Ramrup Goshain vs Mahabir Shah

Mullick, J.—(after reciting facts, his Lordship proceeded:) The learned Subordinate Judge''s judgment is very summary and scanty. He does not particularize the grounds upon which he holds that the scope of the present suit is different from the proceeding DO set aside the ex parte decree in suit No. 231 of 1916. We have, however, had the advantage of reading the pleadings in the suit and we think that the learned Munsif took a correct view of the case.

There is no difficulty as to the law. The plaintiff relies upon the decision of their Lordships of the Privy Council in Radha Raman Saha v. Pran Nath Roy (1901) 28 Cal. 475. The facts of that case are not fully reported and it would seem, from the judgment of their Lordships, that the scope of the subsequent suit was different from the scope of the proceedings in the matter of setting aside the ex parte decree. The other case upon which the plaintiff relies is Khagendra Nath Mahata v. Pran Nath Roy (1902) 29 Cal. 395 and our attention has been drawn to the words of Lord Robertson where he says that Sections 108 and 311 of the CPC limit the attention of the tribunal to specific matters, and, instead of subjecting no enquiry the radical question involved, they assume the existence of a real suit." His Lordship then proceeds: "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 103 and 311, are here treated as parts and indicia of a whole." It is clear that upon the facts 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. One of these matters evidently was the allegation that the service of notice was made in respect of a minor defendant upon a person who was not his guardian at all. 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 Roy v. Srimati Ashutullabee 20 C.W.N. 845, Puran Chand v. Sheodat Rai (1907) 29 All. 212, Niadar Mal v. Baunak Husain (1907) 29 All. 608, Yoqamba Boi Ammani v. Arumuga Mudaliar (1916) 3 M.L.W. 572, and Manindra Nath Mittra v. Hari Mondal 24 C.W.N. 133.

The question, therefore, is what is the fraud that is alleged in the present suit? Giving the fullest margin to the learned Vakil for the respondent, it does not appear to me that the plaint is founded on any other ground of fraud than that in the matter of the service of processes, and that being so, the suit, in my opinion, cannot lie.

The matter may be tested in another way. Supposing the suit is permitted to proceed, what will be the effect of the previous finding as to the service of the processes. It is contended on behalf of the respondent that the finding will not be res judicata although it may be strong evidence. Whether it is res judicata or not will depend upon the question whether a proceeding under Order 9, Rule 13, Code of Civil Procedure, is a suit within the meaning of Section 11 of the Civil Procedure Code. If it be held that the proceeding being a summary proceeding is not a suit then the Rule of res judicata will not apply. In that) case evidence will be adduced by the parties upon the question of service. What will be the effect of a finding in favour of the defendants that service was in fact made as found in the previous proceeding? In my opinion the finding will be a complete answer to the suit which will then have to be dismissed on the ground that the plaintiff, having been duly served with summons and not having appeared to contest the claim of the defendant No. 1, cannot now be heard to urge that the decree was improper unless he can show that by some contrivance on the part of the defendant he was prevented from placing his ease fully before the Court. In other words he must show that owing to some subsequent overreaching on the part of the plaintiff he was prevented from showing that the claim was fraudulent. 16 will not be sufficient to say that the claim was unfounded because every invalid claim is not necessarily a fraud upon the Court.

A somewhat similar view was expressed by a division bench of this Court in Ram Narain Lal v. Tooki Sao (1920) 5 P.L.J. 259. It is true that in that case the point was whether obtaining a decree by purjured evidence was fraud which vitiated the decree but the principle upon which the Court proceeded was that the fraud necessary to the success of the plaintiff must be a fraud practised upon the Court by a contrivance such as I have referred to above.

Therefore unless the plaintiff can show that there were other grounds of fraud, apart from the service of processes, I think the suit cannot be allowed to proceed. Now upon this point the plaint is entirely silent and we have not been shown by the learned Vakil for the respondent anything which would justify us in supporting the order of remand passed by the Subordinate Judge and in thus protracting the litigation.

It is, however, urged by the learned Vakil for the respondent that leaving aside the prayer on the ground of fraud, he is entitled to maintain the suit on the ground that the decree does not in fact give any relief against the plaintiff. That is not one of the declarations asked for in the prayer portion of the plaint and having regard to the fact that the decree was one for declaration of title and confirmation of possession against all the defendants in the suit, it is difficult to see how the plaintiff can say that he is not in any way touched by the decree and that it is of no effect against him. It is quite clear that his suit is a suit to set aside a decree on the ground of fraud and it was accepted as such in the Courts b4ow. It is too late now to assert that a different relief was asked for.

Tue result is that the appeal is decreed with costs.

Bucknill, J.

I agree.