VISHU VARDHAN @ VISHNU PRADHAN versus THE STATE OF UTTAR PRADESH & ORS.

Summary

One of three co-purchasers of land acquired by NOIDA, after years of joint litigation as co-owners, obtained from the High Court a declaration of sole ownership and enhanced compensation without impleading the other two and while suppressing a pending suit against his compromise decree; the Supreme Court affirmed the quantum in Reddy Veerana (2022). On a co-owner's appeal, a three-Judge Bench held both orders were procured by fraud and are nullities: fraud is an exception to the doctrine of merger, procedural rules cannot shackle the Court's inherent power once fraud is proved, and the Court may recall its own judgment so obtained. The High Court order was set aside, the Supreme Court judgment recalled and the writ petition remanded with the co-owners impleaded; the co-owner's Article 32 petition was dismissed as disclosing no breach of a fundamental right.

Issues

1. Whether Reddy obtained the High Court order of 28.10.2021 and the Supreme Court's judgment of 05.05.2022 in Reddy Veerana by practising fraud on the courts, by not impleading his co-owners and suppressing material facts.
2. Whether the civil appeal by a non-party co-owner against the High Court order is barred by the doctrine of merger because that order had merged in the Supreme Court's own appellate judgment.
3. Whether a writ petition under Article 32 lies where the petition pleads no specific breach of a fundamental right and effectively challenges judicial orders.
4. Whether the Supreme Court Rules, 2013 or the absence of an 'intra-court appeal' jurisdiction prevent the Court from recalling its own judgment found to have been procured by fraud.
5. Whether a party may simultaneously pursue an appeal against the High Court order and a review of the Supreme Court judgment in which that order merged, and whether Vishnu engaged in forum shopping.
6. Whether maintainability, being a mixed question of fact and law, should be decided before or after the allegation of fraud.

Provisions considered

• Order XIV Rule 2, Code of Civil Procedure, 1908Relying on Ramesh B. Desai and Sathyanath, the Court held that only pure issues of law going to jurisdiction or a statutory bar may be tried as preliminary issues; a mixed question of fact and law cannot be. Since maintainability here depended on whether fraud was established, the Court examined the fraud allegation first. (¶¶ 34, 35, 36)
• Order I Rules 9 and 10, Code of Civil Procedure, 1908Though the CPC does not apply to writ proceedings of its own force, its principles do. After the 1976 proviso to Order I Rule 9, non-joinder of a necessary party can defeat the claim; a decree in the absence of a necessary or proper party affecting his interest can be avoided by him, and where it declares the decree-holder's right he must carry it in appeal or review. Any writ order affecting an unimpleaded party's interest may be invalidated for breach of natural justice (Poonam, Ajay Ishwar Ghute, Neyvely Lignite). (¶¶ 43, 44, 45, 46, 47)
• Order VI Rule 4, Code of Civil Procedure, 1908Fraud must be pleaded with particulars and proved; the Court recorded this cardinal principle before examining whether Reddy's fraud was established on the record. (¶ 3)
• Section 114 and Order XLVII Rule 1, Code of Civil Procedure, 1908The same party cannot simultaneously appeal a decree to a superior court and seek its review before the court that passed it. There was no such two-pronged assault here because the appeal was against the High Court order while the review was of the Supreme Court's judgment in Reddy Veerana, so neither provision barred the two proceedings. (¶¶ 133, 134)
• Article 32, Constitution of IndiaA petition under Article 32 requires clear, specific pleadings of how a fundamental right is infringed and its impact; a bare assertion of breach of Articles 14, 19(1)(g) and 21 or a vague plea of arbitrariness is not enough, and a writ does not lie against a judicial order (Naresh Shridhar Mirajkar). Vishnu's prayers concerned title and compensation; his property rights under Article 300A might found an Article 226 petition but no fundamental right was prima facie infringed, especially as he was pursuing the appellate and review remedies, so the writ petition was dismissed. (¶¶ 67, 68, 70, 75, 77, 78, 79, 80, 81, 82)
• Article 136 (doctrine of merger), Constitution of IndiaReviewing Kunhayammed, Khoday Distilleries, Shanmugavel Nadar and the exceptions in Vijai International, A.V. Papayya Sastry, MRF and Pearl Drinks, the Court held that merger is not of universal application; only the operative part merges unless the appellate court adopts the reasoning; merger is limited to the subject-matter actually decided on appeal; and fraud is an exception. Reddy Veerana decided only quantum, not title, and both orders being vitiated by fraud, the merger objection failed. (¶¶ 102, 103, 105, 107, 110, 113, 115, 119, 120, 121, 123, 124)
• Order LV Rule 6; Order XLVII Rules 3 and 5; Order VIII Rule 6, Supreme Court Rules, 2013The Rules relied on by Reddy apply in the normal course; once fraud on the face of the record is proved, procedural law must support the actualisation of justice, and Order LV Rule 6 preserves the Court's inherent powers. Procedure is the handmaid, not the mistress, of justice (Shamlal Murari, M.V. Vali Pero). The Registrar's refusal to register the defective review petition was set aside as the defects were curable. (¶¶ 125, 126, 127, 128, 129, 136, 137)
• Sections 18, 30 and 54, Land Acquisition Act, 1894The earlier two-Judge order relegating Vishnu to a reference under Section 30 was recalled. On remand the High Court may, if disputed facts arise, permit oral and documentary evidence on compensation and its apportionment among rightful claimants as if exercising powers under Section 54; all merits questions, including re-determination and apportionment, were left open. (¶¶ 140, 144)

