Mt. Laganmani Kuar and Another vs Ram Gobinda Singh and Others

Fazl Ali, J.—This is an appeal under the Letters Patent from a decision of Agarwala, J. in a second appeal arising out of a suit instituted by the plaintiff-appellant to set aside an ex parte decree on the ground that it had been obtained by fraud.

The material facts of the case are briefly these: In 1919, one Mojibur Rahman mortgaged a two annas proprietary share in village Korawan to one Bamdayal Singh, who was the managing member of a family consisting of himself and defendants 4 to 8. In 1923 Mojibur Rahman executed a usufructuary mortgage bond in respect of 4.64 acres of bakasht lands situated within the proprietary share which he had already mortgaged to Bamdayal Singh, in favour of Rajrani Kuar, wife of defendant 1, Indrapati Kuar wife of defendant 2, Laganmani Kuar, mother of the plaintiff Brijnandan, two other ladies Mt. Sonful Kuar and Khubsurat Kuar, and three persons belonging to another family. Subsequently, Bamdayal instituted a suit on the basis of his mortgage, and having obtained a decree in that suit, he purchased in execution of that decree the two annas share in Korawan which had been mortgaged to him including the bakasht lands which were the subject-matter of the mortgage of 1923, and he also obtained a formal delivery of possession. Some time later he instituted a suit to recover damages for use and occupation against nine defendants including the plaintiff and his mother and the wife and mother of dafendant 2, Nawab, and two of his aunts. In this suit a report was made to the Court by the peon, who had been sent out to serve the summons, that summons had not been properly served on defendants 4 to 7 and certain other defendants. When the report was put up on 15th January 1936, the Court directed the plaintiff Ramdayal to take steps on 11th February 1936, for fresh service of summons upon the defendants who had not been served. On 11th February 1936, the plaintiff Kamdayal asked the Court to expunge the names of the defendants who had not been served from the record and the names of these defendants being expunged and it being found that the other ''defendants, who had been served, were not present in Court, the suit was taken up ex parte for trial, and the decree, which is impugned in the present suit, was passed. Thereafter, the plaintiff brought the present suit to set aside the decree on the ground of fraud. The items of fraud alleged by them in the plaint are summarised by the first appellate Court in these words:

It is alleged in the first place that there was no foundation for the suit, as the proprietary share purchased in the name of Ramdayal belonged to the joint family and Ramdayal was never in possession. As the land held in rehan or usufructuary mortgage also belonged to the joint family, the suit for share of the produce was not maintainable. In the next place, it is alleged that plaintiff 1 was described as major although he was really a minor at the time. In the third place, it is alleged that although the plaintiff was not an ostensible mortgagee, he was made a defendant in the suit though the other members of the family were not. It is further, alleged that the plaint and vakalatnama filed in the suit as well as the verification did not bear the signature of Ramdayal Singh and other members of the family and Nawab Singh had forged their signatures. It is also alleged that no summons or copy of plaint was served on the plaintiffs who were kept out of the knowledge of the suit owing to the fraud of the defendants and that in the suit itself Nawab Singh acted as identifier in the service of summons and falsely deposed to the claim and obtained an ex parte decree; it is further alleged that Nawab Singh got the names of his mother, wife and aunts struck off from the plaint at the time of hearing and the decree was obtained against the plaintiff only.

The suit was contested by defendants 3 to 9, that is to say, Ramdayal and other members of his family, who filed a joint written statement denying that Ramdayal was a farzidar for the joint family of the plaintiff, that there was any fraudulent suppression of the summons, that the claim in the suit was false and that the suit was filed at the instigation of Nawab Singh. The minority of the plaintiff at the date of the suit and the decree was also denied, and these defendants further pleaded limitation and res judicata.

The learned Munsif who tried the suit found that there was no fraud and dismissed the suit. The suit was, however, decreed on appeal by the Subordinate Judge who heard the appeal from the decision of the Munsif, but on second appeal the decision of the learned Subordinate Judge was reversed and the decree of the Munsif restored. The plaintiffs have now preferred an appeal under the Letters Patent.

