Patna High Court
Jharkhand Mines & Industries Ltd. And ... vs Nand Kishore Prasad And Ors. on 14 July, 1967
Equivalent citations: AIR1969PAT228, AIR 1969 PATNA 228
JUDGMENT A.B.N. Sinha, J.
1. This appeal is by defendants 1 and 2. They alone contested the suit. The suit out of which this appeal arises was instituted by plaintiff-respondent No. 1 for a declaration that the ex parte decree passed in Title Suit No. 46 of 1954, against him was null and void and was not binding on him.
2. The trial Court has decreed the suit subject to certain directions regarding payment of Court-fees and costs. The plaintiff-respondent, it may be mentioned, has complied with those directions.
3. Appellant No. 1 Messrs. Jharkhand Mines & Industries Ltd, a company incorporated under the Indian Companies Act, 1913, having its registered office at 34, Grosvenor House, 21 Old Court House Street, Calcutta, instituted Title Suit No. 46 of 1954 in the court of the Subordinate Judge, Hazaribagh, impleading the present plaintiff-respondent No. 1 as defendant No. 2 and the pro forma defendants 2 to 5 (4?) as defendants 1, 3 and 4 respectively. The case of appellant No. 1 in that suit was that the plaintiff respondent and the pro forma defendant-respondent No. 2 held Rauta Colliery, fully described in the schedule of the plaint of that suit, unlawfully from the 2nd May, 1949 and had with the help of their nominees and men including pro forma respondents 3 and 4, worked the said colliery and had raised and sold coal and made illegal profits therefrom. On these allegations, a decree for khas possession of that colliery with mesne profits and/or compensation from the 1st July, 1951 upto the date of the filing of that suit, that is, up to the 22nd September, 1954, amounting to Rs. 15,000, or, such other sum or sums as may be found due, was prayed for. Appellant No. 2, Bokaro & Ramgarh Ltd., a joint stock company incorporated under the Indian Companies Act, 1882, having its registered office at No. 22, Chittaranjan Avenue, Calcutta, was added as a co-plaintiff in that suit on the 27th July, 1955. On the 28th July, 1955, appellant No. 1, the original plaintiff of that suit, filed a petition stating that it had no objection to the addition of appellant No. 2 as a co-plaintiff or to its substitution in its place.
On that very day, Title Suit No. 46 of 1954 was taken up for ex parte disposal and was decreed in full with costs. Thereafter, both the appellants took out delivery of possession through Court, but delivery of possession was purported to have been effected in favour of appellant No. 2 alone over the *suit properties on the 10th January, 1956. On the 8th December, 1958, a petition for ascertainment of mesne profits from the date of the institution of the suit till the recovery of possession was filed. The plaintiff-respondent No. 1 entered appearance in that proceeding on the 5th of December, 1959; his case being that he had come to know about the ex parte decree and the execution proceedings which followed only on the 3rd November, 1959 and thereafter he had made enquiries about the circumstances in which the ex parte decree was passed. His case is that fraud was practised by the appellants in obtaining the ex parte decree against him. Giving the details of the fraud, it was stated in the plaint that the plaintiff-respondent was not in possession of Rauta colliery, as alleged, that he was quite in dark about the filing and the progress of Title Suit No. 46 of 1954 on account of the fraudulent suppression of processes and wrong address supplied by the appellants, that there was motive in suppressing the processes of the Court and in keeping the plaintiff-respondent in dark about that suit and that no notice or copy of the amended plaint, after appellant No. 2 was added as a co-plaintiff, was even attempted to be served on the plaintiff-respondent. According to the plaintiff-respondent, the processes of the execution proceedings were also likewise fraudulently suppressed and wrong address was given. On these allegations and some others, the plaintiff-respondent instituted Title Suit No. 19 of 1960 on the 31st May, 1960 for the relief, mentioned above.
