- (1.) THIS is a plaintiff's appeal against the appellate judgment and decree of the learned Civil Judge, Bundi dated the 30th of April, 1953, in a suit for declaration that the decree in suit No. 209 of 1949 dated that 21st of September, 1949 of the court of the Civil Judge, Baran, had been obtained by fraud and that is was void and ineffective against the plaintiff and that it should be set aside. It has further been prayed that the defendant be restrained by an injunction from executing the said decree against the plaintiff.
(2.) ACCORDING to the plaintiff, allegations in suit No. 209 of 1949 were altogether false in that the suit was brought against the plaintiff and one Manmal, who had died long before it was brought. The summons of the suit was not served upon the plaintiff, nor was it served upon Manmal. In fact, it could not be served on Manmal, because he has died before the suit. It was alleged that the defendant committed a fraud inasmuch as he got a false service made and the court was made to believe that service had been effected personally and the plaintiff informed on the 5th of March, 1949 when in fact no service had been effected of any kind upon the plaintiff. It was further alleged that by this fraud, the defendant obtained an ex parte decree against the plaintiff on the 21st of September, 1949. It was also alleged that in fact nothing was due to the defendant from the plaintiff but by depriving the plaintiff of his defence by keeping him in ignorance of the suit, the decree had been obtained. The defendant denied in his written statement that service had not been affected upon the plaintiff, and asserted that the plaintiff had received summons in the previous suit on the 5th of March, 1949 and that since that date he had knowledge of the suit. It was admitted that Manmal had died before the previous suit but it was pleaded that it was on account of the bonafide mistake that Manmal was impleaded as a defendant in place of Tejmal, father of Devraj. It was pleaded that the previous suit was brought on true and correct allegations and that in fact the sum was due to the defendant from the plaintiff. This suit was filed in the court of the Munsiff, Bundi. The learned Munsif framed three issues which when translated into English, run, as follows - (1) Whether the amount for which the suit was brought, in the court of the Civil Judge, Baran, on the 25th of January, 1949 and which was decreed ex-parte on the 21st of September, 1949 for the recovery of Rs. 645/15/6 with costs was on account of wagering transaction. (2) Whether the plaintiff did not get any knowledge of the said suit before January, 1951 and the defendant committed a fraud on the court of the Civil Judge, Baran and misled it. (3) To what relief is the plaintiff entitled? Both the parties led their evidence. Learned Munsiff held under issue No. (1) that the previous suit against the plaintiff was unfounded and a decree was obtained against the plaintiff by suppressing true facts. On issue No. (2), it was held that service of summons was not effected on the plaintiff in the previous suit but it was held that it was not proved that the non-service of summons was due to the active fraud of the defendant. On these findings the suit was decreed by the judgment dated the 16th of January, 1953. The defendant went in appeal and the learned Senior Civil Judge, Bundi, by his judgment dated the 30th of April, 1953 set aside the decree of the first court and dismissed the suit. The plaintiff Devraj has come in second appeal to this court. I have heard Shri C. L. Agarwal on behalf of the plaintiff-appellant and Shri P. C. Bhandari on behalf of the defendant-respondent. It has been argued by Shri Agarwal that both the lower courts have held as a fact that no service of summons was made on the plaintiff in the previous suit. It was argued that the lower courts were not justified in holding that the non-service of summons was not due to the fraud of the defendant. It was argued that the plaintiff said in para 2 of the plaint that he had no notice of the suit and the defendant in the written statement denied this allegation of the plaintiff and asserted that the plaintiff had received summons in the previous suit on the 5th of March, 1949 and that since that date he had had a notice of the previous suit. This paragraph of the written statement was verified by the defendant from his personal knowledge which shows that the defendant's case was that the service was effected in his presence. It was argued that if the defendant's case and it has been found that in fact no service was made on the plaintiff and that the signature purporting to be those of the plaintiff on the back of the summons were not his, the inference clearly is that it was through the complicity of the defendant that false signatures were obtained on the back of the summons to deceive the court. It was argued that in case of fraud, it is not possible to produce direct evidence and it can be inferred only from the facts and circumstances of the case. In this case it was a strong circumstance against the defendant that the defendant asserted that to his personal knowledge service of summons was effected on the plaintiff, while it was in fact not made. From this, it could be clearly inferred that it was due to the defendant's fraud that false signatures were put on the back of the summons. It was argued that in the present case, it was not only proved that the summons was not served on the plaintiff but it was proved beyond doubt that the service was falsely shown to be personal. There were, therefore, both the ingredients present in the case, namely, the non-service of summons and the active fraud of the defendant in making a show of the personal service of summons. Learned counsel also argued that if it were held that there was no active fraud on behalf of the defendant in the non-service of the summons, it was at any rate clear that service was not made on the plaintiff, and this coupled with the fact that the defendant's previous suit was not based on true facts would