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Bisesar Pathak And Another v. Phaguni Mahton .
Analytical Summary of the Court's Opinion
Factual and Procedural Background
This appeal arises from a dispute over 4 bighas 19 kathas of land between the plaintiff (respondent in this appeal) and defendants 1 and 2 (appellants). Both sides claimed title via settlement from the Ranis of Deo. Initial contested steps included proceedings under Section 144 and Section 145 of the Criminal Procedure Code, the latter terminating in favour of the plaintiff of the present suit.
Defendants 1 and 2 then instituted Title Suit No. 221 of 1940 seeking declaration of title and recovery of possession on the basis that the lands were bakasht. That suit was filed on 23-11-1940, summons ordered 28-11-1940 (alleged service 10-12-1940), and an ex parte decree was recorded on 21-1-1941. The plaintiff-respondent filed an application under Order IX, Rule 13 of the Code of Civil Procedure to set aside the ex parte decree but withdrew that application on 12-7-1941.
The plaintiff then brought the present suit to set aside the ex parte decree on the ground that it was obtained by fraud — specifically, that the appellants colluded (including alleged collusion with the court peon) to keep him unaware of the suit. The learned Munsif dismissed that suit, finding the plaintiff had failed to prove fraud. On appeal the learned Subordinate Judge reversed the Munsif, finding suppression of processes and active fraud by the appellants, and set aside the ex parte decree. The present appeal is by the defendants (appellants) from that decision of the Subordinate Judge dated 12-4-1946.
Legal Issues Presented
- Whether the withdrawal of the plaintiff-respondent's application under Order IX, Rule 13 CPC operates as a decision on the merits and therefore bars a subsequent suit raising fraud (i.e., whether res judicata applies).
- Whether the learned Subordinate Judge misdirected himself on the question of onus (burden of proof) when adjudicating whether processes were served and whether non-service resulted from active fraud.
- Whether, upon setting aside the ex parte decree in a subsequent suit, the original suit (Title Suit No. 221 of 1940) should be revived (restored) for trial or whether other consequences should follow.
Arguments of the Parties
Appellants' Arguments
- The withdrawal of the Order IX, Rule 13 CPC application by the plaintiff-respondent amounted to a dismissal of that application and therefore operated as res judicata, barring the subsequent suit for setting aside the ex parte decree.
- Reliance was placed on two decisions of the Court (cited as 6 Pat. L.J 11 and 2 Pat. 833) where applications to set aside ex parte decrees on the ground of fraudulent suppression of summons were heard and dismissed on merits, and res judicata was held to apply.
- The learned Subordinate Judge misdirected himself on the onus: by suggesting that denial by the respondent shifted the burden to appellants to prove service; that misdirection, appellants argued, affected the appellate finding.
- At minimum, upon setting aside the ex parte decree, the Court of appeal should have ordered revival (restoration) of Title Suit No. 221 of 1940 rather than merely setting aside the decree in the subsequent proceeding.
Plaintiff-Respondent's Position (as recorded)
- The plaintiff-respondent initially sought relief under Order IX, Rule 13 CPC to set aside the ex parte decree but withdrew that application and subsequently filed a fresh suit alleging the ex parte decree was obtained by active fraud — including collusion to keep him unaware of the proceedings (e.g., by using the court peon).
