Bisesar Pathak and Another vs Phaguni Mahton

Das, J.—This is an appeal by the defendants from a decision of the learned subordinate Judge of Gaya dated 12-4-1946, by which the learned Subordinte Judge reversed the decision of the learned Munsif of Aurangabad, dated 30-11-1944. The facts so far as they are material for the purpose of this appeal are the following. It appears that there was a dispute between the plaintiff of this suit on one side and defendants 1 and 2 of this suit on the other regarding 4 bighas 19 kathas of land. Both parties claimed to have taken settlement, of the lands from the Ranis of Deo. As a result of the dispute, there was, firstly, a proceeding u/s 144, Criminal P.C. and then, another u/s 145, Criminal P.C. This proceeding u/s 145, Criminal P.C., terminated in favour of the plaintiff of the present suit. Defendants 1 and 2 then filed a title suit, bearing No. 221 of 1940, for a declaration of their title to and recovery of possession of the lands which, according to them, were bakasht lands. This title suit No. 221 of 1940, resulted in an ex parte decree. The suit was brought on 23-11-1940, and decree ex parte on 21-1-1941, that is, within about two months of the filing of the Suit. Summonses were ordered to be issued in that suit on 28-11-1940, and were alleged to have been served on 10-12-1940. It appears that the plaintiff of the present suit filed a petition under Order 9, Rule 13, Civil P.C., for setting aside the ex parte decree. This petition was, however, withdrawn on 12-7-1941. Thereafter, the plaintiff-respondent filed the present suit out of which this appeal has arisen, for setting aside the ex parte decree passed in Title Suit No. 221 of 1940 on the grounds that the ex parte decree obtained in Title suit No. 221 of 1940 was tainted with fraud, and that the plaintiff-respondent was kept out of knowledge of the suit by the fraud committed by the defendants appellants, who brought the court peon in collusion as part of the fraud practised by them. The learned Munsif, who heard the suit in the first instance, found that the plaintiff-respondent had failed to prove fraud and collusion.

He, therefore, dismissed the suit. In appeal, the learned Subordinate Judge has, firstly, found that processes had been suppressed in Title Suit No. 221 of 1940, and secondly, that the suppression of the processes was the result of active fraud committed by the appellants who had taken all steps to keep the plaintiff-respondent out of knowledge of the suit. The learned Subordinate Judge has found that ex parte decree passed in Title Suit No. 221 of 1940, was the result of active fraud perpetrated by the appellants, and he has, therefore, set aside the ex parte decree passed in Title Suit No. 221 of 1940.

In the appeal before me it has been contended that the withdrawal of the application under Order 9, Rule 13, Civil P.C. filed by the plaintiff-respondent, amounted to a dismissal of the application, and that such dismissal operated as res judicata in the subsequent suit. Learned Counsel for the appellants has relied on two decisions of this Court: Jangal Choudhary v. Laljit Prasad AIR 1921 Pat. 12 and Ramrup Goshain Vs. Mahabir Shah, . In both those cases there was an application to set aside the ex parte decree, on the ground of a fraudulent suppression of summonses, and the application was heard and dismissed on merits. In those circumstances, it was held that as the question of fraudulent suppression of processes had already been agitated between the same parties and decided by a Court of competent jurisdiction the matter was res judicata, and could not again be re-opened between the same parties. I am unable to hold that the principle laid down in those two decisions applies in the present case. Firstly, there was no decision on merits in the present case. Though the plaintiff-respondent had filed an application under Order 9, Rule 13, Civil P.C., he was permitted to withdraw the application without any adjudication. It may be conceded that the principle of res judicata may, in some circumstances, arise even when a suit or proceeding is dismissed for default; but, a case in which the application is allowed to be withdrawn without any adjudication whatsoever hardly attracts the principle of res judicata. For example, the plaintiff-respondent may have been advised that the question of fraud which he wished to be agitated did not relate merely to the service of summons; it was independent of and more than a mere attack on the regularity of the service of the summons, and such a question would be beyond the scope and purview of an application under Order 9, Rule 18, Civil P.C. If under such advice, the plaintiff-respondent with draw his application under Order 9, Rule 13, Civil P.C., it cannot be said that the subsequent suit brought by the plaintiff-respondent on the ground of fraud would be barred on the principle of res judicata. Even if the Court before which the application under Order 9 Rule 13, Civil P.C. had, been filed, had decided the application on merits, it could only have decided the question which arose under Order 9, Rule. 13 Civil P.C. namely, that the summons was not duly served or that the defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing. The Court could not decide the more radical question, namely, that there was fraud, independent of, and not merely confined to the service of summons in the suit.

