Mahesh Kumar Chandra Bhan Verma vs Darshanlal and Others

T.S. Doabia, J.

Shri N. K. Mody, Advocate for the petitioner. Shri A. M. Naik, Advocate for respondents Nos. 1 and 2.

Heard counsel.

The brief facts for the purposes of this revision petition be noticed.

A suit for eviction was preferred by Darshanlal. This was based on the ground that the premises in question are required bona fide by the landlord. This suit was decreed ex parte. Later on, another suit was preferred by Mahesh Kumar for setting aside the ex parte judgment and decree. According to him, he was a direct tenant under predecessor-in-interest of Darshanlal. He pleaded that the earlier judgment and decree obtained without arraying him as a defendant is liable to be ignored. This litigation is pending in the Court below. In this an application has been preferred that Darshanlal and one another be permitted to urge as a cross-claim that in the event of Mahesh Kumar being found to be tenant then the question of bona fide need of Darshanlal may also be gone into. This prayer of Dharshanlal and another has been allowed. It is against the above, the present petition has been preferred.

The learned counsel for the petitioner submits that the cross-claim sought to be put is beyond the scope of main suit filed by Mahesh Kumar. This argument cannot be sustained. Independently of what has been stated by trial Court it be seen that if the application of Mahesh Kumar is allowed, the net result would be that the ex parte judgment and decree would be set aside. In that eventuality, the plaint of that suit has to be necessarily tried on merits. Once that decree is set aside, Mahesh Kumar would be arrayed as a defendant in that suit. Such a view expressed in the following decisions :

In (Rani) Parygag Kumar Devi and Another Vs. Bhudhar Mal Chaudhury, , a Full Bench made following observations :-

"If on the other hand, the exparte decree is set aside on the ground that it was obtained by suppression of summons by means of fraud committed by the plaintiff, the first suit is revived and the plaintiff of that suit is entitled to have its trial and disposed of in accordance with law in spite of the fact that in the subsequent suit the Court went into the question as to the plaintiff''s claim being false as a ground for holding that there was reason for him to obtain stealthily a decree behind the back of the defendant by fraudulently keeping him out of the knowledge of the suit and preventing him from defending the action.

Again in A.S. Sankara Pandia Thevar Vs. Syed Abdul Rahman Rowther, , similar view has been expressed. As a matter of fact the view expressed by the Full Bench of the Patna High Court in Nirsan Singh Case (supra) was followed. Raja Manner C. J. of the Madras High Court, made following observations :

"It is extremely unreasonable to say that because the plaintiff procured a decree by a trick in not having the summons of the suit served on the defendant, he should not be permitted to establish his case after his fraud had been discovered and the decree obtained by him has not been set aside."

In view of the above situation, if the claim of Darshanlal and Ramesh Chandra is ultimately is to be gone into and then if same purpose is sought to be achieved, by cross claim no objection can be taken to the same. This petition is found to be without merit and is dismissed.