- The respondent maintained that fraud alleged was broader than mere non-service of summons and therefore not confined to the limited scope of an Order IX, Rule 13 application; the subsequent suit therefore sought relief on grounds not necessarily addressable in the earlier application.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| 6 Pat. L.J 11 | Holds that where an application to set aside an ex parte decree for suppression of summons is heard and dismissed on merits, the question is res judicata in a later suit. | The court distinguished this authority because, in the present case, the Order IX, R.13 application was withdrawn without adjudication and therefore did not operate as res judicata. |
| 2 Pat. 833 | Same proposition as above: dismissal on merits of an application alleging fraudulent suppression of processes produces res judicata effect. | Distinguished on the ground that there was no adjudication on the earlier application here; it had been withdrawn. |
| 28 Cal 4753 | Authority (Judicial Committee) addressing the scope of fraud allegations and indicating that fraud independent of service may sustain a separate action to set aside an ex parte decree. | Relied upon to support the proposition that a broader allegation of fraud (not confined to service) allows a subsequent suit even if an Order IX application had previously been filed and withdrawn. |
| 29 Cal. 395 | Same Judicial Committee strand: supports the view that fraud independent of service can be litigated separately. | Used to reinforce the conclusion that the withdrawal of the earlier application did not bar the present suit. |
| A.I.R. 1937 Pat. 3845 | Example where the court disbelieved both parties' witnesses; court held that where the plaintiff's witnesses (on whom onus lay) were disbelieved, the plaintiff must be held to have failed to prove the fact in issue; misdirection on onus vitiated the decision. | Distinguished: in the present case the Subordinate Judge accepted the respondent's evidence and disbelieved the appellants', so the onus issue was academic and did not vitiate the appellate finding. |
| 12 P.L.T 4936 | Full Bench consideration of the effect of setting aside an ex parte decree in a subsequent suit — whether the original suit is revived depends on the findings, issues and decision in the subsequent suit. | Applied to conclude that because the original claimant's case in Title Suit No. 221 of 1940 had been considered only incidentally by the Subordinate Judge, the proper consequence of setting aside the ex parte decree was to restore the original suit and re-open the claim for adjudication. |
Court's Reasoning and Analysis
The court proceeded through a series of discrete legal analyses tied closely to the record:
-
Res Judicata and the Withdrawal of O.IX, R.13 Application:
The court observed that res judicata arises only where an issue has been adjudicated by a court of competent jurisdiction. The earlier authorities relied upon by appellants were cases in which the application under Order IX, Rule 13 CPC had been heard and dismissed on the merits. By contrast, in this case the application had been withdrawn without any adjudication; therefore the court could not treat that withdrawal as a decision on the merits or as operating as res judicata.
The court further explained that even a hearing on Order IX, R.13 could only decide the narrow question confined to that provision (for example, whether summons were duly served or whether there was a sufficient cause for non-appearance). It could not adjudicate a broader fraud allegation that was independent of service. Because the plaint in the present suit contained allegations of fraud going beyond mere non-service (alleging a scheme to keep the respondent unaware so he would not contest), a subsequent suit raising that broader fraud was maintainable.
-
Onus (Burden of Proof) and Evaluation of Evidence:
The court acknowledged that the Subordinate Judge had, in one place, suggested that upon the respondent's denial of service the onus shifted to the appellants to prove service. The court conceded that formulation may not be strictly correct. However, it emphasized the practical resolution: the Subordinate Judge conducted a detailed review of the evidence, accepted the respondent's witnesses, disbelieved the appellants' witnesses, and concluded that summonses had not been served and that non-service resulted from active fraud.
Distinguishing A.I.R. 1937 Pat. 3845, where both sides' witnesses were disbelieved and the onus point was decisive, the court found that here the evidentiary acceptance of the respondent's evidence rendered the onus question academic and not prejudicial to the appellate conclusion.
-
Consequence of Setting Aside an Ex Parte Decree — Revival of Original Suit:
The court considered whether the appropriate remedy upon setting aside the ex parte decree was to restore Title Suit No. 221 of 1940. Citing a Full Bench decision (12 P.L.T 4936) it noted that revival depends upon the findings, issues and the scope of the subsequent decision. In this case, because the Subordinate Judge had treated the original plaintiff's claim only incidentally (primarily to show motive for fraud), the court concluded the correct consequence of setting aside the ex parte decree was to restore the original suit and require that plaintiff's claim be enquired into and disposed of according to law.
Holding and Implications
Core Ruling: Appeal partly allowed. The court set aside the ex parte decree passed in Title Suit No. 221 of 1940 and ordered that the said suit be restored; the parties are to be relegated to their former position and the plaintiffs' claim in that suit is to be enquired into and disposed of in accordance with law.
Consequences and practical implications:
- The ex parte decree in Title Suit No. 221 of 1940 is set aside on the basis that it was obtained by active fraud (as found by the Subordinate Judge and affirmed in part by this Court).
- Title Suit No. 221 of 1940 is restored; the original suit will proceed and the plaintiff in that suit must have the claim heard and determined on its merits in due course.
- On costs: there will be no order for costs of the hearing in this Court; the order for costs as passed by the Court of appeal (learned Subordinate Judge) will remain in force.
- No broader legal precedent is proclaimed by the court beyond application of existing principles: the decision is grounded on existing authorities and on the specific findings of fact and evidence in this case. (The opinion distinguishes prior authorities on res judicata and onus rather than extending them.)
Disposition: Appeal partly allowed.
Sources and limits: This summary is confined strictly to the content of the provided opinion and does not add facts or inferences beyond the text supplied.
