JUDGMENT : Jyotsna Rewal Dua, J. The case:- Present appellants are successors of Sukh Ram-the original plaintiff in the civil suit, whereas respondents are successors of Jagat Ram-the original defendant in the suit. The defendant/Jagat Ram had earlier instituted Civil Suit No.79/1 of 1982 against the plaintiff/Sukh Ram. Sukh Ram was proceeded ex parte in that civil suit on 23.06.1983. Ex parte judgment and decree was passed against Sukh Ram on 01.12.1984 whereby Jagat Ram (plaintiff in that suit) was declared to have become owner of the suit land by virtue of adverse possession. About a month later i.e. on 18.01.1985, Sukh Ram instituted instant suit against Jagat Ram for declaration that the ex parte decree passed in favour of defendant/Jagat Ram on 01.12.1984 has no effect on plaintiff’s right; order dated 23.06.1983 by which the plaintiff was proceeded ex parte be declared as null and void, having been obtained by the defendant fraudulently. The suit instituted by the plaintiff bearing No. 54/1 of 2007/85 was dismissed by the learned Trial Court on 30.07.2007. Plaintiff’s appeal against this judgment and decree was also dismissed by the learned First Appellate Court on 31.07.2008, hence, instant regular second appeal has been preferred by him. 2. Facts 2(i) Plaintiff instituted civil suit for declaration that:- (i) ex parte judgment and decree dated 01.12.1984 passed in favour of the defendant/Jagat Ram pertaining to suit land measuring 11.11 bighas comprised in Khasra Nos. 41,42,56,74,130,131,144,145, Khata Khatoni No. 38/70 in Village Bhanjwani, Pargana Gehrwin, Teshil Ghumarwin, District Bilaspur, Himachal Pradesh has no effect on his right, title and interest. (ii) in alternative for declaration that order dated 23.06.1983 passed in Civil Suit No. 79/1 of 1982 vide which plaintiff was proceeded ex parte be declared as illegal, same having been procured fraudulently. The relief was claimed by the plaintiff on the basis of following pleadings:- 2(i) (a) In the suit instituted by the defendant/Jagat Ram (Civil Suit No.79/1 of 1982), plaintiff was served and he appeared in person on 31.05.1982. Afterwards, the Presiding Officer of the concerned Court was transferred. The plaintiff was given to understand that he would be informed about the next date of listing of the case through summon. Plaintiff never received any summon thereafter. He was never served for 23.06.1983 when order was passed in the civil suit by the learned Trial Court for proceeding ex parte against him. The plaintiff was given to understand that he would be informed about the next date of listing of the case through summon. Plaintiff never received any summon thereafter. He was never served for 23.06.1983 when order was passed in the civil suit by the learned Trial Court for proceeding ex parte against him. 2(i)(b) The ex parte order dated 23.06.1983 is the basis for passing ex parte decree dated 01.12.1984 against the plaintiff. Since the plaintiff had never been served for appearing in the civil suit on 23.06.1983, therefore, the order dated 23.06.1983 and ex parte decree dated 01.12.1984 both were illegal. 2(i)(c) The cause of action was pleaded to have arisen in favour of the plaintiff on 01.12.1984 i.e. the date of the passing of the ex parte judgment and decree as also on 15.01.1985 when the defendant/Jagat Ram had allegedly given threat to the plaintiff for taking forcible possession of the suit land. 2(ii) The defendant/Jagat Ram in his written statement stated that plaintiff was duly served for 23.06.1983. The order dated 23.06.1983 was passed in accordance with law. An objection was also taken of civil suit being barred by limitation. 2(iii) The parties led evidence in support of their respective contentions. Plaintiff appeared in the witness box as PW-1. One Banwari Lal the Civil Ahlmad of the concerned Court at Ghumarwin deposed as PW-2. Defendant/Jagat Ram deposed as DW-1. The orders dated 30.04.1983 and 23.06.1983 passed in Civil Suit No.79/1 of 1982, (whereby the plaintiff was proceeded ex parte) were proved on record as Ext.P-1 and P-2 respectively. The ex parte judgment and decree dated 01.12.1984 in CS No.79/1 of 1982 was proved as Ext. P-3 and P-4. The order sheets of CS No.79/1 of 1982 were also made part of the record. On consideration of entire material, learned Trial Court decreed the suit on 29.06.1987. 2(iv) Defendant/Jagat Ram agitated against this judgment and decree by filing an appeal before the learned First Appellate Court. During the pendency of the civil appeal, the plaintiff also moved an application for amendment of the plaint. The plaintiff sought to incorporate pleadings of fraud in the civil suit. In fact, plaintiff prayed for adding few words in the plaint to give the texture of fraud to the genesis of ex parte order dated 23.06.1983 by seeking to add the word ‘fraud’ in the already existing pleadings. The plaintiff sought to incorporate pleadings of fraud in the civil suit. In fact, plaintiff prayed for adding few words in the plaint to give the texture of fraud to the genesis of ex parte order dated 23.06.1983 by seeking to add the word ‘fraud’ in the already existing pleadings. Learned First Appellate Court reversed the judgment and decree rendered by the Trial Court in favour of plaintiff. Consequently the appeal preferred by the defendant/Jagat Ram was allowed. Application for amendment moved by the plaintiff was also dismissed. 