Lalji Thathera vs Ganga Thathera

Kulwant Sahay, J.—The petitioner instituted a suit in the Small Cause Court of Gaya against the opposite patty and obtained an ex-parte decree. The opposite party brought a title suit for setting aside the ax-parte decree on the ground of fraud. This suit was decreed, and the ex-parte decree was set aside on the ground that there was a fraudulent suppression of summons in the Small Cause Court suit. The petitioner then applied to the Small Cause Court for retrial of his suit. The learned Judge has dismissed his application and has hold that the petitioner is not entitled to have his suit retried. The petitioner has come up in revision to this Court Against this order of the learned Judge.

The question is whether the setting aside of the ex-parte three on the ground of fraud would entitle the plaintiff in the original suit to have his suit reheard. The reason given by the learned Judge for refusing to rehear the suit is that in the regular suit brought by the opposite party for setting aside the ex-parte decree one of the issues raised was as to whether the haudnote which was the basis of the Small Cause Court suit was genuine, valid, and for consideration, and the learned Subordinate Judge had come to the finding that the handnote was not genuine, valid and for consideration ; and the learned Judge of the Small Cause Court has held that having regard to the finding of the Subordinate Judge upon this issue, the petitioner is not entitled to have the same issue tried again in the Small Cause Court suit.

The learned vakil for the petitioner argues that the issue as regards the genuineness or validity of the bandnote or the passing of consideration under it was not an issue which could properly be raised in the title suit, and that the decision of such an issue would not bar the trial of the same issue in the Small Cause Court suit. His contention is that the only issue which did properly arise in the regular suit was as to whether there was fraud in relation fro the service of summons in the Small Cause Court suit and as to whether the ex-parte decree in the Small Cause Court suit had been obtained by fraud, and that no other issue did properly arise in the regular suit. It is further contended on behalf of the petitioner that having regard to the provisions of S. 17, Provincial Small Cause Courts Act, the Subordinate Judge had no jurisdiction to try the issue as regards the genuineness or validity of the handnote.

In my opinion the contention is sound and ought to prevail. The only proper issue in the regular suit to set aside the ex-parte decree on the ground of fraud was as to whether fraud bad been committed by the plaintiff in the Small Cause Court suit whereby the defendant was prevented from placing his case before the Court. It is no doubt true that in order to determine the question as to whether fraud had been perpetrated, it was open to the Court to go into the question as to whether there was any foundation for the suit; but this question could be have into only incidentally for the purpose of coming to a finding on the proper issue in the case, viz., as to whether there was any fraud and as to whether the plaintiff had any motive for committing the fraud and preventing the defendant from placing his case before the Court. The question as regards the genuineness or validity of the handnote did not properly arise in the regular suit and could not properly be made an issue in the suit. It was held by a Division Bench of this Court in Ashrafilal Mahta and Others Vs. Surajmaya Mishrain, , that when a consent decree is vacated on the ground of fraud the Court cannot reject the application to proceed with the original suit, as the effect of setting aside the decree is to remit both parties to their original rights, and the learned Judges referred to the decision of the Privy Council in Khajooroon-nissa v. Roshan Jehan [1876] 2 Cal. 184= 3 I.A. 291= 26 W.R. 36= 3 Sar. 629 (P.C.). This decision is directly in point and is binding upon me. On the other hand reference is made to the decision in Damodar Prasad v. Ramsarup Kumar AIR 1923 Pat. 327, as an authority for the proposition that where a decree is set aside as fraudulent the suit cannot be reheard. There is no such general proposition laid down in that decision. The learned Subordinate Judge who had beard the subsequent suit to set aside the ex-parte decree had come to the conclusion that the decree was a fraudulent one ; he had set aside that decree and restored the original suit to its file ; and on the facts of that particular case Das, J., observed as follows:

On the facts found by the learned Subordinate Judge the order passed by him was for too favorable to defendants first party, for if the decree obtained by them was a fraudulent decree they were not entitled to have the suit reheard as against Ramsarup and Biseshwar.

This was an observation with regard to the peculiar circumstances of that particular case. The question as to whether the suit is revived was not directly raised in the case and no reasons appear to have been given. The same learned Judge, however, when the matter was directly raised came to the conclusion in the case of Ashrafilal Mahta and Others Vs. Surajmaya Mishrain, , that the effect of setting aside the decree was to remit both parties to their original rights. I am, therefore, of opinion that the order of the learned Judge of the Small Cause Court complained against was illegal and must be set aside. He must proceed to try and rehear the original suit. The petitioner is entitled to his costs of this application. Hearing-fee one gold mohur.