JAGDEO PRASAD Vs. BHAGWAN HAJAM

JUDGEMENT

(1.) This appeal arises out of a suit brought by the respondent to set aside an ex parte decree which had been obtained by the appellants against the respondent for a sum of Rs. 50 in the Court of the Small Cause Court Judge at Calcutta on 20 May 1928. The Munsif who tried the suit dismissed it on the ground that the plaintiff had failed to prove that the decree had been fraudulently obtained. On appeal, however, the decision of the Munsif was reversed by the learned Subordinate Judge who heard the appeal. It may be stated here that in this particular case no summons had been either issued or served upon the plaintiff, in the Small Cause Court suit; but it appears that a registered cover was issued by the Court, and the evidence adduced in the case was that this cover was tendered to the plaintiff by one Deep Narain Chaube, the postal peon, but the plaintiff refused to accept it. The learned Subordinate Judge investigated the question whether this registered cover had been tendered at all to the plaintiff and accepting the evidence adduced on behalf of the plaintiff that the postal peon was a person not wholly unconnected with the defendants, he came to the following conclusion: There is no satisfactory evidence -to show that the summons of the Small Cause Court suit was served on the plaintiff and that he had knowledge of the suit. It is unsafe to fix liability on the plaintiff simply on the uncorroborated statement of the postal peon.

(2.) Having come to this conclusion the learned Subordinate Judge proceeded to consider whether the Small Cause Court suit brought by the defendants against the plaintiff was based on true allegations or not or, in other words, whether the defendants claim was true or false. The learned Subordinate Judge, after examining the evidence before him, virtually came to the conclusion that the claim was not true. Having come to these findings, he expressed the view that the decree had been fraudulently obtained by the defendant against the plaintiff, and he accordingly allowed the appeal and decreed the plaintiff's suit. Now in this second appeal, which has been preferred on behalf of the defendants, it is contended that the learned Subordinate Judge not having found in clear terms that there was any suppression of summons or notice in this case, was not competent to set aside the decree merely on the ground that the appellants claim in the Small Cause Court suit was false. It is true that a decree passed by a competent Court cannot be set aside by a suit simply on the ground that it was based on a false claim or on the mere ground that there was no service of summons or notice.

(3.) But, as was pointed out by a Division Bench of this Court in Ramchandra Prasad V/s. Firm Parbhulal Ram Ratan 1927 Pat 183, after the Court comes to a finding as to the non-service of summons or notice, it is open to it to go into the merits of the previous suit with the object of determining as to whether there was a motive for wilful or fraudulent suppression of the notice or summons in order to obtain a decree based on a false claim by preventing the defendant from placing his case before the Court. Now there may be cases in which, without going into the merits of the claim, it may be possible to find on the evidence that the summons or notice was fraudulently suppressed with the object of preventing the defendant from placing his case before the Court. There may however be cases in which mere non-service of the summons may not be sufficient by itself to prove fraud, and in such cases it has been held that it is permissible for the Court to go into the merits of the original claim, and, if the claim is found to be false, to draw such inference as to fraud as the circumstances may warrant. It appears to me that the learned Subordinate Judge has virtually acted upon this rule in the present case because the learned Subordinate-Judge ultimately came to the conclusion that the decree had been fraudulently obtained by the defendants against the plaintiff. It is true that the learned Subordinate Judge has not come to the positive finding that the summons was deliberately suppressed but has only negatively found that there was no satisfactory evidence to show that the summons of the Small Cause Court suit had been served on the plaintiff and that he-had knowledge of the suit. But reading: his judgment as a whole, it appears to me that he must have examined the merits of the case merely to find out whether the non-service was accidental or deliberate.