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P.J. Parameswara Pattar v. Viyathan Mahadevi Al...
Factual and Procedural Background
This interlocutory appeal arises from an order of Kumaraswami Sastri, J., which set aside leave to sue previously granted to the plaintiff. The plaintiff is a surety who had paid a decree obtained in earlier proceedings in Malabar against the agent of the Kizhakke Kovilagam. The plaintiff brought the present suit to set aside that prior decree and made as parties the representatives of the earlier agent and the present Ranee (the representative of the then principal and now head of the Kovilagam). Some defendants reside in Madras and are subjects of the State of Cochin; the Ranee resides in Malabar.
To bring the suit within the High Court's Ordinary Original Civil Jurisdiction, leave to sue was obtained under Section 12 of the Amended Letters Patent on the basis that part of the cause of action allegedly arose in Madras. The learned Judge below concluded that no part of the cause of action arose within the jurisdiction; the plaintiff appealed that interlocutory ruling.
Legal Issues Presented
- Whether, for the purpose of Section 12 of the Amended Letters Patent, the discovery of a concealed document (or of a fraud) in Madras constitutes part of the cause of action such that leave to sue in the High Court's Ordinary Original Civil Jurisdiction is properly granted.
- Whether an action lies to set aside a decree obtained by fraud committed before the Court (perjury or suppression of truth), and if the precedent Kadirvelu Nainar v. Kuppuswami Naicker applies to the facts of this case where alleged collusion and concealment occurred in connection with earlier proceedings.
- Whether, as a matter of judicial discretion under Section 12 of the Amended Letters Patent, leave to bring the entire action in the High Court should be granted having regard to the balance of convenience (most events alleged to have occurred in Malabar and key defendant residing in Malabar).
- Whether the presence within jurisdiction of some defendants justifies bringing defendants who reside outside the jurisdiction before the High Court under the equivalent of Section 20 Civil Procedure Code, or whether Section 120 CPC excludes that application to the High Court's Original Jurisdiction such that leave must be found only within Section 12 of the Amended Letters Patent.
Arguments of the Parties
Appellant / Plaintiff's Case and Arguments
- The plaintiff asserted he was a surety who paid a decree obtained in Malabar because the then agent (first defendant in earlier proceedings) had been adjudged indebted and had no means; the plaintiff seeks to set aside that decree.
- The plaint alleges concealment of collection papers, accounts and ledgers by the agent and the principal's predecessor in the earlier litigation, and that the concealment and false evidence led to a decree being obtained unjustly against the agent and thereby caused the surety to pay.
- Paragraph 12 of the plaint alleges that part of the cause of action arose in Madras in September 1919 when the plaintiff discovered existence of certain securities and the concealment of documents; the plaintiff relied on this to secure leave under Section 12 of the Amended Letters Patent.
- The plaintiff's broader case, as summarized in the opinion, resolves into three main heads: (1) fraud by collusion to obtain a decree; (2) damages for conspiracy; and (3) accounting for and recovery of certain securities or concealed properties (the latter two primarily sought from the 5th defendant or her estate in Malabar).
Respondents / Defendants' Contentions (as reflected in the opinion)
- The defendants (as represented by the learned Judge's reasoning) contended that no part of the cause of action arose within Madras and that the discovery of the fraud (as pleaded in paragraph 12) is not itself part of the cause of action.
- It was contended that, if the matter alleged to have occurred in Madras does not give a cause of action, then no part of the cause of action arose there and leave under Section 12 cannot be granted.
- Reference was made to the Full Bench decision in Kadirvelu Nainar v. Kuppuswami Naicker to support the view that no action lies to set aside a decree obtained by fraud committed before the Court, which bears on whether the plaintiff has any cause of action in relation to alleged fraud on the High Court.