4. Pro forma defendants 4 and 5 filed a written statement supporting the plaintiff-respondent's case. They also cross-examined the witnesses examined on behalf of the contesting defendant-appellants. No step, however, was taken on behalf of pro forma defendant No. 3. The suit was resisted as mentioned already, by the defendant-appellants 1 and 2. Their case was that no fraud had been committed as alleged in the plaint in obtaining the decree in Title Suit No. 46 of 1954, that the plaintiff respondent and the other defendants of that suit were served with the summonses of the suit at their correct addresses and the said suit had been filed with true allegations that the ex parte decree was passed without suppressing any fact from the Court or without suppressing any summonses or processes of the Court from the defendants of that suit including the plaintiff-respondent of the instant case and that the summonses of the suit as also the notices issued in the execution proceedings must be taken to have been properly and legally served on all the defendants of that suit including the plaintiff-respondent, because steps had been duly taken to get the substituted service effected at both the stages in accordance with the provisions of Rule 20 of Order 5 of the Code of Civil Procedure.
It was further their case that appellant No. 1 had transferred all the suit properties and its claims along with all accrued rights and interest and claims in all those properties, namely, in Rauta Colliery by a registered sale deed dated the 14th August, 1954 to one Messrs. Kuju Jarangdih Coal Company Ltd., and, soon thereafter, namely, on the 16th November 1954, appellant No. 2 had purchased all those rights, title and interest in the said properties which were the subject-matter of Title Suit No. 46 of 1954 from Messrs. Kuju Jarangdih Coal Company Ltd. It was stated that in those circumstances appellant No. 2 was added as a co-plaintiff in Title Suit No. 46 of 1954 by order dated 27-7-1955. The appellants, however, claimed to have obtained actual possession after ousting the plaintiff-respondent and his men. On these allegations, it was claimed that the suit was fit to be dismissed with costs.
5. The issues, originally framed on the 22nd September, 1961 were recast by the trial Court on the 26th September, 1961. Of those issues, issue No. 2 related to the sufficiency or otherwise of the court-fees paid by the plaintiff-respondent. This issue was decided against him, and it was held that the suit was governed by Section 7(iv)(c) of the Court-fees Act, and thus ad valoren court-fee was payable. As mentioned already, the plaintiff-respondent has paid ad valorem court-fee as directed by the trial Court. The rest of the issues have all been decided in favour of the plaintiff-respondent. The suit thus stands decreed subject to the conditions mentioned above. Hence this appeal by the contesting defendants.
6. Mr. Madan Mohan Prasad, learned counsel, who appeared in support of this appeal, was not able to make out any ground whatsoever for interfering with the decision of the court below. Nonetheless, we. have gone through the relevant materials and the judgment under appeal. We are satisfied that the plaintiff-respondent has succeeded in establishing that the ex parte decree in Title Suit No. 46 of 1954 was obtained by practising fraud upon the court and by fraudulently suppressing the summonses in the said suit. The first question which arose for determination was whether during or about the relevant time, namely, 1953-54 and 1954-55, the plaintiff-respondent ever resided at Garh Banaili in the district of Purnea and whether the correct address of the plaintiff-respondent, which was known to the plaintiff of Title Suit No. 46 of 1954, was deliberately suppressed with a view to keep the plaintiff-respondent in dark about the suit. On this vital question, besides the oral evidence, there are unimpeachable documentary evidence which go to establish that during or about the relevant time the plaintiff was residing at his village home at Nasriganj in the district of Shahabad and never at Garh Banaili in the district of Purnea and further that the correct address was known to the plaintiffs of Title Suit No. 46 of 1954, yet, they deliberately with a view to keep the plaintiff in dark persisted in giving the wrong address in the summonses of the suit, and, ultimately, on the false plea that the plaintiff was evading service of summons obtained an order for effecting substituted service under the provisions of Rule 20 of Order 5 of the Code of Civil Procedure. (After discussing documentary evidence his Lordship proceeded).
These documents clearly indicate that appellant No. 1 knew the correct address of the plaintiff during the relevant period as being village Nasriganj, P. S. and P. O. Nasriganj, District Shahabad.
It also knew that the plaintiff was not residing at Garh Banaili, P. S. Kisha, district Purnea, yet, it fraudulently and deliberately persisted in sending summons of the suit to an incorrect address and ultimately obtained an order for effecting substituted service on false allegations.