It appears, that when the case was argued before Agarwala, J. the only grounds of fraud that were urged before him were that the summons had been fraudulently suppressed, that the plaintiff, though a minor at the date of the suit, was impleaded as a major, and that the claim in the suit was entirely false and was supported by perjured evidence. The learned Judge, dealing with these allegations, pointed out that most of them had been already dealt with in a proceeding under Order 9, Rule 13, Civil P.C., which had been instituted by the plaintiff for setting aside the ex parte decree before the institution of the present suit and that the decision of the Munsif who had tried that proceeding was res judicata. As to the point that the plaintiff was a minor and had been impleaded in the former suit as a major, the learned Judge referred to the decision in Niadar Mal v. Raunak Hussain (07) 29 All. 608, where it was held that a suit was not maintainable to set aside a decree on the ground that the aggrieved party had wrongly been impleaded as of full age, though in fact he was a minor, when the matter had already been decided against him in a proceeding u/s 108, Civil P.C., of 1882 (corresponding to Order 9, Rule 13 of the present Code). As to the ground that the decree challenged in the present case had been obtained by perjured evidence, the learned Judge referred to Kripasindhu v. Nandu Charan AIR 1920 Pat. 831 and Jangal Chaudhry v. Laljit Pasban AIR 1921 Pat. 12 wherein it has been held that the mere fact that the claim in a suit decreed ex parte was supported by perjured evidence is no ground for the maintainability of another suit to set it aside.

The learned advocate who appears for the appellants relied before us, as he also did before Agarwala, J., on the decision of the Privy Council in Khagendra Nath v. Prab Nath (02) 29 Cal. 395 In that case it was held that a suit to set aside an ex parte decree and a sale in execution of such decree as illegal, fraudulent and collusive was maintainable notwithstanding the fact that the plaintiff had been unsuccessful in applications under Sections 308 and 311, Civil P.C., to set aside the ex parte decree and sale in execution, when the allegations made in the plaint were clearly an attack not on the regularity or on the sufficiency of the service of summons or the proceedings but on the whole suit in which the ex parte decree was obtained as being a fraud from beginning to end. It was contended on the authority of this pronouncement that the mere fact that the plaintiffs were unsuccessful in the proceeding under Order 9, Rule 13, which they had instituted to set aside the ex parte decree will not prevent them from successfully attacking the decree in the present suit by establishing that the decree had been obtained by means of the fraud alleged in this case. That case, however, has been fully explained in Jangal Chaudhry v. Laljit Pasban AIR 1921 Pat. 12. Dawson-Miller C.J. who delivered the judgment of the Court, dealt with that case as follows:

In that case the defendants had obtained an ex parte decree against the plaintiff, which he sought to have set aside, on the ground of fraud. It is true that the plaintiff alleged'' that service of summons had not been duly made, and that the defendants had caused false returns of service of process to be made. It is also true that he had applied u/s 108, Civil P.C., 1882, to have the decree set aside on the ground of non-service of summons and had failed, and had that been his only ground for impeaching the decree, I venture to think, that their Lordships'' decision would have borne a different complexion. It was proved, however, that in the suit which resulted in the decree impeached the defendants, in order to keep the plaintiff out of the way and prevent him from knowing what was going on, had induced his wife and other relations to institute proceedings to have the plaintiff declared a lunatic, and by means of various threats had caused him to leave his home and stay elsewhere in secrecy, and in such circumstances the plaintiff was unable to take proper steps to defend the suit. It is clear that these allegations, as pointed out in their Lordships'' judgment, were an attack not merely on the regularity or sufficiency of the service, but on the whole suit as a fraud from beginning to end. These were matters, which were not inquired into in the proceedings u/s 108, and no decision had, been come to on them. Even assuming the service of summons to have been regular, there still remained the other questions to be determined, upon which the decree could be set aside as fraudulently obtained. In the present case, the only fraud alleged is that in connexion with the service of summons, and this question has been determined in the proceedings under Order 9, Rule 13.

