MUNSHI MORUFUL HUQ Vs. SURENDRA NATH ROY

JUDGEMENT

(1.) This is a second appeal against the decision of the District Judge of the 24-Pargannas, affirming that of the Subordinate Judge and dismissing the appellant s suit for the setting aside of a decree on the ground of fraud.

(2.) In 1906, the appellant was sued on ejectment by the respondent, and a decree was obtained against him ex parte. An application for the discharge of that decree and the re- hearing of the suit was made under Section 109 of the Code of Civil Procedure of 1882; but it was refused, and the refusal was affirmed on appeal. A regular appeal against the ex parte decree was next preferred; but it was dismissed by the first Appellate Court, and a second appeal to the High Court, was equally unsuccessful. The suit, out of which the present second appeal arises, was then instituted; and the only-fraud complained of in it is that the description in the plaint of the subject-matter of the respondent s suit of 1906, and the evidence on which the respondent obtained the ex parte decree against the appellant, were alike false. Both the Courts below have held that this suit was not maintainable, and the short point raised before us is as to whether an action will lie for the setting aside of a decree merely on the ground that it was based upon perjured evidence.

(3.) In Mahomed Golab v. Mahomed Sullman 21 C. 612 at p. 619 Petheram, C.J., laid it down that, where a decree has been obtained by a fraud practised on another whereby that other has been prevented from placing his case before the tribunal, which was called upon to adjudicate upon it, in the way most to his advantage, the decree is not binding upon him and may be set aside in a separate suit; but that" it is not the law that, because a person against whom a decree has been passed, alleges that it is wrong and that it was obtained by perjury committed by, or at the instance of, the other party, which is, of course, fraud of the worst kind, he can obtain a re hearing of the questions in dispute in a fresh action by merely changing the form in which he places it before the Court, and alleging in his plaint that the first decree was obtained by the perjury of the person in whose favour it, was given." "To so hold would," the learned Chief Justice continued, " be to allow defeated litigants to avoid the operation, not only of the law which regulates appeals, but also of that which relates to res judicata as well;" and reference was made to the reasons why this could not be given by James, L.J., on behalf of himself and Thesiger. L.J., in Flower v. Lloyd 10 Ch. D. 327 : 39 L.T. 613 : 27 W.R. 496: "Where," Lord Justice James inquired, "is litigation to end, if a judgment obtained in an action fought out adversely between two litigants sui juris and at arm s length, could be set aside by a fresh action on the ground that perjury had been committed in the first actions * * * *? There are hundreds of actions tried every year in which the evidence is irreconcilably conflicting, and must be on one side or other wilfully and corruptly perjured. In this case, if the plaintiffs had sustained on this appeal the judgment in their favour, the present defendants, in their turn, might bring a fresh action to set that judgment; aside on the ground of perjury of the principal witness and subornation of perjury; and so the parties might go on alternately ad infinitum * * * Perjuries, falsehoods, frauds, when detected, must be punished and punished severely; but, in their desire to prevent parties litigant from obtaining any benefit from such foul means, the Court must not forget the evils which may arise from opening such new sources of litigation, amongst such evils not the least being that it would be certain to multiply infinitely the mass of those very perjuries, falsehoods and frauds."