Safiuddin Khan … v. Additional Commissioner Admin.devi Patan Division Gonda on 18 Dec 2025

Judgment

1. Heard Sri Adnan Ahmad, learned counsel for the petitioner, learned Standing Counsel for the State-respondent and Sri U.S. Sahai, learned counsel for the respondent.

2. The petitioner states that the dispute relates to plot no. 131, measuring 7.09 acres, situated in village Sitlapur, Pargana and Tehsil Tulsipur, District Balrampur, which stood recorded in the joint names of Smt. Naseeran Banu and Mohd. Amin Khan in the relevant Khatauni 1399–1404 Fasli.

3. According to the petitioner, opposite parties nos. 3 and 4, who have no concern with the said land, instituted a suit under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act before the Court

of the opposite party no. 2. It is alleged that the said suit was filed on the basis of several incorrect averments, including a deliberately wrong address of Mohd. Amin Khan, showing him as a resident of Station 2 WRIC No. - 1001295 of 2000 Road, Tulsipur, despite his actual and admitted residence at village Goliar Girant, Pargana Sadullah Nagar, Tehsil Utraula, District Gonda.

4. The petitioner asserts that no summons or notice of the suit was ever served upon Mohd. Amin Khan at his correct address; consequently, he had no knowledge of the proceedings and could not participate in them. It is further alleged that the opposite parties procured a bogus written statement purporting to bear the signature of Mohd. Amin Khan, admitting the claim of the plaintiffs, and thereafter managed to get recorded a false statement in Court through an impersonator produced in the name of Mohd. Amin Khan. On the basis of this alleged fraud, the suit was decreed ex parte on 16-03-1997 by the opposite party no. 2.

5. On learning of the said decree, Mohd. Amin Khan moved a restoration application supported by an affidavit, setting out the allegations of fraud and seeking recall of the ex parte judgment. The petitioner submits that although no counter-affidavit was filed by opposite parties nos. 3 and 4, and despite specific assertions regarding the fraudulent manner in which the decree was obtained, the court below did not enquire into, or record any finding upon, the said allegations. The restoration application was ultimately rejected on 02-12-1998.

6. Aggrieved by the rejection order, Mohd. Amin Khan filed a revision under Section 333 of the U.P. Zamindari Abolition and Land Reforms Act before the opposite party no. 1. He also preferred an appeal against the original decree dated 16-03-1997 along with an application for condonation of delay. During the pendency of these proceedings, Mohd. Amin Khan died, and the present petitioner, being his legal heir, was substituted.

7. It is the petitioner’s case that the revisional and appellate authority (opposite party no. 1) at first condoned the delay and admitted the appeal vide order dated 19-12-1998. However, at the stage of final hearing, the authority adopted a technical view and dismissed both the appeal and revision by separate orders dated 30-03-2000, holding the appeal barred 3 WRIC No. - 1001295 of 2000 by time without considering the earlier order condoning delay or the merits of the case.

8. The petitioner contends that the impugned orders are illegal, perverse, and passed without proper application of mind. The appellate authority, despite having earlier condoned delay, proceeded to dismiss the appeal on limitation alone. It is further submitted that neither the appellate nor the revisional authority examined the allegations of fraud committed by opposite parties nos. 3 and 4, nor did they deal with the grounds raised in the restoration application. As a result, grave injustice has allegedly been caused, enabling opposite parties nos. 3 and 4 to get their names recorded over the land in dispute by playing fraud upon the court and upon the deceased Mohd. Amin Khan.

9. On these premises, the petitioner asserts that the impugned orders dated 16-03-1997, 02-12-1998, and 30-03-2000 are liable to be quashed.

10. In support of the submission advanced, learned counsel for the petitioner placed reliance upon the following judgments :- (i) A.V. Papayya Sastry & others Vs. Government of A.P. & others [2007(4) SCC 221]. Relevant paragraphs 21 and 22 are being quoted below :- "21. Now, it is well-settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed: “Fraud avoids all judicial acts, ecclesiastical or temporal.”

22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye of the law. Such a judgment, 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 4 WRIC No. - 1001295 of 2000 any court, at any time, in appeal, revision, writ or even in collateral proceedings." (ii) Navratan Lal Sharma Vs. Radha Mohan Sharma & others [2024 Legal Eagle (SC) 1063]. Relevant paragraphs 13 and 14 are being quoted below :- "13. In the present case, the appellant has alleged fraud by the respondents in his recall application, which he bears the burden to prove.8 The Explanation to Order 23, Rule 3 clearly states that void and voidable agreements under the Contract Act shall not be deemed to be lawful. By alleging fraud in his recall application, the appellant is effectively impugning the legality of the compromise as proving the same would render the agreement voidable under the Contract Act.9 When the court disposes of a proceeding pursuant to a compromise under Order 23, Rule 3, it bears the duty to examine this issue and be satisfied that the agreement or compromise is lawful. The proviso explicitly obligates the court that entertains the petition of compromise to determine this issue, and as per the law laid down by this Court in Banwari Lal (supra), this issue can be agitated by way of a recall application even after the compromise decree has been passed.

