Point of Law: Section 17 of Contract Act Fraud includes 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 contract.

JUDGMENT :

Jyotsna Rewal Dua, J.

The case:-

Present appellants are successors of Sukh Ram-the original plaintiff in the civil suit, whereas respondents are successors of Jagat Ram-the original defendant in the suit.

The defendant/Jagat Ram had earlier instituted Civil Suit No.79/1 of 1982 against the plaintiff/Sukh Ram. Sukh Ram was proceeded ex parte in that civil suit on 23.06.1983. Ex parte judgment and decree was passed against Sukh Ram on 01.12.1984 whereby Jagat Ram (plaintiff in that suit) was declared to have become owner of the suit land by virtue of adverse possession. About a month later i.e. on 18.01.1985, Sukh Ram instituted instant suit against Jagat Ram for declaration that the ex parte decree passed in favour of defendant/Jagat Ram on 01.12.1984 has no effect on plaintiff’s right; order dated 23.06.1983 by which the plaintiff was proceeded ex parte be declared as null and void, having been obtained by the defendant fraudulently. The suit instituted by the plaintiff bearing No. 54/1 of 2007/85 was dismissed by the learned Trial Court on 30.07.2007. Plaintiff’s appeal against this judgment and decree was also dismissed by the learned First Appellate Court on 31.07.2008, hence, instant regular second appeal has been preferred by him.

2. Facts

2(i) Plaintiff instituted civil suit for declaration that:-

(i) ex parte judgment and decree dated 01.12.1984 passed in favour of the defendant/Jagat Ram pertaining to suit land measuring 11.11 bighas comprised in Khasra Nos. 41,42,56,74,130,131,144,145, Khata Khatoni No. 38/70 in Village Bhanjwani, Pargana Gehrwin, Teshil Ghumarwin, District Bilaspur, Himachal Pradesh has no effect on his right, title and interest. (ii) in alternative for declaration that order dated 23.06.1983 passed in Civil Suit No. 79/1 of 1982 vide which plaintiff was proceeded ex parte be declared as illegal, same having been procured fraudulently. The relief was claimed by the plaintiff on the basis of following pleadings:-

2(i) (a) In the suit instituted by the defendant/Jagat Ram (Civil Suit No.79/1 of 1982), plaintiff was served and he appeared in person on 31.05.1982. Afterwards, the Presiding Officer of the concerned Court was transferred. The plaintiff was given to understand that he would be informed about the next date of listing of the case through summon. Plaintiff never received any summon thereafter. He was never served for 23.06.1983 when order was passed in the civil suit by the learned Trial Court for proceeding ex parte against him.

2(i)(b) The ex parte order dated 23.06.1983 is the basis for passing ex parte decree dated 01.12.1984 against the plaintiff. Since the plaintiff had never been served for appearing in the civil suit on 23.06.1983, therefore, the order dated 23.06.1983 and ex parte decree dated 01.12.1984 both were illegal.

2(i)(c) The cause of action was pleaded to have arisen in favour of the plaintiff on 01.12.1984 i.e. the date of the passing of the ex parte judgment and decree as also on 15.01.1985 when the defendant/Jagat Ram had allegedly given threat to the plaintiff for taking forcible possession of the suit land.

2(ii) The defendant/Jagat Ram in his written statement stated that plaintiff was duly served for 23.06.1983. The order dated 23.06.1983 was passed in accordance with law. An objection was also taken of civil suit being barred by limitation.

2(iii) The parties led evidence in support of their respective contentions. Plaintiff appeared in the witness box as PW-1. One Banwari Lal the Civil Ahlmad of the concerned Court at Ghumarwin deposed as PW-2. Defendant/Jagat Ram deposed as DW-1. The orders dated 30.04.1983 and 23.06.1983 passed in Civil Suit No.79/1 of 1982, (whereby the plaintiff was proceeded ex parte) were proved on record as Ext.P-1 and P-2 respectively. The ex parte judgment and decree dated 01.12.1984 in CS No.79/1 of 1982 was proved as Ext. P-3 and P-4. The order sheets of CS No.79/1 of 1982 were also made part of the record. On consideration of entire mater