Mushtaq Ahmad, J.:— This is a plaintiff's appeal arising out of a suit for a declaration that an ex parte decree dated. February 20, 1942, obtained by the defendant in suit No. 518 of 1941 of the court of Munsif, Koil, Aligarh, was null, and void.
The plaintiffs' case was that under a permission obtained from the zamindar they had entered into possession of a plot of land and built a double-storeyed house on it in November, 1941, but that after the house had been constructed the defendant filed the suit referred to above for possession over the land, necessarily involving a demolition of the building already erected by the plaintiffs. They further averred that when, this suit was filed, they were not in their, village, called Kharai, but that one of them was away in Delhi and the other of them away at Mussoorie; that in spite of this the defendant had wrongly got the summons of the, suit issued to them by their village address, with the consequence that they were wholly unaware of the suit, and it was in that state of affairs that the defendant induced the court to pass the ex parte decree in question. They further alleged that when on June 3, 1942, notices in the execution proceedings were issued to them, they first came to know about the suit and the decree. On July 3, 1942, the plaintiffs applied for the setting aside of the decree under Order IX, rule 13, Civil Procedure Code filing an affidavit on the point of their absence from the village, in answer to which a counter-affidavit was put in by the defendant. The learned Munsif, on August 15, 1942, dismissed this application, and an appeal against the order was also dismissed on March 6, 1943. It may be mentioned that besides these affidavits no other evidence was produced by either party at that stage.
Both the learned Munsif and the appellate court in the said miscellaneous proceedings found, as pointed out by the courts below in the present case, that the plaintiffs had absented themselves from the court in spite of their knowledge of the suit. It may also be mentioned that in those proceedings no question had been raised with regard to the merits of the defendant's suit No. 518 of 1941, much less that it was based from the beginning to the end on a fraudulent and imaginary foundation. The orders of the to courts in those proceedings were thus confined only to the question of the knowledge of the plaintiffs about the suit and not, strictly speaking, to the non-service of the summonses on them as due to any fraud practiced by the defendant.
On May 25, 1943, the suit giving rise to the present appeal was had by the plaintiffs, namely the ex parte judgment-debtors under the earlier decree, on two specific grounds: (1) that the defendant had purposely put wrong facts before the court and obtained the ex parte decree without the plaintiffs' knowledge on the basis thereof, and (2) that there had been no proper service of the summonses on the plaintiffs, the same having been brought about by the defendant's contrivances amounting to fraud.
A number of issues were framed by the trial court, one of them being whether the suit was barred by res judicata. That court found all the issues in the plaintiffs' favour and decreed the suit. On the issue of res judicata it held that the application under Order IX, rule 13, Civil Procedure Code had been dismissed only because the plaintiffs had absented themselves from the court in spite of their knowledge of the previous suit. It also held—and that is the more important part of the judgment—that the plaintiffs in fact never became aware of any fraud having been practised by the defendant until after they had filed their application under the said rule. Holding also that the suit was not barred by res judicata, the court set aside the earlier ex parte decree.
On appeal, the lower appellate court, without going into the various other issues which had been decided in favour, of the plaintiff-appellant by the trial court, confined its judgment only to the issue of res judicata and, holding that the suit was barred by that rule, reversed the decree of the trial court and dismissed the suit. The present appeal is directed against the latter decree.
The sole question argued before me was the question of res judicata. The main argument addressed by the learned counsel for the appellant was that the only two grounds on which an ex parte decree could be set aside under Order IX, rule 13, Civil Procedure Code were that the defendant had not been actually served with the summons of the suit or, in spite of the service, the defendant had not been able to attend the court for some sufficient cause on the day the suit was called on for hearing. If anything, he conceded, has been decided in the proceedings under Order IX, rule 13, on any one of these points, it cannot be reconsidered in a subsequent suit to set aside the ex parte decree. At the same time he urged that it would be permissible to a person against whom an ex parte decree has been passed to challenge that decree in a subsequent suit on the ground of fraud—on any ground, in fact, which has already not been considered or decided upon in the proceedings under Order 9, rule 13. Indeed, the scope of the inquiry under this rule being limited to the two circumstances I have just mentioned, it is not necessary for a court dealing with an application under that rule to step beyond those circumstances and travel into such extraneous matters as those of fraud or the like that might have vitiated the decree. That, I conceive, is strictly the province of the court in which a suit is subsequently filed for the cancellation of the decree.
The learned counsel for the appellants relied on a number of cases, the principal among them being Kunjabehari Chakrabarty v. Krishnadhone Majumdar(1) and the Privy Council case in Radha Raman Sliaha v. Pran Nath Roy.
In the earlier case it was held as follows:
“To sustain an action for setting aside a decree the fraud alleged and proved must be actual, positive fraud, a meditated and intentional contrivance to keep the parties and the court in ignorance of the real facts of the case and obtaining that decree by that contrivance.”
The Bench further observed that—
“In the case of ex parte decrees when the defendant had never appeared the contrivances may consist in suppressing the summons. The fact of suppression would itself be the contrivance, and indeed the most effective contrivance for keeping the defendant in ignorance of his rights and from placing his case before the court. Mere non service would not do. But when the fact of non-service of summons is proved by the plaintiff in the later action, and the claim on which the decree was passed is proved to be a false one, the court may, and should ordinarily, infer deliberate and hence fraudulent suppression, for the last mentioned circumstance supplies the motive for the suppression and indicates that the suppression is itself fraudulent in such cases the fact that the question of non-service of summons had been adjudicated in an earlier proceeding under Order IX, rule 13, Civil Procedure Code would not bar the investigation of fraud as the issues would not be the same.”
