RAJENDRA KUMAR BOSE Vs. GANGARAM KOYAL

JUDGEMENT

(1.) This appeal arises out of a suit brought to rectify a decree passed in a previous suit No. 830 of 1904. If regard be had to the allegations of the plaint, it is apparent that the plaintiffs case rested wholly on fraud, and the Munsif has correctly described the position when he said- -" The plaintiffs case is that the decree was vitiated by fraud, which consisted in the present defendant having misled the Court to pass the decree." The fraud was negatived, and thereupon a case of mistake was set up, and on this ground the Munsif passed a decree in the plaintiffs favour. This was confirmed by the lower Appellate Court, and also by the judgment of this Court on appeal when the case was heard by a single Judge. From this judgment the present appeal is preferred.

(2.) I take it to be well-established that where pleadings are so framed as to rest the claim for relief solely on the ground of fraud, it is not open to the plaintiff, if he fails in establishing the fraud, to pick out from the allegations of the plaint facts which might, if not put forward as proofs of fraud, have yet warranted the plaintiff in asking for relief. A defendant, in answering a case founded on fraud, is not bound to do more than answer the case in the mode in which it is put forward. If, indeed, relief is asked alternatively, either on the ground of fraud, or, failing that ground, then on some other equity, a plaintiff may fail on the first but succeed on the latter alternative. But, then, the attention of the defendant has been distinctly directed to it, and he has been called on to answer the case according to both alternatives: see Hickson V/s. Lombard (1866) L.R. 1 H.L. 324. 336. This statement of the law has been treated by the Privy Council as applicable in India: see Guthrie V/s. Abool Mozuffer Nooroodin Ahmed (1871) 15 W.R.P.C. 50, 54 and the present case falls precisely within it; for the charge was one of fraud, and that having failed, the plaintiffs by picking out stray allegations from their plaint have endeavoured to make good a case entitling them to rectification on the ground of mistake. I refrain from discussing the question as to how far the Courts in India can entertain a separate suit to rectify a consent-decree on the ground of mistake, as for the reason. I have already stated, the decree of the lower Appellate Court should be set aside and the suit dismissed with costs throughout. Doss, J.

(3.) I agree.