SUNEHRI DEVI Vs. PRITAM SINGH

JUDGEMENT

(1.) THIS is plaintiff's appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity 'the Code'), challenging the view taken by the learned Lower Appellate Court holding that the consent decree dated 18.4.1988 suffered by her, had not been procured by fraud. The trial Court on the aforementioned issue has also recorded identical findings and to the extent of issue of fraud, the findings are concurrent by both the Courts. It has been held by both the Courts below that there was no evidence on the file to prove that the plaintiff-appellant Smt. Sunheri Devi did not appear in the Court or she had not thumb marked the written statement or the other documents which resulted into passing of consent decree. The learned Lower Appellate Court has rightly placed reliance on a judgment of Supreme Court in the case of Union of India v. Chatarbhai M. Patel & Company, 1976(1) SCC 747, wherein it has been held that any plea of fraud either in civil or in criminal proceedings must be established like any other charge beyond a reasonable doubt. It has also been held that suspicion cannot even take the place of proof. Same view has been taken by the Supreme Court in the case of Kale v. Dy. Director Consolidation, (1976)3 SCC 119.

(2.) THE plea of the plaintiff-appellant that she did not ever appear before the trial Court to suffer the consent decree dated 18.4.1988 has been rejected by both the Courts below. Both the Courts below have discarded the opinions of the Handwriting Experts produced by the respective parties because the Experts have deposed in support of the cases of their respective parties and have submitted contradictory reports. In such a situation the Courts below have to fall back upon the other evidence available on record. The plea of fraud raised by the plaintiff-appellant has been repelled by the statement made by Sh. Sahab Singh Saini, Advocate District Court, Kurukshetra, who has appeared as DW-3 and has categorically stated about drafting of written statement on behalf of the plaintiff-appellant. He has also identified the thumb impression on the written statement as well as on the power of attorney. He went on the depose that plaintiff-appellant Sunheri Devi and others had appeared in the Court to make a statement and they had affixed their thumb impressions on those statements, recorded in the Court. It is also pertinent to mention that even otherwise, under Section 80 of the Evidence Act, 1872 there is presumption in favour of any part of the evidence given by a witness in a judicial proceeding. Therefore, the ground of fraud has been rightly repelled by both the Courts below.

(3.) THE learned Lower Appellate Court, placing reliance on a judgment of Supreme Court in the case of Kale and others (supra) has emphasized the object of family settlement. The observation of the Supreme Court in Kale's case (supra) reads as under :-