Sheikh Rahim Bux vs Sheikh Muhammad Jamshed Ali

Lahiri, J.—This is an application in revision against the order of the Subordinate Judge, second court, Midnapore, dated June 26, 1952, by which he refused to entertain an application filed by the Petitioner u/s 151 of the CPC for vacating a previous order made by the same court on February 8, 1952. The facts which are material for purposes of this Rule may briefly be stated as follows:

One Haji Tahidali, the brother of the Petitioner and husband of opposite party No. 2, instituted a title suit for cancellation of three Kabalas alleged to have been executed by him. Opposite party No. 1, who is the brother of opposite party No. 2, contested the aforesaid suit denying the allegations contained in the plaint. On November 6, 1951, an application was filed in court alleging that Haji Tahidali did not desire to prosecute the suit and that the suit might be dismissed for non-prosecution. This application came up for hearing on December 14, 1951, on which date an affidavit was filed on behalf of the Plaintiff, Haji Tahidali, averring that he did not instruct anybody to file a petition expressing his intention not to proceed with the suit. Upon these materials the Subordinate Judge, second court, passed an order on December 14, 1951, to the effect that the application alleged to have been filed by the Plaintiff expressing a desire not to prosecute the suit should be rejected and that the suit should be heard on its merits, and February 8, 1952, was fixed by the court for settling the date for peremptory hearing.

On February 8, 1952, a petition purporting to bear the thumb impressions of the Plaintiff Haji Tahidali was filed in court alleging that the matters in dispute between the parties had been settled out of court and as such the Plaintiff did not want to proceed with the suit. The suit might accordingly be dismissed without costs for non-prosecution. In this application there was a further allegation that the Plaintiff Haji Tahidali had authorised his wife Sm. Hamidannessa Bibi, opposite party No. 2, to file a fresh vokalatnama and to engage a new lawyer. This application was heard by the court on February 8, 1952. An affidavit was filed by the Plaintiff''s wife Sm. Hamidannessa Bibi, to the effect that the Plaintiff did not want to proceed with the suit and that he had deputed her to file a fresh vokalatnama. On a consideration of the materials on the record, the Subordinate Judge dismissed the suit for non-prosecution without any costs to the Defendants.

On February 16, 1952, the Petitioner before us filed an application for vacating the order, dated February 8, 1952, alleging that Haji Tahidali died on February 8, 1952, and that the thumb impressions upon the application filed on February 8, 1952, were not his and that even if those thumb impressions be found to be his, they were obtained at a time when Haji Tahidali was unconscious. The Petitioner alleged in this application that he was a brother of the deceased Plaintiff and as such one of his heirs. He filed the application for vacating the order u/s 151 of the Code of Civil Procedure.

The learned Subordinate Judge dismissed this application upon the view that Section 151 of the Code is not applicable to the case, because the applicant has an alternative remedy by way of a suit.

There can be no doubt that the general rule is that the inherent power of a court u/s 151 cannot be exercised when there is an alternative remedy. This principle is laid down in the case of J.C. Galstaun v. Pramatha Nath Roy (1929) ILR 57 Cal. 154, and also in the case of Subodh Chandra Mukherjee v. Sudhir Kumar Basu (1949) 54 C.W.N. 106. But there is an exception to this general rule in cases where a consent order is sought to be set aside on the ground that the order was obtained by practising fraud upon the court. The reported decisions of this Court recognise a distinction between cases where a consent order is obtained by practising fraud upon the court and cases where a consent order is obtained by practising fraud upon a party to the suit. This distinction has been recognised by B.K. Mukherjea and Roxburgh, JJ. in the case of Suresh Chandra Sen v. Jogesh Chandra Sen (1939) 43 C.W.N. 969, 972. Mukherjea, J'', observes as follows:

A distinction is drawn between the factum of consent and its reality. It is stated that when an order is obtained from the Court on the allegation that the parties have assented to it and it is asserted by one party later on that he never gave his consent, it was open to the Court to investigate the matter and review its own order if it was satisfied that the party did not give his consent at all.. But when there is apparent consent given by a party to the suit and he impeaches the decree afterwards on the ground that bis consent was obtained by fraud, in such cases the court has got no inherent jurisdiction to set aside the previous decree or order and the remedy of the party would be by way of a suit.

The same distinction is also noticed by Henderson, J. in the case of Akina Bibi v. Muhammad Ali Shaha (1941) 45 C.W.N. 392. It has been held in this case that where the consent order is impeached on the ground that no consent was given, the court has jurisdiction to proceed u/s 151 of the Code of Civil Procedure. But when the consent order is impeached on the ground that the consent was obtained by practising fraud upon the parties, the only remedy of the aggrieved party is by way of a suit. The decision in the case of Akina Bibi v. Mohammad Ali Shaha (supra), is of the former class, whereas the decision in the case of Suresh Chandra Sen v. Jogesh Chandra Sen (supra), is of the latter class.

In the case of Peary Choudhury v. Sanoo Dass (1914) 19 C.W.N. 419, Chatterjee and Greaves, JJ. observed as follows:

Not only has the court power but it is its duty to set aside a decree obtained by fraud practised upon the court when apprised of it.

Bearing this distinction in mind, we find that in the present case the applicant alleges that the order, dated February 8, 1952, was obtained by practising fraud upon the Court in the sense that although Haji Tahidali, the Plaintiff, did not give his consent to the petition which was filed on February 8, 1952, it was represented to the court that he did give his consent. In paras. 5 and 6 of the petition, the applicant alleges that the thumb impressions of Haji Tahidali on the petition were not his and that in any case if the thumb impressions are found to be his, they were obtained at a time when he was unconscious. These allegations, if proved, bring the case within the principle of the decisions in the cases of Akina Bibi and Peary Choudhury, cited above.

Mr. Guha appearing for the opposite parties relies upon the decision of the Supreme Court in the case of Keshardeo Chamaria v. Radha Kissen Chamaria (1952) S.C.A. 775, for the proposition that we should not interfere with the order of the Subordinate Judge in the exercise of our revisional powers u/s 115 of the Code of Civil Procedure. We, however, find that in the present case the Subordinate Judge failed to exercise a jurisdiction vested in him by law in refusing to entertain the application upon the view that the provisions of Section 151 cannot be invoked in such a case.

We, accordingly, make this Rule absolute, set aside the order of the Subordinate Judge, dated June 26, 1952, and direct him to hear the application filed by the Petitioner on the merits. He will, however, grant relief to the Petitioner only if he finds that the allegations made in the paras. 5 and 6 of his application are true.

In the circumstances of this case, however, we make no order as to costs.

Guha, J.

I agree.