JUDGMENT: An ex parte decree in a suit for specific performance is sought to be set aside in a subsequent suit on the ground that the ex parte decree was obtained by playing fraud upon the Court. 2. The appellant claimed that he had entered into an agreement for sale with the father of the respondent. The notice issued by the appellant herein prior to filing the suit was returned unserved. Then he filed O.S. No.486 of 1980 for specific performance. The suit summons returned unserved. Substituted service was effected. Thereafter, an ex parte decree was passed by the Court. This was in 1981. Even in the execution proceedings notice was not received by the judgment debtor. Thereafter the Court executed the sale deed on 7.4.1983. So through out there is no proof that the father of the respondent herein was aware of the suit notice, the initiation of the suit or its culmination or the execution proceedings. It appears that in 1984, the appellant armed by the sale deed in his favour came to take possession of the suit properties, only then the respondent came to know of the decree and therefore, O.S. No.183 of 1984 was filed by him represented by his mother for cancellation of the decree in O.S. No.486 of 1980 and for possession. The suit was decreed and the present appeal has been filed. 3. The learned senior counsel appearing for the appellant submitted that when the respondent himself claims that the suit property was his father’s own property and when there is no averment that it was ancestral property in which he has a share the respondent has no cause of action to base his suit on. To cancel a decree on the ground that it was a product of fraud, it must be proved. According to the learned senior counsel there is no evidence of fraud. It was submitted that the fact that a decree was obtained ex parte cannot mean that it is a fraudulent decree. The appellant had done everything within his power to serve notice on the respondent’s father and thereafter, the Court was satisfied that substituted service was the only course and only then after complying with the provisions laid down by the Civil Procedure Code for service of notice the defendant had been set ex parte and a decree was obtained. There is no question of fraud. There is no question of fraud. Further, he would submit that when the respondent’s father is not proved to be dead, the respondent’s father is not proved to be dead, the respondent cannot claim any right in the property nor seek any relief. 4.Rangasami Reddi v. Gopalaswamy Reddiar, (1978)2 M.L.J. 564 : 1978 T.L.N.J. 209 was relied on where a Division Bench had held that when allegation is made that a person was of unsound mind on the date of execution of document, the burden of proof is on the party so alleging to prove the same. This was relied on to show that when the agreement was attacked as having been executed by the respondent’s father while of unsound mind, such an attack cannot be countenanced in the absence of proof that the respondent’s father was not mentally capable of entering into a contact. Padmavathi v. State of Tamil Nadu, (1997)2 L.W. 579 and Jawajee Nagnathan v. Revenue Divisional Officer, (1994)4 S.C.C. 595 were also relied on. 5. Mr.S.V. Jayaraman, learned senior counsel for the respondent would confine his argument to the question of fraud. He relied on S.P.Chengalvaraya Naidu v. Jagannath, A.I.R. 1994 S.C. 853, where the Supreme Court held that fraud avoids all judicial acts and that a decree obtained by playing fraud on the Court is a nullity and non-est in the eyes of law and it was held as follows: “We do not agree with the High Court that” there is no legal duty cast upon the plaintiff to come to Court with a true case and prove it by true evidence“. The principle of” finality of litigation “ cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. We are constrained to say that more often than not, process of the Court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the Court process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation.” 6. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the Court process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation.” 6. According to the learned senior counsel a suit was filed knowingly and deliberately to obtain a decree for specific performance in respect of a valuable immovable property belonging to a person whose whereabouts were unknown as on that date. It was submitted that the total picture that emerges was such that it would stir the conscience of the Court. 7. There is something not quite above board in this case. But chimeras of suspicion cannot take the place of concrete evidence. The question whether the respondent’s father was of unsound mind is not really relevant to this case. Had a challenge been made on that ground in an appeal against the earlier decree, the question might have been different. The respondent claims that his father disappeared in 1980 and has not been seen since. It was reported across the Bar that even today his whereabouts are not known. But the pleadings do not show that the respondent has filed the suit as the legal representative of his father. For one thing he cannot do so because seven years had not lapsed from the date of the alleged disappearance and the date of filing of suit so the presumption of death did not arise. 8. The judgment in the earlier suit was produced before the Court. According to the plaint the agreement was on 12.9.1977 and 12.10.1977. An advance was paid and the agreement was that the sale deed should be executed within 11.6.1978. According to the appellant he gave the respondent time to execute the sale deed. Several extensions were granted until 28.8.1980. Thereafter a notice was issued calling upon the respondent to perform his contract and the suit was filed. Apart from stating that the appellant had played a fraud and maneuvered the Court to get an ex parte decree not much has been elicited in the evidence to prove it. In the chief examination the appellant has stated that the respondent’s father was in town on the relevant date and he deliberately refused to receive it. Apart from stating that the appellant had played a fraud and maneuvered the Court to get an ex parte decree not much has been elicited in the evidence to prove it. In the chief examination the appellant has stated that the respondent’s father was in town on the relevant date and he deliberately refused to receive it. In the cross-examination he has stated as follows: This was pointed out to show that a decree for specific performance had been obtained without even issuing a notice. It is true that the cross-examination is to this effect. The judgment however, shows that Ex.A-3 dated 19.8.1980 was marked which is the office copy of the registered notice and Ex.A-4 the returned registered cover. So we have to take it that notice had been sent before the suit. Yet, there cannot be any gainsaying the fact that in a small community the disappearance of a person will be well known to everyone. Therefore, one cannot rule out the possibility that the appellant knew that the respondents father was missing and set about to issue a notice which he ws sure would return unserved; plead that payments were made towards agreement; that extension of time was given so on and so worth; comfortable in the thought that there would be no resistance to his claim, a suit was filed and a decree was obtained. 9. But a judgment cannot rest on suspicion. The respondent as D.W.1 had stated that no police complaint was given about the disappearance of her husband. Had some material been produced before the Court to show that the disappearance of the respondent’s father was public knowledge and that the appellant also knew about it and had then filed the suit, there would be no difficulty in coming to the conclusion of fraud. A paper publication or the examination of another witness to show that the appellant fully knowing the respondent’s father’s disappearance had filed the suit would have strengthened the case of the respondents. A party who comes to Court alleging fraud has to prove it. The respondent has not done so and apart from a feeling of disquiet that this may be a case of property grabbing the Court has little else to go upon. The conscience is stirred sufficient to doubt the appellant, but not sufficient to decree the suit. A party who comes to Court alleging fraud has to prove it. The respondent has not done so and apart from a feeling of disquiet that this may be a case of property grabbing the Court has little else to go upon. The conscience is stirred sufficient to doubt the appellant, but not sufficient to decree the suit. Once the issue of fraud is answered against the respondent the prayer for cancellation of decree cannot be granted. 10. In addition of course, so long as there is no proof that the respondent’s father is dead or without a declaration to that effect the respondent cannot claim any right to the property since it is his father’s individual property and not an ancestral one. 11. For the above reasons the judgment and decree of the trial Court is set aside. The appeal is allowed. No costs.