14. By the impugned order, the High Court dismissed the application solely on the ground that the order dated 14.07.2022 recording the compromise does not grant liberty to restore the appeal. We are of the opinion that this is not the correct approach, as it defeats the statutory right and remedy available to the appellant under the CPC. This Court in Pushpa Devi Bhagat (supra), as well as several other cases,10 has held that only the court that entertains the petition of compromise can determine its legality, at the time of recording the compromise or when it is questioned by way of a recall application. No other remedy is available to 5 WRIC No. - 1001295 of 2000 the party who is aggrieved by the compromise decree as an appeal and fresh suit are not maintainable under the CPC." (iii) Manjunath Tirakappa Malagi & another Vs. Gurusiddappa Tirakappa Malagi [2025 Legal Eagle (SC) 445]. Relevant paragraphs 12 and 13 are being quoted below :- "12. The only remedy against a compromise decree is to file a recall application. This Court in Pushpa Devi Bhagat v. Rajinder Singh, (2006) 5 SCC 566 summed up the position of law as follows: “17. The position that emerges from the amended provisions of Order 23 can be summed up thus: (i) No appeal is maintainable against a consent decree having regard to the specific bar contained in Section 96(3) CPC. (ii) No appeal is maintainable against the order of the court recording the compromise (or refusing to record a compromise) in view of the deletion of clause (m) of Rule 1 Order 43. (iii) No independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful in view of the bar contained in Rule 3-A. (iv) A consent decree operates as an estoppel and is valid and binding unless it is set aside by the court which passed the consent decree, by an order on an application under the proviso to Rule 3 Order 23. Therefore, the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not. This is so because a consent decree is nothing but contract between 6 WRIC No. - 1001295 of 2000 parties superimposed with the seal of approval of the court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made…” (Emphasis Provided) Thus, even if we accept the contention of the appellants that their father was coerced by his brothers and father (appellants' grandfather) to enter into a compromise, which led to the passing of the consent decree, a fresh suit is still not a valid remedy. In that situation, the appellants' father should have filed a recall application before the Court that had passed the decree. The appellants' father has never done so! Moreover, he had admitted the consent decree and never questioned its validity.

13. Additionally, the appellants' argument that the suit property is not a joint family property but was purchased by their grandmother in the name of the appellants' father and that he is now trying to deprive the appellants from the suit property as their relations have turned sour, is of no help to them. This is because if the appellants' grandmother had purchased the suit property in the name of the appellants' father, and it is not a part of the ancestral property then in that case it would be the property of the appellants' father as of now, since he is alive, and he is at full liberty to dispose of the same as per his wishes. Be that as it may, if the father of the appellants has no grievance against the consent decree, then we are unable to understand how the appellants can be allowed to challenge it."

11. On the other hand, learned counsel appearing for the respondents submit that a suit under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act was filed by opposite parties nos. 3 and 4 against 7 WRIC No. - 1001295 of 2000 Mohd. Amin Khan and Smt. Nasiran Bano, which was decided by judgment and decree dated 16-03-1997 on the basis of admissions made in the written statement as well as evidence adduced before the trial court. According to the respondents, the decree was not an ex parte decree as alleged by the petitioner.

12. It is contended that Mohd. Amin Khan himself filed an application for setting aside the decree, which was dismissed by the trial court vide order dated 02-12-1998 after due consideration. The respondents submit that the said order was appealable under Order 43 Rule 1(a) CPC, read with Section 43 of the U.P. Zamindari Abolition and Land Reforms Act, and instead of availing the appropriate statutory remedy, Mohd. Amin Khan wrongly filed a revision, which was not maintainable and was accordingly dismissed.

13. The respondents' counsel further submit that though an appeal was later filed against the decree dated 16-03-1997, the same was highly time-barred, and the delay was neither properly explained nor supported by sufficient cause. It is asserted that objections were filed by opposite parties nos. 3 and 4, and both the appellate as well as revisional authorities, upon consideration of the matter, rejected the appeal and revision by speaking orders.

14. A categorical objection has been raised regarding the locus standi of the present petitioner. It is stated that Mohd. Amin Khan died leaving behind three daughters, namely, Smt. Sugra Khatoon, Smt. Saliha Khatoon and Smt. Sajida alias Shahida, who alone are his legal heirs. The petitioner Safiuddin Khan is neither an heir nor a legal representative of the deceased and has no concern, right, title or possession over the property in dispute. On this ground alone, it is contended that the writ petition as well as the earlier revision filed by him were not maintainable.

