Sri Thanthonrisamy Devastanam vs Ekambaram

Maheswaran, J.—This second appeal and the civil revision petition arise out of the common judgment rendered in A.S. 124 and 125 of

1970 on the file of the Sub Court, Mayuram. One Ekambaram, hereinafter referred to as the tenant, has filed a suit, in O.S. 219 of 1978 on the file

of the District Munsif court, Sirkali, against the Devastanam of which he is the tenant of cancellation of the decree passed in O.S. 581 of 1973 on

the file of the District Munsif Court, Sirkali. In that suit, he averred that he was a tenant in respect of a house belonging to the Devastanam in South

Madavilagam St., Udaiyavarkoilpathu vattom, Akkur that he was paying rent regularly till December 1972, that at the end of December 1972 he

vacated the house, that in September 1977 he received a notice from the Devastanam calling upon him to vacate the house and to pay the arrears

of rent and subsequently a suit in O.S. 50 of 1978 for recovery of possession and collection of arrears of rent was filed. He further averred that he

is contesting that suit that he was not aware of the decree passed in O.S. 581 of 1973, for alleged arrears of rent of Rs. 720 that he was not

served with any notice, that the Devastanam after effecting substituted service at a place where the tenant did not reside has obtained a decree in

O.S. 581 of 1973, fraudulently behind the back of the tenant and that the decree obtained by the defendant against the tenant in O.S. 581 of 1979

is not valid and binding on the plaintiff and therefore it is necessary that the decree in O.S. 581 of 1973 should be cancelled.

That suit was resisted by the Devastanam which stated that the plaintiff was always in arrears and continued to be in possession even after

December 1972, that vacant possession was handed over to the Devastanam by the Executive Officer, Thillayadi, by the end of January 1978 that

the tenant knew about the decree passed against him and that his claim that he was not aware of the decree or that it was obtained by fraud is

wrong.

The Devastanam filed O.S. 50 of 1978 on the file of the District Munsif court, Sirkali, against the tenant for recovery of arrears of rent from fasli

1383 till 1386 and half of fasli 1387 at the rate of Rs. 180 per fasli. The tenant resisted that suit on the same grounds alleged in the plaint for

cancellation of the decree passed in O.S. 581 of 1973. He would say that he vacated the premises in December 1972, that he was not in

occupation thereafter and that he is not liable to pay any amount.

The learned District Munsif dismissed the suit of the tenant in O.S. 219 of 1978 and decreed the suit of the Devastanam for arrears of rent.

Against the judgment and decree in O.S. 219 of 1978, the tenant preferred A.S. 124 of 1979 and against the judgment and decree in O.S. 50 of

1978 he filed A.S. No. 125 of 1979. The appellate Judge reversed the judgment and decree in O.S. 219 of 1978, and decreed that suit and

dismissed the suit of the Devastanam in O.S. 50 of 1978 for arrears of rent. Aggrieved, the Devastanam has filed S.A. 509 of 1983 against the

judgment and decree in A.S. 124 of 1979 and C.R.P. 1520 of 1983 against the judgment and decree in A.S. 125 of 1979.

S.A. 509 of 1983--The tenant prayed for relief of cancellation of the decree in O.S.581 of 1973, on the file of the District Munsif''s of Sirkali.

O.S. 581 of 1973 was a suit filed by the Devastanam for arrears of rent amounting to Rs. 720 against the tenant. The defendant-tenant was not

served personally. Substituted service was effected and the suit was decreed ex parte. According to the tenant who has filed the suit O.S. 219 of

1978 out of which this second appeal arises, the decree in O.S. 581 of 1973 ''was obtained fraudulently behind his back.'' It is pointed out by the

learned counsel appearing for the appellant that particulars of fraud have not been furnished in the plaint and in that circumstances, the judgment of

the appellate Court decreeing the suit O.S. 219 of 1978 is against law. As regards the fraud pleaded by the tenant, the details are contained in

paragraph 6 of the plaint which runs thus--

This apart, the plaintiff was not served with any notice of the said suit nor was there any pre-suit notice to him. On investigation, the plaintiff learns

that the suit notice might have been affixed at the defendant''s house (which was not occupied by the plaintiff at that time) and after effecting

''substituted service'' in a place where the defendant (plaintiff herein.) did not reside, the defendant in that suit had been set ex parte and a decree

obtained. Thus, it will be seen that the decree in O.S. 581 of 1973 against the plaintiff - defendant in O.S. 581 of 1973 was obtained fraudulently

behind his back.

