A.C. ANANTHASWAMY AND ORS. versus BORAIAH (D) BY LRS.

Citation: [2004] SUPP. 3 S.C.R. 649 · Decided: 20-08-2004 · Supreme Court of India · Bench: ASHOK BHAN · Disposal: Dismissed
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Judgment (excerpt)

A.C. ANANTHASWAMY AND ORS. 
A 
v. 
BORAIAH (D) BY LRS. 
AUGUST 20, 2004 
B 
[ASHOK BHAN AND S.H. KAPADIA, JJ.] 
Code of Civil Procedure, 1908 : 
S. 9, Or. 9, r. 13-Suit for setting aside ex-parte decree, alleging C 
fraud-Application under Order 9, r.13 filed earlier dismissed-Fraud 
neither alleged in the application nor in revision-Held, fraud is to be 
pleaded and proved-On facts, except a bare allegation there is no 
evidence of fraud and the matter being of non-service of summons, suit to 
set aside ex-parte decree on alleged ground of fraud not maintainable. 
Order Vl Rule 4-Fraud-Held, is to be pleaded and proved-An 
ambiguous statement cannot per se make the representor guilty of fraud. 
D 
Predecessor-in-interest of the appellants, having remained 
unsuccessful, upto revisional stage, in getting an ex-parte decree passed E 
against him set aside for non-service of summons, filed a suit under 
s.9 of the Code of Civil Procedure, 1908, for setting aside the said ex-
parte decree and for permanent injunction restraining the decree-
holder from executing the decree. It was contended that the ex-parte 
decree was obtained by practicing fraud and misrepresentation, as F 
proper name and address of the defendant were deliberately not given 
in the earlier suit. The suit was decreed by the trial court, but dismissed 
by the High Court. Aggrieved, the appellants filed the present appeal. 
Dismissing the appeal, the Court 
G 
HELD : Predecessor-in-interest of the appellants had earlier 
moved an application under Order 9, Rule 13 of the Code of Civil 
Procedure, 1908, for setting aside the exparte decree for non-service of 
summons, in which fraud was not alleged; nor was there any such 
allegation in the revision. Then, the suit was instituted to set aside the H 
649 
650 
SUPREME COURT REPORTS (2004) SUPP. 3 S.C.R. 
A ex-parte decree on the ground of fraud and misrepresentation. Fraud 
is to be pleaded and proved. To prove fraud, it must be proved that 
the representation made was false to the knowledge of the party 
making such representation or that the party could have no reasonable 
belief that it was true. The level of proof required in such cases is 
B extremely higher. An ambiguous statement cannot per se make the 
representor guilty of fraud. In the present case, except a bare allegation, 
there is no evidence of fraud. The present case being a matter of non-
service of summons, the suit to set aside the decree on alleged ground 
of fraud was not maintainable. (652-A-E] 
C 
Choksi Bhidarbhai Mathurbhai v. Purshottamdas Bhogilal Shah, 
D 
E 
F 
AIR (1962) Gujarat 10, approved. 
Pollock & Mu/la an Indian Contract & Specific Relief Acts, (2001) 
12th Edition page 489, referred to. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3768 of 
2000. 
From the Judgment and Order dated 17.12.98 of the Karnataka High 
Court in R.F.A. No. 358 of 1989. 
P. Krishnamoorthy, G.V. Chandrashekhar and P.P. Singh for the 
Appellant. 
R.S. Hegde. Chandra Prakash, Ms. Savitri Pandey and K.R. Nagaraja 
for the Respondents. 
The Judgment of the Court was delivered by 
KAPADIA, J. : This appeal by special leave is filed by the legal 
representatives of original plaintiff, Patel Chikkahanumaiah (since deceased), 
against the judgment and order dated 17 .12.1998 delivered by High Court 
G of Karnataka in Regular First Appeal No. 358 of 1989 whereby the High 
Court has dismissed the suit bearing no. O.S.4802/80 filed in the Court of 
Addi. City Civil Judge, Bangalore against Boraiah (since deceased). 
Respondents are the legal representatives of the said Boraiah. 
H 
The facts giving rise to this appeal are as follows:-
A.C. ANANTHASWAMY v. BORAIAH [KAPADIA, J.] 
651 
On 26.7.1974, the said Boraiah instituted suit bearing O.S. No. 648 A 
of 1974 for declaration and permanent injunction against Patel 
Chikkahanumaiah in the Court of Second Munsiff, Bangalore. 
On 
18.8.1975, the suit was decreed in favour ofBoraiah. It was an ex-parte 
decree. On 13 .6.1977, Patel Chikkahanumaiah applied for setting aside the 
ex-parte decree under Order 9 Rule 13 of Code of Civil Procedure on B 
account of non service of summons. Simultaneously, on the same day, he 
also preferred R.A. No. 54 of 1977 against the said ex-parte decree. On 
8.3.1978, R.A. No. 54 of 1977 was dismissed as time barred. 
In the 
meantime, Boraiah applied for execution vide Execution Case No. 441/77. 
On 12.1.1979, Patel Chikkahanumaiah instituted the present suit bearing C 
O.
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