Patna High Court
Badri Narain Mandar vs Parsoti Pasban on 19 February, 1937
Equivalent citations: 170IND. CAS.146, AIR 1937 PATNA 384
JUDGMENT Wort, J.
1. This is an appeal from a decision of the Subordinate Judge of Monghyr arising out of an action in which the plaintiff claimed to set aside a judgment of a Small Cause Court, contending that that judgment had been obtained by fraud. Both Courts have held in favour of the plaintiff. It is contended by the learned Advocate who appears on behalf of the defendant-appellant that the Judge has misdirected himself in point of law in throwing the onus upon the defendant to establish the fact that the judgment was not obtained by fraud. There is no doubt that in a case of this kind 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 as was pointed by Kulwant Sahay, J. in Ramchandra Prasad v. Parbhulal Ram Ratan 101 Ind. Cas. 718 : AIR 1927 Pat. 183 : 6 Pat. 458 : 8 PLT 193;
A decree passed by a competent Court cannot fee set aside by a suit simply on the ground that it was based on a false claim nor on the ground that there was no service of summons or notices. But once it is established that there was no service of summons or notices, it is in my opinion open to the plaintiff in the subsequent suit to show that the claim in tie previous suit was a false claim and the Court can go into the question with the object of determining as to whether there was a wilful and fraudulent supression of the notices and summons in order to obtain a decree.
2. Now it might be sufficient in certain cases to prove non-service of summonses so long as that proof is combined with a proof that that non-service was produced by the active fraud of the plaintiff in the earlier suit. In this case the learned Judge has stated in the course of his judgment:
But after the Court comes to a finding as to the non-service of the summons, it is open to the Court to go into the question as regards the merits of the previous suit with the object of determining whether there was a motive for wilful and fraudulent suppression of the summonses in order to obtain a decree.
3. The learned Judge has not quite correctly stated the position in law and to that extent has misdirected himself as it is not a question of going into the merits of the earlier suit for the purpose of determining whether there was a motive for fraudulent suppression of summonses, but perhaps going into the merits of the suit to see whether the conduct of the plaintiff in the former suit was fraudulent. If it is once held that his conduct was fraudulent, there is an end of the* matter. In this case the Judge proceeds to state that "an investigation of the merits of the case is unnecessary where the non-service of the summons is not sufficient in itself to prove fraud." It is rather unfortunate in this case that there appears to be a mistake in the judgment of the Judge when he stated:
In the present instance the failure to prove due. service of summons does not by itself go to prove fraud and hence I do not wish to record any finding on this, that is, on point No. 2 (that is, the merits of the case).
4. It seems to me that the word 'not' is there by mistake, but I looked at the original judgment and the word 'not' also appears. But the subsequent statement of the Judge in coming to the conclusion that the merits are not to be investigated, is only consistent with the Judge finding that the non-service in this case was sufficient to prove fraud. 1 think the word 'not' should have been omitted therefore, and, as I have stated, it is there by mistake. If that be the position in law, it is clear that the Judge has wholly misdirected himself. It. may be from the circumstances of the case established that the non-service in itself was fraudulent. If that is not found, then, it is absolutely necessary to go into the question whether the original claim was a fraudulent one or not. I am repeating myself by saying that the Judge has not gone into the second question because he appears to have come to the conclusion that the non-service was fraudulent. But here he has misdirected himself. The plaintiff's witnesses upon whom the onus lay, have been wholly disbelieved. The defendant's witnesses have also been disbelieved and it is the contention of the learned Advocate appearing on behalf of the respondent in those circumstances that as both parties have given evidence, the question of onus is acadmic. That is not so in this case. The defendant was certainly there to prove service, but he was not there to prove his own fraud. The only person upon whom the obligation to prove fraud lay was the plaintiff and his witnesses have been disbelieved. He has, therefore, failed to establish that fact which it is necessary to establish if the question of the merits of the original suit is not to be investigated. It is impossible for me to hold in this case that the question of onus was an academic one because the mere disbelief of the defendant's witnesses when they came to prove the service of processes would not be sufficient from which to imply fraud in favour of the plaintiff; and I repeat myself again by saying that it was undoubtedly upon the plaintiff to establish t hat fraud, as all the authorities have pointed out.
5. In the circumstances, therefore, the judgment of the lower Appellate Court cannot stand. The case must go back for the Judge to re-hear the case on the point whether there was fraud on the part of the plaintiff in the original suit. I suppose it is impossible now for the Judge to come to the conclusion that there was any fraud in the suppression of the notices for the reason that he has already disbelieved the plaintiff's witnesses. It will be necessary therefore to go into the question which the Judge thought it unnecessary to investigate in this case, namely, the question of the merits of the original claim, and in doing so he may come to the conclusion that although there was no clear proof of fraud with regard to service the fraudulent nature of the claim (if that is proved) points to fraud -throughout. The appeal is allowed and the case remanded to be heard and determined according to law, costs of this appeal abiding the result of the hearing in the Court below.