L.Mohanam v. Mohamed Idris

07.01.1985, namely document No.68 of 1985 registered on the file ofSub Registrar, Sowcarpet was null and void. During the pendency ofthe said suit, Ayisha Begum passed away and Mohamed Idris, thefirst defendant/first respondent in the appeal was impleaded as thelegal heir of Ayisha Begum. Subsequently, the same came to benumbered as O.S.No.9869 of 1990 on the file of the VII AssistantJudge, City Civil Court, Chennai on 07.11.1990. On 06.11.1991 thesaid suit was decreed ex-parte against Ziauddin and T.M.AbdulRahman, the defendants therein. Mohanam, the appellantherein/plaintiff was not a party to the said suit and he was notaware of the same. After his purchase, the plaintiff Mohanam cameto know about the decree, when service of summons was effected onhim in a subsequent suit O.S.No.9822/1992 filed by Mohamed Idris,the first respondent herein/first defendant, on the file of theCity Civil Court, Chennai for redemption of the mortgage executedunder the deed dated 09.01.1970. Mohanam, the appellantherein/plaintiff, was arrayed as the 4th defendant in the saidredemption suit, . Mohamed Idris, the first respondentherein/first defendant did not have any locus standi to file thesaid suit for redemption of mortgage and he had filed the suit byfalsely claiming to be the legal heir of Thayub Begum.Subsequently, Mohanam, the appellant herein/plaintiff got himselfimpleaded as a defendant in the earlier suit O.S.No.9869/1990. Inthe latter suit O.S.No.9322/1992, it had been stated that ThayubBegum was married to one Shaik Abdul Khader and that he divorcedher and left for Pakistan with all his children to be settled therepermanently. From the said pleadings, the appellant/plaintiff cameto know that Thayub Begum had 2 sons and 2 daughters. As such theclaim of Ayisha Begum to maintain the earlier suit, namelyO.S.No.9869/1990, in her capacity as sister of Thayub Begum couldnot be sustained. Being a stranger, she made an attempt to snatchaway the suit property by wrongly claiming to be the legal heir ofThayub Begum. Pending disposal of the said suit O.S.No.9869/1990,Ayisha Begum died and Mohamed Idris, the first defendant wasbrought on record as her legal heir in the said suit. iii) On 17.04.1997 the second suit O.S.No.9822/1992 wasdismissed for default subsequently the same was restored to file on10.08.2004 by an order passed in I.A.No.16597/2002. As against thesaid order, a revision was filed in Civil Revision PetitionNo.934/2004. In the said CRP an order was passed on 23.06.2004directing disposal of the earlier suit, namely O.S.No.9869/1990within a time frame. Issues were framed in the said suit on10.08.2004. Thereafter Mohamed Idris, the first respondentherein/first defendant insisted upon a joint trial of the suitsO.S.Nos.9869/1990 and 9822/1992. On the same day, the VIIIAssistant Judge issued a test warrant for determination of themarket value of the suit property and accordingly the 'Amin' of theCity Civil Court filed a report valuing the suit property atRs.20.00 Lakhs. Mohanam, the appellant herein/ plaintiff filed twoapplications on 21.09.2004 for the return of the plaint to bepresented before proper court based on the valuation fixed by theAmin of the court. But the said court rejected the saidapplication on 22.09.2004 stating that the market value of the suit https://hcservices.ecourts.gov.in/hcservices/ property had not then been fixed by the court. Immediately afterthe rejection of the said petition, Mohamed Idris, the firstrespondent herein/first defendant filed I.A.No.1659 of 2004 prayingfor the leave of the court to withdraw the suit O.S.No.9822/1992with liberty to file a fresh suit on the very same cause of action.The said petition was resisted. However, the learned VIIIAsssitant Judge, City Civil Court, Chennai, passed an order on08.11.2004 dismissing the said petition with an observation that noliberty was required for filing a fresh suit for the same reliefafter the disposal of the other suit O.S.No.9869/1990, which wouldconstitute a different cause of action and thus, in effect grantedthe very same relief sought for. Therefore, Mohanam, the appellantherein/plaintiff filed a petition in I.A (SR) No.47183 of 2004under Section 21(2) of CPC praying for determination of pecuniaryjurisdiction relating to the suit property as a preliminary issue.The learned VII Asssistant Judge, City Civil Court, Chennai passedan order in the said petition on 18.11.2004 to the effect that thesame could be taken up after the disposal of I.A.No.20239/2004, apetition filed for reception of additional written statement inO.S.No.9869/1990. The said IA No.20239/2004 in O.S.No.9869/1990was allowed on 29.11.2004. But the application filed under Section21(2) of CPC was not taken on file and on the other hand, the judgesuo motu framed a preliminary issue and closed the petition. Hencethe plaintiff filed a Civil Revision Petition in C.R.P.No.64/2005and got stay of all further proceedings in O.S.No.9869 of 1990. On12.04.2004 it was wrongly represented by the first respondentherein/first defendant that the appellant herein/plaintiff wasdragging on the matter and the learned single judge of this court,relying on the said false representation, dismissed the CRP withexemplary cost and also directed striking off of the defence of theappellant herein/plaintiff as a defendant in O.S.No.9869/1990. Theappellant herein/plaintiff filed a review petition in ReviewC.M.P.No.84/2006. When the said review petition was ripe foradmission, the learned single judge who passed the order in the CRPretired and the said review petition was subsequently dismissed bythis court on 12.12.2006 with the observation that the appellantherein/plaintiff ought to have filed an appeal instead of seekingreview. A Special Leave Petition filed by the appellantherein/plaintiff before the Supreme Court in SLP (Civil)No.1779/2007 was also dismissed by the Hon'ble Supreme Court on02.05.2007 at the admission stage itself. The appellant herein/plaintiff, as a bonafide purchaser, has purchased the property forvalue and has also made enormous development by putting up abuilding with ground + 3 floors. iv) The first respondent/first defendant being a totalstranger to the suit properties, had filed the above said suitsO.S.Nos.9869/1990 and 9822/1992 without having any locus standi,right or interest or authorisation or authority and procured adecree in O.S.No.9869/1990 by misrepresentation. Therefore, theappellant herein/plaintiff is entitled to a declaration that theex-parte decree dated 14.06.2006 obtained in O.S.No.9869/1990 bythe first respondent/first defendant is null and void andunenforceable. The appellant's/plaintiff's vendor purchased the https://hcservices.ecourts.gov.in/hcservices/ suit property under a sale deed dated 07.01.1985. Only thereafterthe mother of the first respondent/first plaintiff, claiming to bethe sister of Thayub Begum filed the pauper OP to set aside thesale deed dated 07.01.1985. But the suit was numbered only in1990. Before the numbering of the suit, the appellant/plaintiffpurchased the suit property from his vendor in 1988 itself and hewas not aware of the pending litigation. Even assuming that thefirst defendant derived any redeemable right through her motherover the suit property, the first defendant has no locus standi toseek to set aside the sale deed executed in favour of theappellant's/plaintiff's vendor by the assignee/mortgagee along withthe adopted daughter of Thayub Begum, namely Nasreen Begum, whosigned it as a confirming party. Further, the act on the part ofthe first respondent/first defendant filing the suitO.S.No.9822/1992 for redemption of mortgage and withdrawing thesaid suit after 14 years with liberty to file a fresh suit on thesame cause of action is nothing but gross abuse of process of law.Therefore, the appellant/plaintiff is entitled to the above saidreliefs sought for in the plaint.3. The suit was resisted by the first defendant by raisingthe following contentions in his written statement:-i) Mrs.Thayub Begum, the original owner of the suitproperty had rented out her house consisting of ground floor, firstfloor and second floor to one Pukhraj Jain for a monthly rent ofRs.3,000/- exclusive of electricity charges. After the death ofThayub Begum, the tenant stopped making payment of rent to anybodyand the said tenant Pukhraj Jain filed R.C.O.P.No.699/1985 as ifthere was a dispute as to who was the land-lord. The said R.C.O.P.was dismissed. ii) Thayub Begum had executed a simple mortgage deed infavour of Indra Kanvar Bai Taleda for a sum of Rs.9,000/- and paidinterest on the said amount till her death in 1978. One AbdulRahman, in the pretext of redeeming the mortgage property,fraudulently sold the same for a sum of Rs.25,000/- to one Ziauddinon 07.01.1985. The said purchase by Ziauddin and the sale made byhim to the appellant herein/plaintiff are fraudulent. Hence themother of Mohamed Idris, the first respondent/first defendant,filed a suit O.S.No.9869/1990 on the file of the VII AssistantJudge, City Civil Court, Chennai against Abdul Rahman, Ziauddin andother tenants in respect of the suit properties. The appellantherein/plaintiff, who claims to have purchased the suit propertyfrom Ziauddin on 10.06.1998, got impleaded in the above suit sevenyears after his purchase and he was arrayed as the 6th defendant.Except the appellant herein/plaintiff, who figured as the 6thdefendant in the said suit, other defendant in O.S.No.9869/1990remained ex-parte. Even the appellant herein/plaintiff, whofigured as the 6th defendant in O.S.No.9869/1990, later on failedto contest the suit and an ex-parte decree was passed against him.Under such circumstances, the first respondent herein/firstdefendant, being the lawful owner of the suit property, sold thesame to Syed Nazrullah Basha and Nazreen Begum, the respondents 2and 3/defendants 2 and 3, on 24.08.2007. The said sale is validand binding on the appellant herein/plaintiff also. Since the https://hcservices.ecourts.gov.in/hcservices/ plaintiff's predecessor-in-title had no legal right to be conveyedunder the sale deed executed in favour of the appellant/plaintiff,he has got no locus standi to file the suit C.S.No.434 of 2007 andnone of the reliefs sought for in the plaint can be granted. Theabove civil suit should be dismissed with exemplary costs. 