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Bai Chanchal Vs. Ganpatram Jadavji and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtGujarat High Court
Decided On
Case NumberAppeal No. 124 of 1969
Judge
Reported inAIR1965Guj145; (1964)GLR1009
ActsCode of Civil Procedure (CPC), 1908 - Orders 9 and 13 - Sections 11; Bombay Agricultural Debtors Relief Act, 1947 - Sections 36
AppellantBai Chanchal
RespondentGanpatram Jadavji and ors.
Appellant Advocate N.R. Oza and; V.P. Shah, Advs.
Respondent Advocate I.R.Patel, Adv. for; M.M. Patel and; R.N. Shah, Advs
Cases ReferredChoksi Bhudarbhai Mathurbhai v. Purshottamdas Bhogilal Shah
Excerpt:
commercial - award - order 9 and 13, section 13 of code of civil procedure, 1908 and section 36 of bombay agricultural debtors relief act, 1947 - appeal against order of civil judge dismissing application for setting aside award - section 36 (2) restricts right of court not to re-open an ex-parte award on ground that any of parties thereto did not appear at hearing - no infirmity in order passed by court below - appeal liable to be dismissed. - - the test, in our opinion, would be to set whether the fraud complained of is something that was included in what has already been detected or is deemed to have been decided in the eye of law by the court, or it is something which is extraction t it. but it is not the law that because a person against whom a decree has been passed alleges.....vakil , j.(1) this is an appeal ruled by the original plaintiff against the decision the civil judge) senior division) abroad, dismissing her special civil no.4 of 1957. the few material facts necessary for the decision of this appeal are as follows: -(2) the appellant bal chanchal, widow of nabhai filed the aforesaid suit against deceased ganpatram jadavji for the award obtained by the said ganpatram under the bombay agricultural debtors act, 1947 in consolidated case no. 8051 of 1950 against her, set aside on the ground that the said ganpatram had obtained the said award by practising fraud on the court inasmuch as he had perjured himself and had also made use of two forged documents as evidence to support his false case, she also prayed for the possession of the suit land. for the sake.....
Judgment:

Vakil , J.

(1) This is an appeal ruled by the original plaintiff against the decision the Civil Judge) senior Division) Abroad, dismissing her Special civil No.4 of 1957. The few material facts necessary for the decision of this appeal are as follows: -

(2) The appellant Bal Chanchal, widow of Nabhai filed the aforesaid suit against deceased Ganpatram Jadavji for the award obtained by the said Ganpatram under the Bombay Agricultural Debtors Act, 1947 in Consolidated Case No. 8051 of 1950 against her, set aside on the ground that the said Ganpatram had obtained the said award by practising fraud on the Court inasmuch as he had perjured himself and had also made use of two forged documents as evidence to support his false case, she also prayed for the possession of the suit land. For the sake of convenience we shall refer to Bal Chanchal as the plaintiff and Ganpatram as defendant hereinafter in this judgment. The plaintiff's case was that her deceased husband had purchased the suit land for a consideration of Rs. 4751/- from the defendant on the 18th March 1942. He was also put in possession of the suit land. There after the Bombay Agricultural Debtors Relief Act was made applicable to the are where the land was situated. The defendant filed an application in the Court established under that Act for adjudging thesaid transaction to be a mortgage. The defendant alleged that the time for redemption was agreed to the nine years. On the date of hearing, the plaintiff remained absent though she had appeared at earlier stages, and it is alleged by her that talking undue advantage produced two forged documents in evidence in the Court, made a false statement and obtained an order in his favour in the absence of the plaintiff. The said two documents purported to be of 942. One of the documents purported to be a banakhat written on a four anna stamp paper of the year 19333 and the other a receipt on a one anna revenue stamp. The plaintiff has further has further alleged that the came to know about these forged documents on the 16th of July 1954. When she received the money deposited by the defendant in Court. She then made n application to the court to set aside the award passed in her absence and her restoring the case on file for hearing. It appears that she averred therein that the award was obtained on the basis of the two forged documents. The application was, however, dismissed. She appealed to the District Court against thesaid dismissal but the appeal also met with the same fate. After the appeal was dismissed, she filed the aforesaid civil suit in the Court of the Civil Judge (Senior Division) at Baroda.