(After discussing oral evidence his Lordship proceeded.) On this evidence, it is apparent that the affidavit which he had sworn stating that the statements made in the body of the petition including the statement that the defendants of Title Suit No. 46 of 1954 were knowingly avoiding service of summonses were true to the best of his knowledge and belief contained at least an incorrect and irresponsible statement. I am, accordingly, constrained to hold that this witness has little regard lor truth. Taking all these materials on the record into consideration, I have no hesitation in affirming the finding that the plaintiff-respondent was, during the relevant time, to the knowledge of at least appellant No. 1, who was the sole plaintiff in Title Suit No. 46 of 1954 till the substituted service was effected, actually residing at village Nasriganj, District Shahabad, and there can be no doubt that the petition (Ext. 3), referred to above, wherein it was stated by D. W. 3, the Law Agent of appellant No. 1, that the defendants of that suit including the plaintiff-respondent were knowingly avoiding service of summonses, was really by way of a subterfuge to snatch an ex parte decree against the plaintiff-respondent and the pro forma defendant-respondents.
7. The trial court has exhaustively dealt with the several factors constituting fraud, as alleged by the plaintiff-respondent, in paragraph 23 of its judgment. No attempt whatsoever has been made in this Court by the learned Counsel appearing for the appellants to point out that any of the conclusions reached by the trial Court in regard to the fraud, alleged by the plaintiff, was not sustainable. The trial Court has also found that there was motive for suppressing the summonses in Title Suit No. 46 of 1954, and, in this connection it has referred to paragraph 5 (a) of the plaint of that suit (Ext. 2) and to the several entries in the order-sheet of that suit (Ext. E-1) and to the evidence of D. W. 3. According to the deposition of D. W. 3, appellant No. 1 had transferred all its rights and interests in the suit properties in Title Suit No. 46 of 1954 including its accrued rights and interests and all claims under a registered indenture to Messrs. Kuju Jarangdih Co. Ltd., on the 14th August, 1954. That being the position, I fail to see how appellant No. 1 had any locus standi to institute Title Suit No. 46 of 1954, which was instituted on the 22nd September 1954, that is, more than a month after the transfer.
Within a couple of months of the institution of the suit, the aforesaid transferee company from appellant No. 1 had parted with all its rights in the suit properties in favour of appellant No. 2. This transfer was effected on the 16th November, 1954. If appellant No. 1 had not transferred all its rights and interests including its accrued rights as well in the suit properties, which were the subject-matter of Title Suit No. 46 of 1954, the claim by it for mesne profits or compensation from the 1st July, 1951 until the 14th August, 1954, might have been understandable, but as it had transferred its accrued rights and interests as well, no suit for mesne pro-fits or compensation for any period either prior to the 14th August, 1954 or later was maintainable by appellant No. 1. The proper plaintiff to institute the suit, if it so liked, was the transferee company, Messrs. Kaju Jharkhand Coal Co. Ltd.
When this transferee company transferred in its own turn its entire interest to appellant No. 2, there was no assignment, creation or devolution of any interest at all in favour of appellant No. 2 by appellant No. 1, the sole plaintiff in the suit, within the meaning of Rule 10 of Order 22 of the Code of Civil Procedure, and thus no application for substitution or for adding appellant No. 2 as a co-plaintiff was maintainable. It might have been open to appellant No. 2 to institute an independent suit of its own claiming such mesne profits or compensation from the plaintiff-respondent and his men which had not become barred under the law of limitation.
There Is nothing on the record to show that Messrs. Kuju Jarangdih Coal Co. Ltd. had transferred all that it had purchased from appellant No. 1 including the latter's accrued rights and interests in the suit properties and all claims relating thereto or it transferred only its future rights and interests in those properties. In my opinion, in the circumstances, there was clearly a motive for appellant No. 1 of fraudulently suppressing the summonses of Title Suit No. 46 of 1954.