2(v) Plaintiff preferred Regular Second Appeal No.125/A of 1995 before this Court. His appeal was allowed on 19.03.2007. It was held therein that the learned First Appellate Court was not correct in dismissing the application under Order 6 Rule 17 CPC for amendment of the plaint. It was further observed that the record already established that no process fee was filed and the defendant had obtained ex parte decree; In the given facts, amendment should have been allowed. The judgment and decree passed by the learned First Appellate Court was accordingly set aside and the matter was remanded to the learned Trial Court with the direction to take amended plaint on record and to frame an issue on the ground incorporated by the plaintiff with regard to legality of the decree passed against him after giving opportunity of filing written statement to the defendant for contesting the claim of the plaintiff. Both the parties were to be given an opportunity to lead evidence on the fresh issue to be framed on the basis of amended plaint. Pursuant to aforesaid decision of RSA No.125-A/1995, the amended plaint was filed on 17.03.1994. The pleading in the plaint more or less remained the same, however, some particulars regarding decree having been obtained fraudulently were incorporated by the plaintiff. Gist of the amended written statement filed by the defendant also remained the same. No further evidence was led by the parties. 2(vi) In the second round, learned Trial Court vide its judgment and decree dated 30.07.2007 dismissed the civil suit primarily holding that the plaintiff did not avail the remedy which he should have availed in law. The remedy of instituting civil suit questioning the validity of judgment and decree passed in favour of the defendant on plea of fraud, availed by the plaintiff was held to be misconceived in the given facts of the case. The remedy of instituting civil suit questioning the validity of judgment and decree passed in favour of the defendant on plea of fraud, availed by the plaintiff was held to be misconceived in the given facts of the case. The fraud alleged by the plaintiff on part of the defendant was held not proved on record, hence the suit was dismissed. This judgment and decree has been affirmed by the learned First Appellate Court on 31.07.2008. In the above factual background, the plaintiff has instituted the present regular second appeal. 3. This appeal was admitted on 29.04.2009 on following substantial questions of law:- “1. Whether the findings of the court below are perverse, based on misreading of oral and documentary evidence and drawing wrong inferences from the facts proved, particularly, the documents Ext. P-1 to Ext.P-5 and Ext. DW-1/A which has vitiated the findings? 2. Whether Ext. P-1 to Ext. P-5 and Ext. DW-1/A clearly demonstrates that the appellant had not been proceeded ex parte and ex parte decree was obtained by misrepresentation and fraud and the suit was liable to be decreed when the plaintiff had not filed process fees for the service of the plaintiff and the assumption that the plaintiff has been served could be drawn in the facts and circumstances of the case? 3. Whether the suit of the plaintiff was within limitation from the date of discovery of fraud by obtaining ex parte decree and was maintainable?” 4. I have heard Sh. K.D. Sood, learned Senior Counsel for the appellants/plaintiff & Sh. Praneet Gupta, learned counsel for the respondents/defendants on the above substantial questions of law. My observations viz-a-viz the contentions raised by learned counsel for the parties are as under:- Substantial question of Law Nos.1 & 2. 4(i) Learned counsel for the defendant/Jagat Ram placing reliance upon 2008 (15) SCC 673 (Ranganayakamma & Anr. Vs K.S. Prakash (Dead) by LRs. & Ors.) submitted that when a fraud is alleged, particulars thereof are required to be pleaded. In the instant case, no particular of alleged fraud/misrepresentation has been disclosed. Only a general and vague plea of fraud has been taken. (2004) 8 SCC 588 (A.C. Ananthaswamy & Ors. Vs. Boraiah (Dead) by Lrs. was pressed into service to contend that fraud is not only required to be pleaded but to be proved as well. In the instant case, no particular of alleged fraud/misrepresentation has been disclosed. Only a general and vague plea of fraud has been taken. (2004) 8 SCC 588 (A.C. Ananthaswamy & Ors. Vs. Boraiah (Dead) by Lrs. was pressed into service to contend that fraud is not only required to be pleaded but to be proved as well. To prove fraud, it must be proved that representation made was false to the knowledge of the party making such representation. The level of proof required is extremely high. An ambiguous statement cannot per se make the representor guilty of fraud. Following paragraphs from the judgment were cited:- “5. We do not find any merit in this appeal. Firstly, in the present case, Patel Chikkahanumaiah had moved an application under Order 9 Rule 13 CPC for setting aside the ex-parte decree on the ground of non service of summons in which fraud was not alleged. As