15. On merits, the respondents deny the allegations of fraud, impersonation, or manipulation of proceedings. It is specifically pleaded that correct addresses of the defendants were mentioned in the plaint; 8 WRIC No. - 1001295 of 2000 summons were duly issued; and both Mohd. Amin Khan and Smt. Nasiran Bano had full knowledge of the suit. It is further asserted that they appeared before the trial court, filed written statements, and admitted the claim of the plaintiffs.

16. In the counter affidavit, the respondents also deny the allegation that any imposter appeared on behalf of Mohd. Amin Khan. According to them, Mohd. Amin Khan himself was examined as a witness and, on oath, admitted the title and possession of opposite parties nos. 3 and 4. The suit, it is stated, was decreed only after due appreciation of oral and documentary evidence.

17. It is further contended that the application for setting aside the decree was filed after considerable delay, for which no satisfactory explanation was furnished. The genuineness of the grounds taken in the restoration application and supporting affidavit has been specifically denied. The trial court, after examining all aspects of the matter, rightly rejected the application.

18. The respondents submit that both the appellate and revisional courts considered the matter on merits, including the issue of delay, and did not find sufficient cause to interfere. It is denied that the orders suffer from non-application of mind or illegality.

19. On the aforesaid grounds, the respondents contend that the writ petition is not maintainable, suffers from suppression and lack of locus standi, and has been filed to re-agitate concluded issues. The respondents, therefore, pray for dismissal of the writ petition.

20. I have considered the rival submissions advanced by learned counsel for the parties and have carefully perused the record as well as the law reports cited by learned counsel for the petitioner.

21. The principal issues which arise for consideration are: (i) whether the allegations of fraud, impersonation and non-service raised by the petitioner were required to be examined on merits; (ii) whether the appellate authority, having condoned delay earlier, could dismiss the appeal on the ground of limitation alone; and (iii) whether the impugned 9 WRIC No. - 1001295 of 2000 orders suffer from non-application of mind warranting interference under Article 226 of the Constitution of India.

22. It is well settled that fraud vitiates all judicial acts. The Supreme Court in A.V. Papayya Sastry (Supra), has categorically held that any order obtained by playing fraud on the court is a nullity and can be challenged at any stage.

23. In the present case, the petitioner specifically pleaded that summons were never served upon Mohd. Amin Khan at his correct address, a bogus written statement was filed on his behalf, and an impersonator was produced to record a statement in court.

24. A perusal of the order dated 02.12.1998, rejecting the restoration application, shows that no finding has been recorded on these serious allegations. The court below has dismissed the application primarily on technical grounds without conducting any enquiry into the plea of fraud.

25. Once allegations of fraud were specifically raised and supported by affidavit, the court was under a legal obligation to examine and record findings thereon. Failure to do so renders the order legally unsustainable.

26. It is an admitted position that the appellate authority, by order dated 19.12.1998, condoned the delay and admitted the appeal. However, while deciding the matter finally on 30.03.2000, the same authority dismissed the appeal solely on the ground of limitation, without recalling or setting aside the earlier order condoning delay and without examining the appeal on merits.

27. Such an approach is self-contradictory and reflects non- application of mind. Once delay stood condoned, the appeal was required to be decided on merits. The impugned order dated 30.03.2000 is therefore vitiated.

28. The revisional authority has merely affirmed the findings of the courts below without independently examining the legality or propriety of the orders impugned, particularly with regard to allegations of fraud 10 WRIC No. - 1001295 of 2000 and the contradictory conduct of the appellate authority. The revisional order thus also suffers from non-application of mind.

29. The objection regarding locus standi raised by the respondents cannot be accepted at this stage. The petitioner was substituted during pendency of proceedings and the issue of fraud goes to the root of the matter. Technical objections cannot defeat substantive justice where fraud on the court is alleged.

30. The judgments relied upon by learned counsel for the petitioner in A.V. Papayya Sastry (Supra), Navratan Lal Sharma (supra) and Manjunath Tirakappa Malagi (supra) clearly lay down that when fraud or illegality in obtaining a decree is alleged, the court must examine such plea on merits and cannot dismiss proceedings on technical grounds. The impugned orders fail to meet this settled legal position.

31. For the reasons aforesaid, this Court is of the considered view that the restoration application was rejected without examining allegations of fraud, the appeal was dismissed in an arbitrary and contradictory manner, and the revisional order mechanically affirmed illegal orders. The impugned orders therefore cannot be sustained.

32. Accordingly, the writ petition is allowed. The judgment and decree dated 16-03-1997, order dated 02-12-1998, and orders dated 30- 03-2000 passed by the appellate and revisional authorities are hereby quashed.

33. No order as to costs. December 18, 2025 Gautam (Irshad Ali,J.) GAUTAM TECKCHANDANI High Court of Judicature at Allahabad, Lucknow Bench