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Babu Dwarka Dhish Prasad Singh Vs. the Hon'ble Maharaja Keshva Prasad Singh Bahadur, C.B.E. (18.12.1923 - ALLHC) - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1924All398; 82Ind.Cas.1022
AppellantBabu Dwarka Dhish Prasad Singh
RespondentThe Hon'ble Maharaja Keshva Prasad Singh Bahadur, C.B.E.
Excerpt:
.....of the plaintiff to comply with the order directing his personal attendance, i was assured by 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. order xlvii, rule 1 to set aside the order accepting the compromise, if satisfied that the alleged fraud has been practised. 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..........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.....
Judgment:

Piggott, J.

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.


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