stated above, Patel Chikkahanumaiah had moved R.A. No.54 of 1977 in which there was no such allegation. Secondly, the present suit has been instituted to set aside the ex-parte decree on the ground that the decree was obtained by fraud and misrepresentation. Fraud is to be pleaded and proved. To prove fraud, it must be proved that representation made was false to the knowledge of the party making such representation or that the party could have no reasonable belief that it was true. The level of proof required in such cases is extremely higher. An ambiguous statement cannot per se make the representor guilty of fraud. To prove a case of fraud, it must be proved that the representation made was false to the knowledge of the party making such representation. [See: Pollock & Mulla on Indian Contract & Specific Relief Acts (2001). 6. In the present case, there is no evidence of fraud. The present case is a matter of non-service of summons. In the present case, there is a bare allegation of fraud. In the case of Choksi Bhidarbhai Mathurbhai v. Purshottamdas Bhogilal Shah reported in [AIR 1962 Gujarat 10], it has been held that where the only fraud alleged is a bare non service of summons then such a suit to set aside the decree on alleged ground of fraud was not maintainable. Lastly, no substantial question of law arises in this appeal.” 4(ii) It will now be appropriate to discuss the plaintiff’s case. Lastly, no substantial question of law arises in this appeal.” 4(ii) It will now be appropriate to discuss the plaintiff’s case. Simple case of the plaintiff was that he was wrongly proceeded ex parte in CS No.79/1 of 1982 under order dated 23.06.1983. That he was never served for appearing in that civil suit on 23.06.1983. That defendant was aware about the fact that the plaintiff had never been served in the civil suit yet he maintained an absolute silence in that regard. This amounted to misrepresentation on part of the defendant, which led the Court to believe that the plaintiff had been served in the civil suit. On that basis, learned Trial Court proceeded to hold ex parte proceedings against the plaintiff in terms of order dated 23.06.1983, which culminated in passing ex parte judgment and decree on 01.12.1984. The order dated 23.06.1983 as well as ex parte decree dated 01.12.1984 were null and void being result of fraud. 4(iii) Plaintiff has been able to prove that he was never served for appearing in CS No.79/1 of 1982 for 23.06.1983. ‘Zimni’ orders passed in CS No.79/1 of 1982 are part of the record. The order sheets reflect that CS No.79/1 of 1982 was instituted on 06.03.1982. Summons were ordered to be issued to present plaintiff-Sukh Ram on 28.04.1982 for appearing in the suit on 31.05.1982. On the next date i.e. 31.05.1982, the plaintiff appeared before the Court in the capacity of the defendant. Next date given was 25.06.1982. It appears that the learned Presiding Officer was transferred, hence none appeared on the given date as well on the subsequent dates. On 30.04.1983, the plaintiff (defendant therein) was ordered to be summoned for 23.06.1983. Present defendant/Jagat Ram (plaintiff therein) was to file process fee and registered A/D cover within three days for the said purpose. Plaintiff’s case is that he was never served for 23.06.1983. No summons reached him for appearing in the Court on 23.06.1983. To substantiate his plea, he appeared in the witness box as PW-1 and stated that he had appeared before the Court in the civil suit once, when he was given to understand that he has to come again on a date, which would be communicated to him through summon. He never received any summon thereafter. He became aware of passing of ex parte judgment and decree against him from Jagat Ram. He never received any summon thereafter. He became aware of passing of ex parte judgment and decree against him from Jagat Ram. In his cross examination, he stated that he became aware of passing of the judgment and decree three days after it was passed. He did not admit the suggestion given to him of having engaged an Advocate in the case or that he did not present himself despite having been served with the summons. Besides appearing himself as PW-1, plaintiff also produced Banwari Lal the then Civil Ahlmad of the concerned Court as PW-2. Statement of this witness is quite relevant. PW-2 deposed that he was Civil Ahlmad of the concerned Court on 30.04.1983. The order passed by the learned Trial Court on 30.04.1983 directing the defendant/Jagat Ram to deposit the process fee and registered AD covers within three days was never complied with by him (Jagat Ram). Resultantly summon was not issued to the plaintiff for appearing in the case on 23.06.1983. A suggestion was given to this witness by the defendant/Jagat Ram that there was no endorsement on the left side of the order sheet about the process fee having not been filed. To this suggestion, PW-2 responded that this practice was not in-vogue at the relevant time. This version of the witness finds support from the order sheets, as such like endorsements are not there in the other orders as well passed on different dates. Another suggestion given to him about the process fee having been misplaced from the file was also denied. The