Marten, C.J:— The present suit, No. 749 of 1923, is brought by one Bhikaji against one Kulkarni to set aside a decree obtained by Kulkarni in Suit No. 750 of 1918. The ground is that a fraud was perpetrated on the Court in the 1918 suit. The trial Judge, in the present case, has found in favour of Kulkarni, because he considered the matter was res judicata seeing that the alleged new evidence was mentioned to the High Court in second appeal before the High Court eventually dismissed that second appeal. The lower appellate Court, in the present suit, arrived at the same conclusion, not on the ground of res judicata, but on a different ground. The learned Judge held, in effect, that the present suit was an attempt to have a re-hearing of the previous suit on the same allegation of perjury, and that consequently on that ground it ought not to proceed. Looking at the plaint in the present case, it will be found that the particulars of the alleged fraud, as set out in para. 3, are extraordinarily vague. Sub-paras (a) (b) (c) (d) and (f) practically amount to this: that the opponent's witnesses gave false evidence. The other sub-para. (e) runs as follows:
The defendant deliberately and falsely eoncealed from the Court the account books, written by the defendant in his own hind, and which contained entries that would have been material to the disposal of the suit by the Court.
2. A considerable number of authorities have been cited to us with reference to Section 44 of the Indian Evidence Act, which provides that any party to a suit may show that any judgment was obtained by fraud. It is clear that some limitation must be put upon that section. For instance, if party A and his witnesses in a particular suit came into the box and committed deliberate perjury on material points, that is clearly fraud. On the other hand, if a decree is eventually passed in favour of that party, even on that perjured evidence, it cannot be open for the opponent to start a new action on exactly the same evidence, on the sole allegation that the previous evidence was wrongly believed by the Court. If that were so, there would be an end to the doctrine of res judicata. There would be no finality in litigation, because either party might alternatively bring these cross-actions with varied results ad infinitum. Consequently, the authorities show, I think, that if the case merely turns on, in effect, a re-hearing of the previous suit on substantially the same evidence, then the Court will not hear the second suit. On the other hand, it is to my mind clear that in a proper case the Court has jurisdiction to set aside a decree which has been obtained by fraud practised on the Court. If, for instance, the existence of certain evidence has been stoutly denied by one party, and the Court has been induced to frame its decree on the basis that evidence did not exist, then, if that evidence is afterwards discovered, and it is of such a nature that if it had been before the first Court, the probabilities are that the Court would have arrived at a different conclusion, then, it may be, when all the circumstances are looked at, that in that case the Court would set aside the original decree. In Nanda Kumar Howladar v. Ram Jiban Howladar(1) Sir Lawrence Jenkins stated the law with his characteristic lucidity. He says (p. 998):
The jurisdiction to impugn a previous decree for fraud is beyond question: it is recognized by Section 44 of the Evidence Act and is confirmed by a long line of authority. But it is a jurisdiction to be exercised with care and reserve, for it would be highly detrimental to encourage the idea in litigants that the final judgment in a suit is to be merely a prelude to further litigation.
3. Then lower down he says:
A prior judgment, it has been said, cannot be upset on a mere general allegation of fraud or collusion; it must be shown how, when, where and in what way the fraud was committed.
4. Then on, p. 999, he says:
There is, however, no suggestion that the decree in the previous suit was fictitious, or that the plaintiffs in this suit were prevented by contrivance from placing before the Court in the former suit any material relevant to the issue, nor has there been any subsequent discovery of evidence that goes to show fraud, or that the Court was misled in the former suit. In effect, when analyzed, the judgment of the lower appellate Court is no more than a retrial of the merits of the original suit and a determination that the Judge who decided that suit was mistaken. But the Court in this suit has no jurisdiction to decide on the merits of the former judgment; its function is to decide whether that judgment was vitiated by fraud.
5. As regards the Full Bench decision in Kadirvelu Naindr v. Kuppuswami Naiher(2), in which the opinion of the Court was delivered by Sir John Wallis, I understand that decision to relate to a case which was confined to questions of perjury at the first trial. In other words, the case related solely to allegations like those we get in paras. (a) (b) (c) and (f) of the present plaint. This, I think, will be seen to be so on looking at the allegations made in the pleadings at p. 744 of the report. In that view of the case, I would respectfully agree with the opinion of the Full Bench. Next, if one turns to the English authorities, the law has been considered on several occasions, and I may refer to two cases both in the Court of Appeal. Wyatt v. Palmer(3) is a case on one side of the line, where the Court thought that the suit ought not to be summarily stopped. Lord Lindley said (p. 110):
As a general proposition, I think it dangerous and undesirable to summarily stop an action to set aside a judgment on the ground that it has been obtained by fraud.
6. And the learned Judge then overruled the contention that there is no jurisdiction in the Court to try an action to set aside a decree obtained by fraud.