go to show that the decree in the previous suit was obtained by the fraud on the plaintiff. On behalf of both the parties, reliance has been placed on the following rulings. Shri Agarwal has argued that there are observations in these rulings which support his contention whereas Shri P. C. Bhandari has argued that the decision in all these cases go to support the judgment of the learned lower appellate court - Abdul Mazumdar vs. Mohamed Gazi Chowdhry (1), Khagendra Nath Mahata vs. Pran Nath Roy (2), Kunjbehari Chakrabarty vs. Krishnadhone Majumdar (3), Durgagati Banerjee vs. Taharulla Mia (4), Damodar Prasad vs. Ram Samp Kumar (5), Ram Chandra Prasad vs. Firm Parbhulal Ramratan (6), Badrinarain Mandar vs. Parsoti Pasban (7) and Bisesar Pathak vs. Phaguni Mahton (8 ). Mr. Bhandari besides the rulings referred to above, has cited a ruling of Saurashtra High Court in the case of Memon Aba Isa Haji Adhreman Dharar vs. Memon Mamad Haji Suleman Charriadia (9 ). It has been argued by Shri Bhandari that it is not enough that service of summons was not made or that the defendant's claim in the previous suit could not have been accepted, if both the parties had had an opportunity of being heard. It was argued that the mere fact that the decree was passed on any perjured in previous suit would also not show that the decree was obtained on the ground of fraud. I have considered the arguments of both the learned counsel.
(3.) THE earliest case on the point is of Abdul Mazumdar vs. Mohamed Gazi Chowdhry (1 ). In that case the plaintiff's case was that summons in the previous suit was not served on him through the fraud of the defendant and that the defendant carefully kept all knowledge of the suit from the plaintiff and caused a false Kaifiyat to be submitted by the serving peon and that thereafter the defendant obtained an ex parte decree and in execution of that decree, he without serving the attachment parwana caused a false Kaifiyat of the attachment to be submitted by the person and in like manner without publishing the sale proclamation caused a false Kaifiyat to be filed and brought the lands to sale on the 6th of (August, 1888, purchasing them himself for a petty amount. All the above allegations of the plaintiffs were found to be proved by the first court. THE first appellate court reversed the decree of the first court on the ground that the suit was not maintainable. It was held that the suit was maintainable and the case was sent back to the first appellate court for decision after examining whether the findings of the first court were correct. In the Privy Council case referred to above (2), the allegations of the plaintiff were that the defendants got a groundless suit for monies instituted against the plaintiff and in order to get the plaintiff out of the way, by a collective suit got him declared a lunatic and by threats, forced him to leave his home and stay elsewhere in secrecy, that they concealed the money suit, got a false return of service and carried through the decree and sale of the properties behind the back of the respondent. It was held that the allegations were plainly an attack not only on the regularity or sufficiency of the service or the proceedings, but on the whole suit as a fraud from beginning to the end. In the case of Kunjbehari Chakrabarty vs. Krishandhone Majumdar (3) referred to above, it was held that - "a decree can be reopened by a new action when the court passing it had been misled by fraud but it cannot be reopend when the court is simply mistaken, when the decree was passed by relying upon perjured evidence, it cannot be said that the court was so misled. Hence, a decree cannot be reopened on the ground that is has been obtained by perjured evidence. To sustain an action for setting aside a decree, the fraud alleged and proved must be actual positive fraud, a meditated and intentional contrivance to keep the parties and the court in ignorance of the real facts of the case and obtaining that decree by that contrivance. " The facts found in that case, were (a) the claim of the defendant was false to his Knowledge; it was decreed on perjured evidence; the original promissory note was intentionally suppressed on a false plea and (b) that the plaintiff was in a better position to substantiate the first three points as he had since the decree passed by the court against him, discovered more evidence. Although, the suit was dismissed on the facts of that case, the following observations were made - "in the case of ex parte decree when the defendant had never appeared, the contrivance may consist in suppressing the summons. The fact of suppression would itself be the contrivance, and indeed a most effective contrivance for keeping the defendant in ignorance of his rights and from placing his cases before the Court. Mere non-service would not do. But when the fact of non-service of summons is proved by the plaintiff in the later action, and the claim on which the decree was passed is proved to be a false one, the Court may and should ordinarily infer deliberate and hence fraudulent suppression, for the last mentioned circumstance supplies the motive for the suppression and indicates that the suppression is itself fraudulent. " In the case of Durgagati Banerjee vs. Taharulla Mia (4) referred to above, it was held that - "a plaintiff is not entitled to have a decree against him set aside on the ground that it had been fraudulently obtained merely by reason of the fact that the claim in the original suit was false or without any cause of action or merely because the decree was obtained by false representation or suppression of facts provided the person so applying for a reversal of the original suits was not prevented by the fraud of the decree holder from placing his case before the Court. " In that case, the evidence was that summons had not been served, but there was no evidence to show that the processes had been fraudulently suppressed. The defendant's showed that the plaintiff had been served and that evidence was believed by the Court. On these findings, the suit