HON'BLE MR JUSTICE GHULAM MOHAMMED AND HON'BLE MR JUSTICE P. SWAROOP REDDY C.M.A. NO. 201 OF 2008 Between: Kunjunjamma Chandy, wife of Mr. J. Chandy, aged about 60 years , R/o Flat No. 405, Riveria Apartments, Dwarakapuri Colony, Punjagutta, Hyderabad 500 082 A.P represented by her authorized agend Mr. J. Chandy. .APPELLANT/PETITIONER/DEFENDANT NO.3 AND M/s Ion Exchange (India) Limited represented by its power of attorney holder Mr. Sudip Sarkar, Office at Flat Nos. 401-404, Riveria Apartments, Dwarakapuri Colony, Punjagutta, Hyderabad and two others ...RESPONDENTS/PLAITNIFFS /DEFENDANTS 1-2 JUDGMENT : (Per Hon'ble Sri Justice Ghulam Mohammed) This Civil Miscellaneous Appeal is directed against the order dated 05.02.2008 passed in I.A.No. 05 of 2007 in O.S.No. 173 of 2000 on the file of XII Additional Chief Judge (FTC) City Civil Court, Hyderabad. Appellant herein is defendant No. 3 (D3) and the first respondent herein is the plaintiff who filed O.S.No. 173 of 2000 for specific performance of the suit Agreements of Sale and also to direct the third defendant to execute a Sale Deed in respect of Flat No. 405 along with defendants 1 and 2 and for possession and in the alternative, to pass a decree for damages with interest and costs. The Court below decreed the suit in part with the following observations: “That the defendants 1 to 3 do execute the registered sale deed in respect of the flat Nos. 401 to 405 on payment of balance sale consideration of Rs. 3,77,900/- and the first defendant is further directed to execute registered sale deed in respect of flat Nos. 401 to 404 if not executed already. That the defendants 1 to 3 are further directed to execute the registered sale deed in respect of flat No. 405 in favour of plaintiff on payment of the balance sale consideration by it to the plaintiff and deliver the possession of the same to the plaintiff. That the rest of the suit claim be and the same is hereby dismissed.” Aggrieved by the same, appellant herein filed I.A.No. 5 of 2007 under Order 9 Rule 13 read with Section 151 CPC requesting the Court to set aside the judgment and decree dated 14.2.2005. Brief facts of the case are that the appellant herein, who is a Secretary of the Riviera Apartments Owners Welfare Association filed O.S.No. 1722 of 2005 on the file of II Senior Civil Judge, CCC Hyderabad against G. Govinda Reddy and Smt. Shakeela Reddy for recovery of monthly maintenance. Subsequently, it is stated that on 10.12.2006 some disputes arose between the appellant and Govinda Reddy and at that time Govinda Reddy shouted that the appellant would be necked out from the Flat No. 405 by the end of December 2006. Thereafter the appellant contacted his counsel who is dealing with O.S. No. 1722/05, then his counsel Srinivas on verification of suit register O.S.No. 173/2000 filed by first respondent herein told him that the suit was decreed on 14.2.2005 against his wife and then he contacted his wife who was in USA to ascertain whether she had received any suit summons or not, or she had engaged any advocate and filed any written statement, then his wife informed him that she did not receive any suit summons and did not file any written statement. It is also stated that on his enquiries, one Ravi Kumar who is junior counsel of Rama Sharma appeared on behalf of his wife and filed written statement by forging the signature of the appellant’s wife in the suit and obtained collusive and fraudulent decree against the appellant’s wife. Therefore, the appellant got issued a legal notice on 2.1.2007 to the said advocate Ravi Kumar calling upon him to furnish the details of the date on which the vakalat was given to him and later he obtained certified copy of judgment and decree and filed the I.A to set aside the judgment and decree in O.S.No. 173 of 2000 which was obtained fraudulently on 14.2.2005. On the other hand, counter filed by respondents 2 and 3 says that the appellant-petitioner was regularly following the proceedings in the suit, and after due contest suit was decreed in favour of the plaintiff and an amount of Rs. 11,00,000/- deposited into Court by the plaintiff towards 5th flat is still lying and if at all there is any connivance between his counsel and Ravi Kumar nothing could have prevented him from withdrawing the said amount in deposit. The Court below after hearing the counsel and also after going through the entire material made available on record, dismissed the I.A holding that the appellant-petitioner failed to prove that he was prevented to appear and contest the suit. Being aggrieved by the same, the present Civil Miscellaneous Appeal is filed. The learned counsel appearing for the appellant vehemently contended that the trial Court has committed serious error in not allowing the application to set aside the ex-parte decree on the ground that no summons were received by him and no opportunity was given to him to contest the matter. He also contended that the findings of the Court below ‘that PW-1 might have signed on the Vakalat and written statement’, is inconclusive and bad in law and is speculative and results in a decree being passed against the appellant on the basis of speculation without any foundation. On the other hand, the learned counsel appearing for the respondents contended that the suit was filed in the year 2000 and the same was decreed after five years after filing the written statement and there was an adjudication on merits on the basis of pleadings, though he has not adduced any evidence but nonetheless he has filed written statement and that implies that he has participated in the proceedings. In such a situation, the judgment cannot be said to be bad or illegal. He also contended that the appellant ought to have filed an appeal instead of filing I.A. Therefore, the court below has rightly dismissed the application filed under Order 9 Rule 13 CPC. Sri G. Rama Sharma, learned counsel appearing on behalf of D1 and D2 contended that he filed written statement earlier in O.S.No. 173 of 2000 stating that the agreement, which was executed in favour of the plaintiff, stands cancelled and since the suit was filed for specific performance he has received summons on behalf of D2 and he is not aware of receiving the summons by the appellant. Heard the learned counsel and also perused the entire material made available on record. The point that arises for consideration is as to whether the judgment and decree dated 14.2.2005 passed by the XII Additional Chief Judge, City Civil Court, Hyderabad, suffers from any infirmity or illegality? Before going to that aspect, it is necessary to refer Order 9 Rule 13 of CPC. For ready reference, the same is extracted hereunder: “Setting aside decree ex parte against defendant. 