M.GAGAN BOTHRA vs SADHANA SIRNIVASAN

2026:MHC:4396
OSA No. 210 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27-10-2026
CORAM
THE HON'BLE MR JUSTICE N. SATHISH KUMAR
AND
THE HON'BLE MR.JUSTICE GK.MUTHUKUMAAR
OSA No. 210 of 2023
CNR:{HCMA011552582023}
AND
CMP NO. 12187 OF 2024
M.Gagan Bothra
S/o. Late. S.Mukanchand Bothra,
No.44, Veerappan Street,
Sowcarpet, Chennai 600079.
..Appellant(s)
Vs
1. Sadhana Srinivasan
D/o. Late. V.T.V.Sharma
and W/o. K.Srinivasan,
Apartment 1, AIKYA, Old No. 24, New No. 48,
First Main Road, Gandhi Nagar,
Adyar, Chennai 600020.
2. Sumanth Sharma
S/o. Late. V.T.V.Sharma,
C6, New No. 124, Old No. 71, Chamiers Road,
R.A.Puram, Chennai 600028.
..Respondent(s)
OSA No. 210 of 2023
This original side appeal is preferred under clause XXXVI Rule 9 of the
O.S. Rules read with Clause 15 of the Letters Patent seeking to set aside the
Judgment and decree dated 03.03.2023 passed in A.No. 4596 of 2022 in C.S.No
132 of 2010 with cost and allow the above O.S.A. and thus render justice.
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For Appellant(s): Mr.M.Gagan Bothra (p-in-p)
(memo Filed By P-in-p With US.Sr.13729
Dt:10.04.2024)
For Respondent(s): Mr.Arun Anbumani
For R1 And R2
Judgment
(Judgment of the Court was delivered by N.Sathish Kumar J.)
Challenging the order passed by the learned Single Judge dismissing the
th
application filed by the 6 defendant in the suit in C.S.No.132 of 2010, the
th
present appeal has been filed by the 6 defendant/appellant herein.
2.The following are the brief facts which are necessary for the disposal of
this appeal:
2.1.The plaint was originally filed by the first plaintiff in his individual
capacity. According to him, he was a partner of the unregistered partnership
firm Hymavathi Constructions. The partnership business took a downfall and
the plaintiff decided to dispose of the property and to wind up the activities of
the partnership firm. The plaintiff representing the firm entered into an
agreement for sale dated 01.02.1996 with the first defendant and received
Rs.10,000/- as advance and further, he has also received another Rs.3,00,000/-
as advance by way of cheque on 03.02.1996. It is the contention of the plaintiff
that the balance was agreed to be paid within 45 to 60 days of the agreement,
failing which the agreement for sale would be cancelled and the advance would
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be returned. The first defendant did not show any interest in the property for
completing the transaction.
2.2.It is the further contention of the plaintiff that the first defendant is the
money lender and on two occasions, the plaintiff has borrowed a sum of
Rs.25,000/- and Rs.1,50,000/- from him. The plaintiff by letter dated
31.05.1996 cancelled the agreement for sale and returned the advance amount
of Rs.3,10,000/- received from the first defendant by way of cheque by
mobilising the funds. However, the same was returned by the first defendant on
08.06.1996. Later, the first defendant caused legal notice on 09.09.1996 and the
plaintiff has also sent a reply notice dated 13.10.1996. Thereafter, the plaintiff
has suddenly received summons from the city civil court in O.S.No.1160 of
1997 filed by the first defendant seeking injunction restraining the partnership
firm from alienating the property to anyone else.
2.3.Immediately, the plaintiff has entrusted the matter to a counsel. Later,
the plaintiff came to know that the first defendant filed a suit in C.S.No.205 of
1999 before this court seeking specific performance, delivery of possession with
an alternate prayer for return of money. The plaintiff immediately started taking
steps to find out the full details about the suit, so as to reopen the case and to set
aside the ex parte decree passed. On verification of the documents, the plaintiff
came to know that the first defendant has played fraud by making various false
averments and forged documents and filed such fabricated documents in the
proceedings and by such misleading by the first defendant on the issue of
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jurisdiction as well as on the account of fabricated documents, this court has
decreed the suit for specific performance. According to the plaintiff, since
summons was not received, he has filed an application in A.No.5021 of 2007 to
condone the delay of 1765 days in filing the application to set aside the decree
dated 02.09.2002. However, the said application was dismissed and an appeal
filed by the plaintiff in OSA No.441 of 2008 was also dismissed. Since the
application to condone the delay itself came to be dismissed, there arose no
occasion for the court to consider the merits of the matter and more importantly
the issue of jurisdiction and fraud. Therefore, the plaintiff has assailed the
decree and judgment passed in C.S.No.205 of 1999 dated 02.09.2002 for
declaring the same as null and void as the same has been obtained by practicing
fraud and consequently to set aside the same.
