Rajinder Singh vs Het Ram Bakhirta And Others

Tarlok Singh Chauhan, J

CMP(M) No. 716 of 2019

By medium of this application, the applicant/ petitioner has sought condonation of delay of 1 year, 8 months and 8 days that has crept up in filing of

the review petition.

It appears that the applicant/petitioner simply wants to ensure that the respondents are in someway or other harassed and driven to unnecessary

and unwarranted litigation. Even when the petitioner had earlier approached this Court by way of CMP(M) No. 836/2016 in RSA No. 402/2017,

decided on 13.9.2017, the review of which order is sought by way of instant petition. This Court had clearly observed therein that the applicant

resorted to falsehood as is evident from para-6 of the said order, which reads as under:

“6. At the outset, I may observe that the applicant has resorted to falsehood while filing the application seeking condonation of the delay. Why I

observe so is because in the appeal so filed by the applicant before the learned first appellate Court, the notice issued to respondents No.2 and 3 were

received back un-served as is evident from the order passed on 28.3.2006, when for the first and last time, Mr. Jagdish Rajta, Advocate, had put in

appearance on behalf of the applicant. However, thereafter, it would be noticed that it is Mr. S.L. Ranjta, Advocate, who had put in appearance on

behalf of the applicant and also took steps for the service of the un- served respondents in the appeal, meaning thereby that not only the applicant was

pursuing the litigation before the learned first appellate Court, but he had also been imparting instructions to Mr. S.L. Ranjta, Advocate, as the un-

served respondents came to be duly served on the steps taken by the applicant as is evident from the order passed b the learned first appellate court

on 13.6.2007.â€​

It was thereafter that the Court proceeded to dismiss the application for limitation without entering into the factual matrix of the issues raised in the

appeal.

Even this petition is highly time barred and has been filed after 1 year, 8 months and 8 days of the passing of the impugned order. Even if this fact is

ignored, I really fail to understand as to how the respondents could be said to have committed a fraud in filing the suit for specific performance as is

now contended by the petitioner, more particularly, when the same was decreed in his/their favour by the trial Court and the appeal filed against the

same by the present applicant/petitioner also stood dismissed.

Here first of all the meaning of fraud is required to be considered. Normally, the meaning of fraud is to cheat the person with a view to gain

something. The meaning of fraud is required to be elaborated hereunder :

“Fraud means an intrinsic, collateral act, and fraud of an egregious nature would vitiate the most solemn proceedings of court of justice. Fraud is an

act of deliberate deception with a design to secure something, which is otherwise not true. The expression fraud involves two elements, deceit and

injury to the person deceived. It is a cheating intended to get an advantage.â€​

Word ‘fraud’ means deliberate deception, treachery or cheating which is intended to gain certain advantage.

‘Fraud’ means and includes any of the following acts committed by a party to a contract with his connivance, or by his agent with intent to

deceived another party thereto or his agent, or to induce him to enter into the contract.

Now, ‘fraud’ is defined in Section 17 of the India Contract Act, 1872, which runs thus:

“ ‘Fraud’ means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with

intent to deceive another party thereto or his agent, or to induce him to enter into the contract:

(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

(2) the active concealment of a fact by one having knowledge or belief of the fact;

(3) a promise made without any intention of performing it;

(4) any other act fitted to deceive;

(5) any such act or omission as the law specially declares to be fraudulent,

Explanation:- Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the

case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to

speech.â€​

‘Fraud’ is false representation by one who is aware that it was untrue with an intention to mislead the other who may act upon. It to his

prejudice and to the advantage of the representor.

In Administrative Law, it has been extended to failure to disclose all relevant and material facts which one has a positive duty to disclose. It is thus

understood as deliberate act or omission to mislead other to gain undue advantage. ‘It consists of some deceitful practice of wilful device, resorted

to with intent to deprive another of his right or in some manner to do him an injury’ (Black’s Law Dictionary). Effect of fraud on any

proceeding, or transaction is that it becomes nullity. Even the most solemn proceedings stand vitiated if they are actuated by fraud. Such being the

nature and consequence of it the law requires not only strict pleading of it but strict proof as well.

A “fraud†is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in

order to gain by another’s loss. It is a cheating intended to get an advantage. (See: S.P. Changalvaraya Naidu v. Jagannath (1994 (1) SCC 1).

In Webster’s Third New International Dictionary “fraud†in equity has been defined as an act or omission to act or concealment by which

one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another.

In Black’s Legal Dictionary, “fraud†is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it

to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct,

by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so

that he shall act upon it to his legal injury.

It is defined in Oxford Dictionary as, ‘using of false representations to obtain an unjust advantage or to injure the rights or interests of

another’.

In Webster it is defined as, ‘deception in order to gain by another’s loss; craft; trickery, guile; any artifice or deception practiced to cheat,

deceive, or circumvent another to his injury.

From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact, which he knows to be untrue

yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of fact with

knowledge that it was false.

Judged in light of the aforesaid, this Court has no hesitation to conclude that the plea of fraud is absolutely fallacious and cannot be accepted as the

mere filing of a time barred suit (even if that be so) by itself cannot termed be a ‘fraud’ as there are adequate provisions under the law which

entitle a party to seek enlargement of time or enlarge the time period by furnishing a fresh cause of action.

This is precisely what has been done in the instant case and it is only thereafter that the decree came to be passed in favour of the

respondent/plaintiff.

Normally, this Court in cases of the present kind would not hesitate to not only dismiss the petition but would also proceed to impose exemplary

costs, however, since no notice of this application/petition has been issued to the opposite side, therefore, the Court with great reluctance restrains

itself from imposing any costs. Since there is no merit in this application, the same is dismissed.

Review Petition No. 71 of 2019

In view of the dismissal of the application under Section 17 of the Limitation Act for condonation of delay in filing the Review Petition, this Review

Petition cannot be held to be legally and validly constituted and, therefore, dismissed as such. Pending application(s) if any, also stands disposed of.