(2a) The defendant denied the allegation of fraud and the use of documents. He also raised over defences and contended inner alia that the court had no jurisdiction to entertain the suit as the Civil Court's jurisdiction was barred under Section 51-A of the Bombay Agricultural Debtors Relief Act. The trial Court raised several issues but tried issue No. 1 as a preliminary issue which was as follows:

'Whether the present suit is not maintainable in view of the provisions of Sections 1-A of the B.A.D.R.Act?'

The learned Judge held that the suit was not maintainable and dismissed it. He came to the conclusion that Section 51-A created and absolute bar against entertaining any suit by the Civil Court challenging the validity of any procedure or legality of any award or order once it is passed under the Bombay Agricultural Debtors Relief Act, 1947. He further add that the ex parte award cold be challenged on the ground of fraud only under the provisions of the said Act and section 36 of the Act provided such a remedy. The plaintiff had resorted that provision by filing an application to set aside the award wherein she had also raised the ground of fraud, but the Court rejected the plea and dismissed the application. Even in the appeal this contention of fraud was raised but was negatived. As section 52-A prohibited the Civil Court from the legality f any award passed under the Bombay Agricultural Debtors Relief Act, the suit filed by the plaintiff was not maintainable.

(3) Section 51-A so far as is material for the purpose of this appeal is as follows:

'Except as otherwise provided by this Act and notwithstanding anything contained in any other law, no Civil Court hall entertain or proceed with any suit or proceeding in respect of

(i) x x x x x x

(ii) the validity of any procedure or the legality of any award, order or decision of the Board established under Section 4 of the repealed Act or of the court, or

(iii) x x x x x x x x x Section 51-A therefore, lays down (1) except as otherwise provided by the Bombay agricultural Debtors Relief Act; (ii) notwithstanding any provision of any other law that may vest jurisdiction (iii) no Civil Court shall have the jurisdiction to entertain or proceed with any suit or proceeding in respect of the validity of any procedure or the legality of any award, order or decision of the Board established under Section 4 of the repealed Act or the Court.

(4) The question that the trial Court was called upon to decide in substance was whether the civil suit file by the plaintiff was in respect of the validity of the procedure or the legality of the award or decision of the Board establish under the Bombay Agricultural Debtors Relief Act. It appears that before the trial Court it was not disputed inasmuch as the plaintiff wanted to challenge the award on the ground of the said award having been obtained by fraud, she was challenging the 'legality' of the award. The trial Court therefore, proceeded to decide that issue on that basis and came to the conclusions as aforesaid. Before us, however, Mr.N.Oza, the learned advocate for the appellant -plaintiff, wants to traverse beyond the said concession made in the lower Court. As the concessions was in respect of a point of law, we have allowed Mr.Oza to go beyond the concession and urge points that he may desire to submit, in support of the appeal.