th
2.4.At that time, an application was filed by the 6 defendant mainly to
reject the plaint filed in C.S.No.132 of 2010 on the ground that the plaintiff has
already attempted to set aside the ex parte decree and has filed an application
seeking to condone the delay in O.A.No.5021 of 2007 which was dismissed and
the appeal filed against the said order was also dismissed and thus, the same has
reached finality. Having failed in his effort to have the decree set aside, now the
present suit has been filed to nullify the decree passed in C.S.No.205 of 1999.
According to him, the suit is barred by operation of res judicata and abuse of
process of law and it is nothing but re-litigation.
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2.5.The learned Single Judge, after hearing the submissions made by both
sides, dismissed the application mainly on the ground that while dealing with
the application for rejection of plaint, only the pleadings in the plaint alone is to
be seen and according to the learned Single Judge, the plaintiff has made out a
prima facie case to try the suit and hence dismissed the application on the
premise that certain allegations of fraud was played by the first defendant on the
court in obtaining the ex parte decree in C.S.No.205 of 1999. Challenging the
th
said order, the party-in-person, namely 6 defendant has filed the present
appeal.
3.It is the contention of the party-in-person that the entire allegation in the
plaint is nothing but to reopen the decree passed in C.S.No.205 of 1999 on
merits which has reached finality. Absolutely, there is no material to form an
opinion that the decree holder has played fraud on court, whereas the entire
allegation in the plaint dealt with the alleged fraud committed by the first
defendant and obtaining decree with fabricated documents. When the competent
civil court has already considered the documents and granted decree, on mere
allegations of fraud on the party, such decree cannot be set aside and a separate
suit cannot be filed. It is his further contention that while seeking to set aside the
ex parte decree, a specific averment has been made by the respondent herein to
the effect that summons was not served. However, this court in A.No.5021 of
2007 has clearly held that the plaintiff is aware of the decree and judgment
passed ex parte and summons was duly served on him and after verification of
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the records, that application was dismissed, as against which, an original side
appeal has been filed in O.S.A.No.441 of 2008 and by judgment dated
29.04.2009, the Division Bench dismissed the appeal. It is submitted by the
party-in-person that now the plaintiff wants to once again argue the matter on
merits of the case which is not permissible under law. It is further submitted that
as against the said judgment of the division bench, a Special Leave to Appeal
has been preferred before the Hon’ble Supreme Court in C.C.No.5023 of 2010
which was dismissed vide order dated 05.04.2010. Therefore, the present suit is
nothing but a re-litigation of the matter.
4.The learned counsel appearing for the respondents would submit that
originally, the appellant filed a suit before the city civil court in C.S.No.1160 of
1997 seeking for bare injunction restraining from alienating the property. Later,
he has filed a suit in C.S.No.205 of 1999 before this court for enforcement of
the contract. According to the learned counsel, the property was situated outside
the court, however the suit has been filed by misleading the court and decree
was obtained and therefore, a fraud has been played on the court. That apart, the
learned counsel would submit that the agreement filed in the injunction suit
before the city civil court in O.S.No.1160 of 1997 has been corrected and filed
before this court in C.S.No.205 of 1999. Therefore, according to the learned
counsel, this is the fraud on the court. Further, the receipts said to have been
issued for a sum of Rs.9,60,000/- was also fabricated. Therefore, it is contended
by the learned counsel that once the documents have been fabricated and the
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first defendant has played fraud and the decree was obtained based on such
documents, it can be assailed in a separate suit. Hence, the learned counsel
submitted that now that a severe allegation has been made with regard to the
fraud played by the first defendant on the court, it can be tested only by
evidence and therefore, the suit cannot be rejected at the threshold. Further, the
plea of res judicata is not a ground to reject the suit and the same has to be
tested in evidence. Therefore, the application filed to reject the suit is not
maintainable. In support of his submissions, the learned counsel relied on the
following decisions:
(i)Indian Bank Vs. Satyam Fibres (India) Pvt. Ltd. (1996) 5 SCC
550;
(ii)Ram Chandra Singh Vs. Savitri Devi and others (2003) 8 SCC
319;
(iii)Srihari Hanumandas Totala Vs. Hemant Vithal Kamat and
others (2021) 9 SCC 99.
