A fraudulent order despite void need to be set aside by competent authority
It is a settled legal proposition that where a person gets an order/office by making misrepresentation or playing fraud upon the competent authority, such order cannot be sustained in the eyes of the law as fraud unravels everything.
“Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law”. It is a trite that “Fraud and justice never dwell together” (fraus et jus nunquam cohabitant). Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. Fraud and deception are synonymous. “Fraud is an anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine”. An act of fraud on court is always viewed seriously. (Vide: Meghmala and Ors. v. G. Narasimha Reddy and Ors., (2010) 8 SCC 383
For setting aside such an order, even if void, the party has to approach the appropriate forum. (Vide: State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) and Ors., AIR 1996 SC 906; and Tayabbhai M. Bagasarwalla and Anr. v. Hind Rubber Industries Pvt. Ltd., AIR 1997 SC 1240).
In Sultan Sadik v. Sanjay Raj Subba and Ors., AIR 2004 SC 1377, this Court held that there cannot be any doubt that even if an order is void or voidable, the same requires to be set aside by the competent court.
In M. Meenakshi and Ors. v. Metadin Agarwal (dead) by L.Rs. and Ors., (2006) 7 SCC 470, this Court considered the issue at length and observed that if the party feels that the order passed by the court or a statutory authority is non-est/void, he should question the validity of the said order before the appropriate forum resorting to the appropriate proceedings. The Court observed as under:-
It is well settled principle of law that even a void order is required to be set aside by a competent Court of law, inasmuch as an order may be void in respect of one person but may be valid in respect of another. A void order is necessarily not non-est. An order cannot be declared to be void in collateral proceedings and that too in the absence of the authorities who were the authors thereof.
Similar view has been reiterated by this Court in Sneh Gupta v. Devi Sarup and Ors., (2009) 6 SCC 194.
From the above, it is evident that even if a decree is void ab initial, declaration to that effect has to be obtained by the person aggrieved from the competent court. More so, such a declaration cannot be obtained in collateral proceedings.
Respondent No. 2 herself had been a party to the fraud committed by the Appellant upon the civil court for getting the decree of divorce as alleged by her in the impugned complaint. Thus, according to her own admission she herself is an abettor to the crime.
A person alleging his own infamy cannot be heard at any forum as explained by the legal maxim “allegans suam turpetudinem non est audients”. No. one should have an advantage from his own wrong (commondum ex injuries sua memo habere debet). No. action arises from an immoral cause (ex turpi cause non oritur action). Damage suffered by consent is not a cause of action (volenti non fit injuries). The statements/allegations made by the Respondent No. 2 patently and latently involve her in the alleged fraud committed upon the court. Thus, she made herself disentitled for any equitable relief.