Allegations of fraud require clear evidence for a court to review prior orders; hypertechnical objections do not suffice to deny substantial rights in partition matters.

JUDGMENT

The writ petitioner is the 1st defendant in O.S.No.34 of 1999 on the file of the Principal Sub Court, Thiruvananthapuram. The said suit was filed by the respondent herein who is the sister of the petitioner seeking a partition and separate possession of her 1/5th right over one item of immovable property. The suit was listed for trial on 26.9.05. On that day since neither the plaintiff nor her counsel was present, the suit was dismissed for default. On the same day itself I.A.No.3519 of 2005 was filed under Order IX Rule 9 C.P.C and that petition was dismissed for default. The affidavit in support of the said petition was sworn to by Jerome Fernandez styling himself as the Power of Attorney holder of the plaintiff. Since the defendant could not be duly served after repeated summons, notice was eventually served by publication in the Kerala Kaumudi Daily. On getting knowledge about the filing of the restoration petition, the petitioner/1st defendant filed his objections to I.A.3519 of 2005. One of his objection was that the person who filed the affidavit in support of the I.A. 3519/2005 was not the power of attorney holder of the plaintiff who has permanently settled down in Canada. The petitioner also contended that the signature occurring in the affidavit was not that of Jerome Fernandez. On 2.6.07 Ext.P4 application was filed as I.A.2287 of 2007 by the plaintiff to delete the name of Jerome Fernandez as the Power of Attorney holder for the plaintiff. The affidavit in support of the petition was sworn to by none other than Jerome Fernandez, the Power of Attorney holder. On the same day itself Ext.P5 application was filed as I.A.2288 of 2007 by the new power of attorney holder for the plaintiff. The said petition is sworn to by one Captian Alexander Francis styling himself as the new power of attorney holder. Ext.P16 is the new Power of Attorney deed in favour of Captian Alexander Francis. The signature in both the affidavits in support of I.A.Nos.2287 and 2288 of 2007 appears to be that of the same person. On 7.08.07 the court below as per Ext.P7 common order, dismissed the said applications observing that a fraud was practiced in the court by Jerome Fernandez who had by the time left for U.S.A and observing that I.A.No.3519 of 2007 should be revived and appropriate orders should be passed. Subsequently on 5.6.07 the court below allowed

3519/2005 on payment of Rs.1,000/- as costs. The cost was paid and the suit was restored to file. Thereafter the petitioner/ 1st defendant filed I.A.No.5002 of 2007 requesting the court to take evidence of the plaintiff only after reviewing the order passed on I.A.No.3519 of 2005 and to take appropriate action against the plaintiff to the fraud and forgery committed by the plaintiff

2. The contention raised by the petitioner in the said I.A. is as follows:-

The court while passing the common order in I.A.Nos.2287 of

2007 and 2288 of 2007 had found that the plaintiff has obtained the order in I.A.No.3519 of 2005 by playing fraud on the court and that on 6.2.07 neither the plaintiff nor her power of attorney holder had represented the plaintiff in court as per rules and so I.A.No.3519 of 2005 is to be reviewed and appropriate orders are to be passed. The plaintiffs has not filed any appeal against that order. Hence, before taking evidence in this case I.A.No.3519 of 2005 has to be reviewed and appropriate action should be taken against the plaintiff under Section 344 Cr.P.C.

3. The court below as per Ext.P15 order dismissed the said application. It is the said order which is assailed in this writ petition.

4. The learned counsel for the petitioner reiterated the contentions of the petitioner and submitted that a person who had played fraud on the court should not be allowed to go scot free. It is contended that the intentment behind Ext.P2 order should be translated into action by reviewing the order passed on 3519 of

2005 by taking appropriate action against the plaintiff.

5. The court belo