HARO PROSAD DAS Vs. RAM NARAIN CHOWDHURY

JUDGEMENT

(1.) This is an appeal on behalf of the defendant in an action for declaration that an ex parte decree for rent obtained against the plaintiff by the defendant on the 4 November 1905, was vitiated by fraud and also for a declaration, that the tenancy held by the plaintiff is not nagdi, but partly bhowli and partly nagdi. The Court of first instance dismissed the suit on the ground that there was no fraud as alleged by the plaintiff and that the holding in question had been converted into a nagdi holding by the consent of parties. Upon appeal to the Subordinate Judge, the plaintiff gave up the case of fraud which was the foundation of his suit. He contended, however, that the document produced in support of the allegation of commutation of rent required to be registered and that as it was not registered there was no binding contract between the parties for conversion of the rent from bhowli into nagdi. The Subordinate Judge accepted this contention and made a declaration that there had not been such a commutation of rent as would be binding between the parties for all succeeding years.

(2.) The defendant has now appealed to this Court and on his behalf the decision of the Subordinate Judge has been assailed substantially on two grounds, namely, first, that as the case of fraud has failed there is no cause of action and the suit ought to be dismissed; and secondly, that the dowl which evidences the commutation of rent does not require registration. In our opinion each of these contentions is well-founded and must prevail.

(3.) As regards the first question it is clear that the suit is substantially based upon an allegation of fraud. The plaintiff has found himself unable to establish the fraud alleged. He now seeks for declaration, the ultimate affect of which is to nullify the decree for rent previously made. Upon the facts as they appear on the record, he had notice of the previous suit but did not choose to defend it. An ex parte decree was made against them. The appeal against that ex parte decree proved unsuccessful. He applied to set aside the ex parte decree and was equally unsuccessful. He then instituted this suit to set aside the ex parte decree on the ground that it was vitiated by fraud. The case of fraud has failed. It is difficult to appreciate what other ground there is for the claim. This ground alone is sufficient to justify the dismissal of the suit. We are reluctant, however, to base our decision solely on this ground because the second ground also is well-founded.