- Bookmark
- Share
- CaseIQ
Babu Dwarka Dhish Prasad Singh v. The Hon'Ble Maharaja Keshva Prasad Singh Bahadur, C.B.E.
Structured Summary of the Opinion
Factual and Procedural Background
An application dated 8 September 1923 sought review of an order made on 11 June 1923. The 11 June order recorded that a suit had been wholly adjusted by a lawful agreement and directed that a decree be drawn up in terms of a paragraph of an affidavit said to be sworn by the plaintiff in connection with that agreement. The application did not refer to any specific provision of the Code of Civil Procedure when presented, but was argued as invoking either the Court's inherent jurisdiction under section 151 of the Code or the review power under Order XLVII, Rule 1.
A petition of compromise, supported by an affidavit, had earlier been presented to the Court on 23 May 1923. The matter was taken up in the presence of counsel on 25 May and was ordered to be disposed of on 11 June 1923 with the plaintiff required to attend personally. On 11 June the plaintiff did not attend personally but was represented by Mr. Sultan Ahmed, Advocate of the Patna High Court. Mr. Sultan Ahmed informed the Court that he had instructions from the plaintiff to request that the plaintiff's personal attendance be excused and to press the petition of compromise filed on 23 May. The Court accepted these assurances, treated the petition as a valid compromise (effectively amounting to withdrawal of the suit by the plaintiff), and made the consequential order and decree.
The present application alleges that the petition and the supporting affidavit of 23 May 1923 were obtained from the plaintiff without his knowledge and were signed and sworn under fear — specifically, wrongful confinement, criminal intimidation and extortion by the defendant and his agents while the plaintiff was in Allahabad — and that these circumstances render the compromise invalid.
Legal Issues Presented
- Whether the order of 11 June 1923 (and the decree made pursuant to it) should be reviewed or set aside on the basis of the plaintiff's affidavit alleging wrongful confinement, criminal intimidation and extortion in relation to the petition of compromise presented on 23 May 1923.
- Whether the Court may exercise inherent jurisdiction under section 151 of the Code of Civil Procedure, or the review power under Order XLVII, Rule 1 of the Code, to grant the relief sought by the applicant.
- Whether allegations of coercion, wrongful confinement or extortion (as pleaded in the affidavit) constitute "fraud" or other sufficient ground within Order XLVII, Rule 1 to permit review of the judgment accepting a compromise.
Arguments of the Parties
Plaintiff's (Applicant's) Allegations / Contentions
- The petition of compromise and the supporting affidavit presented on 23 May 1923 were executed and sworn by the plaintiff without his knowledge of their contents.
- The plaintiff signed and swore those papers because he was being wrongfully confined by the defendant (and the defendant's servants or agents) and feared for his life if he refused to sign or swear.
- By reason of the above coercion and intimidation, the compromise accepted by the Court on 11 June 1923 is voidable and should be set aside or reviewed.
The opinion does not include detailed counter-arguments by the defendant; the Court's record focuses on counsel representations made by Mr. Sultan Ahmed on behalf of the plaintiff and on the plaintiff's affidavit in support of the present application.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Dulichand Shivram Marwadi v. Lotu Sakharam Pardhi, 55 Ind. Cas. 616; 44 B. 405 at p. 408; 22 Bom. L.R. 136 | Referenced as a case for comparison to the present facts (the Court finds the present case distinguishable from that authority). | The Court states the present case is "obviously distinguishable" from this reported decision and therefore does not treat it as supporting the application to review the order of 11 June 1923. |
| Decisions of the Calcutta High Court (unnamed specific reports) | Hold that where a Court's attention is invited to alleged fraud practiced in connection with a petition of compromise accepted by the Court, Order XLVII, Rule 1 may be applied to set aside the order accepting the compromise if fraud is established. | The Court notes these Calcutta High Court decisions assert jurisdiction to treat such petitions as review petitions, but also observes that even where fraud is alleged with sufficient particularity the Calcutta decisions indicate the matter should ordinarily be litigated in a separate suit. The Court finds no allegations of fraud here and so does not apply those decisions to allow review. |
| An unnamed Madras High Court case (not in authorised Law Reports) | Held that review of judgment could be granted in a case of fraud by treating the application as based on discovery of new and important matter under the earlier form of Order XLVII, Rule 1. | The Court acknowledges this case but states that the affidavit before it does not, in the Court's view, properly establish any newly discovered material or facts since the 11 June order; the Court therefore does not follow that approach on the facts before it. |
Court's Reasoning and Analysis
The Court conducted a careful factual and procedural analysis of the materials before it and then applied legal principles to determine whether the order of 11 June 1923 should be set aside.
