20 August 2004
Supreme Court
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A.C. ANANTHASWAMY Vs BORAIAH .

Bench: ASHOK BHAN,S.H. KAPADIA
Case number: C.A. No.-003768-003768 / 2000
Diary number: 7253 / 2000


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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:\027          

       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.

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       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 \026 (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.