HARJAS RAI MAKHIJA Vs. PUSHPARANI JAIN AND ANOTHER

JUDGEMENT

(1.) This appeal under Section 96 of the Code of Civil Procedure is against the Judgment and decree dated 28.9.2010, passed in regular Civil Suit No.471-A/2008 by the V Additional District Judge, Bhopal. The controversy in short involved can be summarised thus :-

(2.) It is the contention of learned counsel for the appellant that since it was specifically pleaded in the plaint that a fraud was played by the respondent No.1 knowing fully well that she has executed a Power of Attorney for sale of the suit property, in favour of the respondent No.2, her own brother as the respondent No.1 was residing at United State of America and was unable to come and lookafter the property at Bhopal in India, but this document was deliberately concealed and a bald statement was made that no such Power of Attorney was executed by the respondent No.1 in favour of the respondent No.2 and hence the claim was made in the suit aforesaid. Since now the Power of Attorney has come into the light and such a written document has been obtained by getting a certified copy from the public office of Bhopal Development Authority, such a fraud played by the respondent No.1 with the Court is apparent and, as such, the decree obtained by fraud is not binding on the appellant. Thus, it is categorically contended that the Court below was not right in holding that the appellant has failed to prove his case and has wrongly dismissed the suit of the appellant.

(3.) Per contra it is vehemently argued by learned Senior counsel for the respondent No.1 that there was no fraud played by the respondent No.1. If at all this was the defence or claim made by the appellant that the respondent No.2 was general Power of Attorney holder for the purposes of transfer of the suit land in favour of the appellant, it was the duty on the part of the appellant to place all such facts on record and to gather all the evidence at that time and put it for the trial. Having failed to do so and losing upto highest Court of the country, the appellant cannot be permitted to reagitate the issue before trial Court.