- It was also argued (or at least considered) that the presence of some defendants within the jurisdiction does not, under the Amended Letters Patent, permit the Court to assume jurisdiction over defendants who reside outside the jurisdiction simply because some defendants are within it (a point linked to the Civil Procedure Code Sections 20 and 120 discussion).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Kadirvelu Nainar v. Kuppuswami Naicker, 45 Ind. Cas. 774; 41 M.L.J. 590; 23 M.L.T. 372; 8 L.W. 103; (1918) M.W.N. 514 (Full Bench) | Stands for the proposition that no action lies to set aside a decree obtained by a fraud committed before the Court in the sense of production of false perjured evidence or suppression of truth. | The Court acknowledged the Full Bench ruling and observed that whether that principle applies where two defendants conspired (outside the Court) but gave false evidence in Court with intent to obtain a decree and make a surety pay was a difficult question. The judges declined to express a definitive view (obiter) and treated the applicability as a matter of grave doubt to be left to the Trying Court where appropriate. |
| Hadjee Ismael Hadjee Hubeeb v. Hadjee Mahomed Hadjee Joosub, 13 B.L.R. 91; 21 W.R. 303 | Cited on the question whether the High Court may grant leave under the Amended Letters Patent to sue out-of-jurisdiction defendants merely because some defendants reside within the jurisdiction. | Read by the judge as affirming the view that the Amended Letters Patent does not confer jurisdiction in cases where only some of several defendants reside within the High Court's limits. The point was noted but not determinative because the Court refused leave on balance of convenience grounds. |
Court's Reasoning and Analysis
The Court's analysis proceeded in two principal stages: (A) whether any part of the cause of action arose within the High Court's Ordinary Original Civil Jurisdiction (Section 12 of the Amended Letters Patent), and (B) if jurisdiction existed, whether the Court should in the exercise of its discretion grant leave to bring the whole action here.
A. Jurisdictional Examination:
- The Court examined the plaint. Paragraph 12 alleged discovery in Madras (September 1919) of concealed securities/documents. The Court held that mere discovery of a fraud is not itself a part of the cause of action; the cause of action is the fraud (per se) and not the subsequent discovery.
- The Court then considered paragraph 8 of the plaint, which alleged concealment of collection papers and ledgers in earlier Malabar litigation and suggested that the predecessor of the 5th defendant and others conspired to prevent those documents from being produced in the earlier suit (including by inconsistent affidavits). The Court interpreted paragraph 8 as wide enough to allege a fraud committed before the High Court here, and concluded that such alleged fraud does form part of the cause of action.
- On that basis the Court stated it had jurisdiction to grant leave under Section 12, at least to the extent that the plaint alleged fraud before this Court.
- The Court acknowledged the Full Bench authority in Kadirvelu Nainar v. Kuppuswami Naicker which holds in general that no action lies to set aside a decree obtained by fraud committed before the Court. The judges considered—without deciding—whether that authority would apply to the particular factual pattern alleged (collusion resulting in false evidence to procure an unsatisfiable decree so a surety would pay). They left this question open for the Trying Court to decide if necessary.
B. Exercise of Discretion under Section 12 — Balance of Convenience:
- The court found that the learned Judge below had not actually exercised the discretion under Section 12, because his ruling was that no part of the cause of action arose within the jurisdiction. The appellate Court therefore undertook to exercise the discretion itself.
- Applying the balance of convenience, the Court observed that nearly the whole of the alleged cause of action arose in Malabar and the major reliefs sought (damages for conspiracy and recovery/accounting for securities) were directed against the 5th defendant or her estate, both situated in Malabar.
- The Court held that anticipated difficulties in obtaining a document from Madras did not justify transferring an essentially Malabar cause of action to Madras. Accordingly, even if a small portion of the relief might arise in the High Court, the overall balance favored trying the matter in Malabar.