First, the Court examined the 66-paragraph affidavit filed in support of the application and found its early paragraphs largely to be recitals or background with limited bearing on the determinative question. The Court identified the central factual contention as contained in the middle paragraphs: that the petition of compromise and supporting affidavit of 23 May 1923 were executed by the plaintiff without knowledge and under fear of wrongful confinement and threats to his life.
Second, the Court reconstructed what had occurred in Court on the earlier dates: the petition of compromise was before the Court on 23 May, the matter was taken up in the presence of counsels on 25 May, and the Court ordered the matter to be disposed of on 11 June with personal attendance of the plaintiff. On 11 June the plaintiff failed to attend personally but was represented by Mr. Sultan Ahmed, who informed the Court that he had been instructed by his client to request excuse of the plaintiff's personal attendance and to press the compromise. The Court accepted Mr. Sultan Ahmed's assurance and proceeded on that basis.
Third, the Court assessed the credibility of the present allegations. The Judge expressly states that, in the face of the clear assurances given on 11 June by a senior advocate representing the plaintiff, he was both justified and bound to accept those assurances. Consequently, the Court disbelieved the crucial assertion in paragraph 42 of the affidavit now before the Court (the assertion that the plaintiff had not instructed Mr. Sultan Ahmed to act). The Court further noted that paragraph 44 did not positively assert lack of instruction to the advocate but rather narrated that the plaintiff had been told by the defendant what to say to the advocate and that the plaintiff had not asked for a private interview.
Fourth, the Judge took into account corroboratory or contextual matters against the allegation of coercion: no complaint or report had been made to the police or a magistrate in Allahabad regarding wrongful confinement, criminal intimidation or extortion as asserted in paragraphs 25–31; the Court had confidence in the officer who certified that the affidavit of 23 May had been solemnly affirmed and that that officer would have satisfied himself as to the affiant's awareness of the contents; and above all the Court's decision on 11 June was based upon Mr. Sultan Ahmed's assurances.
Fifth, on the legal question of jurisdiction to review, the Court held it was not a proper case to invoke inherent powers under section 151 of the Code to set aside the 11 June order. As a matter of law, the Court concluded that Order XLVII, Rule 1 would not warrant allowing the present application for review. The Court distinguished the present facts from the cited Dulichand case and observed that the Calcutta High Court decisions relied upon permit setting aside compromises only when fraud is pleaded with the definiteness and fullness the law requires; even then those decisions prefer litigation in a separate suit rather than review. The Judge read the phrase "or for any other sufficient reason" in Order XLVII, Rule 1 ejusdem generis with the preceding grounds and not as an open-ended power.
Finally, the Court considered but did not accept the argument — based on an unnamed Madras decision — that a case of fraud could be treated as one of discovery of new material so as to fit within the review provisions. The Judge found no credible new matter that had come to the plaintiff's knowledge since 11 June and therefore rejected that route as well.
Holding and Implications
Holding: The application is REJECTED — the Court refused to exercise inherent jurisdiction under section 151 and held that Order XLVII, Rule 1 did not authorize review on the materials before it. The Court declined to set aside the order dated 11 June 1923 or the decree that followed.
Implications:
- The direct effect is that the order of 11 June 1923 and the resulting decree stand; the application filed on 8 September 1923 is dismissed.
- The Court did not treat the applicant's averments of coercion, wrongful confinement, criminal intimidation and extortion as adequately established or sufficiently particularized to permit relief by review under Order XLVII, Rule 1 or by inherent jurisdiction; the Judge emphasized that, even where fraud is alleged with sufficient particularity, the preferable course often is a separate suit rather than review.
- The opinion does not purport to lay down a novel legal principle or to create binding precedent beyond the application of existing principles to the facts; the Court expressly distinguished earlier authorities relied upon and confined its decision to the materials and assurances actually before it.
