The suit for cancelling a joint will was dismissed for default after the third defendant was examined as DW1. The dismissal of the suit was challenged in appeal in A.S No.100/2003 and further in an original petition. The appellate court as well as this Court held that the remedy, if any, of the plaintiff is to invoke Order IX Rule 9 of the Code of Civil Procedure for restoration of the suit.
2. The third defendant/petitioner has a contention that the signature of the plaintiff in A.S No.100/2003 is forged. The third defendant therefore filed an application to scrap further proceedings on the ground of fraud relying on Hamsa Haji Vs. State of Kerala ((2005) 7 SCC 605) . The court below has by the order impugned held that it requires evidence to hold that the entire proceedings are vitiated by fraud as alleged by the third defendant.
2. The relevant part of the order impugned reads thus:
“ But here in this case, apart from the allegation in the petition, there is absolutely no material to substantiate the contention. The respondents 1 and 2 have denied all the allegations made by the petitioner . Without adducing evidence, this court cannot come to a conclusion that the respondents had committed fraud on the court. Without proof, this court cannot hold that the common order dated 11-11-2009, in I.A 769/07 and 770/07 was obtained by committing fraud on court in A.S 100/03 . It is a matter of evidence”
I agree with the reasonng of the court below that evidence is required to establish fraud as alleged by the third defendant as regards forgery of the signature of the plaintiff.
3. It is submitted at the bar that the third defendant has since been transposed as the second plaintiff in the suit which is ripe for trial. I permit the petitioner to adduce evidence at the time of trial to establish fraud alleged by him in the preferment of appeal against the dismissal of the suit. The court below shall frame an issue in this regard and answer the same along with other issues. The trial of the suit shall stand deferred by a period of one month to enable the court below to recast the issues and proceed accordingly. The court is also at liberty to consider the plea of the parties to forward the document to an expert for analysis.
4. The order of the court below is affirmed subject to the above reservation. The Original Petition (Civil) is disposed of as above.
smm V.CHITAMBARESH,Judge.