A.C. Ananthaswamy & Others
Vs. Boraiah (Dead) by Lrs  Insc 470 (20 August 2004)
Ashok Bhan & S.H. Kapadia
This appeal by special leave is filed by the legal representatives of
original plaintiff, Patel Chikkahanumaiah (since deceased), against the
judgment and order dated 17.12.1998 delivered by High Court of Karnataka in
Regular First Appeal No.358 of 1989 whereby the High Court has dismissed the
suit bearing no.O.S.4802/80 filed in the Court of Addl. City Civil Judge,
Bangalore against Boraiah (since deceased). Respondents are the legal
representatives of the said Boraiah.
The facts giving rise to this appeal are as follows: On 26.7.1974, the said
Boraiah instituted suit bearing O.S. No.648 of 1974 for declaration and
permanent injunction against Patel Chikkahanumaiah in the Court of Second
Munsiff, Bangalore. On 18.8.1975, the suit was decreed in favour of Boraiah. It
was an ex-parte decree. On 13.6.1977, Patel Chikkahanumaiah applied for setting
aside the ex-parte decree under Order 9 Rule 13 of Code of Civil Procedure on
account of non service of summons. Simultaneously, on the same day, he also
preferred R.A.No.54 of 1977 against the said ex-parte decree. On 8.3.1978, R.A.
No.54 of 1977 was dismissed as time barred. In the meantime, Boraiah applied
for execution vide Execution Case No.441/77. On 12.1.1979, Patel
Chikkahanumaiah instituted the present suit bearing O.S. No.7 of 1979,
subsequently renumbered as O.S. No.4802/80, under section 9 CPC in the Court of
Additional City Civil Judge (X), Bangalore, for setting aside the ex-parte
decree dated 18.8.1975 and for permanent injunction restraining Boraiah from
executing the said decree on the ground that the said decree had been obtained
by fraud and misrepresentation. It was alleged that Boraiah had deliberately
failed to give proper name and address and consequently Patel Chikkahanumaiah
could not be served.
By judgment and decree dated 29.5.1989, the trial Court decreed the said
suit by holding that fraud had been practiced by Boraiah by not giving proper
name and address of Patel Chikkahanumaiah, who was a defendant in the suit
bearing no.O.S.648/74. The trial Court also found fraud on the part of Boraiah
in the service of the summons. In the circumstances, the trial Court cancelled
the decree dated 18.8.1975.
Aggrieved by the judgment and decree passed by the trial Court, Boraiah
preferred RFA No.358 of 1989 in the Karnataka High Court. By the impugned
judgment dated 17.12.1998, the High Court came to the conclusion that non
service of summons did not constitute fraud or misrepresentation; that absence
of the word Patel and mistake in the father's name did not evidence fraud or
misrepresentation on the part of Boraiah.
That no such allegation of fraud was made when Patel Chikkahanumaiah moved
an application for setting aside the ex- parte decree for non service of
summons under Order 9 Rule 13 CPC. That he did not make any allegation of fraud
in RA No.54/77. Consequently, the High Court reversed the judgment and decree
passed by the trial Court and restored the ex-parte decree dated 18.8.1975 in
suit no. O.S.648/74 in favour of Boraiah. Hence, this Civil Appeal.
We do not find any merit in this appeal. Firstly, in the present case, Patel
Chikkahanumaiah had moved an application under Order 9 Rule 13 CPC for setting
aside the ex-parte decree on the ground of non service of summons in which
fraud was not alleged. As stated above, Patel Chikkahanumaiah had moved R.A.
No.54 of 1977 in which there was no such allegation. Secondly, the present suit
has been instituted to set aside the ex-parte decree on the ground that the
decree was obtained by fraud and misrepresentation. 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 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 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 the party making such
representation. [See: Pollock & Mulla on Indian Contract & Specific
Relief Acts (2001) 12th Edition page 489].
In the present case, there is no evidence of fraud. The present case is a
matter of non-service of summons. In the present case, there is a bare
allegation of fraud. In the case of Choksi Bhidarbhai Mathurbhai v.
Purshottamdas Bhogilal Shah reported in [AIR 1962 Gujarat 10], 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.
Lastly, no substantial question of law arises in this appeal.
For the aforesaid reasons, we do not find any merit in this civil appeal and
the same is accordingly dismissed, with no order as to costs.