Can Court Recall/Review it’s Judgment Obtained by Fraud?

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February 22, 2019

The statutory provisions pertaining to recalling or reviewing of judgment is contained in Section 362 of Code of Civil Procedure and Section 44 of the Indian Evidence Act, 1872.

The provision under Section 362 of CrPC provides for the Court not to alter judgment. Thus, it puts a bar for altering or reviewing of judgment or final order on merits only. The only power given to the Court is to correct any clerical or arithmetical error.

Though the aforesaid provision puts a bar on altering judgment but the Indian Judiciary has time and again reiterated that Court can vacate any judgment or order, if it is proved to have been obtained by fraud.

Hence, in such cases, the intriguing concern that is raised is that if the fraud is played upon the court whether the hands of the court are tight? Whether court cannot take any action? Whether it remains silent spectator in a matter where an order was obtained by playing a patent fraud upon the court? A person impersonate himself and dare to appear before the court with a false identity whether he can be left open?

In the aforementioned circumstances, Section 44 of the Evidence Act comes to rescue. The provision under section 44 of Evidence Act enables a party otherwise bound by a previous adjudication to show that it was not final or binding because it is vitiated by fraud. The provision therefore gives jurisdiction and authority to a court to consider and decide the question whether a prior adjudication is vitiated by fraud[1].

Judiciary on Recalling of Judgment Obtained by Fraud

In order to have a better understanding of the subject it would be relevant to refer to case laws wherein the Supreme Court and High Courts were confronted with the issue of recalling or reviewing of an order obtained by fraud.

Paranjpe Vs. Kanade[2]– In this one of the earlier judgment of the Court on the subject it was ruled that it is always competent to any Court to vacate any judgment or order, if it be proved that such judgment or order was obtained by manifest fraud.

Lakshmi Charan Saha Vs. Nur Ali[3]–  The Court in the case observed that the jurisdiction of the Court in trying a suit [questioning the earlier decision as being vitiated by fraud] was not limited to an investigation merely as to whether the plaintiff was prevented from placing his case properly at the prior trial by the fraud of the defendant. The Court could and must rip up the whole matter for determining whether there had been fraud in the procurement of the decree.

Proof of Fraud

Manindra Nath Mittra Vs. Hari Mondal[4]– The Court explained the elements to be proved before a plea of a prior decision being vitiated by fraud could be upheld. The Court with respect to the question as to what constitutes fraud for which a decree can be set aside, enumerated two propositions. Firstly, it is not permitted to show that the Court (in the former suit) was mistaken, it may be shown that it was misled, in other words where the Court has been intentionally misled by the fraud of a party, and a fraud has been committed upon the Court with the intention to procure its judgment, it will vitiate its judgment. Secondly, a decree cannot be set aside merely on the ground that it has been procured by perjured evidence.

Esmile Uddin Biswas and Anr. Vs. Shajoran Nessa Bewa & Ors.[5]– In this case it was held that it must be shown that fraud was practised in relation to the proceedings in Court and the decree must be shown to have been procured by practising fraud of some sort upon the Court.

Nemchand Tantia Vs. Kishinchand Chellaram (India) Ltd.[6]– In this case it was held that a decree can be re-opened by a new action when the court passing it had been misled by fraud, but it cannot be reopened when the Court is simply mistaken; when the decree was passed by relying on perjured evidence, it cannot be said that the court was misled.

S.P. Chengalvaraya Naidu (Dead) by LRs. Vs. Jagannath (Dead) by LRs & Ors.[7]– The Supreme Court in the case stated that 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.

The Court went on to observe that the High Court in that case was totally in error when it stated that there was no legal duty cast upon the plaintiff to come to the Court with a true case and prove it by true evidence and opined that “The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands.”

Ram Preeti Yadav Vs. U.P. Board of High School and Intermediate Education & Others[8]– The Apex Court reiterated that fraud avoids all judicial acts.

Suppression of a Material Document is Fraud

State of A.P. & Anr. Vs. T. Suryachandra Rao[9]The Supreme Court in the case held that suppression of a material document could also amount to a fraud on the Court. A similar observation was also made by the Supreme Court in the case of Bhaurao Dagdu Paralkar Vs. State of Maharashtra & Ors.[10], wherein it was noted that suppression of a material document would also amount to a fraud on the court. Although, negligence is not fraud, it can be evidence of fraud.

Hamza Haji vs. State of Kerala and Another[11]The Supreme Court in the case has held that no court will allow itself to be used as an instrument of fraud, and no court, by the application of rules of evidence or procedure, can allow its eyes to be closed to the fact that it is being used as an instrument of fraud.

Union of India vs. Ramesh Gandhi[12]– In this case it was held that fraud vitiates everything including judicial acts.

S.P. Chengalvaraya Naidu (Dead) By Lrs. Vs. Jagannath (Dead) By Lrs. & Ors.[13] The Supreme Court in the case observed that fraud-avoids all judicial acts, ecclesiastical or temporal. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and nonest 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.

A.V. Papayya Sastry and Ors. Vs. Government of A.P. and Ors.[14] The Supreme Court noted in the case that once it is established that the order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non- existent and non-est and cannot be allowed to stand.

From the aforesaid judicial dictum it is abundantly clear that a judgment or decree that has been obtained by playing fraud on the court is null and void. Hence, if the Court is not entrusted with the power to recall a judgment obtained by fraud it would amount to the travesty of truth and justice. 

[1] Paranjpe Vs. Kanade [ILR 6 (1882) BOMBAY 148]

[2] ILR 6 (1882) BOMBAY 148

[3] [ ILR (1911)38 Calcutta 936]

[4] [(1919) 24 Calcutta Weekly Notes 133]

[5] 132 INDIAN CASES 897

[6] (1959)63 Calcutta Weekly Notes 776

[7] (1993) Supp. 3 SCR 422

[8] (2003) Supp. 3 SCR 352

[9] (2005) 6 SCC 149

[10] 2005 (7) SCC 605

[11] (2006) 7 SCC 416

[12] 2012 (1) SCC 476

[13] (1994) 1 SCC 1

[14] AIR 2007 SC 1546