If the plaintiff-respondent had been served with the summonses of that suit, he would have easily taken the plea that appellant No. 1 having already transferred all its rights including the accrued rights and interests and claims in regard to the suit properties on the 14th August, 1954 was not entitled to institute the suit for mesne profts and/or compensation on the 22nd September, 1954. There was also motive for not giving notice of the amendment in the plaint in so far as appellant No. 2 was added as a co-plaintiff, because it might have been pointed out by the plaintiff respondent that no question of assignment, creation or devolution of interest pending the suit from appellant No. 1 to appellant No. 2 arose, and, as such, the application for substitution or for addition of appellant No. 2 as a co-plaintiff was not at all maintainable. In the context of these facts, a reference to the order sheet of that suit (Ext. E-1) becomes revealing. On the 26th July, 1955, appellant No. 2 filed a petition praying for being substituted in place of the original plaintiff, namely, appellant No. 1, on the allegation that it had purchased the suit properties covered by Title Suit No. 46 of 1954.
The petitioner, however, did not apparently disclose the person or persons from whom appellant No. 2 had purchased the suit properties. The court was kept in dark about this essential fact, and a fraud was practised on the court. In all applications purporting to be under the provisions of Rule 10 of Order 22 of the Code of Civil Procedure, it is incumbent upon the applicant to state the nature of the assignment or devolution and the party or parties from whom the assignment or; devolution is claimed before leave of the court can be obtained by the applicant to continue the suit. In the instant case, appellant No. 2 had purchased the suit properties or interest therein from a party which was a stranger to the suit and, in law as well as in fact, no interest had devolved on appellant No. 2 from appellant No. 1, and, as such, the application filed on behalf of appellant No. 2 on the 26th July, 1955 was wholly misconceived. But, as pointed out above, the court was kept wholly ignorant of this position and the application was put up for hearing and orders on the day following the day on which it was filed. On the 27th July, 1955, the Court passed the following orders:
"Heard pleader on the petition dated 26-7-55:
ORDER Let the name of the applicant be added as a co-plaintiff and let the plaint be amended accordingly. Put up tomorrow for ex parte hearing."
On 28th July, 1955, the following order was passed by the Court:
"Plaintiff No. 1 files a verified petition stating that they have no objection to their addition of the name of M/s. Bokaro and Ramgarh Ltd. as a co-plaintiff or substituting the name. Plaintiff No, 2 files hajri. Heard. Defendants do not appear on calls. Suit taken up ex parte. P. W. 1 Shyam Bihari Lal is examined. ORDER Claim proved.
Suit decreed ex parte with costs including P. F. at 2 1/2%"
It appears from the above order that appellant No. 1, who was plaintiff No. 1 in Title Suit No. 46 of 1954 after appellant No. 2 had been added as a co-plaintiff by order No. 25 dated the 27th July, 1955, filed a verified petition stating that they had no objection to appellant No. 2 being made a co-plaintiff or being taken as the sole plaintiff in substitution of its name. This petition, to say the least, was unnecessary, because the Court had already passed an order adding appellant No. 2 as a co-plaintiff a day earlier. In my opinion, however, fraudulently the appellants or appellant No. 2 had managed to obtain an order adding it as a co-plaintiff in the suit and thereby amending the plaint. It was incumbent on the Court to see to it that the notice of the amended plaint was served on the defendants of that suit. The Code of Civil Procedure, in my opinion, casts a duty on the court to see that the defendants are made aware of any amendment in the plaint, whether the amendment be in regard to the addition of parties or in regard to the contents thereof. Unfortunately, the learned Subordinate Judge, who passed the ex parte decree, did not direct any notices to be issued to the defendants with a view to make them aware about the amendment of the plaint. He should have issued such notices and awaited the service report, and, if the defendants so desired, granted them an opportunity to file a written statement before putting up the suit for hearing and disposal, whether ex parte or otherwise. On this ground alone, I am of the opinion that the ex parte decree is vitiated and must be set aside.
