GUNGA NARAIN GUPTA Vs. TILUCKRAM CHOWDHRY

JUDGEMENT

(1.) THIS is an action brought by a judgment-debtor for the purpose of setting aside a judicial sale; and there are two sets of defendants, the one being the judgment-creditors and the other the auction-purchasers. The ground upon which the action is laid is said to be fraud.

(2.) THE 50th section of the Civil Procedure Code (Act XIV of 1882) provides that every plaint must contain a plain and concise statement of the circumstances constituting the cause of action and where and when it arose. By Section 3, Sub-section (d), the Judge before whom the. plaint depends is authorised, if it does not disclose a sufficient cause of action, to adopt one or other of two courses: he may at or before the first bearing either reject the plaint, or allow an amendment to be made upon the spot or within a limited time, upon such condition as to payment of costs as he may think proper. When fraud is charged against the defendants it is an acknowledged rule of pleading that the plaintiff must set forth the particulars of the fraud which the alleges. Lord Shelburne said, in Wallingford v. The Mutual Society 5 App. Ca. 697: "With regard to fraud, if there be any principle which is perfectly well-settled, it is that general allegations, however strong may be the words in which they are stated, are insufficient even to amount to an averment of fraud of which any Court ought to take notice." There can be no objection to the use of such general words as "fraud" or "collusion," but they are quite ineffectual to give a fraudulent colour to the particular statements of fact in the plaintiff, unless these statements, taken by themselves, are such as to imply that a fraud has actually been committed.

(3.) THEIR Lordships are accordingly of opinion that the judgment of the High Court is well-founded, and must be affirmed. They are however, of opinion that in disposing of this case upon the defects of the plaint as not setting forth a good cause of action, the Subordinate Judge ought not to have taken [538] the course of dismissing the suit. If he did not allow an amendment as authorised by Section 53 of the Procedure Code, he ought, in terms of the same section, to have rejected the plaint. That, according to Section 56 of the Code, would have enabled the plaintiff to present a fresh plaint in respect of the same cause of action if he found himself in a position at any future time to make averments which would give relevancy to his action. However, no objection seems to have been taken in the Court below to the form of the judgment, which was the same in both Courts, dismissing the action. No objection was stated in the appellant's case or raised by his Counsel; and in these circumstances, and seeing that the time limited for bringing an action to set aside the judgment has already elapsed, their Lordships are of opinion that the ends of justice will be served by permitting the judgment of the Court below to stand in its present form.