(5) Mr.Oza first submitted that the suit of the plaintiff was based on the allegation that the ex parte award having been obtained by the defendant by perjury and tendering in evidence forged documents; the defendant had practised fraud on the court, and therefore, the award is a nullity and when the defendant tried to executive the award, the Civil Court had inherent jurisdiction to declare such award to be a nullity in the suit filed by the plaintiff. He further urged that section 51-A cannot be construed to take away the said jurisdiction of the Civil Court. As an extension of the said submission be urged that all provisions intending to exclude the jurisdiction of the Civil Court must be exclude the jurisdiction of the Civil Court must be strictly construed. We have no hesitancy in accepting the submission of Mr.Oza that of if any fraud is practised on court in obtaining any decree or award, then such a decree r award is a nullity and on the party obtaining such decree or award truing to execute it, the civil Court has jurisdiction to grant a declaration that it is a nullity and also if necessary, to prohibit the execution of such an award or decree in a suit that may be filed by the aggrieved party. We also accept the contention that the exclusion of the jurisdiction of the Civil Court seeking to exclude such jurisdiction. But all the same a very important point out of the said submission made on behalf of the plaintiff, remains to be considered before the submission can be accepted or rejected in toto. Mr. Oza's contention for out consideration and decision the important question whether the award obtained by committing perjury and tendering in forged documents is a nullity. It was argued by Mr.Oza that the act of tendering the forged documents by the defendant amounted to a fraud on Court and therefore, the award is a nullity. He further argued that by doing so, the defendant misled the Court into believing that the transaction was not of sale but was of mortgage and, thus, made the Court to assume jurisdiction under the Act to adjudicate the rights between the plaintiff and the defendant as debtor and creditor and such an act must amount to fraud on Court. In our judgment the mere act of perjury or tendering of forged documents in evidence by one of the parties to a proceeding does not amount to a fraud on Court and it does not, therefore, render the decree obtained in such a litigation a nullity. It is not any sort of fraud resorted to by a party to a suit that renders a decree obtained therein, a nullity. To render a decree or a legal decision a nullity, it must amount to some sort of fraud on Court and not merely on the opposite party. There must be something further than the mere act of giving perjured evidence or producing forged documents to make a decree or award a nullity. It is true that it is highly improper and even immoral to put in forged evidence or give false evidence. But it is the function of the very Court before which it is led, to decide whether the evidence was true or false. If the leading of false evidence can be spoken of as fraud, then the Court in deciding the case should be taken to have also decided the point whether such fraud has been committed or not. The court then cannot be called upon to decide it again. The test, in our opinion, would be to set whether the fraud complained of is something that was included in what has already been detected or is deemed to have been decided in the eye of law by the Court, or it is something which is extraction t it. In a litigation both parties are expected to be vigilant and be prepared to show to the Court that the evidence led by the other side is false and should not be then subsequently start another litigation to show that the evidence led by the other party was also false and make it out be a fraud. It does not then amount to a fraud because the Court is taken to have decided such evidence t be true and not false. But it would be different if leading of such false evidence has the effect of preventing the other side from putting his case before the Court, for then it amounts to fraud on Court because the Court is prevented thereby from knowing the case of other side while deciding the matter. A decree obtained in such a case would be nullity.

(6) In this view of ours we are supported by a number of decisions and we may mention a few. In Gokuldas Pitamber v. Odhavji Gigabhai, 25 Bom LR 893: (AIR Bom 100), it was decided that giving of false evidence in a suit cannot vitiate the decree on the ground of fraud unless the effect of that false evidence was to prevent the other party from putting hi case before the Court. The learned Judge in coming to the above conclusion has observed as follows:

'The Question then remains whether this false evidence is difficult to justify the Court in holding that the decree made in that suit is vitiated by fraud. Now there are several decisions on the point as to whether false evidence is such fraud as to vitiate the decree passed in the suit in which it was given. The most satisfactory of the statement of the law is that in Mohomed Golab v. Mahomed Sulliman, ILR 21 Cal 612 where the High Court of Calcutta held that false evidence in a suit would not be fraud vitiating a decree unless the effect of that false evidence was t prevent the other party from putting before the Court. Indeed that must be so, far if every decree which was the result of the suit in which false evidence was given said in Flower v. Llyod, (1877) 6 Ch D 297 a large number of judgments supposed to be .....would only be the commencement of a new ..... actions'.

In the case before us it cannot be held that because that defendants produced the alleged forged documents, the plaintiff was prevented from putting their case before the Court or was prevented form showing the documents were forged. It makes no difference to the principle referred to above that in the present case the order passed in the absence of plaintiff. The leading of false evidence or tendering of forged documents by the defendant, as alleged, was not the cause of her absence on that day when the matter was heard and decided so that it can be said that the leading of that false evidence had the effect off preventing the plaintiff from putting her case before he Court.

(7) In ILR 21 Cal 612,the facts were that the case was brought by the plaintiff to set aide a decree of the court of Small Causes on the ground that it was obtained by fraud. It was held that such a suit was not maintainable under the facts and circumstances of that case. The principle however, was stated as under after considering the important English decisions, by Petheram, C.J: -

'Where a decree has been obtained by a fraud practiced on another by which that other has been prevented placing his case the tribunal which was called upon to adjudicate upon it in the way most to his advantage, the decree is not binding upon him and may be set aside 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 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 ...... by perjury committed by or at the instance of the other side (which is fraud of the worst description) that he can obtain a rehearing of the questions in dispute in a fresh suit, 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 .....It was given.'