was dismissed. In the Patna case of Ram Chandra Prasad vs. Firm, Parbhulal Ramratan (6) referred to above, it was held that - "after non-service of the summons is proved it is open to the Court to go into the question as regards the merits of the previous suit with the object of finding as to whether fraud was actualy perpetrated, and as to whether, if opportunity had been given to the defendant he could have produced evidence which might have led the court to come to a different decision. " In that case, the first court had found that the plaintiff was not served with summons in the previous suit. The merits of the previous suit were also examined and it was held that the previous suit was false and unfounded. On appeal, the District Judge held that it was not necessary to go into the merits of the previous suit and that as the only thing proved was that summonses were not served on the plaintiff and there was no proof that there was any fraud practised by the plaintiff the suit could not be decreed. On appeal, it was held by the High Court that where the only thing proved is that service in the previous suit was not made on the plaintiff, the fact that the previous suit was false would provide motive for bringing a fraudulant suit, and therefore it was open to the court to examine whether the previous suit was based on false allegations. In the case Badri Narain Mandar vs. Parsoti Pasban (7) referred to above, the view taken in the last mentioned case of Patna High Court was endorsed. It was held that - "a decree passed by a competent court cannot be set aside by a suit simply on the ground that is was based on a false claim nor on the ground that there was no service of summons or notices. In a case to set aside a decree on the ground of fraud, the plaintiff got to establish that there was non-service of the processes upon him and that the non-service was the result of active fraud in the former action. It may be from the circumstances of a case established that the non-service in itself was fraudulent. If that in not found, then it is absolutely necessary to go into the question whether the original claim was a fraudulent one or not. " In the case of Bisesar Pathak vs. Phaguni Mahton (8) also of Patna High Court, referred to above, it was held that - "in a case to set aside a decree on the ground of fraud, the plaintiff has got to establish that there was non-service of the processes upon him, and that the non-service was the result of active fraud in the former action. " In the Saurashtra case of Memon Abe he Haji Adhreman Dharar vs. Memon Momad Haji Soleam Chamadia (9) relied upon by the learned counsel for the respondent, it was held that - "a suit to set aside an ex parte decree on the ground of fraud requires that the alleged fraud must lie in a deliberate attempt on the part of the plaintiff in the first (suit to prevent the defendant of that suit from having notice of the suit and including the Court by false declarations or by other conduct to believe that notice has been properly served and to proceed ex parte under that belief. It is the plaintiff's mental approach to the suit which is material and mere proof of non-service of summons and/or falsity of the claim by themselves are not sufficient to sustain an action unless they are shown to have been intended for the purpose of effecting a general design to commit fraud. " It was observed that; - "where non-servic is proved and the plaintiff's claim is shown to be false, the falsity of the claim will at once raise an inference that the non-service was international. But the falsity of the claim raises merely a presumption against the plaintiff in the first suit and if the circumstances of the case show that the plaintiff's claim was bonafide and his conduct before and during the suit negatives any inference of fraud, or an attempt to commit fraud, the decree cannot be set aside even if non-service of summons is proved and it is shown that if the defendant had defended the suit, the decree against him might not possibly have been passed. " In that case, there were two defendants in the previous suit. Out of them, one was personally served. Summons was sent to the other by registered post at his address at Raipur but came back with the endorsement that the defendant had gone to Hyderabad Sind. So the envelope addressed to him was forwarded to Hyderabad (Sind) from where it was returned with the endorsement, 'the addressed could not be found'. Thereafter, the plaintiff of the previous suit and the defendant of the suit in question applied for substituted service by publication in Saurashtra gazette was done. In the circumstances of that case, it was held that no fraud had been committed by the plaintiff. Now looking to the facts of the present case, there can be no doubt that on the authority of the above rulings, simply the fact that the plaintiff was not served with the summons in the previous suit, would not be sufficient to set aside the decree in that suit. Similarly, the fact alone that the previous suit was unfounded, would not be sufficient to set aside that decree. If it is proved that in the previous suit, summonses were not served on the plaintiff and the defendant's previous suit was false, the court would have reason to hold that the decree was fraudulently obtained. If it is proved that the summonses in the previous suit were not served and that the defendant of this suit (plaintiff of the previous suit) abetted in having a false return made, there would be sufficient ground for the court to hold that it was through the fraud of the present defendant that summonses in the previous suit could not be served on the plaintiffs of this suit (defendants of the previous suit) and a show was made to the court that service had been effected with the result that the court proceeded ex parte and without giving an opportunity to the plaintiff of this suit to be heard, decided the previous suit. Now it is a concurrent rinding of both the lower courts that the summons in the previous suit was not served on the plaintiff of this suit. The