case file of CS No.79/1 of 1982 made part of the record, does not show any summon having been sent to the plaintiff. No document evidencing filing of process fee by the defendant/Jagat Ram for the service of plaintiff for 23.06.1983 is on record. No receipt of service of the summon alleged to have been sent to the plaintiff is visible in the case record. Plaintiff had produced the evidence, which he could have adduced under the circumstances to show that he was not served in CS No.79/1 of 1982 for appearing in the Court on 23.06.1983 and had also demonstrated that the defendant was aware of plaintiff having been wrongly proceeded ex parte as he had himself not taken any steps for effecting service upon the plaintiff. The order proceeding ex parte against the plaintiff passed on 23.06.1983 was not in consonance with law. 4(iv) The next question that arises is the remedy, which could have been availed by the plaintiff for redressal of his grievances against the order dated 23.06.1983 & the ex parte judgment and decree passed on the basis of this order on 01.12.1984. Learned Trial Court in the impugned judgment and decree dated 30.07.2007 has held as under:- “The remedy available with the present plaintiff was that:- i) He could have filed an application under Order 9 Rule 7 C.P.C to set aside the ex parte order dated 23.06.1983 by assigning good reasons. ii) He could have filed an application under Order 9 Rule 13 CPC for setting aside the ex parte decree dated 01.12.1984 by showing any sufficient cause. iii) He could have filed an appeal or revision whatever admissible under the law before the competent court. iv) He could have applied for the review of the order/decree as permissible under the law.” Apart from above options described by the learned Trial Court, plaintiff could have also availed the remedy of instituting a civil suit for declaring the ex parte order/judgment and decree passed in CS No.79/1 of 1982 as null and void on the ground that the same was obtained fraudulently. Following was observed in (1996) 5 SCC 550 titled Indian Bank Vs. Satyam Fibres (India) Pvt. Ltd. regarding availability of remedy of filing separate suit or proceeding against the judgment alleged to have been obtained by fraud:- “22. The judiciary in India also possesses inherent power, specially under Section 151 CPC, to recall its judgment or order if it is obtained by fraud on Court. In the case of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. Inherent powers are powers which are resident in all Courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the tribunals or courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behavior. This power is necessary for the orderly administration of the court’s business. 23. These powers spring not from legislation but from the nature and the constitution of the tribunals or courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behavior. This power is necessary for the orderly administration of the court’s business. 23. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of court, the courts have been held to have inherent power to set aside an order obtained by fraud practised upon that Court. Similarly, where the Court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order. {See : AIR 1950 Cal 287 Benoy Krishna Mukerjee v. Mohanlal Goenka ; AIR 1943 Pat 127 Gajanand Sha v. Dayanand Thakur ; AIR 1947 Nag 236 Krishnakumar v. Jawand Singh ; ILR (1926) 1 Luck 341 Devendra Nath Sarkar v. Ram Rachpal Singh ; ILR (1929) 4 Luck 562 Saiyed Mohd. Raza v. Ram Saroop ; ILR (1932) 7 Luck 350 Bankey Behari Lal v. Abdul Rahman ; 1955 Ker LT 459 Lekshmi Amma Chacki Amma v. Mammen Mammen. The Court has also the inherent power to set aside a sale brought about by fraud practised upon the Court { AIR 1954 Pat 450 Ishwar Mahton v Sitaram Kumar} or to set aside the order recording compromise obtained by fraud. { AIR 1958 Pat 618 Bindeshwari Pd. Chaudhary v. Debendra Pd. Singh ; AIR 1985 Kant 270 Tara Bai v. V.S. Krishnaswamy Rao}.” The remedy of filing the civil suit for setting aside ex parte judgment & decree on the ground of same having been obtained fraudulently was available to the plaintiff, which he availed. 4(v) The further question that comes up for consideration is whether the order dated 23.06.1983 proceeding ex parte against the plaintiff can be said to be the result of fraud. Fraud has been defined in Section 17 of the Contract Act to mean as under:- “17. 4(v) The further question that comes up for consideration is whether the order dated 23.06.1983 proceeding ex parte against the plaintiff can be said to be the result of fraud. Fraud has been defined in Section 17 of the Contract Act to mean as under:- “17. ‘Fraud’ defined.—‘Fraud’ means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:— (1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true; (2) the active concealment of a fact by one having knowledge or belief of the fact; (3) a promise made without any intention of performing it; (4) any other act fitted to deceive; (5) any such act or omission as the law specially declares to be fraudulent. Explanation.- Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence, is, in itself, equivalent to speech.” At this stage, a brief reference to some judicial precedents on ‘fraud’ will also be apt. 4(v)(a) By now it is well established that no judgment of a Court can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. [Re (1956) 1 All ER 341 (Lazarus Estates Ltd Vs. Beasley)]. Some more precedents on what constitutes fraud noticed in (2012) 11 SCC 574 Badami (Deceased) by her LR Vs. Bhali, are as under:- “30. In S. P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. and others [ (1980) 1 SCC 52 ) ] this court commenced the verdict with the following words:- “Fraud-avoids all judicial acts, ecclesiastical or temporal” observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree - by the first court or by the highest court - has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.” In the said case it was clearly stated that the courts of law are meant for imparting justice between the parties and one who comes to the court, must come with clean hands. 31. A person whose case is based on falsehood has no right to approach the Court. A litigant who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If a vital document is withheld in order to gain advantage on the other side he would be guilty of playing fraud on court as well as on the opposite party. 32. In Smt. Shrist Dhawan v. M/s. Shaw Brothers[ (1992) 1 SCC 534 ] it has been opined that fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It has been defined as an act of trickery or deceit. The aforesaid principle has been reiterated in Roshan Deen v. Preeti Lal[ (2002) 1 SCC 100 ], Ram Preeti Yadav v. U. P. Board of High School and Intermediate Education and other[ (2003) 8 SCC 311 ] and Ram Chandra Singh v. Savitri Devi and others[ (2003) 8 SCC 319 ]. 33. In State of Andhra Pradesh and another v. T. Suryachandra Rao[ (2005) 6 SCC 149 ] after referring to the earlier decision this court observed as follows:- “In Lazaurs Estate Ltd. v. Beasley Lord Denning observed at pages 712 & 713, “No judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.” In the same judgment Lord Parker LJ observed that fraud vitiates all transactions known to the law of however high a degree of solemnity. ” 34. Yet in another decision Hamza Haji v. State of Kerala & Anr. Fraud unravels everything.” In the same judgment Lord Parker LJ observed that fraud vitiates all transactions known to the law of however high a degree of solemnity. ” 34. Yet in another decision Hamza Haji v. State of Kerala & Anr. it has been held that no court will allow itself to be used as an instrument of fraud and no court, by way of rule of evidence and procedure, can allow its eyes to be closed to the fact it is being used as an instrument of fraud. The basic principle is that a party who secures the judgment by taking recourse to fraud should not be enabled to enjoy the fruits thereof. 35. It would not be an exaggeration but on the contrary an understatement if it is said that all facets of fraud get attracted to the case at hand. A rustic and illiterate woman is taken to court by a relation on the plea of creation of a lease deed and magically in a hurried manner the plaint is presented, written statement is drafted and filed, statement is recorded and a decree is passed within three days. On a perusal of the decree it is manifest that there is no reference of any kind of family arrangement and there is total non-application of mind. It only mentions there is consent in the written statement and hence, suit has to be decreed. Be it noted, it was a suit for permanent injunction. There was an allegation that the respondent was interfering with the possession of the plaintiff. What could have transpired that the defendant would go with the plaintiff and accede to all the reliefs. It not only gives rise to a doubt but on a first look one can feel that there is some kind of foul play. However, the learned trial Judge who decreed the first suit on 27.11.1973 did not look at these aspects. 36. When the second suit was filed in 1984 for title and the third suit was filed for possession thereafter, the courts below had routinely followed the principles relating to consent decree and did not dwell deep to find out how the fraud was manifestly writ large. It was too obvious to ignore. The courts below have gone by the concept that there was no adequate material to establish that there was fraud, though it was telltale. It was too obvious to ignore. The courts below have gone by the concept that there was no adequate material to establish that there was fraud, though it was telltale. That apart, the foundation was the family arrangement. We have already held that it was not bona fide, but, unfortunately the courts below as well as the High Court have held that it is a common phenomenon that the people in certain areas give their property to their close relations. We have already indicated that by giving the entire property and putting him in possession she would have been absolutely landless and would have been in penury. 