Mahabir Prasad Chaudhry vs Chhedi Singh

Dawson Miller, C.J.—This is an appeal under the Letters Patent from a decision of Mr. Justice Ross, dated the 9th March 1923. The suit was instituted by the Plaintiff against the present Appellant and a Mukhtar called Tilakdhari Lal and a third defendant Lachmi Chaudhri, apparently an uncle of the present defendant. Why the third defendant was added is not very clear. The object of the suit was to set aside a decree obtained by the appellant who was the first defendant in the suit against the Plaintiff on the 15th May, 1918. The decree was obtained ex parte against the Plaintiff for a sum of money amounting to Rs. 483 on a hand-note said to have been executed by the Plaintiff in favour of the present appellant. After the decree was obtained an application was made under Order 9, Rule 13 of the CPC by the Plaintiff asking to set aside the decree on the ground that he had been wrongly informed by his Mukhtar Tilakdhari Lai of the date when the hearing of the case was to take place. His case in that proceeding under Order 9 was that his Mukhtar had informed him that the trial would take place on the 17th May whereas in fact it took place two days earlier and that in consequence of this wrong information he was unable to be present and judgment was accordingly given in his absence ex parte. In support of that case he gave evidence himself on the application under Order 9, Rule 13 and he also called the Mukhtar. The Mukhtar deposed that he had informed the plaintiff that the case was to be heard on the 17th but his case broke down in cross-examination because he said that he had a diary and he kept these dates in his diary but he failed to produce it. He also gave some evidence which was inconsistent with his first statement and which was to the effect that he informed the plaintiff that the trial was to take place on the 17th May, some two or three days earlier. The appellant''s case, on the other hand, was that the plaintiff lived about two miles'' away from Beguserai where the trial took place, that he used frequently to go there, he was often in court and he must have known of the day when the trial was fixed; further that he was actually in the court precincts with his Mukhtar on the day when the ex parte decree was given. The learned Munsiff when that application came before him entirely disbelieved the case put forward that the plaintiff had been misinformed about the date of the trial. He came to the conclusion that the Plaintiff know the true date perfectly well but purposely defaulted in order to harass the Appellant.

Having failed to get the decree set aside the Plaintiff instituted the present suit on the 17th February, 1919, seeking to have the decree set aside on the ground of fraud and the fraud he alleges is this. He says in para. 3 "that the tadbir of the said suit was entrusted to the defendant 2nd party," that is, the Mukhtar and the suit there referred to is the suit in which the decree was granted " It now appears that he in collusion with the defendant 1st party did not fraudulently disclose the real date, i.e., the 14th May, which was the date actually fixed by the court for filing the written statement and that with a view to defraud the plaintiff he gave out that the 17th May, a wrong date, was fixed for the suit." Now the whole fraud alleged there is that the Mukhtar in collusion with the appellant wrongly informed him of the date of the trial of the suit. That is the whole of the fraud and there is nothing more. He then goes on and says that the Mukhtar falsely deposed during his examination in the proceedings under Order 9 that the plaintiff had come to him two or three days before the 17th May and he relies Upon this as shewing the fraud of the appellant and the Mukhtar and their collusion with each other.

Amongst other defences taken by the appellant as defendant in this case it was pleaded that the previous decision under Order 9, Rule 13, where the question was raised and decided whether the plaintiff had been misinformed was res judicata and that that question could not again be agitated in a separate suit. The learned Munsiff came to the conclusion that the matter was res judicata. Moreover upon the merits of the case he accepted the Appellant''s story and he refused to believe the story of the plaintiff and he dismissed the suit.

Upon appeal the learned Subordinate Judge took a different view. He came to the conclusion for reasons which certainly do not commend themselves to my mind that the Mukhtar and the present Appellant, the Defendant No. 1 in the suit, were in collusion and that the Mukhtar had wrongly informed the plaintiff of the date of the suit and had given some false evidence about it. He considered that fraud having been raised in the present suit the court was competent to try the action notwithstanding the decision under Order 9, Rule 13. He further was of opinion that the decision in that case was not res judicata. He overruled the decision of the Munsiff and gave the plaintiff a decree declaring that the ex parte decree in the previous suit was fraudulent and incapable of execution and fit to be set aside.

From that decision the appellant, the defendant No. 1, appealed to this Court. The case came before Mr. Justice Ross who dismissed the appeal being of opinion that the question for determination in the present suit was different from that which had to be determined under Order 9, Rule 13. With great respect to the learned Judge it seems to me that the two questions are identical and the real question is this: Was the plaintiff in the present suit misinformed? Whether that was merely by mistake or whether that was wilful and through some fraudulent collusion for present purposes makes no difference, but was the plaintiff in fact misinformed as to the date when the previous suit was to be tried. If that issue is found against the plaintiff in the previous application it seems to me that that having been the very subject-matter of the previous application it cannot afterwards be re-agitated in a separate suit, merely because you apply the term fraud to what took place. This question was discussed in the case of Jangal Chaudhry v. Laljit Pesban (1920) 6 P.L.J. 1, where the facts were somewhat similar and where the question was whether proceedings under Order 9, Rule 13 acted as res judicata in a subsequent suit seeking to set aside an ex parte decree. I see no reason to modify in any way the opinion which I expressed in that case and it seems to me that that case governs the present. The only question for determination in this suit so far as the fraud is concerned is as appears from the pleadings themselves whether the plaintiff was misinformed as to the date of the trial. Where that matter has been the subject of a decision between the same parties in a previous proceeding it seems to me clear that you cannot reopen that question again merely because you say that the wrong information then given was fraudulent. I think therefore that the decision of Mr. Justice Ross confirming the decision of the Subordinate Judge must be set aside and the decree of the Munsiff dismissing the suit restored.

A further point was urged before us, namely, that although as between the plaintiff and the present appellant the matter may be res judicata the plaintiff is nevertheless entitled to damages against the Mukhtar for the fraud which the learned Subordinate Judge found had been perpetrated. With regard to that I think it is too late now for the plaintiff to claim any damages against that defendant. Even if we should be of opinion that the findings of the learned Subordinate Judge were justified it appears that when the plaintiff''s suit was dismissed in the court of first instance and when he appealed to the Subordinate Judge in his grounds of appeal he never asked for any relief against the second defendant. He was content in his appeal to ask for relief against the first defendant only and that was the only question which was dealt with by the appellate court and his appeal was allowed. Again when the present appellant appealed from that decision to Mr. Justice Ross no mention was made of the fact that the plaintiff if he should fail against the first defendant was entitled to relief against the other defendant and I do not think, speaking for myself, that we ought to allow this matter to be raised now. There are further difficulties in the way, which it is unnecessary to refer to, as I think the point which I have mentioned is sufficient to prevent the plaintiff from obtaining any relief against the other defendant in the present case. The defendant No. 1 is entitled to his costs from the plaintiff here and before Mr. Justice Ross and before the lower appellate court. The order of the trial court as to costs will govern the costs in that court against the plaintiff.

Mullick, J.

I agree.