BISESAR PATHAK Vs. PHAGUNI MAHTON

JUDGEMENT

(1.) This is an appeal by the defendants from a decision of the learned subordinate Judge of Gaya dated 12-4-1946, by which the learned Subordinte Judge reversed the decision of the learned Munsif of Aurangabad, dated 30-11-1944. The facts so far as they are material for the purpose of this appeal are the following. It appears that there was a dispute between the plaintiff of this suit on one side and defendants 1 and 2 of this suit on the other regarding 4 bighas 19 kathas of land. Both parties claimed to have taken settlement, of the lands from the Ranis of Deo. As a result of the dispute, there was, firstly, a proceeding under Section 144, Criminal P.C. and then, another under Section 145, Criminal P.C. This proceeding under Section 145, Criminal P.C., terminated in favour of the plaintiff of the present suit. Defendants 1 and 2 then filed a title suit, bearing No. 221 of 1940, for a declaration of their title to and recovery of possession of the lands which, according to them, were bakasht lands. This title suit No. 221 of 1940, resulted in an ex parte decree. The suit was brought on 23-11-1940, and decree ex parte on 21-1-1941, that is, within about two months of the filing of the Suit. Summonses were ordered to be issued in that suit on 28-11-1940, and were alleged to have been served on 10-12-1940. It appears that the plaintiff of the present suit filed a petition under Order 9, Rule 13, Civil P.C., for setting aside the ex parte decree.This petition was, however, withdrawn on 12-7-1941. Thereafter, the plaintiff- respondent filed the present suit out of which this appeal has arisen, for setting aside the ex parte decree passed in Title Suit No. 221 of 1940 on the grounds that the ex parte decree obtained in Title suit No. 221 of 1940 was tainted with fraud, and that the plaintiff-respondent was kept out of knowledgeof the suit by the fraud committed by the defendants appellants, who brought the court peon in collusion as part of the fraud practised by them. The learned Munsif, who heard the suit in the first instance, found that the plaintiff-respondent had failed to prove fraud and collusion.

(2.) He, therefore, dismissed the suit. In appeal, the learned Subordinate Judge has, firstly, found that processes had been suppressed in Title Suit No. 221 of 1940, and secondly, that the suppression of the processes was the result of active fraud committed by the appellants who had taken all steps to keep the plaintiff- respondent out of knowledge of the suit. The learned Subordinate Judge has found that ex parte decree passed in Title Suit No. 221 of 1940, was the result of active fraud perpetrated by the appellants, and he has, therefore, set aside the ex parte decree passed in Title Suit No. 221 of 1940.

(3.) In the appeal before me it has been contended that the withdrawal of the application under Order 9, Rule 13, Civil P.C. filed by the plaintiff-respondent, amounted to a dismissal of the application, and that such dismissal operated as res judicata in the subsequent suit. Learned Counsel for the appellants has relied on two decisions of this Court: Jangal Choudhary V/s. Laljit Prasad A.I.R. 1921 Pat. 12 and Ramrup Goshain V/s. Mahabir Shah A.I.R. 1924 Pat. 238. In both those cases there was an application to set aside the ex parte decree, on the ground of a fraudulent suppression of summonses, and the application was heard and dismissed on merits. In those circumstances, it was held that as the question of fraudulent suppression of processes had already been agitated between the same parties and decided by a Court of competent jurisdiction the matter was res judicata, and could not again be re-opened between the same parties. I am unable to hold that the principle laid down in those two decisions applies in the present case. Firstly, there was no decision on merits in the present case. Though the plaintiff-respondent had filed an application under Order 9, Rule 13, Civil P.C., he was permitted to withdraw the application without any adjudication. It may be conceded that the principle of res judicata may, in some circumstances, arise even when a suit or proceeding is dismissed for default; but, a case in which the application is allowed to be withdrawn without any adjudication whatsoever hardly attracts the principle of res judicata. For example, the plaintiff-respondent may have been advised that the question of fraud which he wished to be agitated did not relate merely to the service of summons; it was independent of and more than a mere attack on the regularity of the service of the summons, and such a question would be beyond the scope and purview of an application under Order 9, Rule 18, Civil P.C. If under such advice, the plaintiff-respondent with draw his application under Order 9, Rule 13, Civil P.C., it cannot be said that the subsequent suit brought by the plaintiff-respondent on the ground of fraud would be barred on the principle of res judicata. Even if the Court before which the application under Order 9 Rule 13, Civil P.C. had, been filed, had decided the application on merits, it could only have decided the question which arose under Order 9, Rule. 13 Civil P.C. namely, that the summons was not duly served or that the defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing. The Court could not decide the more radical question, namely, that there was fraud, independent of, and not merely confined to the service of summons in the suit.