BHIKAJI MAHADEV GUND Vs. BALVANT RAMCHANDRA KULKARNI

JUDGEMENT

(1.) The present Suit No. 749 of 1923 is brought by one Bhikaji against one Kulkarni to set aside a decree obtained by Kulkarni in Suit No. 750 of 1918. The ground is that a fraud was perpetrated on the Court in the 1918 suit. The trial Judge in the present case has found in favour of Kulkarni, because he considered the matter was res judicata, seeing that the alleged new evidence was mentioned to the High Court in second appeal before the High Court eventually dismissed that second appeal. The lower appellate Court in the present suit arrived at the same conclusion, not on the ground of res judicata, but on a different ground. The learned Judge held in effect that the present suit was an attempt to have a re- hearing of the previous suit on the same allegations of perjury, and that consequently on that ground it ought not to proceed. Looking at the plaint in the present case, it will be found that the particulars of the alleged fraud as set out in paragraph 3 are extraordinarily vague. Sub-paragraphs (a) (b) (c) (d) and (f) practically amount to this, that the opponent's witnesses gave false evidence. The other sub-paragraph (e) runs as follows:- The defendant deliberately and falsely concealed from the Court the account books, written by the defendant in his own hand, and which contained entries that would have been material to the disposal of the suit by the Court.

(2.) A considerable number of authorities have been cited to us with reference to Section 44 of the Indian Evidence Act, which provides that any party to a suit may show that any judgment was obtained by fraud. It is clear that some limitation must be put upon that section. For instance, if party A and his witnesses in a particular suit came into the box and committed deliberate perjury on material points, that is clearly fraud. On the other hand, if a decree is eventually passed in favour of that party even on that perjured evidence, it cannot be open for the opponent to start a new action on exactly the same evidence, on the sole allegation that the previous evidence was wrongly believed by the Court. If that were so, there would be end to the doctrine of res judicata. There would be no finality in litigation, because either party might alternatively bring these cross- actions with varied results ad infinitum. Consequently, the authorities show, I think, that if the case merely turns on in effect a re-hearing of the previous suit on substantially the same evidence, then the Court will not hear the second suit. On the other hand, it is to my mind clear that in a proper case the Court has jurisdiction to set aside a decree which has been obtained by fraud practised on the Court, If, for instance, the existence of certain evidence has been stoutly denied by one party, and the Court has been induced to frame its decree on the basis that that evidence did not exist, then, if that evidence is afterwards discovered, and it is of such a nature that if it had been before the first Court, the probabilities are that the Court would have arrived at a different conclusion, then, it may be, when all the circumstances are looked at, that in that case the Court would set aside the original decree.

(3.) In Nanda, Kumar Howladar V/s. Ram Jiban Howladar (1914) I.L.R. 41 Cal. 98O Sir Lawrence Jenkins stated the law with his characteristic lucidity. He says (p. 998):- The jurisdiction to impugn a previous decree for fraud is beyond question : it is recognised by Section 44 of the Evidence Act and is confirmed by a long line of authority. But it is a jurisdiction to be exercised with care and reserve, for it would be highly detrimental to encourage the idea in litigants that the final judgment in a suit is to be merely a prelude to further litigation.