In paragraph 8 of his plaint, the tenant says that the decree obtained by the Devastanam in O.S. 581 of 1973 is not valid and binding as the same

was obtained with the design of keeping the defendant in that suit unaware of the proceedings and purposely denying to the defendant in that suit

an opportunity of being heard and the way in which the suit was prosecuted and the court was misinformed and misled was opposed to the

principles of natural justice and it is therefore necessary for the plaintiff to get the decree in O.S. 581 of 1973 cancelled. Except these allegations,

there are no allegations giving the particulars of fraud.

O.6, R. 4, C.P.C., states that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default or

undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars

(with dates and items if necessary) shall be stated in the pleading. Further, the tenant who prays for cancellation of the decree validly obtained by

the appellant -- Devastanim should furnish material facts in respect of the fraud alleged to have been practised by the appellant in obtaining the

decree. It is no doubt true that the tenant was set ex parte, after effecting substituted service. But, it should be noted that substituted service is also

valid service. In this case, the plaintiff tenant has averred that he was not served with any notice, that on investigation he learns that ""notice might

have been affixed at the place which was not occupied by him"". If substituted service was ordered by court on the ground that the tenant was

evading notice and if substituted service is effected in pursuance of that order and the defendant is set ex parte and a decree passed, it cannot be

said that the decree was obtained by fraud. It is not enough to say that the decree against the tenant was obtained ""fraudulently behind his back"". A

general allegation that the decree was obtained by fraud is insufficient even to amount to an averment of fraud. The charge of fraud has substantially

to be proved. There are no other allegations in the plaint. Nor is there any evidence in this case to indicate that fraud has been practised by the

appellant on the tenant. Ex.A13, the affidavit filed in support of the petition for effecting substituted service, shows that the tenant has absconded

without receiving the summons with a view to avoid receipt of summons. It cannot be said that the Devastanam was practising fraud when it alleges

in the affidavit that the tenant was evading service or that he was absconding. On the score, one cannot come to the conclusion that the decree

obtained ex parte is one obtained by fraud.

In Bishundeo Narain v. Seogeni Rai and Jagernath 64 L.W. 971 (S.C.) = 1951 S.C.R. 549, the Supreme Court pointed out--

Now if there is one rule which is batter established than any other, it is that in cases of fraud, undue influence and coercion, parties pleading it must

set forth full particulars and the case only be decided on the particulars as laid. There can be no departure from them in evidence,

Most unfortunately, the appellate Judge has taken a view different from the view taken by the trial court. It pointed out that the lower Court did not

take pains to note the fact that the defendant has not taken steps to issue the summons to the place where he was employed. It has not been

established that the Devastanam knowing fully well about the present address of the tenant has taken the summons to the last known address of the

tenant and in such circumstances, one cannot assume that the decree was obtained by fraud. The judgment of the appellate Court decreeing the

suit O.S. 219 of 1978 on the file of the District Munsif, Sirkali is wrong and has to be set aside and is hereby set aside, S.A. 509 of 1983 is

allowed and the judgment and decree in A.S. 174 of 1979 are set aside and those of the trial court are restored. No costs. C.R.P. 1520 of 1983-

-In regard to the civil revision petition, I may at once point out that the Devastanam has to prove that the tenant was in possession of the premises

in question from Fasli 1383 to Fasli 1386 and during the one half of fasli 1387. The Devastanam had to prove that the tenant continued in

possession till Fasli 1387. It is contended for the tenant that he has handed over the key to the then Trustee in December 1972 itself. He being a

trustee, it would not be possible for the tenant to examine him. It is easy for the Devastanam to procure the then trustee, Swaminathan, to examine

him. But that has not been done. It is pointed out by the learned Subordinate Judge that Exs.B2 to B6, the documentary evidence clearly support

the case of the tenant. Ex.B3 to B6 are the counter foils of the receipts issued by the Devastanam to the tenant. Exs.B2 to B5 are prior to

1.12.1972. It is the case of the tenant that he vacated the premises in December 1972. These receipts will not help him. But, Ex.B6 however

shows that an amount of Rs. 50 was paid by the tenant to the Devastanam. But this counterfoil does not bear any signature of the tenant. No

doubt, a signature is found on the reverse of the exhibit, but that has not been proved to be the signature of the tenant. As there is no proof of the

fact that the tenant was residing till fasli 1387, in the premises, the appellate Court was right in holding that the tenant was not in possession of the

house after December 1972. The result is, the judgment of the appellate Court in A.S.125 of 1979 is confirmed and the civil revision petition is

dismissed, but without costs.