ISMAIL Vs. ZAHIR AHMAD

JUDGEMENT

(1.) Heard Sri Madhav Jain, advocate, appearing for the plaintiff/appellants and Miss Sunita Agarwal, advocate, appearing for the contesting defendant/ respondents.

(2.) The present second appeal arises out of the judgment and decree dated 21.1.1998, passed by the 1st Additional District Judge, Agra, in Civil Appeal No. 330 of 1977 whereby the lower appellate court has set aside the judgment and decree dated 5.11.1977, passed in Original Suit No. 57 of 1975. The suit was filed claiming relief of declaration in respect of the decree dated 17.1.1974 in Suit No. 447 of 1969, Smt. Muniran v. Safaq and Ors., as null and void and also to injunct. the defendants from evicting the plaintiffs in pursuant to the execution of decree dated 17.1.1974 in Suit No. 447 of 1969.

(3.) The disputed property is situated at Mohalla Kachchiyan Gudri Mansoor Khan, which was mortgaged by Mst. Nathia w/o Karim Bux and Juggi s/o Karim Bux in favour of Wilayat Hussain grandfather of the plaintiff Safat Ullah and this mortgage was entered into on 14.7.1880. Smt. Muniran sent a notice of demand and possession to Safaq on 17.3.1969 and finally the Suit No. 447 of 1969 was instituted for eviction and recovery of arrears of rent by Smt. Muniran against Safaq s/o Shahzad Khan, Sattar s/o Naseera, Chinga s/o Hafiz Karim Bux, they were arrayed as the defendant Nos. 1, 2 and 3. The summons of the Suit No. 447 of 1969 were served through process server, which was returned unserved and finally the service was effected by publication in the daily newspaper 'Padler Times', the service was held to be sufficient and the suit was decreed ex parte on 17.1.1974. An application under Order IX, Rule 13, C.P.C. was filed by Safat Ullah raising the plea of fraud in effecting service that they were successful in getting the ex parte decree in Suit No. 447 of 1969, this application was rejected 30.3.1974. S.C.C. Revision No. 120 of 1974 was preferred by Safat Ullah challenging the validity of the order dated 30.3.1974, whereby an application under Order IX, Rule 13, C.P.C. was rejected and a revision was also dismissed on 16.1.1975. Finally, instant Suit No. 57 of 1975 was instituted for declaration and injunction and the written statement was filed. Vide judgment and decree dated 5.11.1977, the trial court decreed the suit on the basis of finding that fraud was played by the defendants of the Suit No. 57 of 1975 in effecting service. The trial court has also framed as many as 8 issues while decreeing the suit, the original decree in Suit No. 447 of 1969 was declared to be null and void as it was obtained on the ground of fraud. The defendants preferred a Civil Appeal No. 330 of 1977 against the aforesaid judgment and decree. The appeal was allowed, which has been challenged in this second appeal. The appeal was filed on 31.3.1998 and at the time of admission, no substantial question of law was framed. However, when the appeal came up for hearing, an endorsement was made by Sri Madhav Jain, advocate, appearing on behalf of the appellants that ground nos. 3, 7, 10, 17, 18, 19, 20 raise substantial question of law. The ground No. 3 relates to one of the substantial questions of law : "Because the court below further failed to consider that the plea of fraud raised in the suit was neither matter in issue nor the same was heard and decided by the Court while deciding the restoration application and in the absence of the existence of condition precedent for invocation of the principle of res judicate, the appellants-plaintiffs cannot be non-suited from their remedy of suit invoked before the competent court". The ground Nos. 19 and 20 relate to the admission of additional evidence as well as certain other evidence, which were refused. The order admitting additional evidence or refusing certain additional evidence was never challenged in the higher forum as such the same cannot be raised as a ground in the second appeal, much less cannot be said that it raises any question of law. The ground No. 18 is in respect of sale deed, which was not produced in evidence. Once again, the original suit was decreed ex parte against which an application under Order IX, Rule 13, C.P.C. as well as civil revision stood dismissed and the present suit was filed only on the ground that fraud was played while effecting service in the earlier suit relating to the Suit No. 447 of 1969. The relief claimed in the instant suit is only for declaration of the decree in the earlier Suit No. 447 of 1969 as null and void on the ground of fraud as such the substantial questions of law raised in the ground Nos. 7, 10, 17 and 18 are on merits, which were liable to be considered in the suit for eviction and not in the subsequent suit, which was filed simpliciter for declaring the judgment and decree in Suit No. 447 of 1969 dated 17.1.1974 to be null and void on the ground of fraud. The lower appellate court has set aside the judgment and decree of the trial court on the ground that question of fraud, which was also a ground in the application under Order IX, Rule 13, C.P.C. for setting aside the ex parte decree in Suit No. 447 of 1969 and confirmed in revision cannot be raised for the second time and is barred by principles of res Judicata and constructive res judicata and also since the ground of fraud was available to the plaintiffs when the application under Order IX, Rule 13, C.P.C. was moved