- The Court also considered whether the presence of some defendants within Madras would authorize bringing non-resident defendants before this Court (an analogue of Section 20 CPC). It noted that Section 20 is expressly excluded by Section 120 CPC as applied to the High Court's Original Jurisdiction, so any such power had to be derived from Section 12 of the Amended Letters Patent. The Court read Section 12 as not conferring jurisdiction merely because some defendants resided within the limits (i.e., it could not be read to permit joinder of out-of-jurisdiction defendants simply because others lived here). The Hadjee Ismael authority was read as affirming that position, though the point was not decisive here because of the balance of convenience conclusion.
- On these grounds (predominance of Malabar facts, major relief directed against a Malabar-resident defendant, and absence of sufficient countervailing reasons), the Court exercised its discretion to refuse leave to bring the whole action in the High Court.
Concurrently, Justice Wallace emphasised that the plaint was vague in specifying any particular fraud said to have occurred in Madras and identified the plaintiff's three main heads of relief (collusion/fraud, damages for conspiracy, and recovery/accounting). He concluded that, even assuming a small portion might arise in the High Court, the discretion under Clause 12 should not be exercised in the plaintiff's favour. He also left the question of the applicability of Kadirvelu Nainar to the Trying Court rather than deciding it at this stage.
Holding and Implications
Holding: The appeal is DISMISSED. The Court refused to grant leave under Section 12 of the Amended Letters Patent to bring the entire action in the High Court, and ordered that the plaintiff pay costs and the Court-fee which he should have paid had he not been permitted to sue as a pauper.
Implications:
- Direct effect: The plaintiff's interlocutory appeal against the learned Judge's order (setting aside leave to sue in this Court) failed; leave to pursue the whole action in the High Court was refused and the matter should proceed, in the Court's view, in Malabar where most of the cause of action and the key defendant/estate are situated.
- No broad new precedent was established by the Court resolving the difficult question whether an action lies to set aside a decree procured by fraud on the Court when the fraud involved collusion and false evidence given by multiple parties; the applicability of Kadirvelu Nainar v. Kuppuswami Naicker to the precise facts was left undecided and reserved for the Trying Court if necessary.
1. This case comes by way of interlocutory appeal from an order of Kumaraswami Sastri, J., in which he set aside leave to sue which had been granted in the suit.
2. The plaintiff in the suit is a surety for the due performance of his duties and the due accounting by the agent of the Kizhakke Kovilagam. Some years ago, proceedings were taken in Malabar against the agent by the then head of the Kovilagam, it being alleged that he had not properly accounted for monies that he had received, and the present plaintiff was brought into that suit as a surety. A decree having been obtained, and the, then agent, who was the first defendant in those proceedings, having been found to be indebted to the Kovilagam and being a person of no means, the present plaintiff as surety had to pay. In this suit the surety wishes to set aside the decree in the earlier suit. He makes as parties the present representatives of the agent and the present Ranee who is the representative of the then principal and is now the head of the Kovilagam. The defendants other than the Ranee reside in Madras. They are not British subjects but are subjects of the State of Cochin. In order to bring this suit within the Ordinary Original Civil Jurisdiction of this Court, an application was made and granted for leave to sue this lady who lives in Malabar. That application was necessary under Section 12 of the Amended fetters, Patent which provides that the Court should have jurisdiction "If the cause of action shall have arisen, either wholly or in case the leave of the Court shall have been first obtained, in part, within the local limits of the Ordinary Original Civil Jurisdiction of the High Court." It was then alleged that the cause of action arose in part in Madras. In order to ascertain whether that is correct or not, the learned Judge having held that no part did arise within the jurisdiction, I must look at the plaint. There in paragraph 12 it is stated that the cause of action arose partly in Madras in September 1919 when the plaintiff came to know of the existence of the securities and of the fact of the concealment of certain documents. If that paragraph stood alone, I should have no hesitation in saying that that does not show the arising of any part of the cause of action in Madras, for, in my judgment, the discovery of the fraud is no part of the cause of action. The cause of action is the fraud. But we are referred also to paragraph 8. In paragraph 8, it is stated that "neither the 5th defendant's predecessor (the 5th defendant being the Ranee) or her agent the said Appu Pattar, nor