13. In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for a an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it my be set aside as against all or any of the other defendants also: Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.) Explanation: Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree).” A plain reading of the above proviso clearly shows that power is conferred on the Court to make an order for setting aside the decree. A total reading of the proviso to Order IX Rule 13 CPC clearly demonstrates that if a person is prevented from participating in the proceedings and if he has not received any summons sufficient cause has to be shown. If these two things are satisfied by the applicant, the court has to exercise the jurisdiction vested in it judiciously. We have perused the decree. The apartments’/flats bearing Nos. 401, 402, 403, 404 and 405 are situated on the third floor comprising one block of the building bearing municipal No. 6-3-347/9 known as ‘Raviera’ in S.No. 147/1 Khairatabad Village Revenue Mandal Golconda Hyderabad situated at Panjagutta, Hyderabad covered by an area of 2000 sq. yards. It is stated that D3 is residing in Flat No. 405. In the Cross examination appellant herein, who is D3 in the suit clearly stated as under “Ex. A-7 contains my signature. I do not know the reason why, I have received the summons under Ex. A-7 acknowledgement relating to D3. Sri G. Rama Sharma is my Advocate in the suit (for D1 and D2). He further deposed that “I was present at the time of petitiener/D3 signed on the Vakalat and entrusted to her advocate Sri J. Ravi Kumar. I was also present at the time of signing on the written statement by D3 and handing over the written statement to her advocate after signing on the written statement. …… At the time of handing over vakalat by the petitioner as well as written statement to Sri J. Ravi Kumar, the other Junior Advocates of Sri G. Rama Sarma and his staff members were present. But I cannot say the names of the persons present there except Sri Gupta, Advocate……. One Mr. J. V. Reddy, Chartered Accountant was the Treasurer of Rievera Apartments Welfare Association for some time, but I do not know the exact tenure of said Mr. J. V. Reddy. It is true, my Advocate’s (G. Rama Sarma) Office and office of Sri J. V. Reddy is situated side by side in the same flat.” As required under Order IX Rule 13 CPC though summons were received it appears to have been received by D2 but not by D3 apart from that he has shown sufficient material to show that D2 has played fraud but the trial Court has not considered it. The definition of fraud as contemplated under Section 17 of the Indian Contract Act 1872 reads as under: “17. ‘Fraud’ defined: ‘Fraud’ means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract- (1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true; (2) The active concealment of a fact by one having knowledge or belief of that fact; (3) A promise made without any intention of performing it; (4) Any other act fitted to deceive; (5) Any such act or omission as the law specially declares to be fraudulent. Explanation: Mere silence as to facts likely to affect the willingness of a person to enter into a contact is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech.” Thus it includes deceiving a person. The trial Court has not considered this aspect. Therefore, so as to give an opportunity to adjudicate the matter on merits, we have asked the counsel to verify in whose favour the sale deed is and we have called for the records to verify the signature of the appellant. The counsel produced the record and we have perused the signature of the appellant before the trial court and the document, which the counsel for the appellant has produced before us. On comparison, it appears that both the signatures are of one and the same person i.e., third defendant. Appellant in case she field Written Statement why would she remain ex parte without participating in the trial when her valuable rights are being violated and a flat substantially valued in which she has been residing is being lost. It is a most suspicious circumstance. It might be that D3’s signature was fraudulently obtained. In the circumstances, the order passed by the Court below in O.S.No. 173 of 2000 is set aside in so far as it relates to Flat No. 405, on the third floor comprising one block of the building bearing Municipal No. 6-3-347/9 known as ‘Riviera’. Accordingly, the Civil Miscellaneous Appeal is allowed in part directing the Court below to dispose of the suit i.e., O.S.No. 173 of 2000 afresh, so far as it relates to Flat No. 405, within a period of six months from the date of receipt of a copy of this order after giving notice to third defendant and after adducing evidence by D3. It is made clear that there shall not be any further enquiry or fresh trial by the court below with regard to genuineness or otherwise of signatures of the third defendant on Vakalat and written statement. There shall be no order as to costs. ________________________ GHULAM MOHAMMED, J _______________________ P. SWAROOP REDDY, J DATE: 19.10.2010 KA .. REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2 CD copies.