In the Privy Council case of Radha Raman Shaha v. Pran Nath Roy also it was clearly indicated that the proper test was—what were the allegations in the earlier proceedings, so that if the ex parte decree was sought in the latter suit on grounds not touched in those proceedings, it would be permissible to the court to enter into the matter and decide it on the merits, whatever the decision in those earlier proceedings on other points may have been.
In another case, Khagendra Nath Maliata v. Pran Nath Roy(2) their Lordships of the Privy Council held that the subsequent suit for the setting aside of an ex parte decree would be maintainable if the entire previous suit in which that decree had been passed was challenged as a fraud. In Jagrup v. Ram Sabad(3), again, it was pointed out that it was open to the court in the subsequent suit to examine the whole question of the merits of the previous suit which had culminated in the ex parte decree.
As already indicated above, the plaintiff appellant's, allegations challenging the ex parte decree in the present case were based not only on the ground that it had been passed without a proper service of summons but also that it had been a culmination of a suit which was from its very inception a fraudulent claim, in the sense that not only false facts were put before the court and evidence was offered in support of them, but also that facts of vital importance had been concealed from the court, which if disclosed, might have prevented it from passing the decree even in the absence of the defendants, namely the plaintiffs in the present litigation. This must be taken in substance to be the meaning of paragraph 4 of the plaint. The lower appellate court entirely missed that the plaintiffs' attack on the ex parte decree was not confined only to a solitary ground but it was founded on a much wider basis which, in fact, if substantiated, would have gone to the very root of the decree, by exposing the initial falsity of the claim preferred by the defendant in the earlier suit. As a matter of curiosity it may be mentioned that at no stage of the earlier proceedings does it appear to have come out that a substantial two storeyed building had already been erected by the present plaintiffs on the strength of a written authority from the zamindar and that the defendant's claim to the site necessarily involved a conflict between the power of the zamindar to grant that authority and the action of the defendant to claim possession over it in spite of that. All this has been completely ignored by the lower appellate court—and this on the wrong view that once the matter of service of summons had been decided in the earlier proceedings, it was decided for all time and for all purposes. Nothing in my opinion, could be more indefensible.
Mr. Baleshicari Prasad, the learned counsel for the respondents has invited my attention to four cases: Puran Chand v. Sheo Dat Rai; Niadar Mal v. Raunak Husain Ghulam Mohammad v. Mst. Bakhtawaran and Ram Rup Gosain v. Mahabir Shall(4). In the first case the only-fraud alleged was connected with the non-service of the summons and in the second case the latter suit, being based on the same grounds as already considered in the earlier proceedings, was held barred. Precisely the same was the position in the third case of the Lahore High Court; and the rule laid down in the last case was that no fresh suit lay unless there were some fresh grounds of fraud alleged. I have already sufficiently indicated that the plaintiffs in the present case have alleged such a ground, namely that the] defendant had from the very beginning been out to defraud the plaintiffs and that the very structure of his plaint in the earlier suit was based on a fraudulent foundation. I think the cases cited by the learned counsel for the appellant entirely support his contentions and they have in no sense been displaced by the rulings relied upon by the learned counsel, for the respondents.
On a consideration of the provisions of Order IX, rule 13, Civil Procedure Code and of the relevant case law defining the scope of a suit to set aside an ex parte decree I hold that such a suit, based on the allegation that the defendant's claim in the earlier suit was itself a fraud on the plaintiffs of the latter suit and that the contrivance adopted in procuring a false endorsement of service on the summons was only a part of the same fraud, is not barred by res judicata on any point that may have been decided about that service in the miscellaneous proceedings.
Before I conclude this judgment, I must emphasize on the subordinate judiciary one fundamental rule of the administration of justice, both civil and criminal. While the paramount power that should guide us is, no doubt, the power of the law, it must never be forgotten that the law itself exists to secure the maximum degree of justice to the common man. It is true that a section of it consists of rules that may be regarded as technical and which in certain contexts may appear as conflicting with the conceptions of absolute justice. At the same time it must be remembered that the object that section of the law also is to guarantee the benefits of justice and nothing else. This must obviously lead to the result that the technicality of the law should itself be put into a framework which must not allow justice to slip or slide. It has been well said that the law is, in every department of it, the handmaiden of justice, the converse not being true. You can even stretch your point to secure this object, without doing violence to your technical rules. I regret that this was not the spirit of the judgment under appeal.
For the above reasons I hold that the finding of the lower appellate court that the suit was barred by res judicata was incorrect and that the decree flowing from that finding must be vacated. I accordingly allow this appeal, set aside the decree of the lower appellate court and remand the case to that court with a direction to try the other issues in the case and decide it finally according to law.
The appellant will be entitled to his costs in this Court and the costs in the courts below will abide the event.
Leave to appeal under the Letters Patent is refused.
The court-fee paid by the appellant will be refunded.
Appeal allowed.