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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.11491 OF 2016

HARJAS RAI MAKHIJA (D) THR. LRS.                                  ...APPELLANTS

VS.

PUSHPARANI JAIN & ANR.        …RESPONDENTS

J U D G M E N T

MADAN B. LOKUR,  J.  

1. The appellant (Harjas Rai Makhija represented by his legal representatives)

is aggrieved by the judgment and order dated 3rd April, 2012 passed by the High

Court of Madhya Pradesh at Jabalpur in FA No.961 of 2010 whereby his appeal

has been dismissed with costs of Rs.25,000/-.

2. Respondent No.1, Pushparani Jain (Pushparani) was allotted Plot No.251 in

Major Shopping Centre Zone - II, Habibganj, Bhopal under Scheme No.13 of the

Bhopal Development Authority (for short BDA).  Since she was a resident of the

United States of America and had some difficulty in completing the formalities

with  regard  to  the  allotment,  she  appointed  her  brother  Jinendra  Jain  as  her

attorney on or about 28th August,  1981.  This was communicated by her to the

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Chairman of the BDA by a letter of the same date.

3. On the basis of the communication sent by Pushparani to the BDA, and on

the basis of the Power of Attorney given by her to Jinendra Jain, she was able to

obtain possession of the plot allotted to her and complete the necessary formalities.

4. According to the appellant Harjas Rai Makhija (Makhija), another Power of

Attorney  had  been  executed  by  Pushparani  on  30th April,  1983  in  favour  of

Jinendra Jain.  The original of this document has not been produced by anybody.

Be that as it may, on the basis of the alleged Power of Attorney dated 30th April,

1983, an agreement was entered into between Jinendra Jain and Makhija on 16th

October, 1988 to sell the plot allotted to Pushparani in favour of Makhija. In terms

of the agreement, the sale deed was to be executed on or before 30th April, 1989.

5. When Pushparani came to know about the agreement for sale in respect of

the plot allotted to her, she filed a civil suit before the District Judge, Bhopal and

that suit subsequently came to be numbered as Suit No. 51-A of 1999.  The prayer

made by Pushparani in the plaint was for a declaration that the agreement for sale

dated 16th October, 1988 was without any authority given to Jinendra Jain.  She

also made a prayer for recovery of possession and grant of mesne profits since

possession of the plot had been given by Jinendra Jain to Makhija.

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6. Makhija also filed a civil suit before the District Judge which subsequently

came to be numbered as Suit No.52-A of 1999.  The prayer made by Makhija was

for specific performance of the agreement dated 16th October, 1988 entered into by

him with Pushparani through her attorney Jinendra Jain.

7. Both the suits one filed by Pushparani and the other by Makhija were taken

up and heard together.  By a judgment and decree dated 4th October, 1999 the suit

filed by Pushparani was decreed with the result that the agreement for sale dated

16th October, 1988 was declared to be illegal.  It was also decreed that Makhija

shall  handover  possession  of  the  suit  property  to  Pushparani  and  pay  monthly

compensation of Rs.5,000/- per month.  The suit filed by Makhija was dismissed.

8. Feeling aggrieved by the result of the two suits mentioned above, Makhija

preferred two appeals before the High Court being F.A. No. 607 of 1999 and F.A.

No.638 of 1999 challenging the decree granted in favour of Pushparani and the

dismissal of his suit.

9. During the pendency of the aforesaid appeals, Makhija filed an application

before the High Court under Order XLI Rule 27 of the Code of Civil Procedure1

1  Order XLI Rule 27. -  Production of additional evidence in Appellate Court. - (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if –

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or   

(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or C.A. No. 11491/2016                                                                                                      Page 3 of 10

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(for short the CPC) for adducing additional evidence. By virtue of this application,

Makhija  sought  to  bring  on  record  an  application  said  to  have  been  filed  by

Jinendra Jain with the BDA on behalf of Pushparani as her attorney for the grant of

a  No  Objection  Certificate  in  respect  of  the  suit  property.   According  to  the

averment made in the application, Jinendra Jain had moved the application before

the BDA on 1st June, 1983.

