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Case Number
Attorney(S)
  • Mr. S.C Boy Choudhury and Babu Santi Coomar Roy Choudhury for the Appellant.
  • Babus Suresh Chandra Talukdar and Kiran Mohan Sirkar for the Respondent.
Judges
  • B.B Ghose
  • Graham, JJ.
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Mr. S.C Boy Choudhury and Babu Santi Coomar Roy Choudhury for the Appellant.
  • Babus Suresh Chandra Talukdar and Kiran Mohan Sirkar for the Respondent.
Judges
  • B.B Ghose
  • Graham, JJ.
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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The Plaintiff (who was Defendant in an earlier rent suit No. 200 of 1916) brought a fresh suit to set aside an ex parte decree that had been passed against him in that earlier money suit on the ground of fraud. In the rent suit the present Plaintiff was served with summons but did not appear at the hearing and a decree was passed ex parte. The Plaintiff alleged that the rent claim was false and that the decree had been obtained by perjured evidence.

At trial before the Munsif several issues were framed, including Issue No. 5: “Is the rent decree obtained by the Defendant No. 1 against the Plaintiff fraudulent and one liable to be set aside?” The Munsif, after reviewing reported authorities, concluded that the fresh suit to set aside the prior decree on the alleged ground was not maintainable and on the facts also found for the Defendant, dismissing the Plaintiff's suit.

The Plaintiff appealed. The Subordinate Judge reversed the Munsif: finding the claim in the rent suit false, concluding that the decree was obtained by practising fraud on the Court, and allowing the Plaintiff's suit. Defendant No. 1 appealed to the Court which delivered the present judgment.

Legal Issues Presented

  1. Whether a fresh suit to set aside a previously obtained decree (including one obtained ex parte) is maintainable where the plaintiff in the prior suit is alleged to have obtained the decree by false or perjured evidence.
  2. What constitutes "fraud" sufficient to impeach and set aside a decree — specifically, whether perjured evidence alone, or knowledge by the prior plaintiff that the claim was false, is sufficient to found such a suit.

Arguments of the Parties

Defendant No. 1 (Appellant)

  • Contended that the Subordinate Judge was wrong to hold that a fresh suit for setting aside a previous decree is maintainable on the ground that it was obtained by false evidence, even if the plaintiff in the previous suit knew it to be false.
  • Relied on a number of reported cases (cited in the opinion) to support the proposition that mere allegation of perjury or falsity of the plaintiff's claim in the prior suit is not sufficient to sustain a separate suit to impeach the prior decree.

Plaintiff / Respondent

  • Alleged that the decree in the prior rent suit was obtained by perjured evidence and that the claimant in that suit knew the claim to be false.
  • Argued (as described by the court) that because of conflict in prior decisions, the matter should be referred to a Full Bench and that the court should enumerate the specific grounds on which a plaintiff can maintain a suit to set aside a previous decree on allegation of fraud.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Mohammad Golab v. Mohammad Sullimon Principle that where a decree is obtained by fraud practised upon the other side preventing him from placing his case before the tribunal, the decree is not binding and may be set aside in a separate suit; but mere allegation that a decree was obtained by perjury does not, by itself, permit a re-trial of the merits in a fresh suit. The Court regarded this decision as authoritative and noted that many subsequent cases followed it. It relied on its principle to hold that mere allegation that a prior decree was obtained on perjured evidence is insufficient to maintain a fresh suit to set aside the decree.
Lukshi Churan Saha v. Nur Ali (also cited as Lakhmi Churn Shaha v. Nur Ali) This decision presented a discordant view: on its peculiar facts it supported allowing the suit to set aside the prior decree. The Court described this case as a peculiar decision whose facts would support the decree in that instance but treated it as a discordant note in the authorities.
Kedarnath Das v. Hemanta Kumari Devi Followed the Lukshi Churan Saha decision (i.e., the discordant approach on particular facts). The Court noted that this case followed the discordant approach exemplified by Lukshi Churan Saha, but it did not treat these decisions as overruling the weight of authority following Mohammad Golab.
Nanda Coomar Howladar v. Ramjiban Howladar Explained that where there is no suggestion that the prior decree was fictitious, nor that the plaintiff in the former suit was prevented by contrivance from placing material before the Court, nor any subsequent discovery of evidence showing fraud or that the Court was misled, then setting aside the prior decree on such grounds amounts to a re-trial of the merits which is not permissible. The Court quoted Sir Lawrence Jenkins' observation from this case to reinforce that a lower Appellate Court cannot effectively re-try the merits under the guise of finding fraud; the Court relied on that reasoning to reject the Subordinate Judge's approach.
Nalini Kanta Mukherji v. Hari Nikari Followed the decision of Sir Comer Petheram in Mohammad Golab (i.e., that mere perjured evidence is not, without more, a ground for impeaching a decree). The Court noted this case as another authority adopting the Mohammad Golab position, supporting the conclusion that the fresh suit was not maintainable on the pleaded ground.
Sarat Kumari Debi v. Mecher Mollah A Division Bench decision of this Court that followed the decision of Sir Comer Petheram (Mohammad Golab) on the point. The Court cited this Division Bench decision as consistent authority reinforcing the principle that perjured evidence alone does not justify setting aside a decree in a separate suit.
Baikunta Chandra Dhupi v. Prahlad Chandra Dhupi Another decision of this Court adopting the same principle as Mohammad Golab. The Court noted this case as further confirmation that the Court's jurisprudence consistently requires more than an allegation of perjury to impeach a decree.