but since they failed to canvass the point of fraud in the previous litigation, they cannot be permitted to raise it and the suit cannot be filed simpliciter for declaration of the decree as null and void for want of sufficient service. In the circumstances, there are only two substantial questions of law, which arise for consideration in this second appeal : (1) Whether the lower appellate court could set aside the judgment and decree of the trial court on the ground that an application under Order IX, Rule 13, C.P.C. for setting aside the decree in Suit No. 447 of 1969, having been rejected and confirmed in revision, the judgment will operate as res judicata/constructive res judicata? (2) Whether after dismissal of the application under Order IX, Rule 13, C.P.C. for setting aside the decree on the ground of insufficiency of service by practicing fraud, subsequent regular suit on the same ground is maintainable after the application under Order IX, Rule 13, C.P.C. was rejected and confirmed in revision? Learned Counsel for the appellants advanced his argument on the basis of a number of decisions. The first case cited on behalf of the appellants is Ashraf v. Karim Bux, AIR 1949 (36) All 198, argument of the counsel on the basis of aforesaid decision is that since the question of fraud practiced by the defendants was not decided on merits and was not a question in issue while deciding an application under Order IX, Rule 13, O.P.C. in Suit No. 447 of 1969, it cannot operate as res judicata. In paragraph 7 of the aforesaid decision, it has been laid down that the ex parte decree can be set aside under Order IX, Rule 13, C.P.C. only on two grounds, first that the summons of the suit were not actually served to the defendants or subsequently in spite of service, defendants had not been able to attend the Court for some sufficient cause on the day the suit was called for hearing. If anything has been decided in the proceedings under Order IX, Rule 13, C.P.C. on any one of these points, it cannot be reconsidered in a subsequent suit to set aside the ex parte decree. If anything else is to be raised, it is strictly the province of the Court in which subsequently the suit was filed for cancellation of the decree. The second decision cited on behalf of the appellants is Har Bilas v. Jeewa Ram and Anr., 1962 ALJ 84, where it has been laid down that the application for deciding the ex parte decree if dismissed, the subsequent suit for setting aside the decree as fraudulent is not barred by res judicata. It has emphatically been argued on behalf of the appellants that the suit to set aside the ex parte Decree on the allegation of fraud was maintainable notwithstanding that the plaintiffs were unsuccessful to get the ex parte decree set aside. The third case cited by Sri Madhav Jain, advocate, is State of Maharashtra v. National Construction Co.. Bombay, 1996 I AD(SC )458 , AIR1996 SC 2367 , [1998 ]92 CompCas21 (SC ), JT1996 (1 )SC 156 , 1996 (4 )KarLJ21 , 1996 (1 )SCALE176 , (1996 )1 SCC735 , [1996 ]1 SCR293 , the bar under Section 11, C.P.C. applies only if the matter directly and substantially in issue in the former suit has been heard and finally decided by the Court competent to try the suit. It has further been held in the said decision that if the matter or issue in question, there has been an application of the judicial mind and final adjudication made, only then principles of res judicata will be applicable but if the former suit is dismissed without adjudication on the matter merely on a technical ground of non-joinder, it will not operate as res-judicata. In the instant case, I have perused the order rejecting an application under Order IX, Rule 13, C.P.C. as well as revisional order, it is not such a case where an application to set aside the ex parte decree was rejected mechanically without any adjudication. In fact, notice of the suit stood served on the sub-tenants, who had contested the suit. The courts below while rejecting the application recorded a categorical finding that it can naturally be well expected by the sub-tenants to convey the fact regarding pendency of the suit to the appellants, who had moved an application for setting aside the ex parte decree. The original suit was contested by sub-tenant and it was only by way of second inning, the application for setting aside the ex parte decree was moved, which was rightly rejected and confirmed in revision. In the circumstances, decisions relied upon by the counsel are not applicable to facts of the present case. Reliance has also been placed on a decision of the Apex Court Sheodan Singh v. Daryao Kunwar, AIR1966 SC 1332 , [1966 ]3 SCR300 , the principle laid down in the said case is that in order that a matter may be said to have been heard and finally decided in the former suit, it must be a decision on merits but if the suit is dismissed for a technical mistake, the decision cannot be said to be barred by the principles of res Judicata. In the instant case, the suit was filed for declaration of the decree in previous suit as null and void. It is not a case where the suit was dismissed on technical mistake. The suit was very well contested by the sub-tenants, who lost before the trial court and the plea of non-service of summons was raised by the actual tenants. Subsequently, another decision cited on behalf of the appellants is Inacio Martins, deceased through L.Rs. v. Narayan Hari