A Bench of Chief Justice Indira Banerjee and Justice M. Sundar of the Madras High Court on 09.10.2017 (W.M.P.Nos.27473 and 27474 of 2017, W.P.No.3424 of 2017) observed that mere incorrect averment in an affidavit cannot be classified as fraud.
In the present case a Petition for recall of an order passed by the Madras High Court was filed on the ground that the Respondents had defrauded the Court by making a factually incorrect averment
The complaint of the Petitioner was that the Respondents had put up a huge commercial construction and had, inter alia, let it out to several shops in an area which is classified as residential zone but it was, in fact, a mixed residential zone and not a residential zone as averred in the original petition.
The learned counsel appearing for the recall petitioners submitted that the above factually incorrect averment made by the Respondents amounts to fraud.
Mr.N.Pragasam, learned counsel, who appeared for the Respondents very fairly submitted that it was an inadvertent error on the part of his client in stating that the area is a residential zone. It is submitted by him that when his client Dr.V.Ganesan, a medical practitioner, had purchased the property at Survey No.213/71, Plot No.2, First Street, Raju Nagar, Thuraipakkam, Chennai 600 097 and moved in there, it was a residential zone and it is now learnt that it was subsequently converted into a mixed residential zone by the Chennai Metropolitan Development Authority (CMDA), about which the writ petitioner was not aware at the time of filing of the writ petition.
The Bench came to a finding that
" The lone and pivotal point on which the recall petition is predicated is that the writ petitioner(Respondents) has not placed correct facts before this Court, as, according to the recall petitioners, the area in question is a mixed residential zone and not a residential zone as averred in the writ petition."
And observed that
" mere incorrect averment in an affidavit or for that matter, that too in the nature of referring a mixed residential zone as residential zone cannot be classified as fraud."
On the basis of the above observation the Bench held that
" We find absolutely no scope for entertaining this recall petition in the light of our narrative supra. This recall petition fails and the same is dismissed."
