P. Ramalaxmi vs Peetala Tatayya and Others

A. Gopal Reddy, J.—The petitioner, who is one of the plaintiffs in the Court below, has come up with this revision petition under Article 227 of the Constitution of India questioning the correctness of the order dated 1-8-2005 in O.S. No. 506 of 1998 passed by the learned Principal Junior Civil Judge, Kovvur, holding that the scope of the suit is limited and the parties shall confine to the issues framed while adducing their evidence.

The suit was filed for cancellation of decree on the ground that fraud had been played in obtaining the decree. During the course of cross-examination of D.W.1, on objection being raised that the cross-examination cannot be beyond the scope of suit, for which counsel for the plaintiff argued that the Court has to consider the fraud played by the plaintiff in O.S. No. 777 of 1988 not only in the service of summons, but also the fraud played in bringing the documents in existence for actionable claim, whereas counsel for the defendant urged that the scope of the suit is limited to where the suit summons are not served and if so, whether the plaintiff has played fraud in service of summons, cross-examination should be confined to the said extent only. The Court below found favour with submission made by the defendant counsel and held that the plaintiff has to establish that the suit summons and the notices in execution petition were not served on them and that the defendant has played fraud in obtaining decree by suppressing the service of notice and summons. While holding so, the Court below directed the parties to confine to the-issues framed while adducing their evidence.

Heard the learned counsel for the petitioner and also the learned counsel for the respondent.

In order to maintain a suit for cancellation of decree, the plaintiff has to prove two things viz. fraudulent suppression of summons and also that the claim of that suit was false. The falsity of the claim may be considered along with non-service of the summons as supplying the motive for and leading to the legitimate inference of fraudulent suppression as held by the Division Bench of Calcutta High Court in Md. Yunus Vs. Nabi Hossain, . In view of the same, the order impugned cannot be sustained and the lower Court committed an illegality in confining the parties to lead evidence to the issues framed, while adducing evidence, imposing restrictions on the parties to confine them to lead evidence to the issues framed, while adducing evidence only, with regard to the service of summons is erroneous. The order impugned is liable to be set aside. The revision petition is accordingly allowed. The petitioner/plaintiff is entitled to lead the evidence not only with regard to the fraud played in regard to the service of summons in the suit and notice in the execution petition, but also entitled to lead evidence in regard to the fraud played in bringing the documents in existence, on the basis of which such ex parts decree was obtained.

Since the defects cannot be cured in appeal and if the parties are not permitted to lead evidence will occasion to failure of justice, it is a fit case where this Court can interfere and exercise supervisory jurisdiction.

Accordingly, the revision petition is allowed setting aside the impugned order and permitting the plaintiff to lead evidence as indicated above. No costs.