BHAGAUTI TIWARI Vs. CHANDAN PANDE

JUDGEMENT

(1.) THE facts of the case out of which this appeal has arisen are as follows: One Bhagwati Pande describing himself as a Tiwari brought a suit to recover certain property as heir of the deceased husband of Musammat Lakhpati. THE suit was resisted by one Gaya Pande who claimed to be the mortgagee of the property (2) by his brother Chandan Pande who claimed to be a donee of the whole from the Musammat and (3) by two other persons Tulshi Pande and Parawa Dischhit who were subsequently made defendants on their own application and claimed to have an interest in the property. On the 13 of March 1907 a compromise in writing was filed in Court which purported to settle the dispute between the various claimants. A decree was passed in terms of that compromise. On the 5 of October 1907 Chandan Pande plaintiff-respondent to this appeal brought his suit to set aside the compromise and the decree based there on as having been obtained by fraud and "also for a declaration that Bhagwati Pande was not of the same caste and family and was not an heir entitled to the estate of Sheo Narain Tiwari deceased. He also sought a declaration that the deed of gift executed in his favour by Musammat Lakhpati was valid and binding on the heirs. THE Court of first instance dismissed the suit on the ground that no fraud had been established. THE plaintiff appealed to the District Judge who held that fraud had been practiced and decreed the appeal decreeing the plaintiff's claim in full with costs. THE defendant Bhagwati comes to this Court in second appeal and three points are raised first that the plaintiff's remedy was by way of appeal from the decree passed upon the compromise and no separate suit would lie, secondly that as his pleader was authorised to compromise the suit he is bound by the Act of his pleader and cannot go behind it and thirdly that the facts found do not constitute fraud. Taking the third point first the lower appellate Court has held that though Gaya Pande and the plaintiff filed one written statement and appointed the same pleader to act on their behalf still Gaya Pande colluded with the other parties to the suit, that in the absence of the plaintiff and without his knowledge and consent the compromise was drawn up and signed by Gaya Pande on behalf of the plaintiff and in order to give the matter the appearance of truth the stamp paper on which the compromise was written was purchased in the name of Chandan Pande and that as a matter of fact he did not purchase it. THE Court has further held that the plain, tiff's pleader was also deceived in the matter by Gaya Pande. In my opinion there cannot be the slightest doubt that these facts constitute fraud. THE compromise was no compromise in fact. It was not entered into either by Chandan or his pleader and on the face of it appears to have benefited his brother at his expense. It awards to him only l-12 of what he claimed but gave to the brother much more than the mortgagee rights which the latter claimed. Gaya Pande knew full well that his brother had no knowledge of this compromise and had not given his consent. He deceived his pleader and thereby induced the pleader to file the compromise. THEre can be no doubt that this constitutes fraud. In regard to the second point it is urged that as the pleader was authorised to compromise the plaintiff is bound by the act of his pleader. On the findings of fact by the lower Court it is clear that the pleader did not compromise the case though he filed the application in Court. Furthermore if he had entered into the compromise on the false information given to him that Chandan had agreed to the compromise the element of fraud would still be present and vitiate the whole proceedings and entitle the plaintiff to go behind it. Fraud practised on a pleader is equivalent to fraud practised on the client. THE Court was certainly deceived.

(2.) THERE remains the first point whether the plaintiff should have proceeded by way of appeal and whether his remedy by way of suit is barred. The plaint, does not disclose the date on which the fraud came to the notice of the plaintiff. It seems to me on principle that the plaintiff clearly has a right by way of suit whether or not he was entitled to challenge this decree in appeal on the ground of fraud. In a case very similar to the present one in some aspects, i.e., the case of Biraj Mohini Dad V/s. Srimati Chinta Moni Dasi 5 C.W.N. 877 it was ruled by Sir Francis Maclean, C.J. that the appellant could not on appeal go into the question whether or not the consent decree is binding on him; that was a new and entirely distinct issue of fact and may be of law which must be determined in a fresh and distinct proceeding. Mr. Justice Banerji in the same case remarks "I think the question raised in this appeal ought not to be allowed to be raised and dealt with by way of appeal." Stress has been laid upon the wording of Section 375 of Act XIV of 1882. It is urged that it is only a lawful compromise that is considered in that section and that is such a decree based upon a lawful compromise which would be final under that section. On behalf of the respondent it has been urged that the decree on the fact of it is final and that the plaintiff could not have appealed against it. I am not prepared to go quite so far as this. I think it would be open to the plaintiff if he had appealed to go behind the decree on the ground of fraud but, in my opinion, the law allows him a remedy by way of suit also and it was open to him to take either of these two remedies. The question of fraud was entirely a new one which had not arisen between the parties in the course of the suit in the lower Court. The fraud, in my opinion, gave the plaintiff a fresh cause of action for the present suit which under article 95 of the Limitation Act he could bring within three years of the date on which the fraud came to his knowledge. In this view of the case the appeal must fail and it is dismissed with costs.