IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 15TH JUNE 2010 / 25TH JYAISTHA 1932 AS.No. 630 of 2000(A) --------------------- OS.14/1996 of PRINCIPAL SUB COURT, ATTINGAL .................... APPELLANT/PLAINTIFF: ------------------------- SAINUDHEEN PILLA KAMALUDEEN, AGED 46 YERS, RESIDING AT PARAKKATTU VEEDU, MEL-ATTINGAL DESOM, ALAMCODE VILLAGE, NOW RESIDING AT POTTIVILAKATHU VEDU, ARUVALOORKONATHU MEVALKAL DESOM, ALAMCODE VILLAGE. BY ADV. MR.V.CHITAMBARESH, SENIOR ADVOCATE MR.K.SIJU MR.S.SUDHEESHKAR RESPONDENTS/DEFENDANTS 1 TO 10: ------------------------------------------ 1. NABEESA BEEVI, D/O.AYISHABEEVI, AGED 37 YEARS, RESIDING AT PARAKKATTU VEEDU, MELATTINGAL DESOM, ALAMCODE VILLAGE. 2. SHIJINA, AGED 20 YEARS, RESIDING AT PARAKKATTU VEEDU, MELATTINGAL DESOM, ALAMCODE VILLAGE. 3. SHIYAS, AGED 18 YEARS, RESIDING AT PARAKKATTU VEEDU, MELATTINGAL DESOM, ALAMCODE VILLAGE. 4. SHABEER, AGED 13 YEARS, RESIDING AT PARAKKATTU VEEDU, MELATTINGAL DESOM, ALAMCODE VILLAGE. 5. ABDUL SALAM, S/O.ABDUL HARIM, AGED 46 YEARS, RESIDING AT VALIYAVILA VEDDU, MEVARKAL DESOM, ALAMCODE VILLAGE. 6. NAZEERA BEEVI, D/O.FATHIMA BEEVI, AGED 34 YEARS, RESIDING AT VALIAVILA VEEDU, MEVARKAL DESOM, ALAMCODE VILLAGE. (CNTD....2) AS.No. 630 of 2000(A) ::2:: 7. RAJU, AGED 45 YEARS, PROPRIETOR, KEERTHI, MARBLES AND MOSAICS, SHOP NO.591, WARD NO.XI, ATTINGAL MUNICIPALITY, ATTINGAL. 8. VADIVELU, AGED ABOUT 38 YEARS, PROPRIETOR, RAHUL JWELLERY WORKS SHOP NO.592, WARD XI, ATTINGAL MUNICIPALITY, ATTINGAL, ALAMCODE. 9. NASEER, AGED ABOUT 32 YEARS, PROPRIETOR, SASIM AGENCIES, SHOP NO.593, WARD NO.XI, ATTINGAL MUNICIPALITY, ATTINGAL, ALAMCODE. 10. SEENATH, AGED ABOUT 30 YEARS, PROPRIETOR, DILS GARMENTS, SHOP NO.594, WARD NO.XI, ATTINGAL MUNICIPALITY, ATTINGAL, ALAMCODE. ADV. MR.T.SETHUMADHAVAN FOR R5&6 MR.PUSHPARAJAN KODOTH FOR R5-R6 MR.JAMES ABRAHAM FOR R5-R6 MR.JAYESH MOHAN KUMAR FOR R5 & R6 MR.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) FOR R1-4 MR.A.R.DILEEP FOR R1-4 MS.SURYA SASI FOR R1-4 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 15/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS.No. 630 of 2000(A) ORDER ON C.M.P.NOS.1121/2001 & 5854/2000 DISMISSED. 15.6.2010 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ A.S.No.630 Of 2000 ---------------------- Dated this the 15th day of June, 2010. J U D G M E N T The plaintiff in O.S.No.14 of 1996 on the file of the Sub Court, Attingal is the appellant. The suit was filed for declaration of title, setting aside the decree and judgment in O.S.No.356 of 1986 on the file of the Munsiff Court, Attingal, injunction and for recovery of possession, if found necessary. The trial court dismissed the suit. Parties are hereinafter referred to as the plaintiff an defendants as arrayed in the suit. 2. First defendant is the plaintiff's former wife and defendants 2 to 4 are his children born on the first defendant. It is averred in the plaint that the plaintiff deserted the first defendant in 1985. Thereafter, the defendants are leading a separate life from the plaintiff. Plaint A & B schedule properties belongs to the plaintiff by virtue of the sale deed of the year 1981. It is further averred that on 27.11.1986 the plaintiff had gone to gulf and returned on 25.10.1995 and in between those days he never visited his native place. It is the case of the plaintiff that the defendants 1 to 4 with the intention to grab he A.S.No.630 Of 2000 ::2:: property of the plaintiff instituted O.S.No.356 of 1986 before the Munsiff Court, Attingal against the present plaintiff for realisation of maintenance. The plaintiff came to know on 25.10.1995 that an ex-parte decree was obtained in that suit by fraudulent means. It is the further case of the plaintiff that summons was not served in that suit and an ex-parte decree was obtained by defendants 1 to 4 who are the plaintiffs in the said suit by misleading the court. In the execution petition filed by the former wife in O.S.No.356 of 1986 caused sale of the plaint A & B schedule items. The first defendant purchased the said properties in the court auction sale and subsequently obtained delivery. The plaintiff further alleged that neither in the suit nor in the execution petition the plaintiffs in the former suit did care to serve summons or notice to the plaintiff. According to the plaintiff the entire proceedings from the date of institution of O.S.No.356 of 1986 till delivery of plaint schedule items are vitiated by fraud and collusion and being so, the decree and the proceedings in execution of the said decree are liable to be set aside. Plaintiff prayed for a declaration that the assignment deed A.S.No.630 Of 2000 ::3:: executed by defendants 1 to 4 in favour of defendants 5 & 6 are not binding on the plaintiff. 3. Defendants 1 to 4, 5 and 6 filed separate written statement. They denied the averments in the plaint and prayed for dismissal of the suit. 4. Evidence in this case consists of PW1, DW1 and Exts.A1 to A17. 