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TMI Blog2002 (8) TMI 880X X X X Extracts X X X X X X X X Extracts X X X X ..... nfluence and coercion. 3. In the said IA, the wife appellant herein examined herself on oath as PWI. She examined six more witnesses on her behalf. She also filed documents Exs. A1 to A36. On behalf of respondent, he himself examined on oath as RW1 and he filed and proved certain documents and they were marked as Exs.B 1 to B4. On hearing the matter on merits, the learned Judge dismissed the said 1A on 14-3-2002 and therefore the wife-appellant herein has filed the present appeal. 4. The learned senior Counsel Mr. C. Pardhasarathy representing the wife-appellant herein submitted at the Bar that the learned Judge ought to have allowed the recall petition and he ought to have set aside the decree passed in OP No.259 of 1998. The learned senior Counsel further submitted that the husband-respondent herein has played fraud on the wife-appellant herein and therefore the decree can be set aside by invoking the inherent powers of the Court. 5. The learned senior Counsel Mr. C. Pardhasarathy appearing on behalf of the wife-appellant herein relied upon a ruling reported in Budhia Swain and Ors. v. Gopinath Deb and Ors., , in order to prove the fact that recall petition is maintainab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ured are the by-products of stark fraud played on a Tribunal, the plenary power conferred on the High Court by the Constitution may become a mirage and people's faith in the efficacy of the High Courts would corrode. We would have appreciated if the Tribunal or at least the High Court had considered the plea and found them unsustainble on merits, if they are meritless. But when the Courts pre-empted the Insurance Company by slamming the doors against them, this Court has to step in and salvage the situation. 7. The learned senior Counsel further relied upon a ruling reported in Roshan Deen v. Preeti Lal, 2002 I CLT (SC) 1. At para 18 their Lordships were pleased to observe as follows: Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No Court or Tribunal can be regarded as powerless to recall its own order if it is convinced that the order. was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim. 8. Further reliance was kept by the learned senior Counsel in a ruling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the only remedy of the party is to institute a suit to set aside the decree on the ground of fraud. In other words, the factum of the consent can be investigated in summary proceedings, but the reality of the consent cannot be so investigated. In Hakimair v. Basdeo Sahi (1911) 17 Cal. WN 631) it was held by Mookerjee and Caspers JJ. That where an order is obtained from the Court on the allegation that both parties had assented to it and it is asserted by one of the parties that he never consented to the order in question, it is open to the Court to review the order and recall it. In the case of Peaty Choudhary v. Sonoo Das (1914) 19 Cal WN 419) it was held by Chatterjee and Greaves JJ. That, it is the inherent powers of every Court to correct its own proceedings when it has been misled and that it has complete jurisdiction to recall the order on being apprised of the true facts.............Though no doubt in (Maimum Nisa v. Mohammad Khodabin), it has been held that an application under Section 151 CPC is maintainable to set aside a consent decree obtained by practice of fraud on a party, the case turned on its peculiar facts upon a consideration of which it was held: ........ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court that the appellants-defendants could have easily produced the certified registered copy of Exhibit B15 and non-suited the plaintiff. A litigant, who approaches the Court, is bound to produce all the documents executed by him, which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side than he would be guilty of playing fraud on the Court as well as on the opposite party. 11. While rebutting the aforesaid arguments of the learned senior Counsel Mr. C. Pardhasarathy, the learned Counsel Mr. Vilas V. Afzulpurkar appearing on behalf of the husband-respondent herein relied upon a ruling reported in G.K. Prabhakaran and Company, Irinjalakuda v. David Traders, Trichur, AIR 1973 Kerala 1. It is a judgment of Full Bench. In para 3 of the judgment their Lordships were pleased to hold as under: 3. No party has a right to insist on the Court exercising its inherent jurisdiction. This jurisdiction is to be exercised by the Court in very exceptional circumstances for which the Code lays down no procedure. The Legislature has made detailed provisions in the Code for various matters. If there are express provisions i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt was fully justified in negativing the plea of fraud and in decreeing the suit of the plaintiff. 14. Further reliance was kept by the learned Counsel Mr. Vilas V. Afzulpurkar, on a ruling reported in Krishan Lal v. Gulab Ram, . His Lordship in his judgment in para 6 at the end and also at para 7 was pleased to hold as under: 6................. It is welt settled that if one of the parties to a litigation obtains a favourable order from the Court on the basis of a compromise, which is alleged by the other party to have been obtained by fraud, the wronged party can seek redress by instituting a suit, ................. 7. In the above view, I am fortified by a Division Bench judgment of Patna High Court in Chutur Prasad Sah v. Mt. Bishuni Kuer, AIR 1943 Pat. 13 wherein it was observed that there is a distinction between a fraud practised upon a party and a fraud practised upon the Court. A Court is not competent either in review or under its inherent power to set aside a compromise decree on the ground that the consent of the parties to the compromise was obtained by fraud. The only remedy of the injured party is to institute a suit to set aside the decree on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hyderabad on 14-6-1994. About 15 days prior to the marriage, there were marriage talks between her parents and the parents of the husband-respondent herein. The husband-respondent herein demanded rupees three lakhs towards dowry. But the parents of the wife-appellant herein expressed their inability to meet the huge demand of three lakhs. They promised to give some amount in cash and some in kind and the marriage was solemnised. According to the version of the wife-appellant herein, 2 or 3 moths after the delivery, the husband-respondent herein demanded ₹ 25 lakhs from her parents for his business. The wife-appellant herein was sent to her parents' house to bring money. Thereafter the mediations took place and the wife-appellant herein was taken to the house of the husband-respondent herein. She lived in the matrimonial house for three years till January, 1999 at Alliance house . Then they were shifted to the house at West Marredpally. According to her version she went to Lathur along with her husband to attend the marriage of wife's uncle's daughter named 'Rama. Videos and photos were taken. With this part of evidence, the learned senior Counsel Mr. C Pardha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence. Even on that occasion she did not speak to any one regarding the threat and coercion given by the husband-respondent herein to sign the joint petition for divorce. She had also admitted that she attended several marriages of her relatives after she filed the joint petition in the Court but she did not inform to any one that her signature was obtained forcibly. She also stated in her evidence that her own brother is an advocate by profession, inspite of this position, she did not inform even to her brother that she was forcibly made to sign the joint petition under Section 13(b) of the Hindu Marriage Act. 22. As stated earlier, the evidence of the other witnesses were also led by the wife-appellant herein on her behalf. Their evidence is of no much significance in deciding the issue in question. 23. By looking to that conduct of the wife-appellant herein, we are of the considered view that the theory put forward by the wife-appellant herein that she was made to sign the joint petition under coercion and threat is a totally concocted story. Therefore, on facts also we are of the considered view that the wife-appellant herein was not able to prove the fact that the hu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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