1 WP 6551/10 abs FARAD CONTINUATION IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6551 OF 2010 ------------------------------------------------------------------------------------------------------------------ Office Notes, Office Memoranda of Court's or Judge's Orders Coram, appearances, Court's Orders or directions and Registrar's Orders Mr. S.M. Gorwadkar for the petitioner. CORAM : D.G. KARNIK, J. DATE : 17TH AUGUST 2010 P.C. : 1. Heard. 2. This petition is directed against an order dated 16 January 2010 passed by the trial court rejecting the application of the petitioner (defendant in the suit) for rejection of the plaint under Order 7 Rule 11 of the Code of Civil Procedure. 3. In a suit filed by the respondents against the petitioner, a decree for partition of the 2 WP 6551/10 property was passed. Decree has been confirmed upto the Apex Court. Thereafter the respondent filed a suit (Special Civil Suit No.96 of 2009) for a declaration that the decree in the first suit was obtained by fraud and as such not binding on him. In the respondents’ suit, the petitioner filed an application for rejection of the plaint which has been dismissed. Aggrieved petitioner is before this Court. 4. The Supreme Court has held that fraud vitiates everything. If the fraud is proved, though such cases are rare, that would vitiate the decree. Whether there has been a fraud vitiating the decree or not is a question of fact which would be required to be decided on evidence adduced at the trial. The plaint cannot rejected summarily under Order 7 Rule 11 of the Code on the ground of non- maintainability of the suit. 5. According to the petitioner, the suit is 3 WP 6551/10 frivolous and vaxatious and the allegations of fraud are unmerited. If so, the Court is not powerless to award compensatory costs while dismissing the suit. But the plaint cannot be rejected summarily without trial. In the circumstances, the writ petition is rejected. (D.G. KARNIK, J.)