5.In the light of the above submissions, now the points that arise for
consideration in this appeal are as follows:
(a)Whether the suit filed by the respondents herein to set aside the
decree and judgment passed by this court in C.S.No.205 of 1999 is a
re-litigation and liable to be rejected?
(b)Whether the suit filed by the respondents is barred by law?
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Points (a) and (b) :
6.While dealing with the application for rejection of the plaint, it is well
settled that the suit can be rejected only in the following cases:
(a)where it does not disclose a cause of action;
(b)where the relief claimed is under-valued and the plaintiff on
being required by the Court to so correct the valuation within a
time to be fixed by the Court, fails to do so;
(c)where the relief claimed is properly valued, but the plaint is
written upon paper insufficiently stamped, and the plaintiff, on
being required by the Court to supply the requisite stamp-paper
within a time to be fixed by the Court, fails to do so;
(d)where the suit appears from the statement in the plaint to be
barred by any law;
(e)where it is not filed in duplicate;
(f)where the plaintiff fails to comply with the provisions of rule 9.
Therefore, whether the plaint discloses cause of action or not, the court is
required to see the averments in the plaint, not the written statement or any
other document filed by the defendant. The averment in the plaint, if discloses
that the plaint is barred by any law, such suit is liable to be rejected in limine. In
several cases, the Court has also extended the scope of Order VII Rule 11,
rejection of plaint, on the ground of abuse of process of law and also re-
litigation.
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7.In the light of the above well settled principle, now when the present
case is analysed, it is seen that the main suit has been originally filed to set aside
the ex parte decree and judgment passed against him in O.S.No.205 of 1999.
The suit has been laid for specific performance of the contract dated 01.02.1996
which was admittedly executed by the plaintiff. The plaint averment indicates
that though initially a bare injunction suit was filed before the city civil court in
O.S.No.1160 of 1997, later a suit has been filed before this court in C.S.No.205
of 1999 seeking for specific performance. It is the contention of the appellant
that before filing the suit, leave has also been obtained in I.A.No.4 of 1998
under Clause 12 of the Letters Patent. The obtaining leave in I.A.No.4 of 1998
before filing the suit for specific performance is not disputed by the
respondents. The suit in C.S.No.205 of 1999 has been decreed ex parte on
02.09.2002. Later, the defendant in C.S.No.205 of 1999 filed A.No.5021 of
2007 to condone the delay of 1765 days in filing the application to set aside the
ex parte decree dated 02.09.2002. In the said application, the main contention
raised by the defendant was that he never received any suit summons and he
came to know about the ex parte decree only on 09.06.2007. This court after
verifying the original records by an order dated 26.02.2008 dismissed the
application holding that the summons were served and the delay cannot be
condoned.
8.The said order was in challenge before the Division Bench of this Court
in OSA No.441 of 2008 and it has been urged before the division bench that the
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ex parte decree has been obtained by playing fraud on the appellant in respect of
the agreement dated 01.02.1996. It was also urged that the ex parte decree was
obtained by fraud by producing forged agreement dated 01.02.1996. Therefore,
it was submitted that the decree is a nullity. The Division Bench dismissed the
appeal holding that consideration of the alleged fraud and forgery would arise
only when the application to set aside the ex parte decree was filed in time. The
entire submission even before the Division Bench and before the learned single
Judge was that a fraud has been played on the respondents herein / plaintiffs in
the suit in C.S.No.132 of 2010. It is nowhere alleged that the fraud has been
played on the court and that the decree was obtained. The said judgment of the
division bench has also reached finality and the SLP filed against the said
judgment was also dismissed by order dated 05.04.2010, which is also not in
dispute.
