The present appeal has been filed by the appellant under Section 28 of the Hindu Marriage Act, 1955 (for short as Act) read with Order 41 of CPC, against the order dated 25th September, 2007 passed by Sh.V.K.Khanna, Additional District Judge, Delhi.

2. The brief facts of the case are that the parties to the present appeal were married on 10th December, 1992 at Delhi according to Hindu Customs and rites. Two daughters, namely, Ms Kirti and Ms.Ridhi Bhalla were born from the said marriage on 20th August, 1995 and 19th April, 2000 respectively.

3. It is stated that the respondent, accompanied the appellant on 23rd May, 2003 to the District Court, Tis Hazari, Delhi, for signing the documents/petition. The First Motion under Section 13-B (2) of the Act along with an application under Section 151 CPC for waiving the statutory period of six months, was listed on 26th May, 2003. The Addl.District Judge allowed the waiving of statutory period of six months on the same date and also recorded joint statement of both the parties.

4. Vide judgment dated 3rd June, 2003, the Addl. District Judge dissolved the marriage between the parties and decree of divorce by mutual consent was granted.

5. In February, 2006 the respondent/wife herein filed a suit for declaration and perpetual injunction in the Court of Civil Judge seeking declaration to the effect that the judgment and decree dated 3rd June, 2003 passed by the Court of Sh.S.C.Mittal, ADJ, Delhi in HMA No.522/2003 in the matter of Sh.Jiten Bhalla vs. Ms.Gaytri Bajaj be set aside and declared as null and void.

6. While that suit was still pending, on 22nd December, 2006, the respondent/wife also filed an application under Section 151 CPC to recall/set aside the judgment and decree dated 3rd June, 2003 obtained by appellant alleging that a fraud has been played on the court and also filing false petition supported by false affidavits, in the court of Sh.V.K.Khanna, Addl.District Judge.

7. The Additional District Judge vide impugned order set aside the said decree.

8. Hence the present appeal.

9. It is contended by learned counsel for the appellant that the impugned order has been passed under O.12 R.6 CPC by misapplying the settled principles governing the said provision. Admission under Order 12 R.6 CPC on which Court wishes to pass a decree has to be unambiguous, clear and unconditional and written statement has to be read and construed as a composite document and the Court cannot pick up a single line and treat it as admission out of context.

10. In support of his contention, learned counsel for the appellant cited Express Towers P.TD & Anr. V. Mohan Singh & Ors. 2007 (97) DRJ 687 (DB), in which it has been held that;

“Under order 12, Rule 6 of CPC, a decree can be passed or a suit can be dismissed when admissions are clear and unambiguous and no other interpretation is possible. The Court also is vested with a right to ask for independent corroboration of facts, even when denial in the pleadings is not specific. Right to pass a judgment or order under Order 12, Rule 6 of the Code is discretionary and not mandatory. It may not be safe and correct to pass a judgment under Order12, Rule 6 of the Code when a case involves disputed questions of fact and law which require adjudication and decision.”

11. The petition/application under Section 151 CPC filed by the wife was not maintainable because allegations in the application are that the fraud has been played on wife and not on Court by husband. It is the settled law that where fraud is alleged with the party and not with the court, the application under Section 151 CPC would not be maintainable but only a suit would lie. Even in the application filed u/s 151 CPC, the case relied on of Supreme Court on page 2 of the application takes the aforesaid view.

12. The Trial Court, even to make a case of fraud, has taken facts into consideration, which were even fully known to the wife, therefore, suppression of those facts, if any, on