CASE NO.: Appeal (civil) 3768 of 2000 PETITIONER: A.C. Ananthaswamy & Others RESPONDENT: Boraiah (dead) by LRs DATE OF JUDGMENT: 20/08/2004 BENCH: ASHOK BHAN & S.H. KAPADIA JUDGMENT:
J U D G M E N T
KAPADIA, J.
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.