37. It is unimaginable that a person would divest herself of one’s own property in entirety in lieu of nothing. No iota of evidence has been brought on record that Bhali, the respondent herein, had given anything to Badami in the arrangement. It is easily perceivable that the rustic woman was also not old. Though the decree was passed in 1973 wherein it was alleged that the defendant was already in possession, she lived up to 1992 and expired after 19 years. It is a matter of record that the possession was not taken over and inference has been drawn that possibly there was an implied agreement that the decree would be given effect to after her death. 38. All these reasonings are absolutely non-plausible and common sense does not even remotely give consent to them. It is fraudulent all the way. The whole thing was buttressed on the edifice of fraud and it needs no special emphasis to state that what is pyramided on fraud is bound to decay. In this regard we may profitably quote a statement by a great thinker: “Fraud generally lights a candle for justice to get a look at it; and rogue’s pen indites the warrant for his own arrest.” In (2018) 1 SCC 656 (Venture Global Engineering LLC Vs. Tech. Mahindra Limited and another), fraud and its effect on judicial proceedings was considered as under:- “76. Tech. Mahindra Limited and another), fraud and its effect on judicial proceedings was considered as under:- “76. The expression "fraud", what it means and once proved to have been committed by the party to the Lis against his adversary then its effect on the judicial proceedings was succinctly explained by this Court in Ram Chandra Singh vs. Savitri Devi & Ors., (2003) 8 SCC 319 in the following words: “Fraud as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by word or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata.” 77. Similarly, how the leading authors have dealt with the expressions "fraud”, “misrepresentation”, “suppression of material facts” with reference to various English cases also need to be taken note of. This is what the learned author - “Kerr” in his book “Fraud and Mistake” has said on these expressions. 78. Similarly, how the leading authors have dealt with the expressions "fraud”, “misrepresentation”, “suppression of material facts” with reference to various English cases also need to be taken note of. This is what the learned author - “Kerr” in his book “Fraud and Mistake” has said on these expressions. 78. While dealing with the question as to what constitutes fraud, the learned author said “What amounts to fraud has been settled by the decision of House of Lords in Derry vs. Peek (f) where lord Herscheel said :- “Fraud is proved when it is shown that a false representation has been made (1) knowingly or (2) without belief in its truth or (3) recklessly, careless whether it be true or false.” (See Kerr on Fraud and Mistake- 7th Edition Page 10/11)”. 79. The author has said that, Courts of Equity have from a very early period had jurisdiction to set aside Awards on the ground of fraud, except where it is excluded by Statute. So also, if the Award was obtained by fraud or concealment of material circumstances on the part of one of the parties so as to mislead the Arbitrator or if either party be guilty of fraudulent concealment of matters which he ought to have declared, or if he willfully mislead or deceive the Arbitrator, such Award may be set aside. (See - Kerr on Fraud and Mistake - Seventh Edition - pages 424, 425). 80. The author said that, if a man makes a representation in point of fact, whether by suppressing the truth or suggesting what is false, however innocent his motive may have been, he is equally responsible in a civil proceeding as if he had while committing these acts done so with a view to injure others or to benefit himself. It matters not that there was no intention to cheat or injure the person to whom the statement was made. (See - Kerr on Fraud and Mistake – Seventh Edition, page 7) 81. This rule of law is applicable not only between the two individuals entering into any contract but is also applicable between an individual and a company and also between the two companies. (See- Kerr on Fraud and Mistake – Seventh Edition, page 99). 82. (See - Kerr on Fraud and Mistake – Seventh Edition, page 7) 81. This rule of law is applicable not only between the two individuals entering into any contract but is also applicable between an individual and a company and also between the two companies. (See- Kerr on Fraud and Mistake – Seventh Edition, page 99). 82. The author said that this principle is also not limited to cases where an express and distinct representation by words has been made, but it applies equally to cases where a man by his silence causes another to believe in the existence of a certain state of things, or so conducts himself as to induce a reasonable man to take the representation to be true, and to believe that it was meant that he should act upon it, and the other accordingly acts upon it and so alters his previous position. (See - Kerr on Fraud and Mistake – Seventh Edition, page 110). 