Naik and Ors., AIR1993 SC 1756 , 1993 (2 )ALT29 (SC ), (1993 )95 BOMLR492 , JT1993 (2 )SC 723 , 1993 (2 )SCALE480 , (1993 )3 SCC123 , [1993 ]2 SCR1015 , this is also a decision where earlier suit was dismissed on a technical ground. It was held that the subsequent suit is not barred by the principles of res judicata. The last case relied upon by the counsel of the appellants is 2005 AIR SCW 270 paragraph No. 26, I am not able to understand as to how this decision is of any help to the present appellants. It may be noted that the plea of res Judicata though technical, is based on public policy in order to put an end to litigation. It is, however, different if an issue which has been decided in an earlier litigation for determination between the same parties, the principles of res judicata or constructive res judicata will apply with full force. However, the situation will be different, if an issue which has been decided earlier, is based on a fresh cause of action or where there is continuous cause of action, the parties then may not be bounded by the determination of the earlier suit. This is not a situation in the instant case as such there is no applicability of the decision cited by the counsel to the facts of the present case. Miss Sunita Agarwal, advocate, appearing on behalf of the defendant/respondents has disputed the argument advanced on behalf of the appellants. It is submitted that plaintiffs had filed an application under Order IX, Rule 13 C.P.C. Paper No. 59 Ga in the name of Safat Ullah s/o Nazirruddin, nowhere pleaded that summons were fraudulently served by giving wrong name and wrong parentage. This ground was very much available at that time, it could not construe continuous cause of action. In this case, the matter was heard and decided by the courts below as well as by revisional court, it cannot be raised by filing a subsequent suit. No ground of fraud as alleged in the present suit was taken by the plaintiffs though it was available to them. The plaintiffs cannot be allowed to take fresh ground and raise different reasons for claiming the same relief time and again. It is not a case that the cause of action arose subsequently. An application under Order IX, Rule 13, C.P.C. was rejected and confirmed in revision. The ground of fraud as alleged in the present suit was very much available even in the application under Order IX, Rule 13, C.P.C, moved at the first instance, the application has been decided on merits and confirmed in revision. The lower appellate court was correct in concluding that the present suit is barred by principles of res judicata and constructive res judicata. Reliance has been placed on a decision of the Apex Court in (1970 )3 SCC591 , it has been laid down that the plea of res judicata on general principles can be successfully taken in respect of judgments of courts of exclusive jurisdiction. Such as which has been conferred jurisdiction to decide certain matters, like revenue courts, land acquisition courts, probate courts, etc. The principles of res judicata is founded on general principle of law, all that is necessary to establish is that the Court heard and decided the former case, was a court of competent jurisdiction. In the present case, the Court which decided an application under Order IX, Rule 13, C.P.C. was competent to decide the matter, as such once it has been decided on merits, The principles of res judicata and constructive res judicata will squarely be applicable and the plaintiffs are estopped from raising an issue on that ground of fraud in service of summons and cannot be sustained. Another decision placed on behalf of the contesting defendant/ respondents is A. C. Ananthaswamy and Ors. v. Boraiah (D) by L.Rs. 2004 (4) AWC 3016 (SC), the paragraph Nos. 5 and 6 of which is quoted below : "We do not' find any merit in this appeal. Firstly, in the present case, Patel Chikkahanumaiah had moved an application under Order IX, Rule 13, C.P.C. for setting aside the ex parte decree on the ground of non-service of summons in which fraud was not alleged. As stated above, Patel Chikkahanumaiah had moved R.A. No. 54 of 1977 in which there was no such allegation. Secondly, the present suit has been instituted to set aside the ex parte decree on the ground that the decree was obtained by fraud and misrepresentation. Fraud is to be pleaded and proved. To prove fraud, it must be proved that representation made was false to the knowledge of the party making such representation or that the party could have no reasonable belief that it was true. The level of proof required in such cases is extremely higher. An ambiguous statement cannot per se make the representor guilty of fraud. To prove a case of fraud, it must be proved that the representation made was false to the knowledge of the party making such representation. (See Pollock and Mulla on Indian Contract and Specific Relief Acts, (2001) 12th Edition page 489). In the present case, there is no evidence of fraud. The present case is a matter of non-service of summons. In the present case, there is a bare allegation of fraud. In the case of Choksi Bhidarbhai Mathurbhai v. Purshottamdas Bhogilal Shah, AIR1962 Guj 10 , it has been held that where the only fraud alleged is a bare non-service of summons, then such a suit to set aside the decree on alleged ground of fraud was not maintainable. Lastly, no substantial question of law arises in this appeal.