Held

• A judgment or order obtained by playing fraud on the court is a nullity and non est in law, to be treated as such by every court, superior or inferior, and may be challenged in any court, at any time, including in collateral proceedings; finality of litigation cannot be pressed to the point of becoming an engine of fraud. Fraud must, however, be distinctly pleaded and proved. (¶¶ 1, 2, 3, 4, 61)
• Where maintainability is a mixed question of fact and law whose answer depends on whether fraud is established, the court may decide the fraud allegation first; the CPC confers no jurisdiction to try mixed issues as preliminary issues. (¶¶ 34, 35, 36)
• A litigant who has consistently asserted joint ownership in earlier proceedings and then, without impleading his co-owners, obtains in a writ petition a declaration of sole ownership and compensation behind their backs, tailors the proceeding to his convenience in a manner bordering on fraud; suppression of even a single material fact, that is a fact which would have affected the merits, disqualifies a litigant from relief in a writ court. Reddy's non-disclosure of the earlier joint litigation, and of the pending suit challenging his compromise decree in which he had filed a written statement seventeen days before the impugned order, vitiated the High Court order, and the Supreme Court was likewise never informed, so both the impugned order and Reddy Veerana were tainted by fraud and lacked legal validity. (¶¶ 42, 49, 50, 51, 53, 55, 60, 63, 64)
• Non-disclosure is not suppressio veri where the other side could have discovered the fact by due diligence (Shri Krishnan v. Kurukshetra University), but the fact of co-ownership could not have been discovered by the High Court or the Supreme Court unless placed before them; a statutory authority like NOIDA could not be expected to do so. (¶¶ 62, 63)
• The Supreme Court has no 'intra-court appeal' jurisdiction, but the principle that fraud unravels everything extends to its own judgments; every court, first or final, has jurisdiction to treat a judgment obtained by fraud as a nullity, and declining to interfere merely because the tainted order is the Court's own would be a travesty of justice. A coordinate Bench properly referred the question whether fraud had been played on the Court to a larger Bench, and the larger Bench sits not in appeal but only to determine whether its judgment was procured by fraud. (¶¶ 84, 85, 86, 87, 88, 89)
• The doctrine of merger is not of universal or unlimited application: only the operative part of the lower order merges unless the appellate court adopts or approves its reasoning; merger operates only on issues that were the subject-matter of the appeal; and it does not apply where the maxim actus curiae neminem gravabit applies, where the higher court has not adjudicated the issue, or where the order was obtained by fraud. Applying Kunhayammed mechanically as a one-size-fits-all rule could foreclose the appeal of a third party deliberately kept out of the proceedings, or of a co-respondent whose appeal is filed later, or of petitioners whose case differs from one decided by a common judgment. (¶¶ 99, 102, 105, 106, 107, 108, 110, 113, 115, 118, 119, 120, 121, 122)
• Merger may not apply to cognate civil appeals carried from the same order by a different party where it is convincingly shown that (i) very rare or special circumstances warrant that his right of appeal not be foreclosed, (ii) the appeal raises an issue of seminal public importance not available in the earlier round, (iii) refusal to interfere would offend actus curiae neminem gravabit, (iv) the earlier appellate decision was vitiated by fraud practised on the Court by the party in whose favour it was made, or (v) public interest would be put in extreme jeopardy by irretrievable consequences. (¶¶ 123, 124)
• Procedural rules, including the Supreme Court Rules, 2013, are a servant of justice and not a tyrant; once fraud on the face of the record is proved they must support the actualisation of justice, and the Court's inherent powers recognised by Order LV Rule 6 cannot be tied down by procedure so as to defeat the rights of other parties. A stranger prejudicially affected by a judgment may appeal with leave, which is readily granted on a prima facie showing of prejudice. (¶¶ 117, 125, 126, 129, 130)
• A loosely drafted Article 32 petition that merely names fundamental rights or vaguely alleges arbitrariness or breach of natural justice, without clear and specific pleadings of how the right is infringed and its impact, ought not to be entertained; where a statutory right is camouflaged as a fundamental right, or predominantly a statutory right is violated, the Court may decline to entertain the petition while preserving the Article 226 remedy. A writ petition also does not lie against a judicial order. Vishnu's petition, concerning title and compensation and filed while he was pursuing appeal and review, disclosed no breach of a fundamental right and was not maintainable. (¶¶ 68, 75, 78, 80, 81, 82)
• Pursuing an appeal against the High Court order and a review of the Supreme Court judgment that modified it is not the impermissible parallel challenge to the same order barred by Section 114 and Order XLVII Rule 1 CPC, and approaching the Supreme Court was not forum shopping where no other court would upset what the Supreme Court had directed until that judgment was vacated. Even without a review, the fraud-tainted judgment had to be erased as a nullity, and the order relegating Vishnu to a Section 30 reference was recalled. (¶¶ 134, 135, 139, 140, 142)

Result

Civil appeal allowed: High Court order dated 28.10.2021 set aside as vitiated by fraud; Reddy Veerana (05.05.2022) declared a nullity and recalled, and the order dated 30.01.2023 recalled. WP (C) 2272/2019 remanded for fresh decision with Vishnu Vardhan and T. Sudhakar impleaded, preferably by the year end; Reddy's securities remain deposited. Registrar's order set aside, a fortnight given to cure defects in the review petition. WP (C) 673 of 2023 dismissed; contempt to be heard separately; parties to bear their own costs.