10. By  a  judgment  and  order  dated  13th September,  2002  the  High  Court

dismissed both the appeals filed by Makhija as well as the application under Order

XLI  Rule 27 of the CPC.  While dismissing the appeals and the application, the

High Court held that no document was produced before the Trial Court to establish

that Pushparani had executed a Power of Attorney in favour of Jinendra Jain on

30th April, 1983.  The High Court also noted that according to Makhija what was

produced before the BDA as the Power of Attorney dated 30th April, 1983 was in

fact a photocopy of the alleged Power of Attorney.  Therefore, the High Court took

the  view  that  a  photocopy  produced  before  it  was  a  photocopy  of  another

photocopy (filed before the BDA) and as such it could not even be considered as

(b)  the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,  the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2)  Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.

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secondary evidence.  Even otherwise, the High Court concluded that there was no

material to indicate that Jinendra Jain was authorized to enter into an agreement for

sale the suit property on behalf of Pushparani.  

11. Feeling aggrieved by the dismissal of the appeals as well as the application,

Makhija preferred S.L.P.(C) Nos.524-525 of 2003 which came to be  dismissed by

this Court on 25th July, 2003.  The review petitions filed by Makhija also came to

be dismissed by this Court on 9th September, 2003.

12. Notwithstanding the dismissal  of  Makhija’s case,  he was unrelenting and

filed yet another suit before the Additional District Judge, Bhopal which came to

be numbered as Suit No.471-A of 2008.  In this suit, he produced a certified copy

of the Power of Attorney dated 30th April, 1983 allegedly filed by Jinendra Jain

before  the  BDA.  The  prayer  made  in  the  plaint  filed  by  Makhija  was  for  a

declaration that the decree dated 4th October, 1999 passed in favour of Pushparani

was obtained in a fraudulent manner and is void and not worthy of being executed.

This suit came to be dismissed by the Additional District Judge by the judgment

and decree dated 28th September, 2010.

13. Feeling  aggrieved  by  the  dismissal  of  the  suit  filed  by  him,  Makhija

preferred FA No. 961 of 2010 in the High Court of Madhya Pradesh.  The appeal

was taken up for consideration by the High Court and by judgment and order dated

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3rd April,  2012 (impugned) the appeal was dismissed. The High Court took the

view  that  the  alleged  Power  of  Attorney  dated  30th April,  1983  could  not  be

accepted as a valid piece of  documentary evidence being a certified copy of a

photocopied document. It was also held that Makhija had an opportunity to raise

the same issue when the application for leading additional evidence was filed but

did not do so and cannot have a second shot for the same purpose.  The allegation

of fraud leveled by Makhija was not accepted by the High Court.

14. Learned counsel for Makhija raised quite a few submissions before us but in

our opinion, the present appeal deserves to be dismissed on the ground that no

fraud has been alleged in the plaint filed by Makhija or found in respect of the

decree dated 4th October, 1999.

15. There is no doubt that a decree was passed in favour of Pushparani by the

District Judge on 4th October, 1999 after a full-fledged trial and that decree was

upheld not  only by the High Court  but  also  by this  Court.   Makhija  made an

application before the High Court to produce additional evidence to suggest that

the agreement for sale entered into by him with Pushparani through her attorney

Jinendra  Jain  on  16th October,  1988  was  genuine  and  based  on  the  Power  of

Attorney given by her to Jinendra Jain on 30th April,  1983.  Not only was the

application for bringing on record additional evidence dismissed by the High Court

but the decree dismissing the suit for specific performance of the agreement for C.A. No. 11491/2016                                                                                                      Page 6 of 10

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sale  filed by Makhija was dismissed by the High Court.  That dismissal attained

finality  when  the  petitions  for  special  leave  to  appeal  filed  by  Makhija  were

dismissed by this Court.

16. It is significant to note that Makhija has not sought (and indeed could not

seek) to reopen the proceedings pertaining to the dismissal of his suit for specific

performance.  As  such,  as  mentioned  above,  the  decree  dismissing  his  suit  for

specific performance of the agreement dated 16th October, 1988 has become final.

Therefore, under no circumstances can Makhija now collaterally pray for a decree

of specific performance in respect of that agreement.