8. During the execution stage as well, the conduct of the appellants was no better. It is not, however, necessary to refer to things which transpired during that stage, because if the ex parte decree itself was vitiated by fraud, as shown above, the execution proceedings or the delivery of possession purported to have been effected in favour of appellant No. 2 can be of no avail to the appellant and cannot bind the plaintiff-respondent. Reference may, however, be made to a prayer made on behalf of the decree-holders, namely, the present appellants for issu-ance of a writ of delivery of possession after dispensing with the notices under Order 21, Rule 22 of the Code of Civil Procedure. On the 5th January, 1956, a petition together with an affidavit was filed praying for issue of delivery of possession after dispensing with the notice under Order 21, Rule 22 of the Code of Civil Procedure on the ground that the judgment-debtors including the plaintiff-respondent were avoiding service of notices, and there was an apprehension of the properties sought to be taken possession of being damaged by the judgment-debtors.
It has been rightly pointed out by the trial Court that the notice under Order 21, Rule 22 of the Code of Civil Procedure have to be issued, when an application for execution is made more than one year after the date of the decree or against the legal representatives of a party to the decree or where the application is made for execution of a decree under the provisions of Section 44A of the Code of Civil Procedure, unless for reasons to be recorded in writing, the court considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice. It is thus clear that it is only at the time when an application for execution is filed that the court may, in a fit case, consider the desirability of dispensing with a notice under Order 21, Rule 22 of the Code of Civil Procedure. In the present case, the court passed an order dispensing with the notice under Order 21, Rule 22 of the Civil Procedure Code on the 7th January, 1956, whereas the execution case had been stated on the 17th November, 1955 (vide Ext. E. (1)-1).
This was clearly an illegal order which was obtained from the court again on a false allegation that the judgment-debtors, namely, the plaintiff-respondent and the pro forma respondents were evading the service of notices under Order 21, Rule 22 of the Code, when, in fact, the notices were not being sent to them by their correct addresses known to the decree-holders. As long back as the 7th March,. 1953 (Ext. 7), it had been asserted on behalf of the plaintiff that he was not working the mines at Rauta and it having also been established that the appellants knew that the plaintiff-respondent was not residing during the relevant period at Garh Banaili, the petition dated the 5th January, 1956 alleging that the judgment-debtors were avoiding service of notice and that there was an apprehension of the properties sought to be taken possession of being damaged by them did not contain true allegations and, in my opinion, it appears that this petition was yet another fraudulent step taken by the decree-holder of Title Suit No. 46 of 1954 to keep the court as well as the judgment-debtors in dark and snatch an order of delivery of possession.
9. The trial court's finding in regard to the date of knowledge, as alleged by the plaintiff-respondent in paragraph 10 of the plaint, is not specific and can be described as rather a halting finding. The plaintiff's case was that he had come to know for the first time on the 3rd November, 1959 about the petition for ascertainment of mesne profits from one Shri Ramanand Prasad (P. W. 6), and, thereafter, he entered appearance in the proceeding for ascertainment of mesne profits on the 5th December, 1959 (vide Ext. D(1)-1, the vakalatnarna). Thereafter, on enquiry, he could learn about the filing of Title Suit No. 46 of 1954 and of the ex parte decree and about the fraud practised by the appellants in obtaining the said ex parte decree against him. The appellants in paragraph 11 of their respective written statements have denied the correctness of the plaintiff's case as to the date of knowledge. It has been characterised by them as a self-serving statement made for the purpose of this suit.
Their case is that the plaintiff had knowledge of every stage of the suit but had suffered an ex parte decree to be passed, because he had no case to contest. I have already found above that the plaintiff had a very good case for contesting Title Suit No. 46 of 1954. In my opinion, there is no reason to doubt the correctness of the plaintiff's case.
(After discussing evidence, his Lordship proceeded).
The appellants' plea that the plaintiff had knowledge of every stage of the suit and other proceedings resulting therefrom or must be deemed to have knowledge cannot be accepted for the reasons, already discussed. In the circumstances, there can be no doubt that the plaintiff had no information, as asserted by him about the suit and the decree till at least the 3rd November, 1959 and the suit having been filed on the 31st May, 1960 must be held well within time.
10. It follows from the above discus sions that there is no merit in this ap peal whatsoever. The judgment and de cree passed by the trial court must, there fore, be affirmed. In the result, the ap peal is dismissed with costs.
M.P. Verma, J.
11. I agree.