SABYASACHI BHATTACHARYYA,J. - (1.) The dispute in the present lis is in respect of certain common rights between the decree-holders and the judgment debtor, both of whom are tenants in respect of the same building. Although the tenancies are separate, certain rights and amenities are common between the parties, which gave rise to such dispute. The present petitioner filed Title Suit No. 1848 of 2011 for declaration of his rights to such common facilities as a tenant and consequentially permanent injunction. In the said suit, the defendant nos. 3 and 4, being the present opposite party nos. 1 and 2, took out a counter-claim, in turn seeking declaration of their co-tenancy in respect of the disputed property as well as permanent injunction restraining the plaintiff/petitioner from interfering with the peaceful possession and enjoyment of the opposite party nos. 1 and 2, apart from other reliefs. The suit was ultimately dismissed for default whereas the counter-claim was decreed ex parte against the plaintiff/petitioner, thereby declaring that the present opposite party nos. 1 and 2 were co-tenants in respect of the suit property and a decree of permanent injunction was passed restraining the present petitioner from interfering with the peaceful possession and enjoyment of the opposite party nos. 1 and 2 in respect of the suit property. When the said counter-claim was put into execution, thereby gave rise to Title Execution Case No. 5 of 2015, an application under section 47 of the Code of Civil Procedure was filed by the present petitioner/judgment debtor. Such application under Section 47 of the Code gave rise to Miscellaneous Case No. 1351 of 2015. The decree-holders filed an application in such miscellaneous case, challenging the maintainability of the same. Such maintainability petition having been allowed and the application under Section 47 of the Code having been held to be not maintainable, the present revisional application has been preferred by the petitioner.
(2.) It is submitted on behalf of the petitioner that, while obtaining the decree on the counter-claim, the decree-holders suppressed a vital document, being an order dated July 17, 2012 passed by the Rent Controller in a proceeding between the decree-holders and the common landlord of the parties. It was held by the Rent Controller in such order that the petitioners therein (present opposite party nos. 1 and 2) were permitted to undertake repair work of the tenanted premises as per Inspector's report, being Exbt. 4 therein, including fixation of bath room door at their own cost. Petitioners therein were also directed not to obstruct those who are getting water from the common tap. Nature and character of the tenanted premises were directed not to be changed during repair of the tenanted premises except fixation of a door at the entrance of the bathroom. It is submitted by the petitioner that if such order was produced before the civil court, the decree on the counter-claim would be otherwise and, in such event, the civil court would have, in all probability, protected the rights of the other tenants, including the present petitioner, in respect of user of the common facilities at the suit premises. It is argued that suppression of such material document amounted to fraud being practised upon the court, which palpably vitiated the decree passed on the counter-claim by the civil court. Since the question of fraud can be raised at any point of time and before any forum, the petitioner argues that the application under Section 47 of the Code ought to have been allowed rather than being held to be not maintainable and the decree passed on the counter-claim ought to have been held to be a nullity, being vitiated by fraud.
(3.) On the other hand, the opposite party nos. 1 and 2 point out that the rent control order was not only referred to in the counterclaim but the connected materials were all before the civil court while adjudicating upon the counter-claim. In any event, it is submitted, since the rent control proceeding, which was the genesis of the order dated July 17, 2012, was between the landlord and the decree-holders, such order could not have any material bearing on the instant lis.;