate
the
most
solemn
proceedings of courts of justice. Fraud is
an act of deliberate deception with a
design to secure something, which is
otherwise not due. The expression "fraud"
involves two elements, deceit and injury
to the person deceived. It is a cheating
intended to get an advantage. [Vide Vimla
(Dr.) v. Delhi Admn. AIR 1963 SC 1572,
Indian Bank v. Satyam Fibres (India) (P)
Ltd. (1996) 5 SCC 550, State of A.P. v. T.
Suryachandra Rao (2005) 6 SCC 149,
K.D. Sharma v. SAIL (2008) 12 SCC 481
and Central Bank of India v. Madhulika
Guruprasad Dahir (2008) 13 SCC 170]

34. An act of fraud on court is always
viewed seriously. A collusion or conspiracy
with a view to deprive the rights of the others
in relation to a property would render the
transaction void ab initio. Fraud and deception
are synonymous. Although in a given case a
deception may not amount to fraud, fraud is
anathema to all equitable principles and any
affair tainted with fraud cannot be perpetuated
or saved by the application of any equitable
doctrine including res judicata. Fraud is
proved when it is shown that a false
representation has been made (i) knowingly,
or (ii) without belief in its truth, or (iii)
recklessly, careless whether it be true or false.
Suppression of a material document would
also amount to a fraud on the court. (Vide
Gowrishankar v. Joshi Amba Shankar Family
Trust (1996) 3 SCC 310, Ram Chandra Singh
v. Savitri Devi (2003) 8 SCC 319, Roshan
Deen v. Preeti Lal (2002) 1 SCC 100, Ram
Preeti Yadav v. U.P. Board of High School &
Intermediate Education (2003) 8 SCC 311
and Ashok Leyland Ltd. v. State of T.N.
(2004) 3 SCC 1)."

14. The Apex Court has reiterated
the same view in Inderjit Singh Grewal
Vs. State of Punjab and another 2011 (3)
ACR 3544 (SC).

15. This Court has also taken the
same view in Smt. Vibha Shukla And
2 All]. Salik Ram & Ors. Vs. State of U.P. & Ors.
847
Another Vs. Director Of Education
(Basic) U.P., Allahabad And Others, 2012
(6) ADJ 246.

16. Otherwise also, the subsequent
proceeding was barred by principle of
resjudicata. In view of foregoing discussions,
no relief can be granted to the petitioner. The
writ petition is misconceived and it is hereby
dismissed. Since the petitioner has abused the
process of the court for the last ten years and
also committed fraud upon the Court, a cost of
Rs. 25,000/- is imposed upon the petitioner,
which is recoverable as arrears of land
revenue. The petitioner is directed to deposit
the aforesaid amount before the Collector
Hapur within a period of six months from
today. In case, cost is not deposited within the
aforesaid period of six months, the Collector
shall realize the same as arrears of land
revenue. Learned Standing Counsel is
directed to send certified copy of this
judgment to the Collector Hapur forthwith.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.07.2014

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 34216 of 2014

Salik Ram & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Piyush Kan Vishwakarma

Counsel for the Respondents:
C.S.C., Sri Ram Asrey Yadav, Sri Rajesh
Kushwaha, Sri M.K. Yadav.

Constitution of India-Art.-226-Appeal against
judgment passed under 229-B-with delay
condonation application filed-unless delay
condoned-in eye of law no appeal pendingcommissioner not only misinterpreted the
judgment but acted against settled principle
of law-moreover when final relief can not be
granted-no question of interim order-order
continuing interim order till disposal of
appeal-set-a-side.

Held: Para-13
Therefore, in my considered opinion, the
learned Additional Commissioner has not
only mis-interpreted the judgment of
this Court but also ignored the settled
principle of law that unless delay is
condoned there can be no appeal or
revision, therefore no interim order could
be passed in view of the provisions
contained in Order 41, Rule 3A(3) of the
Code of Civil Procedure, which provides
that the Court shall not make an order
for the stay of execution of the decree
against which the appeal is proposed to
be filed so long as the Court does not,
after hearing under rule 11, decide to
hear the appeal.

Case Law discussed:
2008 14 SCC 445; (2012(8) ADJ 210).

(Delivered by Hon'ble Ran Vijai Singh, J.)

1. Learned counsel for the petitioners
is directed to implead the concerned Gaon
Sabha during the course of the day and serve
a copy of the writ petition upon the learned
counsel appearing for the Gaon Sabha.

2. Heard Sri P.K.Vishwakarma,
learned counsel for the petitioner, Sri
C.S.Singh,
learned
Additional
Chief
Standing Counsel appearing for the Staterespondents, Sri R.A.Yadav, learned
counsel appearing for the caveator, Sri
Rajesh Kushwaha, learned counsel for the
respondent no.3 and Sri M.K.Yadav,
learned counsel for the Gaon Sabha.

3. Through this writ petition the
petitioner has prayed for issuing a writ of