83. The author said that where there is a duty or obligation to speak, and a man in breach of that duty or obligation holds his tongue and does not speak and does not say the thing which he was bound to say, if that be done with the intention of inducing the other party to act upon the belief that the reason why he did not speak was because he had nothing to say, there is a fraud (See- Kerr on Fraud and Mistake-Seventh Edition, page 110).” (Emphasis supplied) The judgments relied upon for the defendant/Jagat Ram are in given fact situations of those cases. In the case in hand, the plaintiff had putforth his case of having not been served with summons for appearing in CS No.79/1 of 1982 on 23.06.1983 and that judgment & decree dated 01.12.1984 was obtained by the defendant fraudulently. On facts, it has been concluded earlier that the plaintiff has proved on record of his having not been served for appearing in the civil suit on the date in question. It is proved on the record that the defendant/Jagat Ram had not taken any steps for service of the plaintiff for 23.06.1983. The defendant did not deposit the requisite process fee and registered A.D covers for the service of the plaintiff in terms of order dated 30.04.1983. The defendant was aware of all these aspects. It is proved on the record that the defendant/Jagat Ram had not taken any steps for service of the plaintiff for 23.06.1983. The defendant did not deposit the requisite process fee and registered A.D covers for the service of the plaintiff in terms of order dated 30.04.1983. The defendant was aware of all these aspects. Yet, silence was maintained on his part in the Court on 23.06.1983, when the plaintiff was proceeded ex parte on the ground that he was served, but did not remain present. The ground was non-existent. The defendant was aware that because of his inactions, the plaintiff was not served in the case, yet he maintained silence when plaintiff was proceeded ex parte. The defendant was required to speak up, to open his mouth in such a situation, but he did not. Obvious inference is that he did not say what he should have with an intention to misrepresent, to deceive, to derive undue advantage of the situation. This was fraud, committed upon plaintiff. In terms of ex parte decree, defendant Jagat Ram (plaintiff in the earlier suit) has been held to have become owner of plaintiff Sukh Ram’s (defendant in the earlier suit) land by adverse possession. Learned Courts below erred in holding that particulars of fraud were not established. Substantial questions of law Nos.1 & 2 are answered in favour of the appellants (plaintiff). 4(vi) Substantial question of law No.3. 4(vi)(a) Yet another contention raised by learned counsel for the defendant/Jagat Ram is that the plea of fraud taken by the plaintiff for questioning the validity of order dated 23.06.1983 as well as the judgment and decree dated 01.12.1984 was barred by limitation. The plaint was allowed to be amended in terms of judgment dated 19.03.2007 passed in RSA No.125-A of 1995. The amended plaint was eventually filed on 17.03.1994, wherein plea of fraud was incorporated for laying challenge to the order dated 23.06.1983 as well as the judgment decree dated 01.12.1984 passed in CS No.79/1 of 1982. The challenge was barred by limitation. In this regard reliance was placed upon (2001) 6 SCC 163 ( Vishwambhar & Ors. Vs. Laxminarayan (Dead) through LRs. and another) and 2022 (2) SCC 573 (Electrosteel Castings Limited Vs. UV Asset Reconstruction Company Limited and Others). It was submitted that amendment cannot relate back to the date of filing of the suit. Defect of limitation cannot be cured. In this regard reliance was placed upon (2001) 6 SCC 163 ( Vishwambhar & Ors. Vs. Laxminarayan (Dead) through LRs. and another) and 2022 (2) SCC 573 (Electrosteel Castings Limited Vs. UV Asset Reconstruction Company Limited and Others). It was submitted that amendment cannot relate back to the date of filing of the suit. Defect of limitation cannot be cured. 4(vi)(b) The above contention cannot be accepted in the given facts. (2001) 8 SCC 561 (Siddalingamma & Anr. Vs. Mamtha Shenoy) holds that an amendment once incorporated relates back to the date of the suit. However, the doctrine of relating back in the context of amendment of pleadings is not one of universal application and in appropriate cases the Court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the Court on the date on which the application seeking the amendment was filed. This principle was reiterated in AIR 2002 SC 3369 (Sampath Kumar Vs. Ayyakannu & Anr.). In the instant case by virtue of the amendment allowed on 19.03.2007 while deciding RSA No.125-A/1995, nature of the civil suit did not undergo any change. The suit filed by the plaintiff remained the same. The pleadings remained the same. From the very beginning, case of the plaintiff had been that he was wrongly proceeded ex parte in the civil suit. Order dated 23.06.1983 proceeding ex parte against him and on that basis ex parte decree dated 01.12.1984 passed against him in CS No.79/1 of 1982 was null & void. He had also pleaded that all these facts pertaining to his having not been served were in the knowledge of the defendant (plaintiff in the earlier suit); the defendant was aware of his having not filed the process fee; the defendant knowingly got ex parte order against the plaintiff. By virtue of the amendment, the word fraudulently was incorporated in the plaint. In any case while allowing plaintiff’s prayer for amendment of the plaint there was no such restrictive order passed that the plea would be deemed to have been taken by the