NEMCHAND TANTIA Vs. KISHINCHAND CHELLARAM INDIA LTD

JUDGEMENT

(1.) This appeal is against a judgment and decree of P.C. Mallick, J., dismissing a suit to set aside an ex parte decree on the ground of fraud. The ex parte decree was passed by the Madras City Civil Court on April 5, 1949 in suit No. 555 of 1948, which was brought by the respondent in this appeal against the appellant herein for recovery of price of goods sold and delivered. On 16th January 1951 the present appellant filed a suit in this Court against the respondent for setting aside of the said ex parte decree on the ground that the respondent obtained the said decree by fraud. This suit came up for hearing before Mallick J. The learned Judge has come to the conclusion that the plaintiff has failed to establish the case of fraud set up by him and he has, therefore, dismissed the plaintiffs suit.

(2.) Before us the learned counsel for the appellant has contemted that the learned trial Judge is wrong in his finding that the case of fraud has not been established. The learned counsel has drawn our attention to the evidence given by Radhakissen Sunderlal, the Chief Accountant of the defendant company where this witness his deposed about the various attempts made to effect service of the Writ of Summons on the defendant Nemchand Tantia in the said Suit No. 555 of 1948 of the City Civil Court, Madras. (Q. 43 and Q. 54 to 68) and has submitted that although the definite evidence and admission of this witness in the box is that the Summonses issued for service were not returned, in the application which was made before the Madras City Civil Court for substituted service on 9th February 1949 it was falsely stated in paragraph 3 of the affidavit filed on behalf of the plaintiff company in the said suit and which was affirmed by one Pandurangam Chetty, that two sets of Summonses which were taken out for service on the defendant had been "returned unserved" although the real fact is that the summonses had not been returned at all as admitted by the witness Sunderlal in the box. It is argued that this false representation was made deliberately with a view to mislead the Court into thinking that the defendant Nemchand Tantia was evading service and thereby inducing the Court to pass an order for substituted service. The learned trial judge has interpreted the expression "returned unserved" to mean that no service was effected of the Summonses issued and the learned judge felt that although the language might not have been strictly correct, he would not be justified in taking the view that it was meant to mislead the Court or it did in fact mislead the Court. We are unable to persuade ourselves to take a different view with regard to this matter. That the expression was a misleading one and it did not give a true picture of he situation admits of no doubt. But whether it actually misled the Court or no is another matter. It appears from the original order which was made by the Court for substituted service on 17th February 1949 that there is an endorsement to the effect "Defendant's postal summons alone were once returned unserved". So it is reasonable to presume that the learned judge's attention had been drawn to this fact before he made the order for substituted service. Now even assuming that the learned judge's attention was not drawn to this fact and he was to a certain extent misled by the unhappy expressions used in paragraph 3 of the affidavit we are unable to hold that the plaintiff had any intention of actually misleading the Court by the use of these incorrect expressions. The fact that the plaintiff company was making repeated attempts and all possible endeavour to effect service on the defendant, clearly negatives the theory that there was any attempt at fraudulent suppression of the Summons. The Summonses were attempted to be served through Court, and Summonses enclosed in registered envelopes properly addressed to the defendant, were sent through Court, and it is puerile to suggest that the Court officers and officers or employees of the postal department had all entered into an unholy conspiracy to suppress the service of the Summons.

(3.) The report of the bailiff of the Small Causes Court, Calcutta. who was entrusted with the service of the Summons and which report is printed at page 165 of the Paper book shows very clearly that the bailiff actually went to the defendants' address at 15 Noormull Lohia Lane and 140A Cross Street and attempted to effect service on the defendant but the defendant's gomosta told him that the proprietor was not expected to come back from Bombay before the middle of March and the Gomosta himself refused to accept service unless a ropy of the plaint was supplied to him. This bailiff has given evidence at the hearing before Mallick, J. and no reason has been shown why his evidence cannot be accepted.