In the said decision a quotation from the leading English Case on the point of Flower v. Lloyd has been given which may be reproduced with advantage.

'In Flower v. Lloyd, (1879) 10 Ch D 327 decided in appeal by James Baggalay and Thesiger, L.J.J., the suit was dismissed on the ground that the fraud was not proved, but James, L.J., on his own behalf and that of Thesiger, L.J., said: 'Assuming all the alleged falsehood and fraud to have been substantiated is such as the present sustainable? That question would require very grave consideration indeed before it is answered in the affirmative where is litigation to end if a judgment obtained in an action fought out adversely between two litigants sui juris and it arm's length could be set aside by a fresh action on the ground that perjury had been committed in the first action or that false answers had been given to interrogation or a misleading production of documents, or of a machine or of a process had been given? There are hundreds of actions tried year in which the evidence is irreconcilably conflicting, and must be on one side or other wilfully and corruptly perjured. In this case, if the plaintiffs had sustained on this appeal t he judgment in their favour the present defendants, in their turn, might bring a fresh action to set that judgment aside on the ground of perjury of the principal witness and subordination of perjury; and so the parties might go on alternatively ad infinitum. There is no distinction in principle between the old Common Law action and the old Chancery suit, and the Court ought to pause long before it establishes a precedent which would or might make in numberless cases judgments supposed to be final only the commencement of a new series of actions. Perjuries falsehoods, fraud, when decided, must be punished and punished severely, but in their desire to prevent parties litigants from obtaining any benefit from such foul means, the Court must not forget the evils which may arise from opening such new sources of litigants amongst such evils not the least being that it would be certain it multiply indefinitely the mass of these very perjuries; falsehoods and frauds, '. after discussing the law, the learned Chief Justice in that Calcutta Case, ILR 21 Cal 612 proceeded to decide on the facts of that case by observing as follows:

'The question then is: Does it appear from evidence on this record the plaintiff Mahomed Sulliman was prevented by the fraud of the defendant Mahomed Golab from placing his defence to his calm before the Small Cause Court Judge on the 17th February 1892?'

We have already examined and answered this question hereinabove in the case before us.

(8) In Janki Kar v. Lachmi Narain, ILR 37All 535: (AIR 1915 All 400) it was decided that a suit to set aside a decree on the ground that the decree ha been obtained by perjured and false evidence is not maintainable. It was further held that where a decree was impeached on the ground of fraud, the fraud alleged must be actual positive fraud, a meditated and intentional contrivance to jeep the parties and the Courts in ignorance of the real facts of the case and the obtaining of the decree by that contrivance. In the said decision the learned Judges have discussed various Indian and English decisions. We may here observe that in the said case a decision reported in Venkatappa Naick v. Subba Naik, ILR 29 Mad 179 was tried to be relied upon by the plaintiff. The Allahabad High Court did not follow the said decision. Late on the Madras High Court itself, in a Full Bench decision reported in Kadirvelu Nainar v. Kuppuswamy Naicker, ILR 41 Mad 743: (AIR 1919 Mad 1044) (FB) to which we shall presently refer has overruled it.

(9) ILR 41 Mad 743 : (AIR 1919 Mad1944) (FB) is the Full Bench decision. In the said case the plaintiff brought a suit for a declaration that the decree passed by the Small Causes Court was null and void on the ground that it was obtained by the defendant by willful perjury and suppression of material facts and was therefore, obtained by fraud on the Court. Sadasiva Ayyar, J. before whom the matter first came for decision, observe that in ILR 29 Mad 179 the learned Judges purported to follow the English decisions in Abouloff v. Oppenheimer, (1882) 10 QBD 295 and in Vadala v. Lawes, (1890) 25 QBD 310 and held that a judgment obtained by perjury is a judgment obtained by fraud committed upon the Court and could be set aside in a separate suit. The learned Judges evidently thought that the decision in the well known case of Flower v. Lloyd was overruled by the two later English decisions referred to by them. The said decision in ILR 29 Mad 179 has been afterwards considered in at least two cases of the Madras High Court. Sadasiva, J. was of the opinion that in the late decisions the correctness of the conclusion reached in thesaid decisions of ILR 29 Mad 179 was doubted. In the light of this and other decisions to the contrary, he referred the matter to that Full Bench. Wallis, C.J. delivering the judgment of the Full Bench overruling the said Madras decision in ILR 29 Mad 179 held that the suit does not lie to set aside the judgment in a previous suit on the ground that it was obtained by perjured evidence,. It is true in the said ruling the learned Chief Justice has not given any reasoning of his own incoming t o the said decision but has relied upon the reasoning adopted by the several decisions of the High Court which are referred to in that judgment. But we have ourselves referred to some of these decisions in extenso hereinabove and discussed the principles laid down therein.