17. Through a collateral attack, Makhija has now sought to deprive Pushparani

of her allotment of the suit property by alleging that she had concealed the Power

of Attorney executed by her in favour of Jinendra Jain on 30th April, 1983 and had

thereby committed a fraud on the courts.

18. We have been taken through the plaint filed by Makhija in Suit No. 471-A of

2008 and find that he has nowhere made any specific allegation of a fraud having

been played by Pushparani on the Trial Court while obtaining the decree dated 4th

October, 1999.

19. During the course of submissions, it was contended on behalf of Makhija

that it is a settled proposition of law that a decree obtained by playing fraud on the C.A. No. 11491/2016                                                                                                      Page 7 of 10

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court is a nullity and that such a decree could be challenged at any time in any

proceedings.  Reliance was placed on A.V. Papayya Sastry v. Government of A.P.2

This proposition is certainly not in dispute.   

20. Learned counsel also placed reliance on Union of India v. Ramesh Gandhi3

which reads as under:-

“27.  If a judgment obtained by playing fraud on the court is a nullity and is to be treated as  non est  by every court, superior or inferior, it would be strange logic to hear that an enquiry into the question whether a judgment was  secured  by  playing  fraud  on  the  court  by  not  disclosing  the necessary facts relevant for the adjudication of the controversy before the court is impermissible. From the above judgments, it is clear that such an examination is permissible. Such a principle is required to be applied with greater emphasis in the realm of public law jurisdiction as the mischief resulting from such fraud has larger dimension affecting the larger public interest.” (Emphasis supplied by us).

21. We agree  that  when there  is  an  allegation  of  fraud by non-disclosure  of

necessary and relevant facts or concealment of material facts, it must be inquired

into. It is only after evidence is led coupled with intent to deceive that a conclusion

of fraud could be arrived at. A mere concealment or non-disclosure without intent

to deceive or a bald allegation of fraud without proof and intent to deceive would

not render a decree obtained by a party as fraudulent.  To conclude in a blanket

manner  that  in  every  case  where  relevant  facts  are  not  disclosed,  the  decree

obtained would be fraudulent, is stretching the principle to a vanishing point.

2 (2007) 4 SCC 221 3 (2012) 1 SCC 476 C.A. No. 11491/2016                                                                                                      Page 8 of 10

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22. What is fraud has been adequately discussed in  Meghmala & Ors.  v. G.

Narasimha Reddy & Ors.4  Unfortunately, this decision does not refer to earlier

decisions where also there is an equally elaborate discussion on fraud.  These two

decisions  are  Bhaurao  Dagdu Paralkar  v. State  of  Maharashtra  & Ors.5 and

State of Orissa & Ors. v. Harapriya Bisoi.6   In view of the elaborate discussion in

these and several other cases which have been referred to in these decisions, it is

clear that fraud has a definite meaning in law and it must be proved and not merely

alleged and inferred.   

23. In so far as the present appeal is concerned, there is no doubt that Makhija

had an opportunity to prove the allegation of fraud when he filed an application

under Order XLI Rule 27 of the CPC.  However, he missed that opportunity right

up to this court.  Makhija took a second shot at alleging fraud and filing another

suit against Pushparani.  However, the evidence that he relied upon was very thin

and could not even be considered as secondary evidence.   Accordingly both the

Trial  Court  as  well  as  the  High  Court  rejected  the  allegation  of  fraud  by  not

accepting  the  evidence  put  forward  by  Makhija  to  allege  that  fraud  had  been

committed by Pushparani when she obtained the decree dated 4th October, 1999.   

4 (2010) 8 SCC 383 (paragraphs 28 to 36) 5 (2005) 7 SCC 605 6 (2009) 12 SCC 378 C.A. No. 11491/2016                                                                                                      Page 9 of 10

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24. Fraud not having been proved but merely alleged, we do not find any reason

to differ with the judgment and order passed by the High Court and the Trial Court.

25. The appeal is dismissed with costs quantified at Rs.50,000/-.

..……………………………..J             (Madan B. Lokur )

    ………………………………J            (Adarsh Kumar Goel )

New Delhi; January 2, 2017

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