9.In the above background, when the present pleadings of the plaint is
carefully seen, it is noted that according to the plaintiff, the decree has been
obtained by fabricating the document. Further, the agreement produced before
this court has been corrected, whereas the corrections did not find place in the
agreement produced before the city civil court in the injunction suit in
O.S.No.1160 of 1997. Further, it is contended that the first defendant had
fabricated the receipt allegedly executed on a stamp paper dated 14.12.2000 and
hence, according to him, such fraud came to the notice of the plaintiff only later.
It is relevant to note that the entire pleadings in the plaint does not disclose the
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cause of action about the nature of the fraud played on the court, whereas the
entire allegation pressed into service was the alleged fraud played on the parties
inter-se. Therefore, once the parties pleading fraud against each other cannot be
a ground to set aside the decree which has also reached finality in the earlier
suit. Only when the fraud has been played on the court and any order has been
obtained, such decree and order can be nullified by the court. In the earlier
application filed to condone the delay in filing the application to set aside the ex
parte decree, it was the main contention of the respondent that he came to know
about the ex parte decree only on 09.06.2007. Therefore, even assuming that the
decree has been obtained by fraud and a fraud has been played on the parties,
any decree which resulted in such fraud ought to have been cancelled within a
period of three years from the date of the knowledge, whereas the suit has been
filed on 06.02.2010. The very contention that he came to know about the
exparte decree on 09.06.2007 itself is found to be false, since he was also served
with summons and this has been clearly recorded in the earlier orders.
Therefore, the suit itself has been filed beyond the period of limitation.
10.It is further to be noted that now the plaintiff is trying to re-agitate the
matter which has already reached finality. Even assuming that the court has
relied upon some documents and passed an erroneous order, the only remedy
for the party who have knowledge about the proceedings only later, is to
challenge such decree and judgment by way of an appeal. Though the
respondent plaintiff has filed an application in A.No.5021 of 2007 seeking to
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condone the delay in filing the application to set aside the ex parte decree with a
delay of 1765 days, such application came to be dismissed and that issue has
also reached finality. Now the present suit is questioning the very execution of
the documents by alleging fraud. Therefore, this court is of the view that the
party alleging fraud inter-se cannot be a ground to re-litigate the matter and the
appropriate remedy would be to challenge the judgment and decree earlier
passed in the manner known to law. No doubt, in Srihari Hanumandas Totala
supra, the Hon’ble Supreme Court has held that the plea of res judicata cannot
be determined at the stage of rejection of plaint and the same can only be
determined upon trial of the suit.
11.In Ram Chandra Singh supra, the Hon’ble Supreme Court has held in
paragraph 33 as follows:
‘ 33.Once it is held that a judgment and decree has been obtained by
practising fraud on the court, it is trite that the principles of res judicata shall
not apply. The High Court, therefore, in our opinion committed a serious
error in referring to the earlier orders passed by it so as to shut the doors of
justice on the face of the appellant for all times to come. We, therefore, are of
the opinion that the impugned judgment dated 10-12-1998 cannot be
sustained. ’
12.In Indian Bank Vs. Satyam Fibres (India) Pvt. Ltd. reported in
(1996) 5 SCC 550 supra, the Hon’ble Supreme Court in paragraphs 22 and 23
has held as follows:
‘ 22.The judiciary in India also possesses inherent power, specially under
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Section 151 CPC, to recall its judgment or order if it is obtained by
fraud on court. In the case of fraud on a party to the suit or proceedings,
the court may direct the affected party to file a separate suit for setting
aside the decree obtained by fraud. Inherent powers are powers which
are resident in all courts, especially of superior jurisdiction. These
powers spring not from legislation but from the nature and the
constitution of the tribunals or courts themselves so as to enable them to
maintain their dignity, secure obedience to its process and rules, protect
its officers from indignity and wrong and to punish unseemly behaviour.
This power is necessary for the orderly administration of the court's
business.
23. Since fraud affects the solemnity, regularity and orderliness of the
proceedings of the court and also amounts to an abuse of the process of
court, the courts have been held to have inherent power to set aside an
order obtained by fraud practised upon that court. Similarly, where the
court is misled by a party or the court itself commits a mistake which
prejudices a party, the court has the inherent power to recall its order.