4. Defendants 2 and 3 contested the suit by filing awritten statement containing the following averments:-Thayub Begum was the owner of the suit property. After herdeath, as her only legal heir under Mohammedan Law, the firstrespondent/first defendant became the owner of the suit property.Appellant's/plaintiff's predecessor-in-title had no interest andhad no right to execute a sale deed in favour of the appellantherein/plaintiff. The alleged sale deed dated 10.06.1988 is not atrue one and the same is void in law. The appellantherein/Plaintiff has no locus standi to file the suit based on thesaid sale deed and the present suit is a vexatious one.Respondents 2 and 3/defendants 2 and 3 are the lawful owners of thesuit property, having purchased it from the first respondent/firstdefendant. The first respondent herein/first defendant had filed asuit against the plaintiff in O.S.No.9869/1990 on the file of theVII Assistant Judge, City Civil Court, Chennai. The suit wasdecreed against the present appellant/plaintiff on 14.06.2006.Appellant herein/plaintiff has not filed any appeal against thejudgment and decree passed in O.S.No.9869/1990 on the file of theVII Assistant Judge, City Civil Court, Chennai and the said decreewill operate as res judicata. Before the said ex-parte decree waspassed on an application filed by the appellant herein (6thdefendant in the said suit), the court passed an order directingvaluation of the suit for the relief of declaration atRs.2,00,000/- and payment of a deficit court fee of Rs.9,375/- asagainst the claim made by the appellant herein that the suit oughtto have been valued at Rs.47,00,000/- as per his valuation or atleast at Rs.20,00,000/- as per the value arrived at by the Amin.The said order was challenged by the appellant herein before thehigher court by filing a civil revision petition inC.R.P.No.54/2005. The same was dismissed by the High Court. Asagainst the dismissal of the revision petition, the plaintiffpreferred an SLP C.C.No.1779/2009 on the file of the Supreme courtand the same was also dismissed. In view of the dismissal of thesame, the present suit is not maintainable and it deservesdismissal. None of the prayers made in the plaint can be granted.The appellant/plaintiff has not come to the court with clean hands.Therefore, the suit should be dismissed with exemplary cost ofdefendants 2 and 3.5. The appellant/plaintiff filed a reply statementcontaining the following averments:-The 2nd and 3rd respondents/defendants 2 and 3 havingpurchased the suit property pendente lite got impleaded as partydefendants in the suit with incorrect details. The suit was filedby the appellant herein/plaintiff in April 2007. The firstrespondent/first defendant sold the suit property to therespondents 2 and 3/defendants 2 and 3 on 24.08.2007 under a sale https://hcservices.ecourts.gov.in/hcservices/ deed bearing document No.881/2007. The said sale deed was afraudulent one as the same had been brought into effect after thereceipt of the suit summons. The first respondent/first defendantwas a stranger to the suit property and he had no redeemable rightover the suit property. However, he fraudulently obtained a decreefrom the City Civil Court, Chennai in O.S.No.9869/1990 on14.06.2006. The validity of the said decree passed in the saidsuit is being challenged by the plaintiff in C.S.No.434/2007 whichis a comprehensive suit. For execution of the decree obtained inO.S.No.9869/1990, the first defendant had filed E.P.No.2584/2007seeking delivery of possession describing the appellant/plaintiffto be a tenant, with full knowledge that such an averment is false.In suppression of pendency of the present suit and also theexecution proceedings, a sham and nominal document was executed bythe first defendant in favour of respondents 2 and 3/defendants 2and 3 for a throw-away price of Rs.12.00 Lakhs. An inspection ofthe property was sought to be conducted by the Inspecting Officer,but the same was resisted by the appellant/plaintiff on the premisethat he was in possession of the suit property. The value of theland on the date of sale in favour of respondents 2 and3/defendants 2 and 3 was Rs.1,800/- per sq.ft. Even the land valueas per the guideline value fixed by the Registration Departmentcomes to Rs.15,12,000/-. The building was also valued at a lowerrate of Rs.7,01,330/-. The respondents 2 and 3/defendants 2 and 3paid a sum of Rs.81,072/- by way of deficit stamp duty and got thedocument numbered and registered despite the objections raised bythe appellant/plaintiff. The first respondent/first defendantfalsely declared as if he delivered vacant possession of the suitproperty to the purchasers. He has also falsely declared that hepaid all public outgoings in respect of the suit properties. Thiscourt had also granted interim injunction restraining thedefendants from proceeding with the execution petition. As such, afalse recital was incorporated in the sale deed as if possessionwas handed over to the purchasers, namely respondents 2 and3/defendants 2 and 3. The first respondent/first defendant, whohad no locus standi to file the suit O.S.No.9869/1990 obtained adecree in the said suit by playing a fraud upon the court and bymisrepresentation. The husband, daughters and sons of ThayubBegum, the original owner/original mortgagor of the suit propertyare alive. Therefore the first defendant had got no right orauthority to deal with the suit property. Even though theappellant/plaintiff has valued the suit property at Rs.47.00 Lakhs,on inspection, the Amin of the court fixed the value of the suitproperty at Rs.20.00 Lacs as on 08.09.2004. But, in the sale deedexecuted in favour of respondents 2 and 3/defendants 2 and 3 in theyear 2007, the sale consideration is quoted as 12.00 Lakhs, whichincluded the cost of the third floor construction also. Theappellant/plaintiff has been advised to state that since the saidsale deed executed by the first respondent/first defendant infavour of the respondents 2 and 3/defendants 2 and 3 is sham andnominal besides being hit by doctrine of lis pendens, he need notchallenge the same. For all the reasons stated above, the claim ofthe respondents 2 and 3/defendants 2 and 3 through the firstdefendant is liable to be rejected in its entirety. https://hcservices.ecourts.gov.in/hcservices/

6. Based on the above said pleadings, the following issueswere framed:-1.Whether the 1st Defendant in the above suit is havingredeemable right over the plaint schedule property?2.Whether the Plaintiff is entitled to the relief of thedeclaration that he is the absolute owner of the suitproperty?3.Whether the plaintiff is entitled to the relief ofcancellation of exparte decree dated 14.6.2006 passed in thesuit in OS No.9869/1990 by the VII Assistant City CivilJudge, Chennai, since the same was obtained by allegedmisrepresentation on the part of the 1st defendant herein?4.Whether the Plaintiff approached this court with clean hands?5.Whether the 1st Defendant has got title and right to conveythe property in favour of the second and third defendants?6.Whether the plaintiff is entitled to the relief of permanentinjunction to protect his possession over the suit property?7.Whether the subsequent sale effected by the 1st defendant infavour of the Defendants 2 and 3 during pendency of the suitis hit by the doctrine of 'lis pendens' and therefore non-estin law?8.Whether the suit is not within the time of limitation? 7. In the trial, the appellant/plaintiff figured as thesole witness (P.W.1) and marked 42 documents as Exs.P1 to P42, onhis side. On the side of the respondents/defendants, thedefendants 1 and 2 figured as DWs.1 and 2 respectively and 10documents were marked as Exs.D1 to D10. At the conclusion oftrial, the learned single judge considered the pleadings andevidence in the light of the points raised on both sides in thearguments advanced by the counsel and upon such consideration, cameto the conclusion that the appellant/plaintiff was not entitled toany of the reliefs sought for in the plaint and dismissed the suitwith cost by judgment and decree dated 26.07.2010.8. Aggrieved by and challenging the same, the unsuccessfulplaintiff in the civil suit C.S.No.434/2007 has filed the presentOriginal Side Appeal on the grounds set out in the Memorandum ofGrounds of Original Side Appeal.9. The points that arise for consideration in this appealare:i) Whether the appellant/plaintiff is entitledto the relief of cancellation of exparte decreedated 14.6.2006 passed in the suit in OSNo.9869/1990 by the VII Assistant City Civil Judge,Chennai, since the same was obtained by allegedmisrepresentation on the part of the 1strespondent/1st defendant herein?ii) Whether the appellant/plaintiff is entitledto challenge the decree dated 14.06.2006 passed inO.S.No.9869/1990 by the VII Assistant City Civil https://hcservices.ecourts.gov.in/hcservices/ Judge, Chennai, on any other vitiating factors,especially on the ground that denial of opportunityto cross-examine witnesses examined on the side ofthe plaintiff therein even though defence in thesaid suit had been struck off?`iii) Whether the appellant/plaintiff isentitled to the relief of the declaration that he isthe absolute owner of the suit property?iv) Whether the appellant/plaintiff approachedthis court with clean hands?v) Whether the decree passed by the learnedsingle judge in C.S.No.434 of 2007 is liable to beinterfered with and set aside?vi) Whether the 1st respondent/1st defendant inthe suit is having redeemable right over the plaintschedule property?10. This court heard the arguments advanced byMr.S.Parthasarathy, learned senior counsel representingMr.M.Balasubramaniam, learned counsel for the appellant, byMr.Sheik Nainaa, the learned counsel for the first respondent andby Mr.S.Narayanan, learned counsel for the respondents 2 and 3.The materials available on record were also perused.Point Nos.i to iii11. The plaintiff, who proved to be unsuccessful in the suitbefore the learned single judge of this Court, has come forwardwith the present appeal. The suit was filed for the followingreliefs:1) Declaration that Mohamed Idris, the first defendant (firstrespondent) does not have a redeemable right over the suitproperty;2) Declaration that Mohanam, the plaintiff (appellant) is theabsolute owner of the suit property;3) Cancellation of the decree dated 14.06.2006 passed inO.S.No.9869 of 1990 on the file of the learned VII Assistant Judge,City Civil Court, Chennai, as the same was obtained bymisrepresentation; and 4) Permanent injunction not to disturb theappellant's/plaintiff's peaceful possession and enjoyment of thesuit property.12. The first and fourth reliefs depend upon the outcome ofthe second prayer. The second prayer, in turn, depends on theoutcome of the third prayer seeking cancellation of the decreepassed in O.S.No.9869 of 1990. Therefore, let us take up fordiscussion, the sustainability of the third prayer at the firstinstance. https://hcservices.ecourts.gov.in/hcservices/

