S. Tirupathi Rao v. M. Lingamaiah & Ors.

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such absence could not be characterised as the injury or wrongful act itself; it was merely the damage which flowed from the standalone act of breach committed by the appellant – that of not effecting the mutation. The injury was not repetitive or in other words, did not arise de die in diem, but rather, it was the effect of the injury which continued till the date the first respondent presented the contempt petition on 10th February, 2014.

79Copy pinpoint79. Having held that the nature of breach or offence committed by the appellant was not in the nature of a “continuing wrong/breach/offence”, the bar of limitation was rightly pressed by the Division Bench (original) to halt the claim of the first respondent at the threshold itself, since the period of limitation to initiate the contempt action ended at least by May end of 2010. The decision of the Division Bench (original) in dismissing the first respondent’s contempt petition as time-barred was unexceptionable and the Division Bench (review) acted illegally in reversing the same assuming the jurisdiction to review which, on facts and in the circumstances, was not available to be exercised.

80Copy pinpoint80. The contempt petition was, thus, barred by limitation and no case for claiming exemption having been set up, the same deserved outright dismissal. EPILOGUE

81Copy pinpoint81. Having answered the two legal issues and before recording our conclusion, we cannot resist reflecting on the point of fraud having vitiated the proceedings. This point, in turn, emerges because the Division Bench (review) erroneously held the State to have practised fraud; and this discussion is necessitated since, to the contrary, there seems to be sufficient reason to hold the first respondent responsible therefor. The writ petition, in the form the same had been presented by the first respondent, does evince clear suppression of a material fact bordering on fraud on court and having the potential to render it not maintainable. But to this too, there is a caveat. This question, though quite fundamental in nature, does not appear to have been argued by the appellant before the High Court and also before us. Thus, argument on the issue of maintainability of the writ petition not having been advanced before us by the parties, whatever we observe and record hereafter is merely an indication of the direction our decision would have taken, if such point were raised or argued. We may not be misunderstood of having decided a point without calling upon the parties to address on it.

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82Copy pinpoint82. The effect of suppression of a material fact on maintainability of a writ petition is too well known. But what is important is, whether suppression of a material fact in a writ petition amounts to fraud on court and whether an issue of maintainability based on suppression can be examined if the judgment and/or order of disposal of the writ petition has attained finality by reason of no appeal being carried therefrom.

83Copy pinpoint83. This Court in Meghmala v. G. Narasimha Reddy 53 observed that suppression of any material fact/document amounts to a fraud on the court and every court has an inherent power to recall its own order obtained by fraud as the order so obtained is non est.

84Copy pinpoint84. Quite recently, in K. Jayaram v. BDA,54 this Court held: “10. It is well-settled that the jurisdiction exercised by the High Court under Article 226 of the Constitution of India is extraordinary, equitable and discretionary and it is imperative that the petitioner approaching the writ court must come with clean hands and put forward all facts before the court without concealing or suppressing anything. A litigant is bound to state all facts which are relevant to the litigation. If he withholds some vital or relevant material in order to gain advantage over the other side then he would be guilty of playing fraud with the court as well as with the opposite parties which cannot be countenanced.” (emphasis ours)

85Copy pinpoint85. It is also settled law that fraud is an extrinsic collateral act, which vitiates the most solemn of proceedings including judicial acts and that a plea of fraud can be set up even in a collateral proceeding. We are reminded of what this Court said in S.P. Chengalvaraya Naidu v. Jagannath: 55 “The principle of ‘finality of litigation’ cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants.”

53 [2010] 10 SCR 47 : (2010) 8 SCC 383 54 (2022) 12 SCC 815 55 (1994) 1 SCC 1

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86Copy pinpoint86. The Division Bench (original) noted that the civil suit having been withdrawn against the State, the first respondent could not have validly attempted to obtain a direction, through the medium of the writ petition, on the strength of a decree passed in such a suit where the State was no longer a party, yet, the Division Bench (review) held the State to have practised fraud.

87Copy pinpoint87. A perusal of the averments in the writ petition do not reveal any mention of the civil suit having been withdrawn against the State Government. Suppression of a material fact on the part of the first respondent is indeed discernible which, if pleaded, could have altered the outcome of the writ petition. A very innocuous prayer was, however, made for effecting mutation in terms of the final decree, without disclosing that mutation was being asked for in respect of a piece of land over which the State itself had been claiming title and that the civil suit was withdrawn faced with such a claim of the State. A writ court being a court of equity, it is needless to observe that the parties are bound to approach the court with clean hands. Inasmuch as the aforesaid fact of withdrawal was not brought to the writ court’s notice, an egregious breach of such principle is noticed. Suppression of such a material fact, as in the present case, could legitimately be argued to amount to a fraud on court. There can hardly be two opinions that such breach would strike at the very root of the matter and since a point of fraud can be raised even collaterally, if the point of fraud had been raised, the writ petition itself could have been held non-maintainable.

88Copy pinpoint88. However, since our decision is premised on the reasons assigned while answering the issues formulated in paragraph 8 (supra), we wish to say no more. CONCLUSION

89Copy pinpoint89. For the foregoing reasons, we conclude that the High Court exceeded both its review and contempt jurisdiction. The impugned order is, thus, set aside, and the judgment and order of the Division Bench (original) in the contempt appeal and the letters patent appeal is restored.

90Copy pinpoint90. The appeals succeed and are allowed. All pending applications stand disposed of. Parties shall, however, bear their own costs.

91Copy pinpoint91. Determination of the title to the subject land, adjudication on the validity of the decrees in favour of the respondents, or decision on any other contentious issue are left open for a forum of competent jurisdiction to embark upon, if approached by any of the parties. None

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of the observations of this Court, or of the High Court in the impugned order should be treated as an expression of opinion in any particular matter or on any factual aspect whatsoever. CIVIL APPEAL NOS. ___________ OF 2024 [ARISING OUT OF SLP (CIVIL) NOS. 19748-19749 OF 2022]

92Copy pinpoint92. Leave granted.

93Copy pinpoint93. These appeals assail the common judgment and order dated 26th September, 2022 of the High Court dismissing petitions56 preferred by the appellant, seeking recall of the judgment and order dated 27th April, 2022 of the Division Bench (review). The High Court held that the recall petitions were review petitions in disguise; thus, the impugned judgment and order was upheld in view of the specific statutory bar of Order XLVII Rule 9, CPC.

94Copy pinpoint94. The judgment and order 27th April, 2022 having been set aside for the reasons assigned above while allowing the civil appeals arising out of SLP (Civil) Nos. 19748-19749 of 2022, the order of the High Court dated 26th September, 2022 assailed in these appeals upholding the same can no longer stand. Resultantly, the impugned order is set aside. The present appeals succeed and are allowed on the same terms as the appeals decided hereinabove.

Result of the case: Appeals allowed.

† Headnotes prepared by: M ukund P Unny, Hony. Associate Editor (Verified by: Shadan Farasat)

56 I.A. No. 3/2022 in Review I.A. No. 1/2020 in LPA 1/2018 and I.A. No. 10/2022 in Review I.A. No. 3/2020 in CA No. 33/2017