This summary is confined to the reasoning and material contained in the provided opinion and does not add facts or inferences beyond that text.
1. The application before me is one presented on the 8th of September 1923, asking this Court to review an order of the 11th June 1923, according to which it was held that a certain suit pending before the Court had been wholly adjusted by a lawful agreement and it was ordered that a decree should be passed in the terms contained in a certain paragraph of an affidavit purporting to be sworn by the plaintiff in connection with the aforesaid agreement. The application, as presented to the Court, did not refer to any provision of the Code of Civil Procedure; but I have been informed in argument that it is intended to invoke either the inherent jurisdiction of this Court under section 151 of that code, or the power of review given by Order XLVII, Rule 1 of the same. When I set myself to specify the grounds upon which this application is made to me, I find it exceedingly difficult to compose any coherent summary of the 66 paragraphs of the affidavit which has been sworn in support of the application. The first 19 paragraphs are recitals of facts, some of which are apparent from the record before the Court and none of which have any bearing upon the question for determination, except in so far as they may be regarded as necessary to introduce or lead, up to the allegations made in subsequent paragraphs. In the next four paragraphs it is merely asserted that the defendant, at a certain stage of the proceedings, communicated to the plaintiff a desire to enter into negotiations for a settlement of the suit The six following paragraphs contain allegations, some of which are preferred in terms perhaps designedly vague, and certainly susceptible of more than one interpretation; but I can only understand these paragraphs as meaning that a certain petition of compromise and affidavit, which were presented to this Court on the 23rd of May 1922, were executed by the plaintiff without knowledge of their contents, and because he was in fear of his life at the hands of the defendant. The story is continued in the next few paragraphs, but they do not seem to me to contain any matters directly bearing on the question now before me until I come to the 42nd paragraph of the affidavit. It is now necessary to explain exactly what did take place in this Court. A petition of compromise, supported by affidavit, was presented to me an the 23rd of May 1923. I took up the matter in the prose ace of Counsel for both parties on the 25th of May. The important part of my order was that the application should be put up for disposal on the 11th June 1923, and that the plaintiff should then attend in person. On the 11th June the plaintiff did not attend in person, but was represented by Mr. Sultan Ahmed, Advocate of the Patna High Court, a gentleman of the highest position in his profession, who was appearing in this Court by permission of the Hon'ble the Chief Justice. The record of the proceedings which followed shows that I was fully alive to the difficulties of the situation created by the failure of the plaintiff to comply with the order directing his personal attendance, I was assured by Mr. Sultan Ahmed that the order requiring the personal attendance of the plaintiff had reached the said plaintiff and that he, as Counsel for the plaintiff, had been instructed by the latter to ask the Court to excuse the nonattendance of the plaintiff in person and not to pass any further order insisting upon his personal attendance on a subsequent date. I also received from Mr. Sultan Ahmed, and accepted, from him, his assurance that he had been instructed by the plaintiff personally to press the application of the 23rd of May 1923, that is to say, the application compromising the suit. I was also fully awake to the fact that this application amounted in substance to a withdrawal of the suit by the plaintiff and an abandonment by him of the claim which he had preferred against the defendant. I dealt with the matter on the basis of a petition of compromise tendered to the Court by Mr. Sultan Ahmed, under instructions from his client, on the 11th June 1923. I am, therefore, not concerned to enquire into the precise circumstances under which the petition was presented to this Court on the 23rd of May 1923, or the affidavit by which it was supported came to be sworn. I accepted Mr. Sultan Ahmed's, assurance that his client had expressed to him a desire that he should represent him before the Court on the 11th of June 1923. that he should ask the Court to excuse the personal attendance of the said client and that he should ask the Court to dispose of the suit in the terms of the petition of compromise which had been laid before me, in the first instance, on May the 23rd, 1923. After considering the affidavit now, laid before me I am of opinion that I was not only justified in accepting these assurances from Mr. Sultan Ahmed, but that I was bound to do so. In the face of these assurances, I disbelieve the statement made in paragraph 42 of the affidavit now before me. I take note that in paragraph 44 of the said affidavit the plaintiff does not say that he did not instruct Mr. Sultan Ahmed to do any one of the things which he now knows that Mr. Sultan Ahmed did it on his behalf on the 11th June 1923. What