13. Admittedly one Thayub Begum was the original owner ofthe suit property and she had let out the property to one PukhrajJain. At the time of induction of said tenant, the property had abuilding with ground plus two floors. Subsequently, the thirdfloor was also constructed. In respect of the suit property, ThayubBegum had created a simple mortgage by executing Ex.P1 Mortgagedeed dated 09.01.1970 in favour of Indra Kanvar Bai Telada. Theamount secured by the mortgage was Rs.9000/-. It is also anadmitted fact that the mortgagor, namely Thayub Begum, withoutredeeming the mortgage, died on 01.04.1978. The mortgage deedEx.P1 also contains a clause enabling the mortgagee to bring theproperty for sale either in public action or by private negotiationin terms of Section 69 of the Transfer of Property Act for therealisation of the debt secured by the mortgage, in case of failureon the part of the mortgagor to discharge the mortgage debt. 14. Section 69 of the Transfer of Property Act, 1882prescribes the conditions for such a power of sale to be valid. Itreads as follows:69. Power of sale when valid(1) A mortgagee, or any person acting on hisbehalf, shall, subject to the provisions of thissection have power to sell or concur in selling themortgaged property or any part thereof, in defaultof payment of the mortgage-money, without theintervention of the court, in the following casesand in no others, namely,-(a) where the mortgage is an English mortgage,and neither the mortgagor nor the mortgagee is aHindu, Mohammedan or Buddhist or a member of anyother race, sect, tribe or class from time to timespecified in this behalf by the State Government, inthe Official Gazette;(b) where a power of sale without theintervention of the court is expressly conferred onthe mortgagee by the mortgage-deed and the mortgageeis the government;(c) where a power of sale without theintervention of the court is expressly conferred onthe mortgagee by the mortgage-deed and the mortgagedproperty or any part thereof was, on the date of theexecution of the mortgage-deed, situate within thetowns of Calcutta, Madras, Bombay, or in any othertown or area which the State Government may, benotification in the Official Gazette, specify inthis behalf. https://hcservices.ecourts.gov.in/hcservices/ (2) No such power shall be exercised unless anduntil-(a) notice in writing requiring payment of theprincipal money has been served on the mortgagor, oron one of several mortgagors, and default has beenmade in payment of the principal money, or of partthereof, for three months after such service; or(b) some interest under the mortgage amountingat least to five hundred rupees is in arrear andunpaid for three months after becoming due.(3) When a sale has been made in professedexercise of such a power, the title of the purchasershall not be impeachable on the ground that no casehad arisen to authorise the sale, or that due noticewas not given, or that the power was otherwiseimproperly or irregularly exercised; but any persondamnified by an unauthorised or improper orirregular exercise of the power shall have hisremedy in damages against the person exercising thepower.(4) The money which is received by themortgagee, arising from the sale, after discharge ofprior encumbrances, if any, to which the sale is notmade subject, or after payment into court undersection 57 of a sum to meet any prior encumbrance,shall, in the absence of a contract to the contrary,be held by him in trust to be applied by him, first,in payment of all costs, charges and expensesproperly incurred by him as incident to the sale orany attempted sale; and, secondly, in discharge ofthe mortgage-money and costs and other money, ifany, due under the mortgage; and the residue of themoney so received shall be paid to the personentitled to the mortgaged property, or authorised togive receipts for the proceeds of the sale thereof.(5) Nothing in this section or in section 69Aapplies to powers conferred before the first day ofJuly, 1882.The power granted to the mortgagee under Ex.P1 mortgage deedsquarely falls within the ambit of Section 69(1)(c) of the Transferof Property Act, 1882 since the property situates within the townof Chennai, formerly known as Madras. https://hcservices.ecourts.gov.in/hcservices/

15. The original mortgagee Indra Kanvar Bai Taleda seems tohave assigned the mortgage in favour of one Abdul Rahman underEx.P4 Assignment Deed dated 07.01.1985 on receipt of a sum ofRs.25,000/- from him as consideration for such assignment. Thesaid assignee Abdul Rahman, purporting to exercise the power ofsale conferred under Section 69 of the Transfer of Propertyexecuted a sale deed under Ex.P5 dated 10.06.1988 in favour of oneZiauddin. One Ayisha Begum, the mother of the first defendantMohammed Idris, filed a suit in forma pauparis on the file of theCity Civil Court, Chennai for declaring Ex.P4 sale deed dated07.01.1985 to be null and void and illegal. As the said suit wasfiled without necessary Court fee and with a prayer for leave ofthe Court to file the same as an indigent person, the same wastaken on file as O.P.No.324 of 1986. Ayisha Begum died on08.01.1987 during the pendency of the Pauper O.P leaving her sonMohammed Idris, the first respondent/first defendant as her onlylegal heir. Subsequently, Mohammed Idris, the first defendant cameon record as legal representative of Ayisha Begum in the saidpauper O.P by virtue of an order dated 12.08.1988 made inI.A.No.14292 of 1988. Subsequently, the O.P came to be registeredas O.S.No.9869 of 1990. The said suit was originally filed againstZiauddin, Abdul Rahman and Pukhraj Jain. Subsequently, on thedeath of Pukhraj Jain, his sons Sohanraj Jain and Dhanraj Jain wereimpleaded in the said suit as 4th and 5th defendants therein. Alldefendants remained exparte and the learned VII Assistant Judge,City Civil Court decreed the suit by an exparte decree dated06.11.1991 declaring the sale deed dated 07.01.1985 (Ex.P4) to benull and void. Meanwhile the said Ziauddin, who figured as thefirst defendant in the earlier suit, chose to execute a sale deedunder Ex.P5 on 10.06.1988 in favour of Mohanam, the appellantherein/plaintiff. All the defendants in the former suit, namelyO.S.No.9869 of 1990, remained exparte and did not contest the suit.Mohanam, the appellant/plaintiff herein, on the strength of hispurchase made under Ex.P5 in the year 1988, chose to get himselfimpleaded in the said earlier suit as the 6th defendant by filingan application in I.A.No.2173 of 1997 and thereafter, he alonehappened to be the contesting defendant. Based on the strength ofthe said exparte decree dated 06.11.1991, the first defendantMohammed Idris filed a suit in O.S.No.9822 of 1992 on the file ofthe City Civil Court, Chennai for redemption of mortgage, forrecovery of possession and also for rendition of accounts, since bythen possession of the property had been with Mohanam, theplaintiff herein. Only thereafter Mohanam got the ex-parte decreeset aside and got impleaded as 6th defendant in O.S.No.9869/1990.In the said suit O.S.No.9822 of 1992, all other persons, who hadbeen made as co-defendants remained exparte and Mohanam, theplaintiff herein who figured as the fourth defendant therein alonecontested the suit. Since recovery of possession was also soughtfor, he raised a preliminary objection as to the correctness ofthe valuation of the reliefs and payment of court fee and presenteda petition praying for the return of the plaint for presentation inproper Court on the premise that the City Civil Court did not havethe pecuniary jurisdiction since the value of the property, as per https://hcservices.ecourts.gov.in/hcservices/ the test report of Amin, was Rs.20.00 Lakhs. The said applicationwas dismissed by the learned VII Assistant Judge, City Civil Court,Chennai with the observation that a decision regarding the value ofthe suit had not been taken by the Court by then. However, basedon the plea made by the plaintiff herein (4th defendant in the saidcase) regarding valuation and payment of Court fee, the said Courtframed an issue and considered the same as a preliminary issue. Bya judgment and decree regarding the preliminary issue, the saidCourt held that the relief of redemption had been properly valued,but the relief of recovery of possession had been undervalued andthe same had to be valued at Rs.2,00,000/-, the consideration forwhich the property was purchased by Mohanam, the plaintiff thereinand directed payment of a sum of Rs.9,375.50P as additional Courtfee. Subsequent to the said order, the first defendant herein,namely Mohammed Idris wanted to withdraw the suit with liberty tofile a fresh suit on the very same cause of action and for thatpurpose filed an application in I.A.No.16591 of 2004. The learnedVII Assistant Judge, City Civil Court, Chennai after hearing,allowed the first defendant herein to withdraw the suit holdingthat the party filing the suit could withdraw the same at any time.The Court, after having a brief discussion of Order XXIII Rule 1CPC, came to the conclusion that the suit was filed based on thecause of action, namely exparte decree dated 06.11.1991 passed inO.S.No.9869 of 1990 declaring the sale deed dated 07.01.1985(Ex.P4) to be null and void and the said cause of action was nolonger subsisting since the said exparte decree had beensubsequently set aside and that in such circumstances, there won'tbe any question of seeking or granting leave to file a fresh suiton the basis of a fresh cause of action that would arise after thedisposal of O.S.No.9869 of 1990. Making such a clear observationin the order, the said Court permitted the first defendant towithdraw the suit for redemption, namely O.S.No.9822 of 1992. Thesaid order was passed on 08.11.2004. 