Patna High Court
Sheo Narayan Mandal vs Mangal Sah And Ors. on 21 December, 2004
Equivalent citations: AIR2005PAT149, 2005(1)BLJR372, AIR 2005 PATNA 149, 2006 (1) ABR (NOC) 43 (PAT), (2005) 1 PAT LJR 392, 2005 BLJR 1 372, (2005) 1 BLJ 617, (2005) 3 CIVLJ 736
JUDGMENT S.N. Hussain, J.
1. Heard learned counsel for the parties.
2. The petitioner is plaintiff in Title Suit No. 85/1983 which had been filed for declaration of his right and confirmation of possession with respect to the suit property and also for an adjudication that the judgment and decree of Title Suit No. 10/1972 passed by the Additional Munsif, Bhagalpur, was illegal and obtained by fraud played upon the defendants and for injunction etc.
3. The petitioner is aggrieved by order dated 24.4.2003 passed in Title Suit No. 85/1983 by which the learned Munsif-I, Bhagalpur, allowed the petitioner filed by Defendant No. 1 (O.P. No. 1) under Order XIV, Rule 2(2) of the Code of Civil Procedure (hereinafter referred to as 'the Code') holding that the suit was not maintainable and was barred by the principle of res-judicata as earlier Title Suit No. 10/1972, which was between the same parties and for the same properties, had been decreed.
4. The learned counsel for the plaintiff-petitioner contends that O.P. No. 1 Mangal Sah had filed Title Suit No. 10/1972 for declaration of his title and confirmation of possession etc. with respect to the suit property whereafter a compromise petition was prepared and was signed by the said Mangal Sah on 14.7.1978 (Ext. 1) which was shown to the petitioner, who was defendant in that suit, whereafter the petitioner was assured that his signature will be obtained later and the compromise petitioner will be filed in the Court and hence he need not appear in Court. The learned counsel for the petitioner further contends that on the said assurance he did not appear in Court, but by dint of the said deceit and fraud O.P. No. 1 who was plaintiff of that suit obtained an ex parte decree in his favour on 3.8.1978.
5. The learned counsel for the petitioner further contends that when he came to learn about the said ex parte decree he filed Misc. Case No. 27/1978 under Order IX, Rule 13 of the Code specifically claiming that fraud (paragraphs 4 and 8) and deceit (paragraphs 6, 7 and 8) were played upon him by the plaintiff, but the said Misc. Case was dismissed for default on 21.7.1979 whereafter Misc. Case No. 34/1981 was filed for restoration of earlier Misc. Case No. 27/1978 was under Section151 of the Code, but the said Misc. Case was also dismissed on 23.4.1983 on the ground of limitation. Hence, he submits that he had no option but to file Title Suit No. 85/1983 for setting aside the aforesaid ex parte decree which was obtained by fraud and for other ancillary reliefs.
6. The learned counsel for the petitioner also submits that the principle is well settled that if a fraud is played upon any party or upon the Court, a Title Suit is maintainable for seeking a remedy against a decree fraudulently obtained. In this connection, he relies upon a decision in the case of Nirsan Singh v. Kishuni Singh, reported in AIR 1931 Pat 204 (2) Full Bench and another decision in the case of Girish Chandra Jana v. Kalachand Malty, reported in AIR 1957 Cal 242. Hence, he submits that the learned Court below has wrongly allowed the petition of Defendant O.P. No. 1 and has also wrongly held the suit to be not maintainable as res judicata, by the impugned order.
7. On the other hand, the learned counsel for O.P. No. 1 vehemently opposes the contentions of the learned counsel for the petitioner and submits that under Order IX, Rule 13 of the Code four remedies were available to the petitioner out of which the first was to apply to the Court to set the ex parte decree aside under Order IX, Rule 13 of the Code and the second was to prefer an appeal under Section 96 of the Code whereas the third was to apply for review under Order XLVII, Rule 1 of the Code and lastly to file a suit on the ground of fraud. He further contends that the petitioner has already chosen the remedy under Order IX, Rule 13 of the Code and hence he cannot legally avail another forum prescribed in law. The learned counsel for O.P. No. 1 further contends that the second suit was filed by the petitioner only to harass the opposite parties and it was clearly hit by the principle of res judicata. He also submits that the allegation of fraud is only with respect to the suit but the petitioner could not show that any fraud was played by O.P. No 1 in Misc. Cases which were dismissed due to the petitioner himself and hence no case of even fraud was made out.
8. The learned counsel for O.P. No, 1 relies upon a decision of this Court in the case of Janki Gope and Anr. v. Jangbahadur Choudhury, reported in AIR 1935 Pat 458, in which it was held that the claim of the petitioner of that case regarding suppression of summons was considered and found not only that the summons had not been suppressed fraudulently but had not been suppressed at all and hence this Court held that when the summons were found duly served, there was no question of any fraud. The learned counsel for the opposite parties also relies upon another decision of this Court in the case of Saraswati Devi v. Yadunandan Prasad, reported in 2000 (4) PLJR 848, in which it was held that if the forum of appeal is availed or if the service of summons was held to be valid in proceeding under Order IX, Rule 13, CPC no suit can be maintainable on the ground of fraud. In the said circumstances, he submits that the learned Court below has rightly allowed the petition of the Defendant O.P. No. 1 under Order XIV, Rule 2(2) of the Code as there was no occasion for continuation of a frivolous suit.
9. Having heard the leaned counsel for the parties and after perusing the materials on record, I find that Title Suit No. 10/1972 was decreed ex parte on 3.8.1978 whereafter Misc. Case No. 27/1978 was filed for setting aside the ex pane decree on the ground of fraud and deceit etc. but the question of the validity of service of notices or the question of fraud and deceit played upon the petitioner was decided neither in the said Misc. Case nor in the petition for its restoration as the former was dismissed for default whereas the latter was dismissed merely on the ground of limitation. In the said circumstances, the question of fraud and deceit were neither considered nor decided by any of the aforesaid Courts and hence the case laws relied upon by the learned counsel for the opposite parties as detailed above are not applicable to the facts and circumstances of this case as in those cases service of notices/summons were found to be valid in the case under Order IX, Rule 13, CPC and the allegation of fraud was found to be baseless in the said cases But here the matter is completely different as no Court has upheld the validity of summons nor any Court has rejected the petitioner's claim of fraud and deceit. Furthermore, the question of fraud, if not rejected earlier, clearly cuts at the very root of any legal proceeding and hence in my view, a fresh Title Suit challenging the ex parte decree in the earlier suit on the ground of fraud is clearly maintainable in the instant case. This aspect of the matter has been completely overlooked by the learned Court below while passing the impugned order.
10. Hence, I set aside the impugned order and direct the learned Court below to proceed with the Title Suit No. 85/1983 and decide all the issues therein in accordance with law. This civil revision is accordingly allowed.