Kripa Sindhu Panigrahi vs Nanda Charan Panipatu

Dawson Miller, C.J.—This is an application by the plaintiff for leave to appeal to His Majesty in Council from a decision of this Court dated the 18th July 1919. See 56 Ind. Cas. 606.--Ed. The suit was instituted on the 13th June 1916 before the Subordinate Judge of Cuttack, claiming that an ex parte decree passed against him in favour of the defendants in the same Court on the 3rd February 1915 was fraudulent, illegal and inoperative and that the defendants should be restrained from executing it. The case made in the plaint was that the plaintiff owing to illness could not attend the hearing of the suit which was decreed against him in his absence and that the defendant No. 1, who was the plaintiff in that suit, intentionally cheated the Court by giving falsa evidence. His allegations of perjury are based upon the fact that certain admissions were made by the defendant No. 1 in a previous deposition inconsistent with the evidence given by him in the suit. He further alleged that the defendants prevented his witnesses from appearing by threatening them with violence. These allegations are all denied in the written statement. It further appears that after the decree which the plaintiff impugns was passed, he applied to the Court under Order IX, rule 13, of the CPC to have it set aside on the ground that he was suffering from dysentery on the last date of hearing, but the application was rejected as the Court considered that no sufficient cause for his failure to appear had been made out. An appeal from that order was preferred but was unsuccessful. It does not appear that he made any com-plaint in the proceedings under Order IX, rule 13, that his witnesses had been threaten-ed. It also appears that on the date when the ex parts decree complained of was passed an application for adjournment was made on his behalf but was rejected.

The present suit was dismissed by the Subordinate Judge on the ground that it was not maintainable, That decision was upheld by the District Judge on appeal. A second appeal was preferred to this Court and the decision of the lower Courts was affirmed. It is from the decision of this Court affirming the judgment of the District Judge that the petitioner now applies for leave to appeal to His Majesty in Council.

The value of the subject-matter of the suit was placed at under Rs. 4,000 for the purposes of Court-fees and at Rs. 5,000 the approximate value of the property claimed for the purposes of jurisdiction. The case, therefore, does not fall within Section 110 of the Civil Procedure Code. It is urged, however, that the case is a fit one for appeal to His Majesty in Council u/s 109(c) of the CPC and that a certificate should be granted under Order XLV, rule 3, on the ground that although it does not comply with the requirements of Section 110, it is otherwise a fit case for appeal.

It is well-settled that the mere fact that the appeal involves questions of law does not bring the case within Section 109(c), but it is contended that the case is one of considerable importance as there is some conflict as to the law on the subject and it is desirable that a pronouncement should be made by their Lordships of the Judicial Committee. Since the question was dismissed in the Duchess of Kingston''s case (1776) 2 Sm.L.C. 11th Ed. 731 : 20 How. St. Tr. 537 : 34 H.L.Jo. 655 there has no doubt been some divergence of opinion in the Courts both in this country and in England as to whether a suit would lie to set aside a decree on the ground that it was obtained by perjured evidence and whether a decree so obtained was due to some fraud extrincio and collateral to the matters in dispute, or whether a suit based on such allegations was merely an attempt to reopen questions already adjudicated upon in the original suit. It is not easy to reconcile oases like the Bank of Australasia v. Nias (1851) 16 Q.B 717 : 20 L.J.Q.B. 284 : 15 Jur. 967 : 117 E.R. 1055 : 83 E.R. 698 and Flower v. Lloyd (1879) 10 Ch.D. 327 : 39 L.T. 613 : 27 W.R. 496 with canes such as Aboulff v. Oppenheimer (1882) 10 Q.B.D. 295 : 52 L.J.Q.B. 1 : 47 L.T. 325 : 31 W.R. 27 and Vadala v. Lawes (1890) 25 Q.B.D. 310 : 63 L.T. 128 : 38 W.R. 594.

In this country also there has been some difference of opinion as to whether a decree can be set aside on the ground that it was obtained by perjured evidence. In Mahomed Golab v. Mahomed Sulliman 21 C. 612 : 10 Ind. Dec. 1038 it was held that it could not, and this has been followed, though not uniformly, in other oases in the Calcutta High Court. The Madras High Court in Venkatappa Naik v. Subba Naik 29 M. 179 : 16 M.L.J. 59 held that deliberate perjury was a ground upon which a decree could be set aside. This decision, after being doubted in a latter case, was finally overruled in the case of Kadirvelu Nainar v. Kuppuswami Naicker 45 Ind. Cas. 774 : 41 M. 743 : 34 M.L.J. 590 : 23 M.L.T. 372 : 8 L.W. 103 : (1918) M.W.N. 514 by a Full Bench of the Madras High Court. The Allahabad High Court has also taken the same view in Janki Kuar v. Lachmi Narain 30 Ind. Cas. 789 : 37 A. 535 : 13 A.L.J. 753. It appears, therefore, that so far as the Courts of this country are concerned, there is at present little or no divergence of opinion on the subject in the most recent pronouncements of the different High Courts. Moreover, it must not be forgotten that under the CPC every facility is afforded to the parties both under Order IX and by review of judgment to have matters, already adjudicated upon, re-opened where good cause is shown and it is of paramount importance that litigation should have some finality. In the present case the plaintiff failed to convince the Court when he applied under Order IX, rule 13, that his non-appearance at the trial was due to any good cause. He must, therefore, be taken to have been guilty of laches, but for which he would have had every opportunity of appearing at the trial and cross-examining the witnesses whose perjury he now complains of and could have produced the documentary evidence of perjury upon which he relies and upon which his present suit is based. In the circumstances I do not feel justified in holding that the case is one of such public or private importance that we should grant the certificate asked for. I would reject the application with costs. Hearing fee three gold mohurs.

Adami, J.

I agree.