16.Thereafter, the plaintiff herein preferred a revisionbefore this Court in C.R.P (PD) No.54 of 2005 challenging thedecreetal order dated 13.12.2004 directing valuation of the suitfor the relief of declaration at Rs.2.00 lakhs and payment of adeficit Court fee of Rs.9,375/- as against the claim made by theappellant herein/plaintiff that the suit ought to have been valuedat Rs.47.00 Lakhs as per his valuation or at least at Rs.20.00Lakhs as per the value arrived at by the Amin. A learned SingleJudge of this Court (Thiru.Justice T.V.Masilamani) after hearingthe arguments, dismissed the said civil revision petition withexemplary cost of Rs.5,000/- by an order dated 12.04.2006. Afurther direction had been incorporated in the said order directingpayment of Rs.2,500/- out of the total cost awarded therein toMohammed Idris, the first respondent/first defendant and thepayment of the balance Rs.2500/- to the Tamil Nadu Mediation andConciliation Centre, High Court, Madras within four weeks from thedate of order. Prior to the disposal of the said civil revisionpetition, another Civil Revision Petition in CRP No.934 of 2004came to be filed and the same was disposed of with a direction todispose of the original suit O.S.No.9869 of 1990 expeditiously, in https://hcservices.ecourts.gov.in/hcservices/ any event not later than 30.06.2004. Taking note of the saidorder, the learned Single Judge in the order dated 12.04.2006 madein C.R.P.(PD) No.54/2005 extended the time for disposal of the suitand directed disposal of the suit on merits and in accordance withlaw on or before 29.09.2006. In the very same order, it was alsodirected that the defence of Mohanam, the sixth defendant inO.S.No.9869/1990 (the plaintiff herein) would be struck off, if thedirection regarding payment of cost was not complied with withinfour weeks from the date of order. 17. Admittedly, the said direction was not complied with. Onthe other hand, the plaintiff herein chose to file an applicationin Review Application No.84 of 2006 for review of the said order.By the time the said review application was filed, the Judge whopassed the order which was sought to be reviewed, retired onsuperannuation and hence, by an order of the Hon'ble Chief Justice,it was listed before another Hon'ble Judge of this Court and thesame was dismissed on 12.12.2006 holding that an appeal should havebeen filed instead of preferring a review. Thereafter, theplaintiff herein preferred a Special Leave Petition in S.L.P (C)No.1779 of 2007 on the file of the Hon'ble Supreme Court and thesame was dismissed on 02.03.2007 in the admission stage itself. 18. Meanwhile, after the disposal of the C.R.P (PD).No.54of 2005, the learned VII Assitant Judge, City Civil Court, Chennai,has proceeded with the trial and an exparte decree was passed on14.06.2006 in O.S.No.9869 of 1990 declaring Ex.P4 - sale deed to benull and void and directing recovery of possession. The plaintiffherein has not preferred any appeal as against the said decree ofthe learned VII Assistant Judge, City Civil Court, Chennai. On theother hand, he has chosen to file a fresh suit in C.S.No.434 of2007 on the file of this Court (High Court, Madras) praying for thereliefs indicated supra, including the relief of cancellation ofthe exparte decree dated 14.06.2006 passed in O.S.No.9869 of 1990on the file of the VII Assistant Judge, City Civil Court, Chennaion the premise that it was obtained by misrepresentation. 19. In support of his contention, the learned seniorcounsel for the appellant/plaintiff relied on the decision of theHon'ble Supreme Court in Hamza Haji V. State of Kerala and anotherreported in (2006) 7 SCC 416, wherein it has been observed that adecision obtained by playing a fraud on Court is liable to be setaside on the basic principle that the party who secured such adecision by fraud cannot be allowed to enjoy its fruits. Thelearned senior counsel also relied on the observation of theHon'ble Supreme Court in State of Andhra Pradesh and another Vs.T.Suryachandra Rao reported in (2005) 6 SCC 149 to the effect thatthe fraud vitiates every solemn Act and fraud and justice neverdwell together. In A.V.Papayya Sastry and Others Vs. Govt. OfAndhra Pradesh and others reported in (2007) 4 Supreme Court Cases221 also, the Hon'ble Supreme Court has observed that fraudvitiates all judicial acts whether in rem or in personam and that ajudgment, decree or order obtained by fraud has to be treated asnon est and nullity, whether by the Court of first instance or by https://hcservices.ecourts.gov.in/hcservices/ the final Court and that the same can be challenged in any Court,at any time, in appeal, revision, writ or even in collateralproceedings. In North Eastern Railway Administration, GorakhpurVs. Bhagwan Das (dead) By Lrs reported in (2008) 8 Supreme CourtCases 511, the Hon'ble Supreme Court has again reiterated the pointthat a judgment or decree obtained by fraud either in the firstcourt or in the highest Court, is a nullity in the eye of law. 20.Per contra, the learned counsel for the respondent reliedon the decision of the Hon'ble Supreme Court in Afsar Sheikh andanother Vs. Soleman Bibi and others reported in (1976) 2 SCC 142,wherein the Hon'ble Supreme Court has made the followingobservation:"While it is true that `undue influence', `fraud',`misrepresentation' are cognate vices and may, in part,overlap in some cases, they are in law distinct categories,and are in view of Order 6, Rule 4, read with Order 6, r.2,of the Code of Civil Procedure, required to be separatelypleaded, with specificity, particularity and precision."Relying on the said observation of the Hon'ble Supreme Court, alearned Single Judge of this Court in "Senaithalaivar MahajanaSangam Charitable Trust, Vs. A.K.Loganathan reported in 2009 (3)CTC 264 has made the following observation:-"Whenever a party to the litigation sets up a legalplea of undue influence, fraud, misrepresentation,coercion, such serious allegations should be made preciselyand specifically sans any ambiguity. Simple allegation ofsuch vices without the required details will definitelydoubt the very stand of the party litigant. Firstly, theparticulars regarding such serious vices in the pleadingswill unfold an opportunity to the opponent litigant to comeout with his version with regard to such allegation.Secondly, such bald allegations sans particulars will pose achallenge to the very veracity of such allegations."21. The appellant/plaintiff has filed the suit seeking thereliefs set forth in the earlier part of the discussion, on thestrength of the plea that the decree dated 14.06.2006 passed inO.S.No.9869/1990 on the file of the VII Assistant Judge, City CivilCourt, Chennai was obtained by fraud and misrepresentation. Thoughthe learned senior counsel for the appellant has very much reliedon the contention that any judgment, decree or order obtained byfraud is nullity and non est in the eye of law and is liable to becancelled, it is pertinent to note that the pleading of theappellant/plaintiff in this regard is not so clear and unambiguous.In the body of the plaint, at one place he refers to "fraud" as thevitiating factor with which the decree was obtained, but in theprayer portion, the appellant/plaintiff has stated that the decreeis liable to be cancelled on the premise that it was obtained by"misrepresentation". Of course, misrepresentation is an ingredientof fraud. But as rightly pointed out by the learned counsel for https://hcservices.ecourts.gov.in/hcservices/ the contesting respondent, the appellant/plaintiff has not couchedhis plea in clear and unambiguous terms detailing the fraud playedby the first defendant in obtaining the decree against theappellant herein/plaintiff. However, a thorough scrutiny of thepleading and evidence and consideration of the submissions made bythe learned senior counsel on behalf of the appellant/plaintiffwill go to show that the contention of the appellant is to theeffect that the decree was obtained by virtue of the deliberatemisrepresentation amounting to fraud made by the original plaintiffin O.S.No.9869 of 1990, namely Ayisha Begum that she was the legalheir of the original mortgagor Thayub Begum. It is the contentionof the appellant herein/plaintiff that Ayisha Begum could not havebecome a legal heir of the original mortgagor Thayub Begum as thesaid Thayub Begum had been married to one Sheik Abdul Khadir andthough she was divorced by her husband, she was survived by herfour children (two sons and two daughters) and that hence AyishaBegum, who claimed to be the sister of Thayub Begum could not havebecome the legal heir of the original mortgagor Thayub Begum. Inshort, the claim of Ayisha Begum to be the legal heir of ThayubBegum was claimed to be fraudulent, insofar as it was made with aclear knowledge that she could not have become a legal heir ofThayub Begum, while her children were alive. 22. In this regard, it is pertinent to note that neitherAyisha Begum nor her son Mohamed Idris suppressed any materialfact. In fact, in paragraph 3 of the plaint in O.S.No.9869 of1990, a certified copy of which has been marked as Ex.P6, she hadstated in clear terms that Thayub Begum @ Thayubunnissa was marriedto Sheik Abdul Khadir and two sons and two daughters were born tothem; that the said Sheik Abdul Khadir divorced Thayub Begum longago and went abroad with his four children and that theirwhereabouts were not known for over the statutory period. Besidesmaking such clear averments, Ayisha Begum had also categoricallystated that she and Thayub Begum were sisters; that they had threebrothers and other sisters and that all of them were no more. Shehad also given the name of their father as Mohamed Ghouse. She hadalso furnished the names of her brothers and sisters. Besidesmaking such averments, Ayisha Begum had stated that she was the"only surviving legal heir and legal representative of ThayubBengum in India" at the time of filing of the suit and based onthat averment alone, she pleaded for a decree declaring the saledeed dated 07.01.1985 to be null and void. 23. In fact Mohammed Idris, the first respondent/firstdefendant filed another suit for redemption of mortgage asO.S.No.9822 of 1992 on the file of the same Court. A copy of theplaint in the said suit has been produced as Ex.P7. In paragraph 4of the said plaint, he also had made clear averments to the effectthat Thayub Begum @ Thayabunnissa was married to Sheik Abdul Khadirand that he divorced her, left to Pakistan with all his childrenand got settled along with his children in Pakistan over threedecades back. It was the further averment made therein that ThayubBegum died on 01.04.1979 leaving behind her sister Ayisha Begum asher "sole surviving legal heir in India" and on the death of Ayisha https://hcservices.ecourts.gov.in/hcservices/ Begum on 08.01.1987, Mohammed Idris, the first respondentherein/first defendant became the sole legal heir of Ayisha Begum.Therefore, there is no suppression of fact regarding the maritalstatus of Thayub Begum and the relationship between Thayub Begumand Ayisha Begum and in turn between Ayisha Begum and MohammedIdris. 