BADRI NARAIN MANDAR Vs. PARSOTI PASBAN

JUDGEMENT

(1.) This is an appeal from a decision of the Subordinate Judge of Monghyr arising out of an action in which the plaintiff claimed to set aside a judgment of a Small Cause Court, contending that that judgment had been obtained by fraud. Both Courts have held in favour of the plaintiff. It is contended by the learned Advocate who appears on behalf of the defendant-appellant that the Judge has misdirected himself in point of law in throwing the onus upon the defendant to establish the fact that the judgment was not obtained by fraud. There is no doubt that in a case of this kind the plaintiff has got to establish that there was non-service of the processes upon him and that the non-service was the result of active fraud in the former action as was pointed by Kulwant Sahay, J. in Ramchandra Prasad v. Parbhulal Ram Ratan 101 Ind. Cas. 718 : AIR 1927 Pat. 183 : 6 Pat. 458 : 8 PLT 193; A decree passed by a competent Court cannot fee set aside by a suit simply on the ground that it was based on a false claim nor on the ground that there was no service of summons or notices. But once it is established that there was no service of summons or notices, it is in my opinion open to the plaintiff in the subsequent suit to show that the claim in tie previous suit was a false claim and the Court can go into the question with the object of determining as to whether there was a wilful and fraudulent supression of the notices and summons in order to obtain a decree.

(2.) Now it might be sufficient in certain cases to prove non-service of summonses so long as that proof is combined with a proof that that non-service was produced by the active fraud of the plaintiff in the earlier suit. In this case the learned Judge has stated in the course of his judgment: But after the Court comes to a finding as to the non-service of the summons, it is open to the Court to go into the question as regards the merits of the previous suit with the object of determining whether there was a motive for wilful and fraudulent suppression of the summonses in order to obtain a decree.

(3.) The learned Judge has not quite correctly stated the position in law and to that extent has misdirected himself as it is not a question of going into the merits of the earlier suit for the purpose of determining whether there was a motive for fraudulent suppression of summonses, but perhaps going into the merits of the suit to see whether the conduct of the plaintiff in the former suit was fraudulent. If it is once held that his conduct was fraudulent, there is an end of the. matter. In this case the Judge proceeds to state that "an investigation of the merits of the case is unnecessary where the non-service of the summons is not sufficient in itself to prove fraud." It is rather unfortunate in this case that there appears to be a mistake in the judgment of the Judge when he stated: In the present instance the failure to prove due. service of summons does not by itself go to prove fraud and hence I do not wish to record any finding on this, that is, on point No. 2 (that is, the merits of the case).