MANINDRA NATH MITTRA Vs. HARI MONDAL

JUDGEMENT

(1.) This appeal arises oat of a suit to set aside a decree on the ground of fraud. The plaintiff alleged that he held the land in dispute as an occupancy raiyat under the defendant for a long time, but that the latter by inducement, threat and misrepresentation obtained two kabuliyats for a term of 3 years from the plaintiff in the year 1911, and then brought a suit in the year 1914 for ejectment of the plaintiff on the ground that the term of the kabuliyat had expired; that the plaintiff filed his written statement in the said suit, but on the adjourned date of hearing could not appear owing to his illness, and the defendant obtained a decree for ejectment by fraud, in execution of which he dispossessed the plaintiff. The plaintiff thereupon brought the present suit on the 3rd December 1915 for setting aside the decree and for possession.

(2.) The Courts below found that the plaintiff was an occupancy raiyat and that the kabuliyats were obtained from him by the defendant to defeat his rights, that the claim was false to his knowledge and on this ground set aside the decree. The defendant has appealed to this Court.

(3.) With respect to the question as to what constitutes fraud for which a decree can be set aside, two propositions appear to be well established. The first is that although it is not permitted to show that the Court (in the former suit) was mistaken, it may be shown that it was misled, in other words, where the Court has been intentionally misled by the fraud of a party and a fraud has been committed upon the Court with the intention to procure its judgment, it will vitiate its judgment. The second is that a decree cannot be set aside merely on the ground that it has been procured by perjured evidence. See Baker v. Wadsworth (1898) 67 L.J.Q.B. 301; Mahomed Golab v. Mahomed Sulliman 21 C. 612 at p. 619 at page 619 (where, however, the observations were obiter), Abdul Huq Chowdhury v. Abdul Hafez 5 Ind. Cas. 648 : 14 C.W.N. 695 : 11 C.L.J. 636; Munshi Moruful Huq v. Surendra Nath Roy 15 Ind. Cas. 893 : 16 C.W.N. 1002 and Nanda Kumar v. Ramjiban 23 Ind. Cas. 337 : 18 C.W.N. 681 : 41 C. 990 : 19 C.L.J. 457.