24. In fact, the plaintiff in the present suit (appellant)in paragraph 7 of the plaint, in support of his contention thatAyisha Begum, the original plaintiff in O.S.No.9869 of 1990claiming to be the sister of Thayub Begum could not maintain thesuit as a legal heir/legal representative of Thayub Begum, simplyrelied on the averments found in Paragraph 4 of the plaint inO.S.No.9822 of 1992 to the effect that Thayub Begum was married toSheik Abdul Khadir, who divorced her and then left to Pakistan withall his children and permanently settled there. Making a claim,correctly stating the facts, will not amount to amisrepresentation, much less a fraud on the Court. There must be astatement which is not believed to be true by its maker or astatement which the maker knows to be false or else there should bea deliberate suppression of a fact when the circumstances warrantrevelation of the fact. In this case, there is no suppression offact and no incorrect or false statement is proved to have beenmade either by Ayisha Begum or by her son Mohammed Idris. Making aclaim which may not be sustainable in law based on actual facts, isone thing which cannot be termed either misrepresentation or fraudand the same is to be distinguished from a claim based on arepresentation/statement of fact which the maker either believes tobe false or does not believe to be true or based on a deliberatesuppression of a fact with the knowledge that such a suppressionwill make the Court believe the existence of the fact opposite tothe facts suppressed, in which case alone it will amount to fraud.25. In the case on hand, we have already seen that there isno clear cut plea as to what was the representation which the makerknew to be false or did not believe to be true. There is noallegation in clear terms that any material fact had beensuppressed to make the Court believe the existence of the opposite.Without there being a plea, a party cannot be permitted to adduceevidence. As pointed out supra, there is no clear cut plea as towhat constituted a misrepresentation or playing a fraud on theCourt to obtain the decree in O.S.No.9869 of 1990. However, sincethere is a bald reference to the term "fraud" and"misrepresentation" in attacking the decree obtained in O.S.No.9869of 1990, the appellant/plaintiff was permitted to lead evidence.But except the interested testimony of the appellant/plaintiffhimself as PW1, there is no evidence adduced through otherdisinterested witnesses touching the plea of alleged fraud andmisrepresentation. Even in his evidence as PW1, theappellant/plaintiff was not able to say with certainty that AyishaBegum was not the sister of Thayub Begum @ Thayabunnissa. As itwas pointed out supra, the name of the father of Ayisha Begum andThayub Begum @ Thayabunnissa and the names of their brothers andsisters had also been furnished by Ayisha Begum in her plaint. https://hcservices.ecourts.gov.in/hcservices/ Though PW1, in his evidence, initially stated that Ayisha Begum wasnot the sister of Thayub Begum, later on, when his attention wasdrawn to the pleadings made in his written statement in O.S.No.9869of 1990, he chose to give a new interpretation to the averment inthe said written statement by stating that he only meant thatAyisha Begum was not the legal heir of Thayub Begum. Except thebald denial, that is also not so unambiguous, there is no concreteevidence to show that Ayisha begum was not the sister of ThayubBegum. 26. On the other hand, DW1 has given clear evidence in linewith the avements made in the plaint in O.S.No.9869 of 1990 andalso the plaint in O.S.No.9822 of 1992 regarding the relationshipbetween Thayub Begum and D.W.1's mother Ayisha Begum. In addition,though the second defendant who figured as DW2 has stated that hehad no knowledge about the marriage of Thayub Begum with SheikAbdul Khadir and the fact that they had two sons and two daughters,he has categorically denied the suggestion that the firstdefendant, son of Ayisha Begum is not the legal heir of ThayubBegum. 27. It should be noticed that one Nasreen Begum had beenadded to Ex.P4 sale deed as a confirming party on the premise thatshe was the fostered daughter of Thayub Begum. Ayisha Begum andMohammed Idris, in their respective plaints, had made clearaverments to the effect that Nasreen Begum was not theadopted/fostered daughter of Thayub Begum and on the other hand,she was a stranger to the family. The said Nasreen Begum, who isprojected as an adopted /fostered daughter of Thayub Begum and whowas made to sign the sale deed Ex.P4 as a confirming party, hasbeen made a party to the present suit, namely C.S.No.434 of 2007and has been arrayed as Defendant No.3. But she did not contest thesuit and chose to remain exparte. She was not examined as awitness on the side of the appellant herein/plaintiff either. Noone having acquaintance with the original mortgagor Thayub Begumand her family circle has been examined on the side of theappellant herein/plaintiff. Under such circumstances, the learnedSingle Judge, after going through the pleadings and evidence, cameto a correct conclusion that clear and unambiguous plea of fraud ormisrepresentation had not been made and the plaintiff failed tosubstantiate his case that there was any fraud or misrepresentationby which the decree dated 14.06.2006 made in O.S.No.9869 of 1990was obtained. The said finding of the learned Single Judge cannotbe termed either defective or infirm. No case has been made out inthe appeal by the appellant/plaintiff for interference with thesaid finding of the learned Single Judge. Point No.v28. A decree passed by a competent Court, though may beerroneous, cannot be challenged by a separate suit on the groundthat any of the issues therein had been decided wrongly orerroneously. The only exception is fraud or misrepresentation bywhich the decree was obtained. As pointed out supra, the Hon'bleSupreme Court in A.V.Papayya Sastry and Others Vs. Govt. Of Andhra https://hcservices.ecourts.gov.in/hcservices/ Pradesh and others reported in (2007) 4 Supreme Court Cases 221 haslaid down the law in clear terms that a judgment, decree or orderobtained based on a misrepresentation made or fraud played upon theCourt shall be null and void and shall be non est in the eye of lawand the same is liable to be set aside or cancelled even in aseparate suit filed for the said purpose or in a collateralproceedings. In this case, we have seen supra that the details ofmisrepresentation or fraud have not been set out by theappellant/plaintiff in his pleadings and that even the projectedmisrepresentation or fraud has not been substantiated by reliableevidence. Under such circumstances, the party who suffered such ajudgment or decree or order cannot be allowed to multiply theproceedings by filing a separate suit for cancellation of orsetting aside such judgment, decree or order claiming the same tobe wrong or erroneous. In such cases, the course open to thejudgment debtor is to challenge the decree in the very sameproceedings either by filing an application to set aside the decreeif it is an exparte decree or by filing a review application toreview the judgment based on which the decree was granted or filean appeal in the appellate forum or a revision before the competentforum to entertain revision against such decree or order as thecase may be. The appellant/plaintiff has not chosen to adopt anyone of the above said methods to challenge the exparte decree dated14.06.2006 made in O.S.No.9869 of 1990 by the VII Assistant Judge,City Civil Court, Chennai. When a judgment, decree or order ischallenged as one obtained by misrepresentation or by playing fraudon the Court and the party thus challenging the decree by way aseparate suit fails to substantiate such a case ofmisrepresentation or fraud, it cannot be allowed to enlarge thescope of the subsequent suit by converting such a suit virtuallyinto an appeal against the judgment or decree passed in anothercase by challenging the decree on other grounds which ought to havebeen raised as plea of defence in the former suit or proceedings inwhich the impugned judgment, decree or order came to be passed.29.In this case, though the appellant/plaintiff had chosen tomake the plea of misrepresentation and fraud as the foundation forthe present suit seeking cancellation of the decree dated14.06.2006 made in O.S.No.9869 of 1990 on the file of the VIIAssistant Judge, City Civil Court, without substantiating the sameby making necessary pleading with details of misrepresentation orfraud as contemplated under Order VI Rule 4 CPC and substantiatingthe same by reliable evidence, the appellant/plaintiff seems tohave made an attempt to enlarge the scope of the suit by makingunnecessary and inadmissible pleadings, adducing evidence on suchpleadings and putting forward arguments mainly on those pointsalone. In an attempt to show that the decree dated 14.06.2006passed in O.S.No.9869 of 1990 is liable to be cancelled, theappellant/plaintiff has contended that reasonable opportunity wasnot given to him by the said Court to prove the case of the decreeholder therein to be false and that the Court did pass the impugnedjudgment and decree without application of mind and forgetting theprinciple that even in cases tried exparte or where the defence ofthe opposite party is struck off, the plaintiff is bound to prove https://hcservices.ecourts.gov.in/hcservices/ his case by adducing evidence. In this regard, the learned seniorcounsel for the appellant/plaintiff relied on the followingobservation made by the Hon'ble Supreme Court in M/s.Babbar SewingMachine Co., Vs. Tirlok Nath Mahajan reported in AIR-1978-SC-1436:-"25.It was further contended that the High Court wasin error in observing that 'in view of the clear languageof O.XI, R.21 the defendant has no right to