Janki Gope and another vs Jangbahadur Chaudhury

Macpherson, J.—This appeal must be decreed with costs. The appellants brought a suit against the respondent and obtained an ex parte decree. Thereupon the respondent applied under O. 9, R. 13 on the ground of fraudulent suppression of summons. The matter was gone into and it was found not only that the summons had not been suppressed fraudulently but had not been suppressed at all and it was duly served. This finding was upheld in appeal. The respondent then brought the suit out of which this second appeal has arisen. It was sought to set aside the ex parte decree on three grounds: (1) fraudulent suppression of the summons in the said suit, (2) the falsity of the claim in that suit and (3) that the defendants got the plaintiff''s appeal in the re-hearing case dismissed by fraudulent misrepresentation. The learned Munsif who tried the suit held on the strength of decisions of this Court in Jangal Chaudhury v. Lalgit Pasban, 1921 Pat 12 = 60 I C 124 = 6 Pat L J 1 = 1 P L T 735 and M. Ramrup Ghoshain v. Mababir Shah, 1924 Pat 238 = 74 I C 825 = 2 Pat 833 = 5 P L T 66 that the suit was barred by res judicata. The second and third points he held were frivolous. In appeal from his decision the Subordinate Judge of Muzaffarpur came to the conclusion that the suit was maintainable and set aside the decision of the Munsif and remanded the suit for a fresh trial on the merits. The defendants have therefore preferred this second appeal.

Mr. Dutt supports the appeal on the basis of the decision in Jangal Chaudhury v. Lalgit Pasban, 1921 Pat 12 = 60 I C 124 = 6 Pat L J 1 = 1 P L T 735. The only decision cited by the learned advocate for the respondent is Janki Kuer v. Thakur Rai, 1924 Pat 241 = 75 I C 343 = 5 P L T 37. Now in Jangal Chaudhury v. Lalgit Pasban, 1921 Pat 12 = 60 I C 124 = 6 Pat L J 1 = 1 P L T 735, a Letters Patent appeal against the judgment of Das, J., it was decided that the decision in an application of O. 9, R. 13 that the summons was duly served is res judicata and no further suit will lie on the ground that the summons had been fraudulently suppressed. In the decision cited on behalf of the respondents Das, J., expressed some measure of doubt in respect of the decision in Jangal Chaudhury v. Lalgit Pasban, 1921 Pat 12 = 60 I C 124 = 6 Pat L J 1 = 1 P L T 735, but he did not dissent from it. Sitting as his colleague it fell to me to point out that in the case before us it was not even necessary to rely on that decision since there was no evidence whatsoever on the record of the litigation as to the contents of the application of the plaintiff-respondent under O. 9, R. 13 and as an application under O. 9, R. 13 may be made on a ground other than non-service of summons, the contention of the appellant was completely covered by the decision of the Judicial Committee in Radha Raman v. Pran Nath, (1901) 28 Cal 475 = 5 C W N 757 (PC). I also observed that as then advised, I was not prepared to doubt the correctness of the decision in Jangal Chaudhury v. Lalgit Pasban, 1921 Pat 12 = 60 I C 124 = 6 Pat L J 1 = 1 P L T 735. I adhere to the view which I then expressed. In my opinion that decision is sound, Further it completely covers the point at issue in the present case.

The question of service or non-service of summons was agitated between the parties in the proceedings under O. 9, R. 13 and it was held that the summons had been duly served. It is not open now to the respondent in the present case by regular suit to agitate the same point found against him. It must be taken in this suit that the summons was duly served upon the plaintiff-respondent, and if it was duly served it was impossible that there could have been the fraudulent suppression of it which is the basis upon which he desires the ex parte decree against him to be set aside as fraudulent. I would allow the appeal with costs in this Court and in first appeal and restore the judgment of the first Court.

James, J.

I agree.