Patna High Court
Kripasindhu Panigrahi vs Nandu Charan Panigrahi And Ors. on 18 July, 1919
Equivalent citations: 56IND. CAS.606, AIR 1920 PATNA 831
JUDGMENT Coutts, J.
1. The facts of the case are shortly as follows:
In 1913 the defendants in this case brought a Suit No. 244 against the present plaintiff for recovery of possession of certain property. Notice was duly served on the defendant in that suit and he actually appeared, but on a subsequent date, on which the case was fixed for hearing, he did not appear, and the suit was decreed ex parte. He applied to have the ex parte decree set aside, but that application was dismissed, and he has now brought the present suit to have it set aside on the ground that "the claim in the Original Suit No. 214 of 1913 was wholly false, and as the defendant No. 1 intentionally cheated the Court by giving false evidence, the decree in the Original Suit No, 214 of 1913 is fraudulent, illegal and inoperative.
2. This suit was dismissed in the Court of first instance on the preliminary ground that it was not maintainable, and this decision having been upheld in appeal to the District Judge, the present appeal has been filed by the plaintiff. It has not been decided in the Court of first instance or by the District Judge whether the claim was supported by perjured evidence. Bat it appears to have been assumed by the learned District Judge that the claim was supported by perjured evidence, and be has dismissed the suit on the ground that the plaintiff was guilty of laches.
3. It is now contended before us that whether the plaintiff was guilty of laches or not, he having asserted in his plaint that the claim was false and supported by perjured evidence, he was entitled to succeed, if his allegations as to the falseness of the claim and the perjured evidence are found to be correct. We are asked, therefore, to set aside the decision of the District Judge and to remand the suit to allow findings to be come to on these points.
4. So far as perjured evidence is concerned, it is, I think, settled law that the mere fact that the claim is supported by perjured evidence would not in itself entitle the plaintiff to have the ex parte decree set aside, and I need not do more than refer to the oases reported as Moruful Huq v. Surendra Nath Roy 15 Ind. Cas. 893 : 16 C.W.N. 1002, Kedar Nath Das v. Hemanta Kumari Dasi 22 Ind. Cas. 709 : 18 C.W.N. 447 and Logadapatti Chinnayya v. Kotla Ramanna 19 Ind. Cas. 579 : 38 M. 203 : (1913) M.W.N. 87 : 13 M.L.T. 421 : 25 M.L.J. 228.
5. It is contended, however, that the matter is different where a false case has been deliberately placed before the Court. There can be no doubt that the Court has jurisdiction in a subsequent suit to set aside a decree which has been obtained by a fraud upon the Court, and it seems clear from Vadala v. Lawes (1890) 25 Q.B.D. 310 : 63 L.T. 128 : 38 W.R. 594 and Abouloff v. Oppenheiemer (1882) 10 Q.B.D. 295 : 52 L.J.Q.B. 1 :47 L.T. 325 : 31 W.R. 57 that if a case which was placed before the Court was false case, it has such jurisdiction. The question, however, is under what circumstances this jurisdiction should be exercised, and whether it upon the Court is the Duchess of Kingston's case (1776) 2 Sm. L.C. 11th. Ed. 731 at p. 738 : 20 How. State Trials 537 : 34 H.L.Jo. 655 In that case De Grey C.J., (at page 762) observes, "fraud is an extrinsic collateral act, which vitiates the proceedings of Courts of Justice. Lord Coke says, it avoids all judicial acts, ecclesiastical or temporal" and in dealing with this matter of fraud Lord Cairns L.J. in Patch v. Ward (1867) 3 Ch. App. 203 a t p. 206 : 18 L.T. 134 : 16 W.R., 441 made the following observation-
Now it is necessary to bear in mind what is meant, and what must be meant by fraud, when it is said that you may impeach a decree signed and enrolled on the ground of fraud. The principle on which a decree may be thus impeached is expressed in the case which is generally referred to on this subject, the Duchess of Kingston's case (1776) 2 Sm. L.C. 11th. Ed. 731 at p. 738 : 20 How. State Trials 537 : 34 H.L.Jq. 655, where the Judges being consulted by the House of Lords, replied to one of the questions, Frauds is an extrinsic collateral act which vitiates the most solemn proceedings of Courts of Justice. Lord Coke says it avoids all judicial acts ecclesiastical or temporal.' The fraud there spoken of must clearly, as it seems to me be actual fraud, such that there is on the part of the person chargeable with it the malus animus, the mala mens putting itself in motion and acing in order to take an undue advantage of some other person for the purpose of actually and knowingly defrauding him.
6. The question was also very full considered in Logadapatti Chinnayya v. Kotla Ramanna 19 Ind. Cas. 579 : 38 M. 203 : (1913) M.W.N. 87 : 13 M.L.T. 421 : 25 M.L.J. 228 where Benson and Sundara Aiyar, JJ., in the course of their judgment said:
There can be no undue advantage taken of another by a party in putting any matter before the Court to be adjudged by it to be true or false. Both parties are entitled to invoke the judgment of the Court and to convince it of the truth of the evidence adduced by them respectively. It is true that parties ought not to let in false evidence, and that it is highly improper and immoral to do so, bat it is the function of the Court to decide whether the evidence is true or false. If the adducing of false evidence can be spoken as a fraud, then the Court, in deciding the case, must be taken to have adjudged whether such fraud has been committed or not, and what it has once adjudged, it cannot be called upon to decide again. The test to be applied is, is the fraud complained of not something that was included in what has been already adjudged by the Court, but extraneous to it? If, for instance, a party be prevented by his opponent from conducting his case properly by tricks or misrepresentation, that would amount to fraud. There may also be fraud upon the Court if, in a proceeding in which a party is entitled to get an order without notice to the other side, he procures it by suppressing facts which the law makes it his duty to disclose to the Court, But where two parties fight at arm's length, it is the duty of each to question the allegations made by the other and to adduce all available evidence regarding the truth or falsehood of it. Neither of them can neglect this duty and afterwards claim to show that the allegation of his opponent was false.
7. It is true that in this case the learned Judges were dealing with the question of perjured evidence, but the arguments apply equally in my opinion to a false case, where the opposite party has been duly served with notice, and owing to his own laches has not appeared and the suit has been decreed against him ex parte. If notice had not been served or if the defendants were prevented by the plaintiff from appearing, there would be some extrinsic collateral act, but where the notice has been duly served and the plaintiff has owing to his own fault failed to appear and place his case before the Court, there is not such extrinsic collateral act. The whole case is before the Court, which has decided it on the pleadings and on the evidence, and whether the case was a false one or not, and whether the evidence adduced is perjured evidence or not, the Court must be held to have adjudicated on both these points and once having adjudicated, it cannot be asked to adjudicate again. In this view of the law the decision come to by the lower Courts is, in my opinion, correct. This suit is not maintainable and I would dismiss this appeal with costs.
Adami, J.
8. I agree.