cross-examinethe plaintiff's witnesses. A perusal of O.XI, R.2 showsthat where a defence is to be struck off in thecircumstances mentioned thereon, the order would be thatthe Defendant 'be placed in the same position as if he hasnot defended.' This indicates that once the defence isstruck off under O.XI, R.21, the position would be as ifthe Defendant had not defended and accordingly the suitwould proceed exparte. In Sangram Singh Vs. ElectionTribunal [1955-2-SCR-1:AIR-1955-SC-425] it was held that ifthe Court proceeds exparte against the Defendant under O.IXR.6(a), the Defendant is still entitled to cross examinethe witnesses examined by the plaintiff. If the plaintiffmakes out a prima facie case the Court may pass a decreefor the plaintiff. If the plaintiff fails to make out aprime facie case, the Court may dismiss the plaintiff'ssuit. Every judge dealing with an exparte case has to takecare that the plaintiff's case is, at least, prime facieproved."30. The learned senior counsel also referred to theobservations made by the Supreme Court in Modula India Vs.Kamakshya Singh Deo reported in 1988-4-SCC-619 to the effect thatwhen the defence of defendant is struck off, he would be placed ina position enqual to that of a defendant who has not filed anywritten statement and as such he would not be entitled to lead anyevidence of his own, but at the same time, would be entitled tocross examine the witnesses examined on the side of the plaintifffor the limited purpose of showing the unreliability of suchevidence or the failure to prove the case of the plaintiff. It hasalso been observed therein that while such defendant can bepermitted to cross examine the witnesses of the plaintiff, hecannot be permitted to traverse beyond the very limited objectiveof pointing out the falsity or weakness of the plaintiff's case andthat in any event such cross examination cannot be permitted totravel beyond the legitimate scope, so as to convert the crossexamination itself virtually into a presentation of the defenceplea either directly or indirectly in the form of suggestions putto the plaintiff's side witnesses. The Hon'ble Supreme Court hasmade the following observations in this regard:"The right of the defence to cross examine theplaintiff's witnesses can, therefore, be looked upon not asa part of its own strategy of defence but rather as arequirement without which the plaintiff's evidence cannotbe acted upon. Looked at from this point of view it shouldbe possible to take the view that though the defence of thetenant has been struck out there is nothing in law topreclude him from demonstrating to the Court that the https://hcservices.ecourts.gov.in/hcservices/ plaintiff's witnesses are not speaking the truth or thatthe evidence put forward by the plaintiff is not sufficientto fulfill the terms of the statute."31. Relying on the said observations made by the Hon'bleSupreme Court in the above said cases, the learned senior counselappearing for the appellant has argued that when the defence of adefendant is struck off, his right to cross examine the witnessesproduced on the side of the plaintiff, atleast for the limitedpurpose of showing that the witnesses are not speaking the truth orthat the case of plaintiff is false or that the evidence tenderedis not sufficient to prove the plaintiff's case, cannot be denied.The learned senior counsel has submitted that theappellant/plaintiff who figured as the sixth defendant in suitO.S.No.9869/1990 was not given opportunity to cross examine theonly witness examined on the side of the plaintiff therein and onthat ground alone, the exparte judgment and exparte decree passedin O.S.No.9869 of 1990 are liable to be set aside. Even if it isassumed that the appellant herein/plaintiff can be allowed tocontend in a separate suit on the ground that the denial ofopportunity to cross-examine the witnesses examined on the side ofthe plaintiff in O.S.No.9869/1990 in the ex-parte trial conductedtherein, the same has not been substantiated by reliable evidence.Similar arguments were advanced before the learned Single Judge.The learned Single Judge dealt with them elaborately and came tothe conclusion that even such denial of opportunity was notsubstantiated by the appellant/plaintiff. The reason assigned areas follows:i) The suit O.S.No.9869 of 1990 was filed for the relief ofcancellation of the sale deed dated 07.01.1985 executed by theassignee/mortgagee Abdul Rahman in favour of Ziauddin, the vendorof the appellant/plaintiff and also for recovery of possession andrendition of accounts. The sale was purported to be made inexercise of the power given under a clause in Ex.P1 Mortgage deedconferring such right of sale under Section 69 of the Transfer ofProperty Act. The mortgage is a simple mortgage in whichpossession was not delivered to the mortgagee and it remained withthe mortgagor. The property had been rented out to one PukhrajJain. After the death of the original mortgagor Thayub Begum, thetenant was uncertain about the person entitled to receive the rent,pursuant to which he filed a Rent Control Original Petition inR.C.O.P.No.699 of 1985 on the filed of the Rent Controller, namelyX Judge, Court of Small Causes arraying Ziauddin and Ayisha Begum,mother of the first defendant as respondents and seeking an orderpermitting him to deposit the rent into Court. The order passed inthe said RCOP has been produced as Ex.P3, from which it is obviousthat the said petition was dismissed on 31.03.1996 for non-appearance. Till then neither the mortgagee nor his assignee gotpossession of the subject matter of mortgage. Even in Ex.P4 saledeed dated 07.01.1985, there is nothing to show that possession wastaken by Ziauddin, the purchaser under Ex.P4. Only after theexecution of the said sale deed, since there was a disputeregarding the title to the property between Ziauddin and Ayisha https://hcservices.ecourts.gov.in/hcservices/ Begum, the tenant Pukhraj Jain chose to file R.C.O.P.No.699 of 1985for deposit of rents and the same came to be dismissed on31.03.1996. Ex.P4 sale deed itself contains a recital that thepurchaser Ziauddin would be subrogated to the rights of themortgagee and also the rights of the Income Tax Department. ii) It is the case of the appellant/plaintiff that for theIncome Tax dues of Thayub Begum, the property had been attached bythe Income Tax Department and a destraint warrant had been issuedto the tenants to pay the rents directly to the Income TaxDepartment and that the purchaser Ziauddin, after negotiation withthe Income Tax Department, got the property released fromattachment on making payment of a sum of Rs.45, 957/- towards fullquit of the Income Tax dues of Thayub Begum. Of course, the saidfact has not been disputed. Only thereafter, it seems Ziauddin,the purchaser under Ex.P4 occupied some of the portions and wascollecting the rents from the tenants in respect of the portionsoccupied by the tenants. It is in Ex.P5 dated 10.06.1998 for thefirst time stated that possession was handed over to theappellant/plaintiff Mohanam. But before 10.06.1998, PauperO.P.No.324 of 1986, which was later on converted into original suitas O.S.No.9869 of 1990 was filed. Therefore, it is quite obviousthat the appellant/plaintiff made the purchase under Ex.P5 duringthe pendency of the pauper O.P and hence the sale is hit by thedoctrine of lis pendens. As such the sale shall be subject to theresult of the suit. Of course an exparte decree passed initiallyin the said suit O.S.No.9869 of 1990 was set aside subsequently andthe appellant/plaintiff herein was also impleaded as the sixthdefendant therein. The appellant herein/plaintiff, a partydefendant in the other suit, namely O.S.No.9869/1990, could havedefended the said suit in the normal course, but for his failure tocomply with the direction regarding payment of cost awarded by thiscourt in C.R.P.(PD) No.54 of 2005, which resulted in striking offof his defence in the said suit. The legal position of a case inwhich the defence of the opposite party is struck off has been wellillustrated by the observations of the Hon'ble Supreme Courtrelied on by the learned counsel for the appellant himself, whichwere referred to supra. A defendant whose defence is struck off,is placed on par with a defendant who did not file his plea ofdefence. The fact that a defendant fails to file plea of defencewithin the time stipulated in the code or within the time extendedby the court leading to the closure of the gates for such defendantto put in his specific case of defence, does not mean that the caseof the plaintiff deserves to be accepted as proved and in suchcases, an ex-parte trial recording ex-parte evidence shall beconducted. Even in such cases, if the defendant appears at a laterstage, he cannot be precluded from taking part in the proceedingsfrom the stage at which he enters appearance. The Civil ProcedureCode under Order IX Rule 7 provides for setting aside an ordersetting him ex-parte and allowing him to contest the case as if hehad appeared on the date fixed for his hearing. Order IX Rule 6enables the court to hear the suit ex-parte, if the defendant doesnot appear on the date appointed for his appearance. SimilarlyOrder VIII Rule 10 is the provision enabling the court to pronounce https://hcservices.ecourts.gov.in/hcservices/ judgment against the defendant when he fails to file writtenstatement. It reads as follows:-10. Procedure when party fails to presentwritten statement called for by court. — Whereany party from whom a written statement isrequired under rule 1 or rule 9 fails to presentthe same within the time permitted or fixed bythe Court, as the case may be, the court shallpronounce judgement against him, or make suchorder in relation to the suit as it thinks fitand on the pronouncement of such judgement adecree shall be drawn up.iii) Though the term used is "shall", it has to be read as"may". Then only it shall be in conformity with the meaning of therule which is to the effect that the court shall pronouncejudgement against the defendant who fails to file written statementor make such order in relation to the suit as it thinks fit. Thiswill show that the court has a discretion either to pronouncejudgement on the failure of the defendant to file a writtenstatement or to pass an order for holding ex-parte trial requiringthe plaintiff to prove all or any of the allegations made in theplaint. Though