plaintiff only from the date of the amendment. By virtue of the amendment, the word fraudulently was incorporated in the plaint. In any case while allowing plaintiff’s prayer for amendment of the plaint there was no such restrictive order passed that the plea would be deemed to have been taken by the plaintiff only from the date of the amendment. It would be apt to extract relevant paragraphs from judgment dated 19.03.2007 passed in RSA No.125-A of 1995:- “From the judgment of the learned appellate Court, I find that the learned Court was not correct in holding that the amendment could not be allowed. Having first decided the appeal on merits, the learned Judge, had proceeded to dismiss the application for amendment, which was not the proper approach. The amendment sought by the plaintiff was addition of the words “and got it fraudulently” and second “as it was in the knowledge of the plaintiff in the previous suit that they have not filed the process fee, knowingly got ex-parte proceeding and that decree fraudulently.” These words were sought to be added after the word “jurisdiction”. In the prayer clause also the words “got the decree fraudulently” was sought to be added after the word “jurisdiction”. These words were sought to be added to describe the manner in which the decree had been obtained. Whether these facts which were already on the record constituted an act having obtained the judgment and decree fraudulently or not they could not be said to alter the nature of the suit. The record already established that no process fee was filed and the ex parte decree had been obtained by the respondents. The proper approach should have been to have allowed the amendment and decided on the other point after recording of evidence. Whether the amendment was clarificatory or barred by time or such as was introducing a new case, should have been decided after framing an issue. However, the proper approach was to have allowed the amendment, framed an issue on the point raised and thereafter the matter tried in accordance with law. Learned counsel for the parties have made a number of submissions on the merits of the case regarding the maintainability of the suit. I do not find it necessary to decide that point in the present proceedings. Learned counsel for the parties have made a number of submissions on the merits of the case regarding the maintainability of the suit. I do not find it necessary to decide that point in the present proceedings. I have held that the learned District Judge was not correct in dismissing the application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the plaint. The judgment and decree of the District Judge is set aside and the matter is remanded to the trial Court with the direction that the amended plaint be taken on record and an issue framed on the ground incorporated by the appellant-plaintiff with regard to the legality of the decree passed against them. Needless to say that the defendant-respondent will be granted an opportunity to file written statement for contesting the claim of the plaintiff-appellant and both the parties would be given an opportunity to lead evidence on the fresh issue which would be framed on the basis of the amended plaint.” In the given facts, the doctrine of relating back would be applicable. The amendment would be deemed to have been carried out in the original plaint from the date of the filing of the plaint. Ex parte judgment & decree was passed on 01.12.1984. Plaintiff Sukh Ram laid challenge to this decree & instituted the instant civil suit on 18.01.1985. It was within the limitation period. Incorporation of plea of fraud based on facts already pleaded in the plaint, has also to be construed within the limitation period. Substantial question of law No.3 is therefore answered in favour of appellants-(plaintiff-Sukh Ram). 5. In view of above discussion, this appeal is allowed. The impugned judgment and decree passed on 31.07.2008 by the learned District Judge, Bilaspur, H.P. in Civil Appeal No.43/2007 (Sukh Ram Vs. Premi Devi & Ors) as well as judgment and decree dated 30.07.2007 passed by learned Civil Judge (Junior Division) Ghumarwin, District Bilaspur, H.P. in Civil Suit No.54/1 of 2007/85 (Sukh Ram Vs. Jagat Ram (Deceased) through LRs, are set aside. Consequently the order dated 23.06.1983 passed in CS No.79/1 of 1982 by learned Sub-Judge First Class, Ghumarwin, District Bilaspur, is declared null and void. Accordingly, ex parte judgment and decree dated 01.12.1984 passed in Civil Suit No.79/1 of 1982 is also set aside. Civil Suit No.79/1 of 1982 is restored to its original number. Consequently the order dated 23.06.1983 passed in CS No.79/1 of 1982 by learned Sub-Judge First Class, Ghumarwin, District Bilaspur, is declared null and void. Accordingly, ex parte judgment and decree dated 01.12.1984 passed in Civil Suit No.79/1 of 1982 is also set aside. Civil Suit No.79/1 of 1982 is restored to its original number. Record of the case be returned forthwith. Learned Trial Court is directed to issue notice to the parties for their appearance in the Court and shall proceed in the matter, in accordance with law. Taking into consideration age of civil suit, all possible efforts for its expeditious disposal be made.