Court's Reasoning and Analysis

The Court's reasoning proceeded in two linked strands: (1) analysis of precedent and (2) application of those principles to the facts of the present case.

1. Precedent analysis:

  • The Court reviewed a line of authorities beginning with Mohammad Golab v. Mohammad Sullimon in which the leading statement is that a decree obtained by fraud which prevented the defeated party from placing his case before the tribunal may be set aside in a separate suit. However, Sir Comer Petheram in that case drew a clear distinction: allegations that a decree was obtained by perjury (i.e., perjured evidence) do not, by themselves, entitle the defeated party to re-open the merits in a separate action — to allow this would circumvent the rules on appeals and res judicata.
  • Subsequent decisions have been split: some decisions (including instances cited as Lukshi Churan Saha and Kedarnath Das) took a different approach on peculiar facts, while a number of other decisions (including Nanda Coomar Howladar, Nalini Kanta Mukherji, Sarat Kumari Debi, Baikunta Chandra Dhupi) followed the reasoning in Mohammad Golab and applied the stricter rule.
  • The Court emphasized Sir Lawrence Jenkins' observation (in Nanda Coomar Howladar) that where there is no suggestion of a fictitious suit, no contrivance that prevented the other party from placing material before the Court, and no subsequent discovery of evidence showing that the Court was misled, then reversing the prior decree amounts to a re-trial of the merits — which the appellate court should not undertake.

2. Application to the facts:

  • In the present case the Subordinate Judge found only that the prior claimant's claim was false and that she knew it to be false. The present Court held that this finding amounted to re-deciding the factual merits of the previous suit rather than establishing the kind of fraud on the proceedings that would justify impeaching the prior decree.
  • The Court observed that nothing beyond the allegation of falsity and knowledge by the prior claimant was proved — no contrivance prevented the defeated litigant from presenting his case, no subsequent discovery of evidence demonstrated that the earlier Court had been misled, and therefore the situation did not resemble the category of fraud recognized as vitiating a decree.
  • The Court further noted policy considerations articulated by the concurring judge: treating perjured evidence alone as a ground for setting aside decrees would destroy finality of litigation, because allegations that evidence was perjured are notorious and could invite endless re-litigation.
  • Because a majority of recent authorities followed Mohammad Golab, the Court declined the respondent's request for a Full Bench reference and declined to attempt to produce an exhaustive enumeration of all possible grounds for setting aside a decree for fraud; instead it confined itself to affirming the established proposition that mere allegation of perjury is insufficient.

Holding and Implications

Holding: The appeal is allowed and the Plaintiff's suit to set aside the previous decree is dismissed with costs in all Courts.

Implications:

  • Direct effect: The judgment and decree of the Subordinate Judge (which had allowed the Plaintiff's suit) are reversed; the Munsif's original dismissal of the Plaintiff's suit is upheld by this Court in substance through reversal of the Subordinate Judge's allowance.
  • On the law: The Court reaffirmed the established principle — followed in a number of recent authorities — that a mere allegation that a prior decree was obtained upon perjured evidence (or that the claimant in the prior suit knew his claim was false) is not, without more, a ground for impeaching and setting aside that decree in a separate suit. Fraud sufficient to set aside a decree must be fraud practised upon the Court or such contrivance that the defeated party was prevented from placing his case before the tribunal; absent such facts, permitting fresh suits on the basis of perjury would undermine finality and the operation of appeal and res judicata rules.
  • No new catalogue of grounds: The Court declined to define exhaustively the grounds on which a decree may be impeached for fraud and refused the respondent's request to refer the matter to a Full Bench, on the basis that the majority of recent decisions already follow the established rule articulated in Mohammad Golab.