such a discretion to pronounce a judgment, merelybased on the failure on the part of the defendant to file a writtenstatement, is vested with the court, the same has been interpretedby the Supreme Court in AIR 2003 SC 2508. It reads as follows: "Even if the suit proceeds ex parte and inthe absence of a written statement, unless theapplicability of Order 8, Rule 10 is attractedand the Court acts thereunder, the necessity ofproof by the plaintiff of his case to thesatisfaction of the Court cannot be dispensedwith. In the absence of denial of plaintaverments the burden of proof on the plaintiff isnot very heavy. A prima facie proof of therelevant facts constituting the cause of actionwould suffice and the Court would grant theplaintiff such relief as to which he may in lawbe found entitled."iv) In Balraj Taneja & Anr. vs. Sunil Madan & Anr. Reported inAIR 1999 SC 3381, the Hon'ble Supreme Court has held that the courtis not to act blindly merely because a written statement has notbeen filed by the defendant traversing the facts set out by theplaintiff in the plaint filed in the Court. In a case where awritten statement has not been filed by the defendant, the Courtshould be a little cautious in proceeding under Order 8, Rule 10,CPC. Before passing the judgment against the defendant, it mustconsider whether a judgment could possibly be passed in favour ofthe plaintiff without requiring him to prove any fact mentioned inthe plaint. It is a matter of Court's satisfaction and, thereforeonly on being satisfied that there is no fact which need be provedon account of deemed admission, the Court can conveniently pass ajudgment against the defendant who has not filed the written https://hcservices.ecourts.gov.in/hcservices/ statement. If the plaint itself indicates that there are disputedquestions of fact involved in the case, regarding which twodifferent versions are set out in the plaint itself, it would notbe safe for the Court to pass a judgment without requiring theplaintiff to prove the fact so as to settle the factualcontroversy. Such a case would be covered by the expression "thecourt may, in its discretion, require any such fact to be proved"or the expression "may make such order in relation to the suit asit thinks fit" used in sub-rule (2) of Rule 5 of Order 8, .v) Order VI Rule 5 provides for striking out of any plea.Order XI Rule 21 provides for dismissal of the suit or for thestriking out of the defence in case of failure to answerinterrogatories as a punitive measure. By analogy, this court inC.R.P.(PD) No.54 of 2005 has passed an order directing theappellant herein, who was the revision petitioner therein to makepayment of a sum of Rs.5,000/- as cost, out of which Rs.2,500/- wasto be paid by the revision petitioner to the Tamil Nadu Mediationand Conciliation Centre, High Court, Madras within a time specifiedin the order with a rider that in case of failure, his defence inthe said suit would stand struck off. Admittedly, the appellantherein/plaintiff did not comply with the direction and consequentlythe defence plea of the appellant herein in O.S.No.9869/1990 stoodstruck off. The appellant herein/plaintiff did not prefer anyappeal in the Supreme Court with the leave of the court against thesaid order. On the other hand, he preferred a review applicationbefore this court in Review Application No.84 of 2006 and the samewas dismissed on 12.12.2006. As against the order of dismissal ofthe Review Application, the appellant preferred an SLP and the samewas dismissed by the Hon'ble Supreme Court by order dated02.03.2007 in the admission stage itself. Even thereafter theappellant did not come forward with any application seekingextension of time for the payment of the cost awarded to avoid thepenal consequences of non-compliance with the direction regardingpayment of cost. Instead of doing it, namely making payment of apaltry sum of Rs.5,000/- as cost, which would have opened the wayfor him to contest the earlier suit based on his plea of defencetaken in the written statement, he has chosen to file the presentsuit for the cancellation of the decree passed in the said suit,mainly on the ground of alleged fraud and misrepresentation. Wehave already seen that the appellant herein/plaintiff has not madeout a case of fraud or misrepresentation played by the oppositeside to obtain the decree. The appellant herein/plaintiff seems tohave taken a collateral plea that the judgement of the trial courtin O.S.No.9869/1990 suffers from the vitiating factor, namelyfailure to give reasonable opportunity to the appellant herein totake part in the proceedings and cross-examine the witnessesexamined on the side of the opposite side, namely plaintiff inO.S.No.9869/1990. vi) In the foregoing discussions we have seen that theposition of a defendant whose defence has been struck out shall beon par with the position of a defendant who has failed to file hisplea in the form of written statement. In such cases, if the court https://hcservices.ecourts.gov.in/hcservices/ is satisfied that the defendant was prevented by a reasonable causefrom filing a written statement in time, then it can set aside theex parte order and allow him to file a written statement and thusrestoring his position in the suit as if he had appeared on thedate appointed for his hearing. In case the court comes to theconclusion that he has not satisfied the court regarding thereasonable cause, then, though it may be only in minority number ofcases, such defendant shall be precluded from filing written pleaof defence. But at the same time, he cannot be prevented fromtaking part in the subsequent proceedings. It has been held so inclear terms in AIR 2003 SC 2508 cited supra. It has been held bythe Supreme Court in the said case that inspite of the fact that adefendant is set exparte and the case stands posted for conductingexparte trial, such defendant shall be entitled to appear on theadjourned date and demonstrate as of right that the plaintiff'scase is unsustainable and that an application under Order IX Rule 7is required only if the defendant wishes the proceedings to berelegated back to the stage of the proceedings from the date wherefrom they become ex parte so as to convert ex parte hearing into abi-party proceedings. A case wherein the defence of the defendantis struck off is equivalent to a case wherein the defendant shallnot have the right to seek an order under Order IX Rule 7 torelegate the proceedings back to the stage before his defence wasstruck off and to convert the proceedings from ex parte to bi-parte. Nevertheless, as held by the Apex Court, he is entitled toappear as of right and participate in the subsequent proceedings.But, while recognising such a right to participate in thesubsequent proceedings, care must be taken to see that while makingsuch participation in the proceedings including the exercise of theright to cross-examine the witnesses examined on the side of theopposite party, his right to cross-examine shall be restricted toshowing that the concerned witness is not speaking the truth orthat the testimony of the witness is not either supporting the caseof the plaintiff or is not enough to prove the case of theplaintiff. The cross-examination shall be limited to the testingof the veracity of the testimony of the witnesses and demonstratingthe demeanour of the witness. Apart from that such defendantcannot be allowed to introduce his plea of defence, which has beenstruck off, in the guise of cross-examination,. This position hasbeen already pointed out and the authority on this point isM/s.Babbar Sewing Machiner Co., Vs. Tirlok Nath Mahajan reported inAIR 1978 SC 1436, which has been discussed supra. In this casethough theoretically speaking there was possibility for the trialcourt in O.S.No.9869/1990 to pronounce judgement under Order VIIIRule 10 in favour of the plaintiff therein, the court had actedwith caution and proceeded to conduct an ex parte trial in whichthe plaintiff therein was required to prove the facts pleaded inthe plaint and after such ex parte trial only the court pronounceda judgement in favour of the plaintiff therein and passed a decreeas prayed for. vii) The grievance of the appellant herein/plaintiff that hewas not allowed to cross-examine the witnesses examined on the sideof the plaintiff in O.S.No.9869/1990 also is not tenable. The https://hcservices.ecourts.gov.in/hcservices/ learned single judge has dealt with the said contention and heldthat the defendant, whose defence had been struck off, did have aright to participate in the subsequent proceedings, but theappellant herein/plaintiff being the 6th defendant in the previoussuit did not come forward to cross-examine the witness examined onthe side of the plaintiff therein, nor did he seek permission tocross-examine such witnesses by filing any memorandum or petition;that on the other hand, he expressed his unwillingness andunpreparedness to take part in the proceedings on the premise thata review petition was filed and that the trial court inO.S.No.9869/1990, after noting the fact that no order of stay hadbeen granted and on the other hand, there was a direction by theHigh Court to complete the trial within a specified time, chose toproceed with the ex parte trial and pronounce an ex parte judgementin favour of the plaintiff therein (first respondent herein) andagainst the appellant herein. Therefore, even the challenge madeto the said judgement on the ground of failure to provideopportunity to defend by cross-examining the witnesses examined onthe opposite side also miserably fails. 31. A meek attempt was also made on the side of the appellantherein/plaintiff by contending that the judgement is a non-speakingjudgement and it simply says that on perusal of the evidence, thecourt was satisfied that the plaintiff's case was proved and thathence the suit was decreed as prayed for. Such a plea is also notavailable to be raised in a separate suit, thereby converting theseparate suit into virtually an appeal against the judgement in theother case. If at all the appellant herein was aggrieved by themanner in which the judgement was pronounced and the decree waspassed in the former suit, he ought to have filed an appeal againstthe decree passed in the said suit. But the appellantherein/plaintiff has not chosen to do so. Even an ex parte decreewill constitute res judicata and bar a fresh suit. Therefore, thebelated attempt made to challenge the judgement and decree in theformer suit by fixing a separate suit is neither maintainable norsustainable. 