(See: Benoy Krishna Mukerjee v. Mohanlal Goenka [AIR 1950 Cal 287]
; Gajanand Sha v. Dayanand Thakur [AIR 1943 Pat 127 : ILR 21 Pat
838] ; Krishnakumar v. Jawand Singh [AIR 1947 Nag 236 : ILR 1947
Nag 190] ; Devendra Nath Sarkar v. Ram Rachpal Singh [ILR (1926) 1
Luck 341 : AIR 1926 Oudh 315] ; Saiyed Mohd. Raza v. Ram Saroop
[ILR (1929) 4 Luck 562 : AIR 1929 Oudh 385 (FB)] ; Bankey Behari
Lal v. Abdul Rahman [ILR (1932) 7 Luck 350 : AIR 1932 Oudh 63] ;
Lekshmi Amma Chacki Amma v. Mammen Mammen [1955 Ker LT
459] .) The court has also the inherent power to set aside a sale brought
about by fraud practised upon the court ( Ishwar Mahton v. Sitaram
Kumar [AIR 1954 Pat 450] ) or to set aside the order recording
compromise obtained by fraud. ( Bindeshwari Pd. Chaudhary v.
Debendra Pd. Singh [AIR 1958 Pat 618 : 1958 BLJR 651] ; Tara Bai v.
V.S. Krishnaswamy Rao [AIR 1985 Kant 270 : ILR 1985 Kant 2930] .) ‘
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13.The above judgment was relied on by the respondents to the effect that
the court has inherent power to recall its order which was obtained by fraud on
the court and in case of fraud on the party to the suit or proceedings, the court
may direct the affected party to file a separate suit to set aside the decree
obtained by fraud. Absolutely, there is no dispute with regard to the same. It is
relevant to note that even any document said to be assailed on the ground of
fraud, the suit should have been filed within a period of limitation. To set aside
any document executed on the ground of fraud, the plea of limitation is three
years as per Article 59 of the Limitation Act, 1963. Even to set aside the decree,
the period of three years starts from the date of the decree, particularly the
limitation period reckons from the date when the plaintiff has the knowledge
about the decree. Admittedly, in this case, the plaintiff is aware of the
proceedings and the summons were served and thereafter, the suit has been
decreed. Therefore, it cannot be said that the plaintiff has acquired knowledge
only at a later period.
14.It is further to be noted that even after the decree was passed, the
execution petition has been filed as per the averment in the plaint in the year
2003 itself, wherein also, the respondent remained ex parte and the ex parte
order came to be passed by the executing court for registration of the sale deed
in favour of the first defendant and the Assistant Registrar of the Court has
executed the sale deed on 10.02.2005. Therefore, when a party to the
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proceedings conveniently remained absent in all the proceedings, despite
service of summons which has been proved in the earlier proceedings in
A.No.5021 of 2007, now it cannot be contended that he has acquired knowledge
only in the year 2007 and has filed the suit alleging that the document relied on
by the first defendant in the suit was fabricated one and a fraud has been played
on the court. If such contention is accepted, it will amount to opening pandora
box and will lead to unsettle the settled issues.
15.It is relevant to note that a Division Bench of this court in
L.Chinnayya Vs. K.Ramanna reported in ILR (1915) 38 Mad 203 has held that
if the court acts erroneously in forming its judgment on any of the matters, the
proper remedy is to invoke the help of the appellate tribunal where an appeal is
allowed by law. Another mode of rectifying an erroneous judgment is to apply
for review of judgment. The unsuccessful party has, in such an application, an
opportunity to adduce any evidence which he failed to adduce at the hearing and
which he could not, with all proper diligence have then adduced. It cannot be
doubted that in such cases, he cannot institute a fresh suit to get the judgment
vacated. The allegation of fraud for vacating a judgment, therefore, must be
extraneous to everything which has been adjudicated on by the Court and not
any fraud which has already been dealt with by the Court. The rule allowing the
vacating of a judgment for fraud is not an exception to the rule of res judicata,
but is independent and outside the scope of that principle.
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16.In Mohanlal Goenka Vs. Benoy Kishna Mukherjee and others
reported in (1952) 2 SCC 648 , the Hon’ble Supreme Court has held that there is
ample authority for the proposition that even an erroneous decision on a
question of law operates as res judicata between the parties to it. The
correctness or otherwise of a judicial decision has no bearing upon the question
whether or not it operates as res judicata. A decision in the previous execution
case between the parties that the matter was not within the competence of the
executing court even though erroneous is binding on the parties.