5. The suit was filed for setting aside the decree in O.S.No.356 of 1986 which was instituted by defendants 1 to 4 against the present plaintiff for maintenance, on the ground of fraud. Another reason stated for setting aside the sale is that notice of proclamation for sale was not served on him and sale of one of the item of properties is sufficient for satisfying the claim under the decree as on the date of sale. According to the plaintiff, the sale was conducted fraudulently without serving notice on him. Ext.A3 is the copy of the B diary in O.S.No.356 of 1986. From Ext.A3 it can be seen that the summons sent to the defendant therein on several times were returned unserved. It can be further seen from Ext.A3 on 17.1.1989 the suit was A.S.No.630 Of 2000 ::4:: posted to 9.3.1989 for return of summons and on 9.3.1986 the defendant therein was declared ex-parte due to his non- appearance. The proceedings dated 9.3.1989 as stated in Ext.A3 would show that the defendant in O.S.No.356 of 1986 was declared ex-parte due to his non-appearance which presupposes the service of summons for appearance on that day by anyone of the modes prescribed in Order V CPC. The proceedings would show that summons by substituted service by publication in Janayugam Daily was allowed. The trial court held that it is the burden of the plaintiff to establish that the daily in which summons was published was not having circulation in the area wherein he was working or residing at the time of the publication and he has no occasion to notice the publication. The trial court also observed that it is common knowledge that almost all Malayalam dailies are having wide circulation in Gulf countries wherein Keralites are working and residing. The trial court also noted the fact that the plaintiff was not having a case that while he was examined as PW1 that Janayugam daily was not having circulation where he was working or residing at the relevant time A.S.No.630 Of 2000 ::5:: and he had no occasion to notice that publication. Further case of the plaintiff that he left for Gulf Country immediately after the filing of the suit in O.S.No.356 of 1986 and that the plaintiffs were aware of his address in Gulf, no evidence is available on record to substantiate the said allegation. Therefore, the trial court held that in such circumstances the only mode available for service of summons was as stipulated under Order V Rule 20(1) and the court ordered service of summons by publication in a daily newspaper. As correctly held by the trial court it is for the plaintiff to establish that the defendants 1 to 4 obtained the decree in O.S.No.356 of 1986 by fraudulent means. The question to be examined in the suit of like nature is as to whether the decree was obtained by the plaintiff in the former suit by fraudulent means or not. The other question regarding the procedure followed in execution of the decree, proclamation of sale, delivery proceedings etc. are only consequential proceedings and it is not necessary for this Court to decide the validity of those proceedings in a suit filed for setting aside the decree. A.S.No.630 Of 2000 ::6:: Though the plaintiff challenged the proceedings in O.S.No.356 of 1986 leading to the passing of the decree in the said suit, the evidence adduced by the plaintiff is not sufficient enough to conclude that the decree was obtained by fraudulent means. The trial court after elaborate discussion of the question involved found that the decree in O.S.No.356 of 1986 and the court auction sale in the decree are not liable to be set aside. In view of the said findings the plaintiff is not entitled to recover the property from defendants 1 to 6 and also not entitled to seek consequential injunction. Learned counsel for the respondents relied the decision of the Apex Court reported in A.C.Ananthaswamy and Others v. Boraiah (AIR 2004 (8) SCC 588) in which it was held as follows: “Fraud is to be pleaded and proved. To prove fraud, it must be proved that representation made was false to the knowledge of the party be proved that representation made was false to the knowledge of the party making such representation or that the party could have no reasonable belief that it was true. The level of proof required in such cases is extremely higher. An ambiguous statement cannot per se make A.S.No.630 Of 2000 ::7:: the representor guilty of fraud. To prove a case of fraud, it must be proved that the representation made was false to the knowledge of th party making such representation”. In this case also, there is no evidence on fraud. The present case is a matter of non service of summons which the plaintiff has miserably failed to prove. In the present case, there is a bare allegation of fraud. Following the decision of the Gujarath High Court in Choksi Bhidarbhari Mathurbhai v. Purshottamdas Bhogilal Shah (AIR 1962 (Guj) 10) wherein it has been held that “where the only fraud alleged is a bare non-service of summons then such a suit to set aside the decree on alleged ground of fraud was not maintainable”. In the result, the appeal fails and accordingly, dismissed. There will be no order as to costs. HARUN-UL-RASHID, Judge. bkn/-