Janki Kuer vs Thakur Rai

Das, J.—The appellant instituted a rent suit, being suit No. 1392 of 1918 against the respondent on the footing that the rent payable by the appellant was produce rent; and on the 14feh March, 1919, the respondent obtained an ex parte decree against the appellant. The appellant thereupon presented an application to have the ex parte decree set aside, but failed in the attempt. On the 22nd July, 1919, he instituted the suit out of which the appeal has arisen for setting aside the ex parte decree on the ground that it was obtained by fraud. The learned Judge in the Court below has found, first, that there was no foundation for the rent suit in the form in which it was instituted; and secondly, that summons in the former proceedings was not in fact served on the appellant. On these findings he came to the conclusion that the decree obtained by the appellant against the respondent on the 14th March, 1919, was fraudulent, and ha has given the respondent a decree as claimed by him.

Two arguments have been advanced before us on behalf of the appellant; first, that it was not open to the learned Judge in the Court below to find that summons in the former suit was not served on the respondent, having regard to the fact that the respondent, attempted to have the ex parte decree set aside under the provisions of Order 9, Rule 13, and failed in the attempt; and secondly that it was necessary for the Court below to find that there was fraud in relation to the proceedings of the suit before it could assume jurisdiction to examine the propriety of the previous judgment.

So far as the first point is concerned, the argument in the form in which it has been advanced, is covered by the decision of this Court in the case of Jangal Chaudhuri v. Laljit Rasban (1921) 6 P.L.J. 1. For the reasons, which I shall state presently, it is unnecessary to consider whether the case of Jangal Chaudhuri v. Laljit Rasban (1921) 6 P.L.J. 1 was rightly decided. Speaking with all respect, it seems to me that that case does not recognize that it is not an issue in a suit to set aside a decree on the ground of fraud whether summons was in fact served in the suit which resulted in the decree sought to be set aside. The questions which are agitated in an application made under Order 9, Rule 13 may indeed form the subject-matter of an investigation in the suit itself, but, as Lord Robertson pointed out in Khagendra Nath Mahata v. Pran Nath Roy (1902) 29 Cal. 395 such questions "are here treated as parts and indicia of a whole." The main defence to the suit before their Lordships was that the action could not be maintained, because the plaintiff applied u/s 108 of the Code to have the decree set aside, and the application was refused, and the plaintiff did not appeal against the refusal. No doubt the fraud in that case was much more violent than in the present case, but the degree or the comparative heinousness of the fraud perpetrated can make no difference to the point of law which is whether the fact that the plaintiff applied and failed to have an ex parte decree set aside under Order 9, Rule 13 of the Code prevents him from maintaining an action for setting aside the decree on the ground of fraud, and incidentally proving, as an index of the fraud, that summons was not served on him in the previous suit. To this question, Lord Robertson gives an unhesitating reply: "This is a case ", said his Lordship, "generically different from any which was or indeed could be determined under Sections 108 and 311 of the Civil Procedure Code. Those Sections limit the attention of the tribunal to specific matters, and, instead of subjecting to enquiry the radical question now involved, they assume the existence of a real suit. But here the suit itself is attacked as a fraud; and the fraudulent and violent incidents of its progress as, for instance, at the stage of service and in the abduction of the respondent, while they may individually have founded an application under Sections 108 and 311, are here treated as parts and indicia of whole." It I may suggests respectfully, it was recognized by the Judicial Committee that "the radical question" involved in such a suit as this could not be determined by the Court in an application under Order 9, Rule 13, and that the issues in the two suits are entirely different.

But I do not intend to decide that point in this appeal. It is sufficient to say that we have nothing before us but the bare fact that the plaintiff endeavoured to gat an ex parte decree set aside under Order 9, Rule 13 of the Code. To quota the words of Lord Hobhouse in the case of Radha Raman Shaha v. Pran Nath Roy (1901) 28 Cal. 475. " We are not told what went on before the Court upon that occasion, and it is impossible to say that the matter now alleged as fraudulent matter came in anyway before the Court under the application which was made by virtue of Section 108" (Order 9, Rule 13 of the present Code). The case in Radha Raman Shaha v. Pran Nath Roy (1901) 28 Cal. 475 is exactly in point, and I. must ovarrule the first argument which has been advanced before us.

The other point is equally without substance. The learned Counsel has relied on various cases in which there was appearance by the plaintiff in the former suit, but in which the plaintiff nevertheless contended that the decree in the former suit was obtained by fraud. Clearly if summons was served on the plaintiff in the former suit, it could not be urged by him that there was initially an attempt to prevent him from making his defence. Consequently the whole endeavour in these cases has been to induce the Court to examine the propriety of the previous judgment and the Courts have declined So do so, holding, in my opinion, rightly, that, before they could do so, they must be satisfied that there was some fraud in relation to the proceedings of the suit. These cases have no bearing on the present case in which there was an attempt to prevent the plaintiff from making his defence. The failure to serve summons on a defendant may be accidental or deliberate; and where the Court finds, as a fact, that there was no foundation for the suit itself, it is open to the Court to hold that the suppression of summons was deliberate with the object of snatching a decree from the Court in the absence of the defendant. I must dismiss this appeal with costs.

Macphenson, J.

I also would dismiss this appeal with costs. On the second argument advanced in support of it I am in entire agreement with the view expressed by my learned colleague. As to the first argument I am of opinion that apart from the decision of this Court in Jangal Chaudhuri v. Laljit Rasban (1921) 6 P.L.J. 1 the correctness of which. I am, as at present advised, not prepared to doubt, the contention cannot prevail. There is some authority for the view that even if the allegation in an unsuccessful application under Order 9, Rule 13 has been non-service of summons that point is not necessarily res judicata in a suit such as the plaintiff-respondent brought in this instance to have the ex parte decree safe aside on the ground of fraud including fraudulent suppression of summons, when his application was dismissed for default without going into the merits. See Gulab Sundari v. Indra Kumar (1909) Cri.L.J. 367 at page 371. But in the present instance it is not even necessary to rely on that view; for there is no evidence whatever on the record of this litigation as to the contents of the application of the plaintiff-respondent under Order 9, Rule 13, and as an application under that provision of law may be made on a ground other than non-service of summons, the first contention in this application is completely covered by the decision of the Judicial Committee in Radharaman v. Prannath (1901) 28 Cal. 475.