he says is that he represented to the said Counsel what he had been previously told to say by the defendant, and he asserts that he did this because he only saw Mr. Sultan Ahmed in the presence of the defendant and that the defendant had told him that he would come to serious grief if he failed to give Mr. Sultan Ahmed those instruction which he actually did give. The paragraph does not even assert that the plaintiff asked to be allowed to see Mr. Sultan Ahmed in private and without the presence of the defendant. To sum up the matter, it seems to me that the allegations in the affidavit before me are, in substance, that the plaintiff signed certain papers and swore a certain affidavit without knowing the contents of those papers or of the affidavit, at a certain place in Allahabad on the 23rd of May 1923, at a time when he was suffering wrongful confinement at the hands of the defendant and the servants or agents of the defendant and because he believed his life to be in danger at their hands if he refused to sign these papers and to swear this affidavit. I have not examined the officer before whom the affidavit was sworn; but there are, in my opinion, considerations apparent enough on the materials now before me to justify me in declining to take any action upon these allegations. I have asked whether any report was ever made to the Police in Allahabad, or any complaint ever presented to a Magistrate of this place, in respect of the offences of wrongful confinement, criminal intimidation and extortion disclosed by paragraphs 25 to 31 of this affidavit, and I am informed that nothing of the sort was ever done. I have sufficient confidence in the official who certifies that the affidavit in question was solemnly affirmed before him to feel certain that he did not permit the plaintiff to affirm without first satisfying himself that the plaintiff was aware of the contents of the affidavit. Finally, I am of opinion that it is a question of minor or subsidiary importance to consider the circumstances under which this affidavit was sworn, or this petition presented to me on the 23rd of May 1923, seeing that my decision on the 11th June 1923 was wholly based upon the assurances given me by Mr. Sultan Ahmed.
2. For these reasons I am not of opinion that this is a case which calls for the exercise of any inherent powers which this Court may possess, in order to set aside the order of the 11th June 1923 or the decree which followed thereon; As a question of law, I am further of opinion that the provisions of Order XLVII, Rule 1 of the Code of Civil Procedure would not warrant me in allowing this application on the basis of an application for review of judgment. The case is in my opinion, obviously distinguishable from that reported as Dulichand Shivram Marwadi v. Lotu Sakharam Pardhi 55 Ind. Cas. 616 : 44 B. 405 at p. 408 : 22. Bom. L.R. 136 (?) (?). The Calcutta High Court has held that, where the attention of a Court is invited to the fact that some fraud has been practised upon a party in connection with a petition of compromise which has been accepted by a Court in which a suit was pending, that Court may apply the provisions of. Order XLVII, Rule 1 to set aside the order accepting the compromise, if satisfied that the alleged fraud has been practised. I cannot find any allegations of fraud in the affidavit before me. There are allegations which go far beyond the mere assertion that the plaintiff's assent to the compromise or withdrawal of his suit Was obtained by undue influence. They are, as I have noted, assertions that the said compromise was obtained by the wrongful confinement of the plaintiff, by criminal intimidation and by extortion; Those assertions I distrust and I have given reasons for doing so sufficient to warrant me in taking no action upon the affidavit which contains them: Even in cases where fraud has been alleged, with that definiteness and fulness of specification which the law requires, the decisions of the Calcutta High Court which have been laid before me in argument, while asserting jurisdiction on the part of a Court to take up a petition like the one before me as a petition for review, on the strength of the words, "or for any other sufficient reason"in the aforesaid rule, express the opinion that the matter is one which should ordinarily be litigated in a separate suit. My own opinion is that the words, "or for any other sufficient reason," must be taken to refer to something ejusdem generis with the words that precede. My attention has been drawn to one case, not to be found in the authorised Law Reports, in which the Madras High Court held that a review of judgment could be granted in a case of fraud, where the circumstances were such that the Court could bring: the case under the earlier provisions of. C. XLVII, Rule 1 of the Civil Procedure Code, by holding that the application for review was based upon the discovery of new and important matter. In so far as the affidavit laid before me in support of this application purports to refer to any new or important matter supposed to have come to the knowledge of the plaintiff since the 11th June 1923, I disbelieve any allegations to this effect, principally by reason of the confidence which I feel in accepting the assurances given me on that date by Mr. Sultan Ahmed. For these reasons I reject this application.
Alert