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9. Referring to the Division Bench Judgment of Calcutta High Court in rendered in the case of Rameshwar Sarkar Vs State of West Bengal , AIR 1986 Calcutta 19, the Supreme Court in the aforesaid judgment held that if the suit has been withdrawn through mistake, the court would not be powerless to set aside the order permitting the withdrawal of the suit and this can be so done in exercise of inherent powers under section 151 of the Code of Civil Procedure . Similarly in the case of State Bank of India Vs Firm Jamuna Prasad Jaiswal ( supra) , Allahabad High Court held that the application to withdraw the application for dismissing the suit as withdrawn would be maintainable , if the fraud is played upon the plaintiff. It further went on to say that the fraud as defined in the Contract Act means actual fraud. But in equity the courts have also developed the doctrine of 'constructive fraud'. Observations of the Allahabad High Court in paragraph No. 12 are note worthy and the same are reproduced hereunder:

"Mr. Wadhumal has argued that a decree can be set aside only on the ground of fraud, as defined in Section 17, Contract Act. This argument was raised in a previous case that came before this Court for disposal (first Appeal No. 39 of 1906) and was disposed of by the judgment in the following terms--Mr. Dipchand has ingeniously endeavoured to persuaded the Court that in dealing with his case we must hold that the decree can be set aside only on the ground of fraud, within the very narrow meaning of the word given to 'fraud' by the definition in Section 17, Contract Act. But we are not dealing with a common law case of contract; we are called on to exercise our equitable jurisdiction and apply the equitable principles which have by force of Regulation 4 of 1927 been made part of the law of this country. The ruling case on the point is the Duchess of Kingston's case, in which it was held that the effect of a judgment may be avoided by proving the same to have been obtained by fraud or collusion. As fraud is infinite in its varieties, the Courts have always refused to define it (Snell, P. 519); nor is the word defined for the purposes of the Evidence Act; See Amir Ali and Woodnoffe, Notes to Section 41. But a reference to any standard texts book on equity will make it obvious that "fraud" has a wide meaning, far wider than the definition in the Contract Act. It is necessary to investigate into the full meaning of the word for the purposes of the case, for we have it declared by Lord Cairns that a decree can be set aside if there be 'fraud' such that there is in the person chargeable with it the malus animous putting itself in motion and acting in order to take an undue advantage of some other person for the purpose of actually and knowingly defrauding him;"

Patch v. Ward cited in Mahomed Golab v. Mahomed Sulliman."

Fraud as defined in the Contract Act means actual fraud. But in equity the Courts have also developed the doctrine of 'constructive fraud.' The following extract from Snell's Principles of Equity, Chapter 6, Part II, pages 545 on the concept of 'constructive fraud' is being quoted: . .

While examining the question whether a fraud had been played upon the Bank in making the application for withdrawal it is fraud the Bank in making the application for withdrawal it is fraud in this wider sense of 'constructive fraud', which defines definition which has to be taken into account. If the result dismissing the Bank's application would be to close an unconscionable transaction in favour of the respondent wrested by it unscrupulously the Court would be slow in dismissing the application. While it can be contended that in the case of compromise decree, the narrower concept of fraud defined in Section 17 of the Contract Act be applied because it is after all a compromise which is in the nature of contract which is assailed the same cannot be said in respect of unilateral transaction of withdrawal. In the latter case the doctrine of 'constructive fraud' has to be applied.'