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<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Transitional//EN" "http://www.w3.org/TR/xhtml1/DTD/xhtml1-transitional.dtd"> <html xmlns="http://www.w3.org/1999/xhtml"> <head> </head> <body> <div style="font-family:Verdana, Geneva, sans-serif; font-size:12px; text-align:justify"> <table width="800" border="0" style="border:1px solid #ccc;padding:5px;" align="center" cellpadding="6" cellspacing="0"> <tr> <td align="left" valign="top"> Supreme Court Bald allegation of fraud without proof would not render a decree obtained by a party as fraudulent MANU/SC/0002/2017 - (02 Jan 2017) </td> </tr> <tr> <td align="left" valign="top">Harjas Rai Makhija (D) thr. L.Rs. v. Pushparani Jain and Ors.</td> </tr> <tr> <td align="left" valign="top" style="background-color:#FDEDCE">Appellant (represented by his legal representatives) is aggrieved by judgment passed by the High Court of Madhya Pradesh whereby his appeal has been dismissed. High Court took the view that, alleged Power of Attorney dated 30th April, 1983 could not be accepted as a valid piece of documentary evidence being a certified copy of a photocopied document. It was also held that, Appellant had an opportunity to raise the same issue when application for leading additional evidence was filed but did not do so and cannot have a second shot for the same purpose. Allegation of fraud leveled by Appellant was not accepted by the High Court.

A decree was passed in favour of Respondent by District Judge on 4th October, 1999 after a full-fledged trial and that decree was upheld not only by High Court but also by this Court. Appellant made an application before High Court to produce additional evidence to suggest that, agreement for sale entered into by him with Respondent through her attorney on 16th October, 1988 was genuine and based on Power of Attorney given by her to attorney on 30th April, 1983. Not only was the application for bringing on record additional evidence dismissed by the High Court but the decree dismissing the suit for specific performance of the agreement for sale filed by Makhija was dismissed by the High Court. That dismissal attained finality, when petitions for special leave to appeal filed by Appellant were dismissed by this Court.

Apex Court noted that, Appellant has not sought (and indeed could not seek) to reopen proceedings pertaining to dismissal of his suit for specific performance. As such, decree dismissing his suit for specific performance of agreement dated 16th October, 1988 has become final. Therefore, under no circumstances can Appellant now collaterally pray for a decree of specific performance in respect of that agreement.

Through a collateral attack, Appellant has now sought to deprive Respondent of her allotment of the suit property by alleging that she had concealed the Power of Attorney executed by her in favour of Attorney on 30th April, 1983 and had thereby committed a fraud on the Courts. In plaint filed by Appellant in Suit No. 471-A of 2008, he has nowhere made any specific allegation of a fraud having been played by Respondent on trial Court while obtaining decree dated 4th October, 1999.

When there is an allegation of fraud by non-disclosure of necessary and relevant facts or concealment of material facts, it must be inquired into. It is only after evidence is led coupled with intent to deceive that a conclusion of fraud could be arrived at. A mere concealment or non-disclosure without intent to deceive or a bald allegation of fraud without proof and intent to deceive would not render a decree obtained by a party as fraudulent. To conclude in a blanket manner that in every case where relevant facts are not disclosed, the decree obtained would be fraudulent, is stretching the principle to a vanishing point.

Fraud has a definite meaning in law and it must be proved and not merely alleged and inferred. Appellant had an opportunity to prove allegation of fraud, when he filed an application under Order XLI Rule 27 of Code of Civil Procedure. However, he missed that opportunity right up to this Court. Appellant took a second shot at alleging fraud and filing another suit against Respondent. However, evidence that he relied upon was very thin and could not even be considered as secondary evidence. Accordingly both trial Court as well as High Court rejected allegation of fraud. Supreme Court dismissed the appeal and held that, fraud not having been proved but merely alleged, there is no reason to differ with judgment and order passed by High Court and trial Court.</td> </tr> <tr> <td align="left" valign="top" >Relevant : Bhaurao Dagdu Paralkar v. State of Maharashtra and Ors. <manuid>MANU/SC/0495/2005</manuid>: (2005) 7 SCC 605 and State of Orissa and Ors. v. Harapriya Bisoi <manuid>MANU/SC/0835/2009</manuid>: (2009) 12 SCC 378, Order XLI Rule 27 of Code of Civil Procedure, 1908</td> </tr> <tr> <td align="left" valign="top" >Tags : Fraud, Allegation, Proof</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> <tr>  <td align="left" valign="top">Source : newsroom.manupatra.com</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> <tr> <td align="left" valign="top">Regards</td> </tr> <tr> <td align="left" valign="top">Team Manupatra</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> </table> </div> </body> </html>