MOTILAL SHIVNARAYAN Vs. VISHWANATH WAMAN THAKUR

JUDGEMENT

(1.) The plaintiff in the three suits out of which these appeals arise was one Vishwanath Vaman Thakur. In the suit out of which Second Appeal No. 803 of 1943 arises the defendant was Motilal Shivnarayan and in the other two suits the defendant was Bhikchand Ramkaran, the father of the respondent, who died pending the suits. Bhikchand Ramkaran obtained two money decrees against the plaintiff in the High Court in summary Suits Nos. 1741 and 2057 of 1936 and Motilal Shivnarayan obtained a money decree against him in summary Suit No. 105 of 1937. All the three decrees were passed on the consent given by the plaintiff Vishwanath Thakur in those suits. He filed these three suits against the decree-holders to have the decrees set aside on the ground of fraud and misrepresentation. Both the Courts below have held that there was no fraud or misrepresentation by the decree-holders in obtaining the consent which was produced in the three summary suits. In all the three suits the documents giving consent to the decree, duly signed by Vishwanath Thakur, the plaintiff in these suits and the defendant in those suits, were produced, and acting upon them the Court passed the decrees in terms of the consent. But in the suit of Motilal Shivnarayan the consent paper had been produced in Court by Mr. Thakur, solicitor, and in the course of Mr. Thakore's examination it was discovered that he had not been engaged by the plaintiff to appear in that suit or to present the consent paper. On that ground, both the Courts below hold that the consent was not properly placed before the Court and therefore the decree passed on the strength of that consent could not be uphold. On this ground in Suit No. 150 of 1940 the decree in summary Suit No. 105 of 1937 was set aside and the plaintiff's claim was decreed. But the other two suits were dismissed. From the decree in Suit No. 150 of 1940 which was confirmed in appeal, Motilal Shivnarayan, the defendant, has presented Appeal No. 803 of 1943, and the other two appeals are presented by the plaintiff Vishwanath Thakur.

(2.) There is no substance in the appeals filed by the plaintiff Vishwanath Thakur. The basis of the suits was fraud and misrepresentation alleged to have been committed by Bhikchand Ramkaran in obtaining his decrees in the two summary suits in the High Court. The plaintiff has not been able to prove that any fraud was practised on him or that any misrepresentation was made to him. Both the Courts below have gone into the merits of the two summary suits presented by Bhikchand in the High Court and come to the conclusion that the claim was good and that the plaintiff Vishwanath Thakur had willingly and voluntarily given his consent to have the decrees passed against him. It is not necessary in these suits to go into the merits of Bhikchand's claim in the two summary suits. Even in those suits, the merits of his claim were not considered and the decrees were passed merely on the consent given by Vishwanath Thakur, the defendant in those suits. The only point to be considered is whether the decrees were vitiated by any fraud or misrepresentation on the part of Bhikchand, and both the Courts have given a concurrent finding that the plaintiff has failed to prove the alleged fraud and misrepresentation. That is a finding of fact which has to be accepted in second appeal. There is no other ground on which Bhikchand's decrees can be set aside. The two appeals filed by the plaintiff Vishwanath must, therefore, be dismissed with costs.

(3.) As regards Appeal NO. 803 of 1943, both the Courts below have given the same finding regarding the plaintiff's allegation of fraud and misrepresentation. The burden of proving such fraud or misrepresentation lay heavily upon the plaintiff and he has not discharged it. That finding is binding in second appeal. But both the Courts below have found that although the document containing the plaintiff's consent was explained to him and signed by him in the presence of his pleader Mr. Dayama, yet Mr. Thakore who produced it in Court had no authority to do so and therefore the Court should not have acted on such document of consent, which was not admissible in evidence for want of proper presentation. The document of consent, which is Ex. 77, is written in English, is signed by the plaintiff Vishwanath and bears the following endorsement signed by the plaintiff's pleader Dayama. "Interpreted by me to Vishwanath Vaman Thakur who has signed in my presence and whom I personally know." Mr. Dayama has been examined as a witness and he says that he explained the contents of Ex. 77 to the plaintiff and, the plaintiff knowing fully well the terms of the decree to which he was giving his consent, signed the document in his presence. His statement has been believed and the only flaw is that the document was produced in Court by an unauthorised person and relying upon the ruling in 43 Cal 2171 the learned appellate Judge thought this to be a sufficient ground for setting aside the decree.