RAM DIHAL DUBEY Vs. GAJRAJ UPDAHYA

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for a declaration that an order of ejectment against him and in favour of the defendants passed by the Revenue Court was ineffectual and invalid inasmuch as it had been obtained by fraud. No consequential relief could be asked for, as the holding, from which the plaintiff had been ejected, was an agricultural holding. The Court of first instance dismissed the suit on the ground that the claim was barred on account of the Revenue Court's decision. On appeal the lower appellate Court allowed the appeal and remanded the case for disposal on the merits. Among other things, the plaintiff had alleged that in the service of the notice issued under Section 81 by the Revenue Court, fraud had been committed, and the process-server was in collusion with the opposite party, and misrepresented to the plaintiff the nature of the proceeding. There were also other allegations that the plaintiff had sent rents by money orders, which had been returned and that this fact was suppressed by the defendants in the Revenue Court. The lower appellate Court came to the conclusion that the allegations that the process-server was in collusion with the defendants and that he had committed fraud on the plaintiff by misrepresenting that the notice was in connection with a redemption proceeding were matters relating to the service of notice and were exclusively cognizable by the Revenue Court, but that the allegation that the plaintiff had sent rents to the defendants twice by money orders, and that they did not accept them, did not in any way, refer to the service or the non-service of the notice and was a matter, which could constitute fraud. On appeal to this Court, a learned Judge, who disposed of the appeal, rightly pointed out that the question whether the amount of arrears of rent was due and whether the defendants had refused to accept the rent sent to them were questions to be decided by the Revenue Court, and if they were not decided in that Court, they cannot be reagitated in the civil Court. But the learned Judge came to the conclusion that the question whether a notice had been properly served on the respondent under Section 81, Tenapncy Act, or whether a fraud had been practised on him by the serving officer was also one for the decision of the Revenue Court. Inasmuch as the plaintiff's application for review in the Revenue Court has failed, the learned Judge held that the finding of the Revenue Court that there had been no fraud committed was binding on the civil Court, and it could not now be questioned by the plaintiff.

(2.) It is quite obvious that the question whether the defendants had falsely claimed certain arrears of rent, which were not due and whether they had suppressed the fact that rents had been tendered to them would he matters which could not constitute a basis for re-opening the order on, the ground of fraud. These are matters which were not extraneous to the proceeding and should have been raised before the Revenue Court and decided by it, But where a fraud is committed on a defendant in that notice ox the proceeding is not served on him at all, or there is some misrepresentation which makes him believe that the nature of the proceeding is different from what it really is, the defendant has really had no opportunity to appear before the Court and put his case before it. A fraud of this kind has always been held to vitiate the entire proceeding and invalidate the ex parte order, which might have been passed against the absent defendant.

(3.) It is highly doubtful whether questions of fraud which can avoid the entire proceeding could be gone into either under Section 151, Civil P.C., or under Order 47, Rule 1, for an ex parte decree obtained fraudulently becomes voidable subsequently when the fraud comes to the knowledge of the defendant. But in any case it is clear that the orders passed by the Revenue Courts in the revenue proceeding could not, operate as res judicata in civil Court. Proceedings under Section 81, Tenancy Act, do not really result in a decree, and that is another reason why the order could not operate as res judicata.