only thing that has to be examined is whether it was to a fraud of the defendant of this suit that a false return was made and the court was duped into believing that the defendant of that suit (plaintiff of this suit) had been served. It can not be gain said on the evidence on the record that the return of service in the previous suit was false On the back of the summons are to be found signatures purporting to be those of the plaintiffs of this suit (defendants of that suit.) The plaintiff has sworn that the said summons was never served upon him and the signatures appearing on the back of the summons were not his. He could not be shaken in cross-examination at all in this respect. In fact, not a single question was put to the plaintiff to show that those signatures were his. The plaintiff produced two more witnesses, namely, Bhanwarlal and Govind Datt, who deposed that they had seen the plaintiff writing and were acquainted with his handwriting and that the signatures on the back of the summons (Ex. P. 2) were not in the plaintiff hand. These two witnesses could not be shaken in cross-examination. Both the lower courts were,therefore,perfectly justified in holding that the signatures on the back of the summons (Ex P. 2) were not those of the plaintiff. According to the defendant, the service in the previous suit was persona land it having been proved that the summons was never presented before the plaintiff and that he never put his signatures thereon, it could not be said that the summons was served on the plaintiff in some other way in accordance with law. It is,therefore,perfectly clear that the signatures put on the summons (Ex. P. 2) were forged by somebody. Who that somebody is,is not clear on the evidence in this case. The process server, who was responsible for the service of the summons (Ex. P. 2) could not be ascertained. But the question is whether it was in the interest of the process-server or in the interest of somebody else besides the defendant of this suit to have this false service made. There are strong grounds for believing that the signatures on the back of summons (Ex. P. 2) must have been put down with the complicity of the defendan though not actually by his own self. However, if there were no other thing besides this, there might have been reason to argue that it is a matter of suspicion only, though the suspicion might be strong. But in this case I find an additional circumstance. It is this that in the written statement, the defendant says that the plaintiff did receive the summons on the 5th of March, 1949 and that since that very day, he had been in the know of the previous suit. This is contained in paragraph 2 of the written statement, which has been verified by the defendant from his personal knowledge. This statement in the written statement, therefore, goes to show that the defendant's case was that he had personal knowledge about the service of summons. If he had personal knowledge about the service of summons, it must have been within his knowledge that the signatures on the back of the summons are not those of the plaintiff of this suit but that they had been put down by some other person. Whether they were put down by the process-server or somebody other than the defendant of this suit, does not matter. If it was within the knowledge of the defendant that signatures of plaintiff Devraj had beed put on the back of the summons by somebody else he ought not to have suppressed that fact from the court which decided the previous suit and it was his duty to inform the court that defendant of that suit Devraj had not put his signatures on the back of the summons. That the defendant suffered an ex-parte decree to be passed against the plaintiff in circumstances of this case goes a long way to show that it was through his complicity that false return was made and this would certainly mean a fraud of the defendant in having the exparte decree passed. It was argued by Shri Bhandari that the defendant's verification in the written statement should not be taken at its face value and that the defendant believed that because signatures purporting to be those of the plaintiff were to be found on the back of the summons service must have been made upon him. It cannot, therefore, be said that he committed any fraud or deliberately kept the court in ignorance of the fact that the plaintiff (the defendant of that suit) was not in fact served. The reason why the Civil Procedure Code insists upon verification of the pleadings is that it might be ascertained from the pleadings as to which of them are within the personal knowledge of the person verifying them and which are not in his personal knowledge. The written statement in this case was filed on the 14th of July, 1952 and on that very day a power of attorney was filed by Gopal Lal and Shri Lajpatrai Datt on behalf of the defendant From the written statement itself, it appears that some of the paragraphs were verified on the advice of the counsel. It cannot, therefore be said that the written statement was loosely or inartistically drawn and that verification was made in any light-hearted manner. I have, however one difficulty in this case and it is this that probably in escaped the notice of everybody concerned in this lower courts that statement in paragraph 2 which are very material statement for the purposes of this case were verified by the defendant out of this personal knowledge and therefore, the defendant was not confronted with these statement in the written statement. If, therefore, without giving an opportunity to the defendant to explain the statements given in para 2 of the written statement, I am to act upon them, the defendant might be prejudiced. To my mind, therefore, it has become necessary to set aside the decree of the lower appellate court and send the case back to it to decide the appeal after giving the defendant an opportunity of explaining the statement made in para 2 of the written statement and the plaintiff an opportunity to rebut it in case the defendant comes forward with any explanation. ;