‘Mere factual averment not fraud’

The first bench comprising Chief Justice Indira Banerjee and Justice M Sundar while dismissing a plea seeking to recall an order since the court had been defrauded by making a factually incorrect averment relating to a residential zone said, “A 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. Obviously, it is not forgery.”

As per the case, a plea was moved against a huge commercial construction put up in an area in Thoraipakkam, classified as residential zone. Moreover, the plan approval was for a residential building. But instead a commercial building was constructed. This resulted in the High Court directing CMDA to act as per law. Now, those part of the commercial building had moved the recall petition stating that court had been defrauded since the petitioner in his original plea against the building had stated that it was in a residential zone while it has been classified as a mixed residential zone. On the other hand, in response to the recall petition, the respondent submitted that it was an inadvertent error and that the area was, in fact, converted to a mixed residential zone only later. 

However, the bench also while dismissing the recall plea as innocuous held that, “Though obvious, we make it clear that this order will not come in way of respondents and other statutory authorities proceeding against the recall petitioners in accordance with law and carrying the proceedings already initiated to its logical conclusion.”