Apex court digest - Jan.2017 [1]

suit for declaration and recovery of possession by Plaintiff  - declaration that the  agreement  for  sale  dated  16th  October,  1988  was without any authority given to Jinendra Jain.  She also made  a  prayer  for recovery of possession and grant of mesne profits since  possession  of  the
plot had been given by Jinendra Jain to Makhija. ; 
- as counter blast - 
Suit for specific performance by defendant -  for  specific  performance  of  the  agreement  dated  16th October, 1988 entered into by  him  with  Pushparani  through  her  attorney
Jinendra Jain.- The  original  of  this  document [power of attorney]  has  not  been produced by anybody. - trial court decreed the suit of plaintiff and dismissed the suit of the defendant; 
Pending appeal the defendant field filed  an application before the High Court under Order XLI Rule 27  of  the  Code  of Civil Procedure[1] (for short the CPC) for adducing additional evidence. - sought  to  bring  on   record   an application said to have been filed by Jinendra Jain with the BDA on  behalf of Pushparani as her attorney for the grant of a  No  Objection  Certificate
in respect of the suit property -the  High  Court  took  the  view  that  a photocopy produced before it was a photocopy  of  another  photocopy  (filed before the BDA) and as such it could not even  be  considered  as  secondary evidence.  Even otherwise, the  High  Court  concluded  that  there  was  no material to indicate that Jinendra Jain was  authorized  to  enter  into  an
agreement for sale the suit property on behalf of Pushparani.-S.L.P.(C) Nos.524-525 of 2003 which  came  to be  dismissed by this Court on 25th July, 2003.  The review petitions  filed
by Makhija also came to be dismissed by this Court on 9th September, 2003.- both suits results became final - the defendant filed another suit - by producing C.C.Copy of power of attorney - the very same photo copy of photo copy.-for a declaration  that  the  decree  dated  4th October, 1999 passed in favour of Pushparani was obtained  in  a  fraudulent manner and is void and not worthy of being executed and the same was dismissed -the appeal was  dismissed.  The  High Court took the view that the alleged Power of  Attorney  dated  30th  April, 1983 could not be accepted as a valid piece of documentary evidence being  a certified copy of a photocopied document.- Second Appeal alleging fraud played on court by concealing the power of attoreny - obtained decree in her favour - Apex court held that A  mere  concealment or non-disclosure without intent to deceive or a bald  allegation  of  fraud without proof and intent to deceive would not render a decree obtained by  a
party as fraudulent.  To conclude in a blanket manner  that  in  every  case where relevant facts  are  not  disclosed,  the  decree  obtained  would  be fraudulent, is stretching the principle to a vanishing point.-   Fraud not having been proved but merely alleged, we do  not  find  any reason to differ with the judgment and order passed by the  High  Court  and the Trial Court. - Appeal dismissed.

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