Again in Ramrup Goshain Vs. Mahabir Shah, Mullick, J. observed as follows:

Our attention has been drawn to the words of Lord Robertson where he says that Sections 108 and 311, Civil P.C., limit the attention of the tribunal to specific matters, and, instead of subjecting to inquiry the radical question involved, they assume the existence of a real suit. His Lordship then proceeds: But there the suit itself is attacked as t 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 a whole. It is clear that upon the fact narrated in the plaint before the learned Judges there were matters of fraud involved independent of and outside the scope of the proceedings for setting aside the ex parte decree.... It is clear that a subsequent suit can only be maintained if the plaintiff proves that, apart from the fraud alleged in the previous proceedings, there are other grounds of fraud which remain to be investigated; that is the purport also of the rulings upon which the defendant-appellant before us relies namely Khirode Chandra v. Ashtulla Bee AIR 1917 Cal. 649, Puranchand v. Sheo Dat Rai 1907 29 All. 212 Niadar Mal v. Raunak Hussain (07) 29 All. 608 Yogamba Boi Ammani v. Arumuga Mudaliar AIR 1917 Mad. 894 and Manindra Nath v. Hari Mondal AIR 1920 Cal. 126.

The case in Khagendra Nath v. Prab Nath (''02) 29 Cal. 395 has been explained and distinguished in a number of other cases, but for the purpose of this appeal I shall confine myself only to the two cases to which I have already referred. These two cases clearly lay down that the decision in question will not apply to cases where the only fraud allsged is that in connexion with the service of summons and where that question has been determined in a proceeding under Order 9, Rule 13, In the present case, as has been pointed out by Agar wala, J. the main, charge of fraud consists in the allegation that the summons had been fraudulently suppressed. This allegation, however, was fully investigated in the proceeding under Order 9, Rule 13 and negatived. It was held in Jangal Chaudhry v. Laljit Pasban AIR 1921 Pat.12 and several other oases of this Court that if a question like this has already been agitated between the same parties and decided by a Court of competent jurisdiction in a proceeding under Order 9, Rule 13 the matter is res judicata and cannot be re-opened between the same parties in a subsequent suit. This is the view which has been taken by Agarwala J. in this case, and it seems to be supported by numerous authorities of this Court as well as other Courts. In my opinion, Agarwala J. has correctly held that the question as to the alleged fraudulent suppression of service in the suit cannot be re-agitated in the present suit.

The learned advocate for the appellants referred to the decision in Janki Kuer Vs. Thakur Rai, in which Das, J. has observed that the bare fact that the plaintiff had been unsuccessful in his attempt to have an ex parte decree set aside by an application under Order 9, Rule 13 would not bar him from re-agitating the question of nonservice of process in a subsequent suit. It appears, however, that Maopherson J. who was also a member of the Bench which decided that case, did not share that view On the other hand, the view which was expressed by him in a later case was that the decision in a proceeding under Order 9, Rule 13 that the summons was duly served is res judicata and no further suit for setting aside the ex parte decree will lie on the ground that the summons had been fraudulently suppressed: see Janki Gope v. Jang Bahadur AIR 1935 Pat. 458 . As the last mentioned case is a decision of a Division Bench of this Court, it is needless to state that we are obliged to follow that decision in preference to the observations made by Das J. in Janki Kuer Vs. Thakur Rai, .

The learned Counsel for the appellants also argued that the claim in the suit which ended in the ex parte decree was entirely false, but it appears to me that once it is held that the decision in the proceeding under Order 9, Rule 13 is res judicata the question as to the falsity of the claim does not arise. If the plaintiffs, notwithstanding the service of summons upon them in the former suit did not choose to appear and contest the suit, they cannot now be allowed to urge that the ex parte decree should be set aside on the ground that the claim was false. The question as to the falsity of the claim does not by itself constitute fraud. It has been held in a series of cases of this Court that this question can be gone into only to make the case of fraud probable and to show why the fraud was committed.

The only other question which was raised before us was as to the effect of the plaintiff being impleaded in the former suit as a major, though in fact he was a minor. The point, however, is completely answered by the decision of the Allahabad High Court in Niadar Mal v. Raunak Hussain 1907 29 All. 608 It was held in that case that a suit was not maintainable to set aside a decree on the ground that the aggrieved party had wrongly been impleaded as a major though he was in fact a minor, when the matter had already been decided against him in a proceeding u/s 108 of the Code of 1882. In my opinion, therefore, the decision of the learned Single Judge of this Court was correct, and the plaintiffs'' suit has been rightly dismissed. The appeal must, therefore, fail and I would dismiss it with costs.

Harries, C.J.

I agree.