- (1.) Heard learned counsel for the parties. The defendant-applicant has approached this Court assailing the order passed by the Revisional Court/Additional District Judge, Court No.2, Bareilly in Civil Revision no. 56 of 2015 (Mohammad Danish and others vs. Naseer Ahmad) allowing the application of the respondent under Order 14 rule 5 for framing two additional issues.
(2.) The respondent instituted a suit for cancellation of decree dated 29 January 2013 passed in original suit no. 530 of 2012 (Naseer Ahmad Vs. Danish), inter-alia, on the ground of fraud and misrepresentation. It was contended that the respondent never appeared in the said suit rather the applicant being a relative, filed forged vakalatnama and obtained the decree in a collusive suit. During the pendency of the present suit, an application was moved by the respondent to frame two additional issues; i) as to whether on 2 March 2012 plaintiff had gifted the shop and plot by a oral gift deed (Hibanama); ii) as to whether pursuant to the oral gift deed dated 2 March 2012, the applicant had made a written gift deed on 24 April 2012. The trial court rejected the application vide order dated 6 May 2015 for the reason that in the earlier suit inter se parties an issue was framed as to whether the applicant plaintiff is the owner and in possession of the suit property pursuant to oral gift deed dated 2 March 2012. Therefore, the trial court concluded that the issue? being identical, cannot be gone into in the subsequent suit being barred by principle of res-judicata. Aggrieved, by the order of the trial court, respondent preferred a revision which has been allowed vide order dated 26 November 2015. The applicant-defendant is assailing the revisional order.
(3.) It is sought to be submitted that the issue being identical, it cannot be gone into in the subsequent suit, further, it is sought to be urged that the suit has been instituted for cancellation of sale deed, therefore, if decreed, the oral gift deed would stand automatically vitiated. Smt. Rama Goel Bansal, learned counsel for the respondent sought to submit that the suit was instituted on the ground of fraud and misrepresentation, wherein has been pleaded in detail in the plaint, therefore, a judgement obtained by fraud or collusion, a party to the decree or a person claiming through such party can be allowed to avoid the effect of decree on grounds of fraud or collusion. In support of her submission, reliance has been placed upon a decision rendered in Ibne Hasan Vs. Hasina Bibi, 1984 AWC 230 wherein, the Division Bench of this Court held that where judgement has been obtained by fraud and collusion, in view of sections 40, 41 and 42 of the Evidence Act, cannot form the basis of the res-judicata. In the case of Vellappan Vs. Peter Thomas, 1979 AIR(Ker) 194 it has been held that the jurisdiction of civil court is not barred to orders obtained by fraud and collusion. The principle of res judicata is outside the region of fraud or collusion. The relevant extract is follows: "Section 44 of the Evidence Act lays down that when a judgement is put in evidence under sections 40, 41 and 42 of the Evidence Act, it is open to the party against whom it is offered, to avoid its effect on any of the three grounds specified in the section without having it set aside, namely (a) the incompetency or want of jurisdiction of the court by which the decree was passed; (b) that it was obtained by fraud and (c) that it was obtained by collusion. Thus, section 44 of the Evidence Act is an exception to section 11, C.P.C.";