Therefore, a decision given by the Court on the application under Order 9, Rule 13, Civil P.C., could not have operated as res judicata on the more radical question of fraud, because such a question would have been beyond the scope and purview of an application under Order 9, Rule 13, Civil P.C. There are, indeed, some decisions which have laid down that if the fraud alleged is confined to the service of summons and is not independent of that service, the finding arrived at on an application under Order 9, Rule 13, Civil P.C., will operate as res judicata in a subsequent suit for setting aside the ex parte decree on that very ground. The two decisions in Jangal Choudhary v. Laljit Prasad AIR 1921 Pat. 12 and Ramrup Goshain Vs. Mahabir Shah, support that view, But in the case before me, the fraud found by the Court of appeal below was not confined merely to the service of the summons. The plaint of the suit has been placed before me by learned Counsel for the appellants. In paras 5 and 6 of the plaint there are clear allegations to the effect that there was fraud independent of the service of the summons. The allegations are to the effect that the appellants wished to keep the plaintiff-respondent out of knowledge of the suit so that the respondent, though he was in possession of lands and had a good prima facie title might not contest the suit brought by the appellants. The Court of appeal below has found that the respondent was in possession of the lands, and had a good prima facie title. The Court of appeal below has also considered other particulars in connection with the question of fraud, and has arrived at the finding that there was fraud which was not confined merely to the service of the summons the suppression of summons was merely a part of the general fraudulent design on the part of the appellants to keep the respondent out of knowledge of the suit so as to snatch an ex parte decree on a doubtful claim. That being the position, the respondent could bring an action for setting aside the ex parte decree on the ground of fraud, and any decision given on an application under Order 9, Rule 13, Civil P.C., would not have stood in the way of the maintainability of such a suit. If authority be needed for this, it would he found in the decisions of their Lordships of the Judicial Committe in Radha Raman Shaha v. Pran Nath (01) 28 Cal 475 and Khagendra Nath (02) 29 Cal. 395, I am, therefore, of the opinion that the withdrawal of the application under Order 9, Rule 18, Civil P.C. does not affect the maintainability of the subsequent suit brought by the respondent; such a suit on the ground of fraud was maintainable, and no question of res judicata arises.

The second point which has been urged before me on behalf of the appellant is that the learned Subordinate Judge had misdirected himself on the question of onus. It is true that the learned Subordinate Judge has mentioned in one place of his judgment that on the denial of the plaintiff-respondent that he had received the summons, the onus shifted to the appellants to prove affirmatively that summonses had been served in Title Suit No. 221 of 1940. The learned Subordinate Judge may not have been quite right in that view. In a case to set aside a decree on the ground of fraud, the plaintiff has got to establish that there, was non-service of the processes upon him, and that the non-service was the result of active fraud in the former action. The learned Subordinate Judge has, however, considered the evidence in detail, and on a consideration of that evidence he has come to the finding that summonses had not been served on the respondent in the former suit and the non-service was the result of active fraud committed by the appellants in the former action. Learned Counsel for the appellants has referred me to the decision in Badri Narain Mandar Vs. Parsoti Pasban, . That was however a case in which the Court had disbelieved the witnesses of the plaintiff as well as of the defendant. It was pointed out that having disbelieved the plaintiff''s witnesses upon whom the onus lay, the Court should have drawn the conclusion that the plaintiff had failed to establish that fact which it was necessary for him to establish, if the question of the merits of the original suit was not to be investigated. In those circumstances, it was observed that the Court below had misdirected itself on the question of onus, which had affected the finding of the Court of appeal below. Here, however, the learned Subordinate Judge has considered the evidence of both parties, and he had accepted the evidence given on behalf of the respondent and disbelieved the evidence given on behalf of the appellants. That being the position, the question of onus was really academic, and has not, in any way, vitiated the finding arrived at by the Court of appeal below.

Lastly, it has been pointed out to me that the Court of appeal below should, at least, have passed an order reviving Title Suit No. 221 of 1940 in which the ex parte decree was passed. The effect of setting aside an ex parte decree in a subsequent suit was considered by a Full Bench of this. Court in (Rani) Parygag Kumar Devi and Another Vs. Bhudhar Mal Chaudhury, and it was pointed out that the question whether the original suit in which that decree was obtained, is revived or not depends upon the pleadings, the issues and the actual decision in the subsequent suit. It is clear from the judgment of the learned Subordinate Judge that he has gone into the claim of the plaintiff in the original suit only incidentally, for the purpose of holding that there was a motive to obtain stealthily a decree behind the back of the defendants of that suit. Where the claim of the plaintiff in the original suit is dealt with only incidentally, the effect of setting aside the ex parte decree passed in that suit is to relegate the parties to the former position, and, in such a case, the suit should be restored, and the plaintiff''s claim enquired into and disposed of in accordance with law. In my opinion, that should be the proper order in-the present case also. I would, therefore, allow the appeal to the extent that the ex parte decree passed in Title Suit No. 221 of 1940 should be set aside, that the said suit be restored, the parties relegated to their former position, and the claim of the plaintiffs of that suit should now be enquired into and disposed of in accordance with law. In the circumstances of this case there will be no order for costs of the hearing in this Court. The order for costs, as passed by the Court of appeal below, will stand.