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Amita   26 July 2021

Raise "fraud" as a legal ground in a pending hc appeal...

Hello. I need some guidance.

In an appeal (LPA) pending before the Division Bench against the Order by a Single Judge, we want to raise the ground of "Fraud" practised by the Respondent before the Ld. Single Judge.

Kindly note that the delay in LPA has already been condoned and now the matter has been listed for hearing. 

Can we raise the ground of Fraud at this stage ? If so, how to go about it ? Should we submit a separate application before the Division Bench as there was no prayer to quash/set aside the impugned Order on this ground in the LPA petition ?

Thank You

Amita

 

 



Learning

 3 Replies

G.L.N. Prasad (Retired employee.)     26 July 2021

Fraud is a very serious issue and earlier judgments by Apex court even states that such litigants that play fraud must be thrown out.  The court is bound to consider those facts that surfaced during the course of litigation and certainly, they can not ignore such a serious issue.  Your advocate is better in stating such fraud considering it or not is the discretion of the court.  But, once the fraud is raised, there should be some findings or observations.

Shubham Bhardwaj (Advocate)     26 July 2021

Dear Ms Amita, 

As per the facts which I could gather from your query is that a matter has been decided by learned Single Judge of HC. Now appeal is pending before a Division Bench. You want to raise a issue of fact in the appeal. 

Please note that a new fact cannot be raised at appellate stage. This rule of law is even more stringent when the party who wants to bring new fact is before the High Court in Appeal as HC is not a fact finding court and hears matters only if a question of law is involved. 

However this rule has an exception. If you are able to show to the High Court that the fact which you want to add to the pleadings was not known to you or you could not have known the fact even with exercise due diligence, then the HC may allow you to add additional facts. You will have to file an Application in the LPA. 

But if you are not able to show as stated above, your application will be dismissed. 

Regards

Shubham Bhardwaj (Advocate)

District & Session Court, Chandigarh

Punjab & Haryana High Court, at Chandigarh

 

Disclaimer:- Opinion is only for guidance. 

Dr J C Vashista (Advocate)     27 July 2021

Generally you are required to confine your submissions within proceeding before Ld. Single Judge and Trail Court, however, there is no bar to put fresh circumstances / facts / law concerning and relevant to the appeal, it shall be welcomed for proper adjudication by the DB.


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