1. This is an appeal by the defendants from a decision of the learned subordinate Judge of Gaya dated 12-4-1946, by which the learned Subordinte Judge reversed the decision of the learned Munsif of Aurangabad, dated 30-11-1944. The facts so far as they are material for the purpose of this appeal are the following. It appears that there was a dispute between the plaintiff of this suit on one side and defendants 1 and 2 of this suit on the other regarding 4 bighas 19 kathas of land. Both parties claimed to have taken settlement of the lands from the Ranis of Deo. As a result of the dispute, there was, firstly, a proceeding under Section 144 of the Cr PC, and then, another under Section 145 of the Cr PC. This proceeding under Section 145 of the Cr PC, terminated in favour of the plaintiff of the present suit. Defendants 1 and 2 then filed a title suit, bearing No. 221 of 1940, for a declaration of their title to and re-covery of possession of the lands which, according to them, were bakasht lands. This title suit No. 221 of 1940, resulted in an ex parte decree. The suit was brought on 23-11-1940, and decree ex parte on 21-1-1941, that is, within about two months of the filing of the Suit. Summonses were ordered to be issued in that suit on 28-11-1940, and were alleged to have been served on 10-12-1940. It appears that the plaintiff of the present suit filed a petition under O. 9, R. 13 of the CPC, for setting aside the ex parte decree. This petition was, however, withdrawn on 12-7-1941. Thereafter, the plaintiff-respondent filed the present suit out of which this appeal has arisen, for setting aside the ex parte decree passed in Title Suit No. 221 of 1940 on the grounds that the ex parte decree obtained in Title suit No. 221 of 1940 was tainted with fraud, and that the plaintiff-respondent was kept out of knowledge of the suit by the fraud committed by the defendants-appellants, who brought the court peon in collusion as part of the fraud practised by them. The learned Munsif, who heard the suit in the first instance, found that the plaintiff-respondent had failed to prove fraud and collusion. He, therefore, dismissed the suit. In appeal, the learned Subordinate Judge has, firstly, found that processes had been suppressed in Title Suit No. 221 of 1940, and secondly, that the suppression of the processes was the result of active fraud committed by the appellants who had taken all steps to keep the plaintiff-respondent out of knowledge of the suit. The learned Subordinate Judge has found that ex parte decree passed in Title Suit No. 221 of 1940, was the result of active fraud perpetrated by the appellants, and he has, therefore, set aside the ex parte decree passed in Title Suit No. 221 of 1940.
2. In the appeal before me it has been contended that the withdrawal of the application under O. 9, R. 13 of the CPC filed by the plaintiff-respondent, amounted to a dismissal of the application, and that such dismissal operated as res judicata in the subsequent suit Learned counsel for the appellants has relied on two decisions of this Court: 6 Pat. L.J 11 and 2 Pat. 833.2 In both those cases there was an application to set aside the ex parte decree on the ground of a fraudulent suppression of summonses, and the application was heard and dismissed on merits,. In those circumstances, it was held that as the question of fraudulent suppression of processes had already been agitated between the same parties and decided by a Court of competent jurisdiction the matter was res judicata, and could not again be re-opened between the same parties. I am unable to hold that the principle laid down in those two decisions applies in the present case. Firstly, there was no decision on merits in the present case. Though the plaintiff-respondent bad filed an application under O. 9, R. 13 of the CPC, he was permitted to withdraw the application without any adjudication.
3. It may be conceded that the principle of res judicata may, in some circumstances, arise-even when a suit or proceeding is dismissed for default; but, a case in which the application is allowed to be withdrawn without any adjudication whatsoever hardly attracts the principle of res judicata For example, the plaintiff-respondent may have been advised that the question of fraud which he wished to be agitated did not relate merely to the service of summons; it was independent of and more than a mere attack on the regularity of the service of the summons, and such a question would be beyond the scope and purview of an application under O. 9, R. 13 of the CPC. If under such advice, the plaintiff-respondent withdraw his application under O. 9, R. 13 of the CPC it cannot be said that the subsequent suit brought by the plaintiff-respondent on the ground of fraud would be barred on the principle of res judicata. Even if the Court before which the application under O. 9 R. 13 of the CPC had, been filed, had decided the application on merits, it could only have decided the question which arose under O. 9, R. 13 of the CPC namely, that the summons was not duly served or that the defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing. The Court could not decide the more radical question, namely, that there was fraud, independent of, and not merely confined to the service of summons in the suit. Therefore, a decision given by the Court on the application under O. 9, R. 13 of the CPC, could not have operated as res judicata on the more radical question of fraud, because such a question would have been beyond the scope and purview of an application under O. 9, R. 13 of the CPC. There are, indeed, some decisions which have laid down that if the fraud alleged is confined to the service of summons and is not independent of that service, the finding arrived at on an application under O. 9, R. 18 of the CPC, will operate as res judicata in a subsequent suit for setting aside the ex