P.C. (per curiam): Judgment concurred in by the other constituent judge, who added observations emphasizing that fraud to set aside a decree must be shown to have been practised upon the Court, and that allowing perjured-evidence allegations alone would destroy finality of litigation.

Show full summary ...

    Muktamala Dasi v. Ram Chandra Dey

    The Judgment of the Court was as follows:—

    B.B Ghose, J.:— This is an appeal by the Defendant No. 1 against a judgment and decree of the Subordinate Judge reversing those of the Munsif. The Plaintiff brought the suit to set aside a decree which was passed ex parte against him in money suit No. 200 of 1916 on the ground of fraud. In that case, the present Plaintiff was the Defendant. He was, it appears, served with proper summons; but, on the date of hearing, he failed to appear in Court and the result was that a decree was passed ex parte against him. The Plaintiff alleges that the claim for rent against him in the previous suit was entirely false and the decree was obtained against him on perjured evidence. On these allegations, he went to trial. Several issues were framed in the trial Court of which the 5th issue was this: “Is the rent decree obtained by the Defendant No. 1 against the Plaintiff fraudulent and one liable to be set aside?” In a careful judgment, the Munsif considered all the reported cases on the question as to whether the Plaintiff was entitled to maintain the present suit for setting aside the previous decree on the ground alleged and came to the conclusion that a fresh suit by the Plaintiff for setting aside the prior decree on that ground was not maintainable. On the question of fact also, the Munsif came to a decision in favour of the Defendant. On these findings, he dismissed the Plaintiff's suit. The Plaintiff appealed against that decree and the Subordinate Judge started his findings by observing— “The Plaintiff can only succeed if he can prove that the Defendant has practised fraud upon the Court in securing the decree complained of. To determine this, it is to be previously seen if the claim in that rent suit was false and it was so known to the Plaintiff of that suit.” Then the Subordinate Judge discussed the evidence and on the facts, he came to a conclusion contrary to that of the Munsif and concluded his judgment in this way: “Plaintiff's (it should be Defendant's) claim in the rent suit is thus false and she must have known it to be false, the decree in that suit was evidently obtained by practising fraud on the Court. The decree in the rent suit, in my opinion, cannot stand.” In that view, he decreed the appeal and allowed the Plaintiff's suit. The Defendant has appealed to this Court and the contention on her behalf is that the Subordinate Judge is wrong in his view that a suit for setting aside a previous decree is maintainable on the ground that it was obtained by false evidence, although the Plaintiff in the previous suit might have known it to be false. In support of this contention a number of cases have been cited by the learned Advocate for the Appellant. As there has been some conflict of decision on this point, I think it is necessary to recapitulate them in some detail. The first case which has been relied on by the Appellant is the case of Mohammad Golab v. Mohammad Sullimon . In that case Sir Comer Petheram, C.J, in delivering the judgment of the Court, after referring to a number of decisions, observed as follows:— “The principle upon which these decisions rest is that where a decree has been obtained by a fraud practised upon the other side by which he was prevented from placing his case before the tribunal which was called upon to adjudicate upon it in the way mostly to his advantage, the decree is not binding upon him and that the decree may be set aside by a Court of Justice in a separate suit and not only by an application made in the suit in which the decree was passed to the Court by which it was passed, but I am not aware that it has ever been suggested in any decided case, and, in my opinion, it is not the law that because a person against whom a decree has been passed alleges that it is wrong and that it was obtained by perjury committed by, or at the instance of, the other party, which is, of course, fraud of the worst kind, that he can obtain a re-hearing of the questions in dispute in a fresh action by merely changing the form in which he places it before the Court and alleging in his plaint that the first decree was obtained by the perjury of the person in whose favour it was given. To so hold would be to allow defeated litigants to avoid the operation not only of the law which regulates appeals but of that which relates to res judicata as well.” This case was followed in several other subsequent cases to which I need not refer in detail. The first discordant note to this view was struck in the case of Lukshi Churan Saha v. Nur Ali (2). That case was very peculiar in its facts which would support the decree. It is unnecessary to give in detail the decision in that case in the facts found, because that has been dealt with in subsequent cases at considerable length. This case was followed in the case of Kedarnath Das v. Hemanta