MAJOR K. MATHEWS Vs. K.O. GEORGE

JUDGEMENT

(1.) THE suit for cancelling a joint will was dismissed for default after the third defendant was examined as DW1. The dismissal of the suit was challenged in appeal in A.S No. 100/2003 and further in an original petition. The appellate court as well as this Court held that the remedy, if any, of the plaintiff is to invoke Order IX Rule 9 of the Code of Civil Procedure for restoration of the suit. The third defendant/petitioner has a contention that the signature of the plaintiff in A.S No. 100/2003 is forged. The third defendant therefore filed an application to scrap further proceedings on the ground of fraud relying on Hamsa Haji Vs. State of Kerala ((2005) 7 SCC 605). The court below has by the order impugned held that it requires evidence to hold that the entire proceedings are vitiated by fraud as alleged by the third defendant.

(2.) THE relevant part of the order impugned reads thus: