the defendant no.1 on pursis at Exhibit-6 cannot be
tried alongwith other issues in the main suit. It
is only if defendant no.1 succeeds in proving fraud
then and then alone defendant no.1 can be permitted
to file the written statement and not otherwise. It
cannot be lost sight of the fact that the suit has
been pending for last 10 years and defendant no.1
has not effectively participated in the suit. There
are no particulars of fraud assigned in the
application and the issue of fraud will have to be
determined at the threshold. In this view of the
matter, I quash and set aside the order passed by
the trial Court, as the order is patently illegal
and is likely to result in mis-carriage of justice
causing prejudice to the plaintiff. The trial Court
shall permit the defendant no.1 to lead evidence
touching the application filed by the defendant no.1
on 20.9.2006. Needless to mention that the
plaintiff will also be offered an opportunity to
lead evidence touching the application at
Exhibit-79. If and in case the defendant no.1
succeeds in establishing fraud allegedly committed
by the plaintiff in securing his signature at
Exhibit-6 then and then alone the trial Court shall
consider the written statement as legally tendered
and permit the parties to lead evidence afresh in
addition to the evidence already led. The defendant
no.1 shall pay cost of Rs.4000/- to the plaintiff as
directed by the trial Court if not already paid.
