Case: Harjas Rai Makhija (D) Thr.Lrs Vs. Pushparani Jain

additional evidence was filed but did not do so and cannot have a second shot for the same purpose. The allegation of fraud leveled by Makhija was not accepted by the High Court. 14. Learned counsel for Makhija raised quite a few submissions before us but in our opinion, the present appeal deserves to be dismissed on the ground that no fraud has been alleged in the plaint filed by Makhija or found in respect of the decree dated 4th October, 1999. 15. There is no doubt that a decree was passed in favour of Pushparani by the District Judge on 4th October, 1999 after a full-fledged trial and that decree was upheld not only by the High Court but also by this Court. Makhija made an application before the High Court to produce additional evidence to suggest that the agreement for sale entered into by him with Pushparani through her attorney Jinendra Jain on 16th October, 1988 was genuine and based on the Power of Attorney given by her to Jinendra Jain 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 the petitions for special leave to appeal filed by Makhija were dismissed by this Court. 16. It is significant to note that Makhija has not sought (and indeed could not seek) to reopen the proceedings pertaining to the dismissal of his suit for specific performance. As such, as mentioned above, the decree dismissing his suit for specific performance of the agreement dated 16th October, 1988 has become final. Therefore, under no circumstances can Makhija now collaterally pray for a decree of specific performance in respect of that agreement. 17. Through a collateral attack, Makhija has now sought to deprive Pushparani of her allotment of the suit property by alleging that she had concealed the Power of Attorney executed by her in favour of Jinendra Jain on 30th April, 1983 and had thereby committed a fraud on the courts. 18. We have been taken through the plaint filed by Makhija in Suit No. 471-A of 2008 and find that he has nowhere made any specific allegation of a fraud having been played by Pushparani on the Trial Court while obtaining the decree dated 4th October, 1999. 19. During the course of submissions, it was contended on behalf of Makhija that it is a settled proposition of law that a decree obtained by playing fraud on the court is a nullity and that such a decree could be challenged at any time in any proceedings. Reliance was placed on A.V. Papayya Sastry v. Government of A.P. (2007) 4 SCC 221 )This proposition is certainly not in dispute. 20. Learned counsel also placed reliance on Union of India v. Ramesh Gandhi (2012) 1 SCC 476 )which reads as under:- 27. If a judgment obtained by playing fraud on the court is a nullity and is to be treated as non est by every court, superior or inferior, it would be strange logic to hear that an enquiry into the question whether a judgment was secured by playing fraud on the court by not disclosing the necessary facts relevant for the adjudication of the controversy before the court is impermissible. From the above judgments, it is clear that such an examination is permissible. Such a principle is required to be applied with greater emphasis in the realm of public law jurisdiction as the mischief resulting from such fraud has larger dimension affecting the larger public interest. (Emphasis supplied by us). 21. We agree that 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. 22. What is fraud has been adequately discussed in Meghmala & Ors. v. G. Narasimha Reddy & Ors. (2010) 8 SCC 383 ( paragraphs 28 to 36))Unfortunately, this decision does not refer to earlier decisions where also there is an equally elaborate discussion on fraud. These two decisions are Bhaurao Dagdu Paralkar v. State of Maharashtra & Ors. (2005) 7 SCC 605 )and State of Orissa & Ors. v. Harapriya Bisoi. (2009) 12 SCC 378 )In view of the elaborate discussion in these and several other cases which have been referred to in these decisions, it is clear that fraud has a definite meaning in law and it must be proved and not merely alleged and inferred. 23. In so far as the present appeal is concerned, there is no doubt that Makhija had an opportunity to prove the allegation of fraud when he filed an application under Order XLI Rule 27 of the CPC. However, he missed that opportunity right up to this court. Makhija took a second shot at alleging fraud and filing another suit against Pushparani. However, the evidence that he relied upon was very thin and could not even be considered as secondary evidence. Accordingly both the Trial Court as well as the High Court rejected the allegation of fraud by not accepting the evidence put forward by Makhija to allege that fraud had been committed by Pushparani when she obtained the decree dated 4th October, 1999. 24. Fraud not having been proved but merely alleged, we do not find any reason to differ with the judgment and order passed by the High Court and the Trial Court.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]14. Learned counsel for Makhija raised quite a few submissions before us but in our opinion, the present appeal deserves to be dismissed on the ground that no fraud has been alleged in the plaint filed by Makhija or found in respect of the decree dated 4th October, 199915. There is no doubt that a decree was passed in favour of Pushparani by the District Judge on 4th October, 1999 after a full-fledged trial and that decree was upheld not only by the High Court but also by this Court. Makhija made an application before the High Court to produce additional evidence to suggest that the agreement for sale entered into by him with Pushparani through her attorney Jinendra Jain on 16th October, 1988 was genuine and based on the Power of Attorney given by her to Jinendra Jain 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 the petitions for special leave to appeal filed by Makhija were dismissed by this Court16. It is significant to note that Makhija has not sought (and indeed could not seek) to reopen the proceedings pertaining to the dismissal of his suit for specific performance. As such, as mentioned above, the decree dismissing his suit for specific performance of the agreement dated 16th October, 1988 has become final. Therefore, under no circumstances can Makhija now collaterally pray for a decree of specific performance in respect of that agreement17. Through a collateral attack, Makhija has now sought to deprive Pushparani of her allotment of the suit property by alleging that she had concealed the Power of Attorney executed by her in favour of Jinendra Jain on 30th April, 1983 and had thereby committed a fraud on the courts18. We have been taken through the plaint filed by Makhija in Suit No. 471-A of 2008 and find that he has nowhere made any specific allegation of a fraud having been played by Pushparani on the Trial Court while obtaining the decree dated 4th October, 199921. We agree that 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 point23. In so far as the present appeal is concerned, there is no doubt that Makhija had an opportunity to prove the allegation of fraud when he filed an application under Order XLI Rule 27 of the CPC. However, he missed that opportunity right up to this court. Makhija took a second shot at alleging fraud and filing another suit against Pushparani. However, the evidence that he relied upon was very thin and could not even be considered as secondary evidence. Accordingly both the Trial Court as well as the High Court rejected the allegation of fraud by not accepting the evidence put forward by Makhija to allege that fraud had been committed by Pushparani when she obtained the decree dated 4th October, 199924. Fraud not having been proved but merely alleged, we do not find any reason to differ with the judgment and order passed by the High Court and the Trial Court