17.In Gorie Gouri Naidu Vs. Thandrothu Bodemma reported in (1997)
2 SCC 552 , it has been held by the Hon’ble Supreme Court that even if
erroneous, an inter-party judgment binds the party if the court of competent
jurisdiction has decided the lis. In S.Ramachandra Rao Vs. S.Nagabhushana
Rao reported in (2024) 17 SCC 361 , the Hon’ble Supreme Court has held that
moreover, a binding decision cannot lightly be ignored and even an erroneous
decision remains binding on the parties to the same litigation and concerning the
same issue, if rendered by a Court of competent jurisdiction. Such a binding
decision cannot be ignored even on the principle of per incuriam because that
principle applies to the precedents and not to the doctrine of res judicata.
18.Considering the said judgments, we are of the view that even assuming
that the document relied on by the first defendant was said to have been created
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and fabricated, it is a matter between the parties to the suit and it cannot be said
to be a fraud played on the court. In such a case, such decree and judgment
ought to have been challenged in the manner known to law. Though the plaintiff
has filed an application to condone the huge delay in filing the application to set
aside the exparte decree, which he has failed, nothing prevented him from filing
an appeal as against the ex parte decree which he has not done so. Therefore,
once the decree and judgment has reached the finality, the mere allegation of
fraud and fabrication of document at a later point of time, would amount to
relitigate the entire settled issue. If such things are allowed and entertained by
the court, there will not be an end to the litigation and every litigant with
innovative skill and very clever drafting make allegations in order to unsettle
the settled things.
19.In K.K.Modi Vs. K.N.Modi reported in (1998) 3 SCC 573 , the Hon’ble
Supreme Court has held that it is an abuse of the process of the court and
contrary to justice and public policy for a party to re-litigate the same issue
which has already been tried and decided earlier against him. In
T.Arivanandam Vs. T.V.Satyapal reported in (1977) 4 SCC 467 , the Hon’ble
Supreme Court in paragraph 2 has held as follows:
‘2. Here is an audacious application by a determined engineer of
fake litigations asking for special leave to appeal against an order
of the High Court on an interlocutory application for injunction.
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The sharp practice or legal legerdemain of the petitioner, who is
the son of the 2nd respondent, stultifies the court process and
makes a decree with judicial seals brutum fulmen. The long arm
of the law must throttle such litigative caricatures if the
confidence and creditibility of the community in the judicature is
to survive…. ‘
20.In the present case, the entire allegation of the plaintiff is that he wants
to relitigate the issue after slept over for several years alleging fraud. We do not
find any material to come to the conclusion that the ex parte decree was
obtained by playing fraud on the court. Admittedly, before instituting the suit
before this court, leave has also been obtained under clause 12 of the Letters
Patent in A.No.4 of 1998 and the decree and judgment has also reached finality
and no appeal has been filed challenging the ex parte decree. Therefore, the
present suit in our view is nothing but a relitigation of the entire issue which has
already reached finality. The party who slept over the matter and even remained
ex parte not only in the suit but also in the execution proceedings filed in the
year 2003 and is aware of the proceedings, has come with the present suit in the
year 2010. In our view the suit is clearly barred by law. Apart from that the suit
is barred by limitation and the said suit is nothing but a relitigation. In such
view of the matter, we are of the view that the suit is liable to re rejected on the
ground of limitation as well as relitigation and abuse of process of law.
Accordingly, both the points are answered.
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2026:MHC:4396
OSA No. 210 of 2023
21.In the result, this Original Side Appeal is allowed. The judgment and
decree passed by the learned single judge in A.No.4596 of 2022 in C.S.No.132
of 2010 dated 03.03.2023 are set aside and the plaint in C.S.No.132 of 2010 is
rejected. No costs. Consequently, connected miscellaneous petition is closed.
(N.S.K.,J.) (G.K.M.,J.)
27-10-2026
Index: Yes
Speaking order
Neutral Citation: Yes
VVK
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2026:MHC:4396
OSA No. 210 of 2023
N.SATHISH KUMAR J.
AND
GK.MUTHUKUMAAR J.
VVK
OSA No. 210 of 2023
AND
CMP NO. 12187 OF 2024
27-10-2026
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