his legal representative brought to light, in the previous litigation, though repeatedly called upon to produce by the Court and by the sureties, the collection papers including certain accounts and ledgers and thus effectively keeping it beyond the reach of the sureties and no one being in a position then to expose the frauds committed by them, the Courts had to pass a decree." It. is said that what happened was this. That decree having been obtained in Malabar by false evidence and concealment of these very documents, he appealed to this Court, and that the guardian of certain minor respondents and the 5th defendant's predecessor conspired together to prevent the Court from ascertaining, as was a fact, that these documents said to be material were in the possession of one or another of those parties. The guardian put in an application to this Court supported by an affidavit alleging that he was unable to advise his minors whether they should go on with the case or not, as those documents had been concealed and without those documents he could not judge their position properly. The 5th defendant's predecessor answered that by an affidavit saying "Those, documents might be of considerable use to me possibly to you, I have not got them. You, as the representative of the then first defendant the agent, have got them." It is alleged that that was all done by both parties in conspiracy and that really the agent and his representatives after his death and his then principal had said to each other in effect, "we will confuse everybody about those documents. You say, I have got them, I say you have got them, nobody knows where they are. Then judgment will go on against you the agent and you the agent have no money. I the principal will get it unjustly from your surety." I must confess that, if it had been the intention of the Pleader to have made out that case, it could and should have been done in very much clearer language than is employed in paragraph 8. But I think the words of paragraph 8 referring to the previous litigation and frauds committed by them on the Courts are wide enough to cover such a charge and I think/therefore, that it is right to say that there is in this suit an allegation that "fraud" was committed before the High Court here and, in my judgment, such fraud does form part of that cause of action. I am not surprised that the learned Judge did not appreciate that because I am fairly sure that he was not told of that view and no one would read it out of paragraph 8 without the clearer explanation of the true inward meaning of paragraph 8 which has been made to us in this Court. That being so, in my judgment, this Court has jurisdiction to grant the leave.
3. It is then said that it really does not give a cause of action at all and if the fact alleged to have taken place in Madras does not give a cause of action, it follows that no part of the cause of action, arose in Madras, because it must be an admissible cause of action. That contention is put on the ground that it has been decided by the Full Bench of this Court in Kadirvelu Nainar v. Kuppuswami Naicker 45 Ind. Cas. 774 : 41 M.L.J. 590 : 23 M.L.T. 372 : 8 L.W. 103 : (1918) M.W.N. 514 (F.B.) that no action lies to set aside a decree obtained by a fraud committed before the Court in the sense of production of false perjured evidence or the suppression before the Court of the truth. Whether that applies to the case now suggested, namely, two defendants conspiring outside the Court but going into the Court and both giving false evidence there, with the intention that the defendant party of those two should have a decree made against him which it was known he could not satisfy, with a view to make the surety pay an amount which was, not really due by anybody is a very difficult question and is one about which I do not desire to express an opinion, obiter.
4. Turning to the question whether this Court, assuming it has power, ought to grant the leave under Section 12 of the Amended letters Patent, I agree that the learned Judge was really not exercising the discretion, because he held that no part of the cause of action arose within jurisdiction; so I do not think it right to say we should be interfering with his discretion, because I think it is more correct to say that this discretion has not been exercised. We have to exercise ours. On the whole, I think we should refuse.
5. The real question to be considered is the balance of convenience. Nearly the whole of this alleged cause of action arose in Malabar. There would be no ground at all in my judgment for bringing it here if it did not happen that two of the defendants reside here who, it is alleged, have in their power here a very material document. I do not think that some difficulty which is anticipated in getting this document produced in Malabar is a sufficient ground for saying that this suit, which is essentially a Malabar suit, not a Madras suit should be brought in Madras and not in Malabar. That being our view, it is unnecessary to express an opinion as to whether Kadirvelu Nainar v. Kuppusami Naicker 45 Ind. Cas. 774 : 41 M.L.J. 590 : 23 M.L.T. 372 : 8 L.W. 103 : (1918) M.W.N. 514 (F.B.) applies or not.