32. The learned senior counsel for the appellant made yetanother attempt by putting forward an argument that since theplaintiff in O.S.No.9869/1990 withdrew the suit O.S.No.9822/1992which was filed for redemption of mortgage, the same would operateas res judicata for the suit O.S.No.9869/1990 as the right ofredemption had been lost. In the foregoing discussions we havepointed out that the mortgage in question is only a simple mortgageand possession was not delivered to the mortgagee; that even theassignee mortgagee did not get possession by virtue of the mortgageand that even in Ex.P4 sale deed executed in favour of Ziauddin inexercise of the power given to the mortgagee under Section 69 ofthe Transfer of Property Act, 1882, it has been simply stated thathe was entitled to subrogate to the rights of the mortgagee and theIncome Tax authorities, who had attached the properties for IncomeTax dues. Admittedly the attachment was raised and then only theproperty was sold. At the time of execution of the said sale deed,the actual possession of the property was with the tenant and the https://hcservices.ecourts.gov.in/hcservices/ tenant thereafter filed RCOP No.699/1985 for deposit of rent as hewas not certain as to who was entitled to collect the rent. Itmust be seen that before the dismissal of the said RCOP for non-prosecution, the mother of the respondent filed the pauper OPchallenging the EX.P4 sale. If at all constructive possession oreven actual possession either in whole or in part of the propertywould have been obtained by the appellant herein/plaintiff, thatwould have been done only during the pendency of the said pauper OPand such creation of rights during the pendency of the proceedingsis subject to the result of the lis as it is hit by the doctrine oflis pendens. That is the reason why the court which tried the suitNo.9869/1990 allowed the amendment of pleading to incorporateadditional prayers for recovery of possession, mandatory injunctionfor the removal of the 3rd floor portion and for mesne profits andultimately decreed the suit. 33. We are concerned only with the question whether the decreegranted in O.S.No.9869/1990 setting aside the sale under Ex.P4 anddirecting recovery of possession, granting mandatory injunction andmesne profits was obtained by playing fraud on or making amisrepresentation to the court or whether the decree passed in thesaid suit suffers from any other vitiating factor based on whichthe decree can be set aside in a separate suit. The question hasbeen answered in the negative in the foregoing discussions.Further elaboration on this aspect will amount to entering upon thediscussion on the merits of the other case. Suffice to state thatthe suit filed in O.S.No.9869/1990 was not for redemption ofmortgage or foreclosure or for recovery of possession afterredemption of mortgage. The same was only for setting aside thesale under Ex.P4 and for recovery of possession and other reliefsbased on the developments made and rights acquired by the appellantherein/plaintiff during the pendency of the said suit. The simplemortgage cannot be unilaterally converted by the mortagee into ausufructuary mortgage or mortgage with possession. Such apossession taken by the appellant during the pendency of the suitis subject to the result of the suit. Therefore, the challengemade on the ground of res judicata and limitation also cannot standthe scrutiny of court. The learned single judge has elaboratelydealt with all the aspects and arrived at a correct conclusion. Point No.vi34. The appellant herein/plaintiff in the suit has made aprayer seeking a declaration that the first respondent herein/firstdefendant had lost the right of redemption of the mortgage inrespect of the plaint schedule properties. The said declarationwas sought for on the ground that a valid sale had taken place infavour of Ziauddin under Ex.P5, a sale deed executed by theassignee-mortagee in exercise of the power of the sale conferredunder Section 69 of the Transfer of Property Act by a clause in themortgage deed and from the said Ziauddin, the appellant/plaintiffpurchased the same under Ex.P4. The above said prayer depends onthe outcome of the other reliefs sought for in the plaint, namely adeclaration that the appellant/plaintiff is the absolute owner ofthe suit property and whether the appellant/plaintiff is entitled https://hcservices.ecourts.gov.in/hcservices/ to the relief of cancellation of the ex-parte decree dated14.06.2006 passed in O.S.No.9869/1990 by the VII Asst Judge, CityCivil Court, Chennai setting aside the sale under Ex.P5 in favourof Ziauddin, the person from whom the appellant/plaintiff chose topurchase. In the discussion relating to the above said issues, wehave seen that the sale in favour of the appellant/plaintiff underEx.P5 was effected pending a suit filed by Ayisha Begum, which wascontinued by the first respondent/first defendant Mohamed Idrisafter her death, namely O.S.No.9869/1990 on the file of the VIIAsst. Judge, City Civil Court, Chennai and hence the same wassubject to the result of the lis that was pending in the said suit.We have also seen that the challenge made to the decree dated14.06.2006 passed in O.S.No.9869/1990 on the ground of fraud andmisrepresentation has not been substantiated by theappellant/plaintiff; that the appellant/plaintiff is not entitledto the relief of cancellation of the said decree and that the saiddecree dated 14.06.2006 passed in O.S.No.9869/1990 would operate asres judicata. 35. It has also been held that the mortgage is a simplemortgage and the same could not be unilaterally altered into anisufructuary mortgage or mortgage with possession. We have alsoseen that possession was not given either to the mortgagee or tothe assignee or to the purchaser from the assignee or to theappellant/plaintiff by virtue of the mortgage. On the other hand,the immediate possession that was with the tenant continued assuch, which led to the filing of a RCOP for deposit of the rent bythe tenant as he was in a dilemma as to who was entitled to receivethe rent and only pursuant to the dismissal of the said RCOPNo.699/1985, the appellant/plaintiff might have chosen to collectrent and take possession of some of the portions of the buildingand put up an additional construction in the third floor. Theappellant/plaintiff, claiming to have subrogated to the rights ofthe mortgagee without seeking redemption of mortgage, recovery ofmortgage money or foreclosure, cannot simply seek a declarationthat the first respondent herein/first defendant is not having aredeemable right over the plaint schedule property. 36. Furthermore, the attempt to seek such a declarationagainst the first respondent herein/first defendant has been madealso on the strength of the plea that the mother of the firstrespondent/first defendant and later on the first respondent/firstdefendant could not be claimed to be a legal heir of the originalmortgagor Thayub Begum. We have already seen that based on theclaim that Ayisha Begum was the legal heir and legal representativeof the original mortgagor and after her death Mohamed Idris, thefirst respondent/first defendant became the legal heir, the decreein O.S.No.9869/1990 was obtained and the said decree would operateas res judicata for the present suit. Therefore, the attempt madeto get such a declaration that the first respondent/first defendantdoes not have redeemable right over the plaint schedule property onthe above said premise miserably fails. Even if a declaration thatMohamed Idris, namely the first respondent/first defendant doeshave a right to redeem over the suit property that will not nullify https://hcservices.ecourts.gov.in/hcservices/ the decree passed in O.S.No.9869/1990 and the same will be a reliefon paper without any effect, since recovery of possession in theearlier suit had been granted on the ground that the firstrespondent herein/first defendant, who was the plaintiff inO.S.No.9869/1990, was entitled to recover possession since thepossession of the appellant herein/plaintiff, who was the 6thdefendant in O.S.No.9869/1990, could not be traced to the mortgageand the possession taken by the appellant herein/plaintiff duringthe pendency of the earlier suit was subject to the result of thesaid suit. Therefore, we are of the considered view that there isno defect or infirmity in the finding of the learned single judgethat the appellant herein/plaintiff is not entitled to adeclaration that the first respondent herein/first defendant doesnot have a redeembale right over the suit property.Point No.iv37. The appellant/plaintiff did not comply with the directionof this court in C.R.P.(PD) No.54/2005 regarding payment of cost.Even though the order directed striking off of the defence in caseof default in payment of the cost, the appellant/plaintiff had notchosen to either pay or deposit a paltry sum of Rs.5,000/- awardedas cost to avoid the consequences detrimental to his defence in thesaid suit. He has shown his adamance in refusing to make paymentand has chosen to multiply the litigation by filing a separate suitfor setting aside the decree passed in O.S.No.9869/1990 on theground of alleged fraud and misrepresentation and also by making anattempt to convert the separate suit virtually into an appealagainst the ex-parte decree passed in O.S.No.9869/1990. The samewould show that the appellant/plaintiff has not approached thecourt with clean hands. 38. For all the reasons stated above, this court comes to theconclusion that there is no defect or infirmity in the judgement ofthe learned single judge passed in C.S.No.434 of 2007 and no casefor the interference with the judgment and decree of the learnedsingle judge has been made out. There is no merit in the appealand the same deserves confirmation and no interference.39. In the result, the Original Side Appeal is dismissed.However, there shall be no order as to costs. Sd/ Asst. Registrar/true copy/Sub Asst.Registrarasr https://hcservices.ecourts.gov.in/hcservices/ ToThe Sub Assistant Registrar,Original Side, High Court, Madras 2 ccs To Mr.M.Balasubramanian, Advocate, SR.366751 cc To Mr.S.Narayanan, Advocate, SR.366341 cc To Mr.M.Jayapal Rajan, Advocate, SR.36635 Judgmentin O.S.A.No.310 of 2010JRG (CO)RH (19.7.11)