Kumari Devi (3). This question was again debated in the case of Nanda Coomar Howladar v. Ramjiban Howladar to which one of the learned Judges who decided the case of Lakhmi Churn Shaha v. Nur Ali referred to above was a party. In that case, Sir Lawrence Jenkins, C.J, in delivering his judgment referred to some of the cases which were cited in the judgment of Sir Comer Petheram in the case of Mohammad Golab v. Mohammad Sullimon , and he observed: “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 shew fraud or that the Court was misled in the former suit. In effect, when analysed, the judgment of the lower Appellate Court is no more than a re-trial of the merits of the original suit and a determination that the Judge who decided that suit was mistaken.” In that view the Court affirmed the decision of Chapman, J., who set aside the decision of the lower Appellate Court which held that the decree previously obtained by the Defendant in that case was bad as it was obtained by perjured evidence. Subsequent to this, there was another case, namely, the case of Nalini Kanta Mukherji v. Hari Nikari (5) in which the decision of Sir Comer Petheram was followed. There have been other cases also taking the same view. In the case of Sarat Kumari Debi v. Mecher Mollah (6) a Division Bench of this Court to which one of us was a party followed the decision of Sir Comer Petheram, and the same thing has been done in the case of Baikunta Chandra Dhupi v. Prahlad Chandra Dhupi (7). The decisions of this Court appear to have consistently laid down the principle that where a case has been decided, even if it was decided ex parte, the decree cannot be set aside merely upon the ground that the claim of the Plaintiff in that case was false or that it was obtained by the aid of perjured evidence and that something more should be proved in support of the allegation of fraud in order to have the decree set aside on that ground. In the present case, as I have already pointed out, nothing has been found by the Subordinate Judge except that the claim of the Plaintiff in that suit was false and that she knew that it was false. In order to find that the claim was false, the Subordinate Judge in the present case, has really decided the matter as if he was sitting on appeal against the previous judgment of the Court. This, as has been pointed out by Sir Comer Petheram as well as by Sir Lawrence Jenkins in the cases decided by them as referred to above, the lower Appellate Court was not entitled to do. It is, however, contended on behalf of the Respondent that there being a conflict of decisions on the point as set forth above, this matter should be referred to a Full Bench and he further argues that there should be an enumeration of the grounds on which a Plaintiff can maintain a suit for setting aside a previous decree on the allegation of fraud. As all the recent cases which I have already cited have followed the previous decisions of Sir Comer Petheram in the case of Mohammad Golab v. Mohammad Sullimon , I do not think that it is at all necessary to refer this question for the decision of a Full Bench. It is also not possible to define the grounds upon which fraud can be found for which a Plaintiff may be entitled to bring a suit for setting aside a decree. The only thing that can be definitely laid down is that the mere allegation that a previous decree had been obtained upon perjured evidence is not a ground on which a previous decree can be impeached. If this is allowed there would be nothing to prevent the unsuccessful Defendant from bringing another suit for setting aside the second decree on the same ground. And this may go on without end. This appeal should, therefore, be allowed and the Plaintiff's suit dismissed with costs in all Courts.

    Gbaham, J.:— I entirely agree and I desire to add only a few words. The question as to what constitutes fraud upon which a decree can be set aside has formed the subject-matter of numerous decisions in this and other Courts. The general trend of those decisions appears to be that, in order to set aside a decree upon such a ground, it must be shown that the fraud was practised in relation to the proceedings in Court, and the decree must be shown to have been procured by practising fraud of some sort upon the Court. One fact appears to emerge clearly from the decisions and that is that a decree cannot be set aside merely upon the ground that it has been obtained by perjured evidence. Now, in the present case, the ground upon which it was sought to set aside the previous decree was that it had been obtained by means of perjured evidence misleading the Court. It is manifest that, if such a ground were recognised as a ground for setting aside a decree, there would be no end to litigation. It is unfortunately notorious that decrees are obtained not infrequently upon perjured evidence and, if they are to be allowed to be assailed and set aside upon that ground, there can be no finality. In my opinion, the suit was clearly not maintainable. I agree, therefore, that it would be dismissed with costs.

    P.C

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    Comments

    Muktamala Dasi v. Ram Chandra Dey
    (May 6, 1926)