7. On the other hand, in Birch v. Birch(4), which was also a case of stopping a second suit in limine, the Court of appeal stayed the second suit on certain further evidence and reversed the decision of Mr. Justice Gorell Barnes, which was to the contrary effect. There, Lord Justice Vaughan Williams says (p. 136):
I think that the Court ought to treat as frivolous and vexatious any cause of action in support of which the plaintiff does not produce evidence of facts discovered since the former judgment which raise a reasonable probability of the action succeeding.
8. Then lower down he says:
In each case it is a question of degree. Is the fact alleged to have been discovered so evidenced and so material as to make it reasonably probable that the action will succeed? If it is, I think the action ought not to be stayed.
9. Lord Justice Cozens-Hardy, as he then was, at p. 139 says:
If the present plaintiff were appealing, and all questions of time were got rid of, he might apply for leave to adduce further evidence on the appeal. But I think such an application must have failed, Such a document as the alleged confession, which cannot be adduced in evidence, must be wholly disregarded. No documentary evidence recently discovered is suggested. A mere suspicion is not sufficient. The supposition which I have made of an appeal, coupled with an application to adduce fresh evidence, is probably too favourable to the present plaintiff. Certainly the plaintiff cannot be in a better position when he seeks to set aside a solemn judgment. The importance of finality in litigation is very great; and I think it would be wrong to allow the issue to be again tried between these parties as to the validity of the will, which has been admitted to probate.
10. The suit was accordingly stayed.
11. I may refer to another case of Vadala v. Lawes(5), where the Court, in dealing with the question as to whether a foreign judgment may be impeached on the ground of fraud, and holding that it may, goes into the question at page 316 of the difficulty of reconciling the two competing principles.
12. Applying what has been laid down in Nanda Kumar Howladar v. Ram Jiban Howladar, by Sir Lawrence Jenkins, as the law, which, speaking for myself, I respectfully accept, all the allegations of fraud in the plaint in the present case would have to be struck out, except sub-paragraph (e), and possibly sub-paragraph (d). Sub-paragraphs (a) (b) (c) and (f) merely amount to allegations that the witnesses in the previous suit committed perjury. To try that would really involve retrial. Consequently, at any rate, as regards those particular paragraphs, I would hold that the judgment of the lower appellate Court was correct.
13. Similarly, in the view I take, I think it would not be open under the present circumstances for Bhikaji to litigate over again the question now raised in subparagraph (d). We are, therefore, left with sub-paragraph (e). Now here to adopt the test in Birch v. Birch, which is substantially the same test as that adopted by Sir Lawrence Jenkins, Bhikaji has to satisfy us that this alleged suppressed evidence was of such a character that if it had been produced the probabilities are that the Court in the other suit would have arrived at a different conclusion. To do that the plaintiff should have given, in my judgment, full and fair particulars of the exact nature of these account books, and what essential matters they contained which would have been likely to produce a different result to the litigation. (His Lordship then dealt with the questions of fact and dismissed the appeal.)
14. Baker, J.:— I agree with my Lord the Chief Justice, and have very little to add to his exhaustive judgment. In regard to this country the law is laid down by Sir Lawrence Jenkins in Nanda Kumar Howladar v. Ram Jiban Howladar and also by the Privy Council in Rajwant Prasad Pande v. Mahant Ram Ratan Gir(6), where their Lordships say (p. 761):
This suit… is equivalent to a suit for the rescission and destruction of a former decree of a competent Court. That rescission and destination could be obtained on the ground of fraud “practised on the Courts below.” On the authorities, therefore, I entertain no doubt that such a suit could lie. It is a fundamental maxim that particulars of fraud must be clearly set out. The fraud alleged, on which the present suit is based, is, according to the plaint, the suppression by Kulkarni the plaintiff in the former suit, of his accounts. It now appears that the accounts referred to are not the accounts of Kulkarni himself, but the accounts of one Rameharan Beharilal, in whose business Kulkarni is stated to have an interest.
15. In the sanction proceedings before the Sub-ordinate Judge of Khed—not the same Sub-ordinate Judge who tried the suit—the fact that the accounts of Kulkarni had been produced in Suit No. 1080 of 1921 of the Poona Sub-ordinate Judge's Court, does not appear to have been clearly set out. It appears to me that, if the present plaintiff had relied on the fraud which he now alleges, namely the suppression of accounts by the opponent Kulkarni, he should have taken a much more definite stand on the point. It appears from the proceedings that he admitted the possession of copies of the accounts, but he did not produce those copies with the object of showing that the claim against him was false, or, what is more important, for the purpose of supporting an application for the production of the original account books which were in the possession of the Poona Court filed in Suit No. 1080 of 1921. It appears to me that if the plaintiff had said:
I am in a position to prove that these accounts have been suppressed, I can produce copies of them, a the originals are with the Court of Poona, and can be called for, he would have been in a very strong position, and it would have been difficult for the Court to refuse to call for the original accounts. But the plaintiff, for reasons beat known to himself, did not choose to adopt this attitude, and this throws a cloud of suspicion on his case. In these circumstances I do not think that this is a suit of the nature covered by the section of the indian evidence act referred to. I agree that the order of the lower appellate Court dismissing the suit should be upheld.
16. Appeal dismissed.