parte decree on that very ground. The two decisions in 6. Pat. L.J 1 and 2 Pat 833 support that view. But in the case before me, the fraud found by the Court of appeal below was not confined merely to the service of the summons. The plaint of the suit has been placed before me by learned counsel for the appellants. In paras 5 and 6 of the plaint there are clear allegations to the effect that there was fraud independent of the service of the summons. The allegations are to the effect that the appellants wished to keep the plaintiff-respondent out of knowledge of the suit so that the respondent, though he was in possession of lands and had a good prima facie title might not contest the suit brought by the appellants. The Court of appeal below has found that the respondent was in possession of the lands, and had a good prima facie title. The Court of appeal below has also considered other particulars in connection with the question of fraud, and has arrived at the finding that there was fraud which was not confined merely to the service of the summons: the suppression of summons was merely a part of the general fraudulent design on the part of the appellants to keep the respondent out of knowledge of the suit so as to snatch an ex parte decree on a doubtful claim. That being the position, the respondent could bring an action for setting aside the ex parte decree on the ground of fraud, and any decision given on an application under O. 9, R. 13 of the CPC, would not have stood in the way of the maintainability of such a suit. If authority be needed for this, it would be found in the decisions of their Lordships of the Judicial Committe in 28 Cal 4753 and 29 Cal. 395.4 I am, therefore, of the opinion that the withdrawal of the application under O. 9, R. 13 of the CPC, does not affect the maintainability of the subsequent suit brought by the respondent; such a suit on the ground of fraud was maintainable, and no question of res judicata arises.
4. The second point which has been urged before me on behalf of the appellant is that the learned Subordinate Judge had misdirected himself on the question of onus. It is true that the learned Subordinate Judge has mentioned in one place of his judgment that on the denial of the plaintiff-respondent that he had received the summons, the onus shifted to the appellants to prove affirmatively that summonses had been served in Title suit No. 221 of 1940. The learned Subordinate Judge may not have been quite right in that view. In a case to set aside a decree on the ground of fraud, the plaintiff has got to establish that there was non-service of the processes upon him, and that the non-service was the result of active fraud in the former action. The learned Subordinate Judge has, however, considered the evidence in detail, and on a consideration of that evidence he has come to the finding that summonses had not been served on the respondent in the former suit and the non-service was the result of active fraud committed by the appellants in the former action. Learned counsel for the appellants has referred me to the decision in A.I.R 1937 Pat. 3845. That was however a case in which the Court had disbelieved the witnesses of the plaintiff as well as of the defendant. It was pointed out that having disbelieved the plaintiff's witnesses upon whom the onus lay, the Court should have drawn the conclusion that the plaintiff had failed to establish that fact which it was necessary for him to establish, if the question of the merits of the original suit was not to be investigated. In those circumstances, it was observed that the Court below had misdirected itself on the question of onus, which had affected the finding of the Court of appeal below. Here, however, the learned Subordinate Judge has considered the evidence of both parties, and he had accepted the evidence given on behalf of the respondent and disbelieved the evidence given on behalf of the appellants. That being the position, the question of onus was really academic, and has not, in any way, vitiated the finding arrived at by the Court of appeal below.
5. Lastly, it has been pointed out to me that the Court of appeal below should, at least, have passed an order reviving Title Suit No. 221 of 1940 in which the ex parte decree was passed. The effect of setting aside an ex parte decree in a subsequent suit was considered by a Full Bench of this. Court in 12 P.L.T 4936, and it was pointed out that the question whether the original suit in which that decree was obtained, is revived or not depends upon the landings, the issues and the actual decision in the subsequent suit. It is clear from the judgment of the learned Subordinate Judge that he has gone into the claim of the plaintiff in the original suit only incidentally, for the purpose of holding that there was a motive to obtain stealthily a decree behind the back of the defendants of that suit. Where the claim of the plaintiff in the original suit is dealt with only incidentally, the effect of setting aside the ex parte decree passed in that suit is to relegate the parties to the former position, and, in such a case, the suit should be restored, and the plaintiff's claim enquired into and disposed of in accordance with law. In my opinion, that should be the proper order in the present case also. I would, therefore, allow the appeal to the extent that the ex parte decree passed in Title Suit No. 221 of 1940 should be set aside, that the said suit be restored, the parties relegated to their former position, and the claim of the plaintiffs of that suit should now be enquired into and disposed of in accordance with law. In the circumstances of this case there will be no order for costa of the hearing in this Court. The order for costs, as passed by the Court of appeal below, will stand.
G.J/D.H
6. Appeal partly allowed.
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