6. A second point is taken and it is this: It is urged that, as some of the defendants are within jurisdiction, this Court has a right to bring before it in this suit defendants not within jurisdiction. That is a right which, under Section 20 of the Civil Procedure Code, is possessed by Courts in the mufussil. The application of Section 20 to this Court in the exercise of its Original Jurisdiction is expressly excluded by Section 120, Civil Procedure Code, and if we have the power it must be found within the four corners of Section 12 of the Amended letters Patent. The words are "or if the defendant at the time of the commencement of the suit shall dwell or carry on business within such limits." The principal defendant does not dwell here. The section does not say "if the defendant or if there are more than one defendant any of them shall dwell or carry on business within such limits" and I cannot read the provision of the Amended letters Patent as conferring jurisdiction upon the Court in case where one or more of the several defendants reside within the jurisdiction. The point is free from authority except the case in Hadjee Ismael Hadjee Hubeeb v. Hadjee Mahomed Hadjee Joosub 13 B.L.R. 91 : 21 W.R. 303 which I read as affirming the view I am now expressing, although it has been read by a learned author, Mr. Broughton, as giving the High Court power to grant leave to sue in such cases. However on the view I have expressed in this case, viz., that on the balance of convenience the case should be brought in Malabar and not here, that point, too, does not directly arise for decision. On these grounds this appeal must be dismissed with costs and we must order the plaintiff to pay the Court-fee which he should have paid if he had not been permitted to sue as a pauper.
Wallace, J.
7. The plaint on a perusal of which we are expected to express our minds in this case is culpably vague in not clearly setting out the cause of action in Madras, i.e., the specific fraud alleged to have taken place in Madras nor the date when it arose. But as the plaintiff's real case has been put before us, it resolves itself into three main points.
8. First, fraud by way of collusion between the predecessor of defendants Nos. 1 to 4 and the predecessor of the 5th defendant in that they colluded to defraud and so got a decree against the plaintiff for an amount not really due.
9. Second, for damages for conspiracy between the above-mentioned persons who are all now dead and these damages are now sought to be recovered from the Kovilagam which the defendant now represents; and Third, for the accounting for and recovery from the fifth defendant of certain securities or concealed properties. The whole of the reliefs Nos. 2 and 3 is, therefore, sought against the 5th defendant or her estate: and as regards relief No. 1 most of the collusion alleged was prior to the suit in the original Court and in connection with the proceedings in that Court. Whether the plaintiff has any cause of action at all on the ground of fraud on the High Court is open to grave doubt under the ruling in Kadirvelu Nainar v. Kuppusami Naicker 45 Ind. Cas. 774 : 41 M.L.J. 590 : 23 M.L.T. 372 : 8 L.W. 103 : (1918) M.W.N. 514 (F.B.). But it is a matter which, in the view I take, may be left for the Trying Court to decide and I would not say anything which would hamper it in trying that point. But assuming that a small portion of the relief which plaintiff seeks is based on any cause of action arising in this Court, I do not think we should exercise our diseretion under Clause 12 of the letters Patent considering that that portion of the plaintiff's relief which arises in the Court was not clearly set out by plaintiff until it was put forward in argument in this Court and that by far the major portion of the relief which he wishes was to be recovered from the 5th defendant who resides in Malabar or from her estate which is situated in Malabar.
10. As to the question whether we should give leave to bring the whole action in this Court merely because most of the defendants reside here while the 5th defendant does not, the bearing and interpretation of Clause 12 of the Letters Patent on this point is a matter of some difficulty, and I consider that it would be better not to say more on a point which is not necessary for the decision of the case, since I hold, even if the Court has the power, we should not in this case exercise it or give leave to the plaintiff to (sic). On the merits I agree that our discretion should not be used in the plaintiff's favour.
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