(10) The rulings and the discussions aforesaid show that the plaintiff cannot succeed on the allegation of fraud made by her in setting aside the award passed against her. It is obvious that the allegation of the plaintiff does not go beyond the assertion, of the defendant having perjury himself and having produced and made use of the two forged documents. The element which is necessary to make a fraud, a fraud on Court, as discussed above is absent. Under the circumstances, the allegation of the plaintiff as it stands falls short of that kind of fraud which would amount to a fraud on Court and which would entitle her to have the award passed against her set aside, but Mr. Oza while submitting his contentions in support of the appeal referred to certain and decisions to which we shall now turn to see whether they can help the appellant. Mr. Oza first referred us to a passage from Kerr on fraud and Mistake seventh edition, at page 416:

'A judgment or decree obtained by fraud upon a Court does not bind such Court r any other, and its nullity upon this ground, though it has not been set aside or reversed, before the judicature Acts could be alleged in a collateral proceedings. 'Fraud' said De Grey C.J. 'is an intrinsic, collateral act, which vitiates the most solemn proceedings of courts of justice,. Lord Coke says it avoids al judicial acts ecclesiastical and temporal.' In applying this rule, it matters not whether the judgment impugned ha been pronounced by an inferior or by highest Court of judicature in the realm., but in all cases alike it is competent for every Court, whether superior or inferior, to treat as a nullity any judgments which can be clearly shown to have obtained by manifest fraud, discovered after the judgment. An innocent party cannot now prove in one? Court that a judgment against him in another Court was obtained by fraud and ask for it to be disregarded, a sit would be in his power to supply directly to the Court which pronounced it to vacate it. But however, this may be, it is evident a guilty party would not be permitted to defeat a judgment by showing that in obtaining it he had practices an imposition of the Court.

In our view, these quotations do not decide any different principle than the one, which have adopted. Some of the rulings from which thee quotation are given have been discussed in the rulings mentioned by us hereinabove. The important thing to be noted, however, even as regards the quotation on which Mr.Oza relied upon is that the principle that is accepted therein is also, that it is the fraud on Court of some sort of hat can only vitiate the judgment. If the fraud is such as would prevent a party from placing its case before the Court and thus deprive the Court of knowing the case of the other side and adjudicating the matter before it as justice would demand, it is fraud on Court.

(11) Mr.Oza then relied on the decision in Nistarni Dassi v. Nundo Lall Bose, ILR 26 Cal 891. In our view this case does not help the plaintiff for several reasons. In the first place that was a where a decree was admittedly obtained on the consent of a Purdanashin lady which consent was obtained by playing fraud on her, so it was not a case where parties litigated in a proceeding at arm's length and were fighting on a real case. This fact has also been mainly relied upon by the learned Judge in that decision and that can be seen observation made by him, in the judgment. He has at one place said:

' In the present case the fraud alleged is the fraud of the first defendant in procuring the plaintiff's consent to the agreement to refer the ..... and her consent to a decree upon the award, the true fact being that she was a mere puppet in the hands of the defendants and know not what she was doing; that in fact the defendants deceived the Court by their fraudulent conduct. I have been refereed by council for the first defendant to the statement of Phipson in his useful book on Evidence, where he says: 'Proof of fraud, however, can in general only be taken advantage of by a stranger to the judgment who is in no way privy to the fraud and not by a party, since if the latter were innocent he might have applied to vitiate the judgment and if guilty he cannot escape the consequence of his own wrong'. This no doubt as a general proposition, is true. The judgment of a Court of competent jurisdiction is in general undoubtedly conclusive proof in subsequent proceedings between the same parties or their ...... of the matter actually decided.'

In the said case all the same the learned Judge seems to approve of the principles which we have adopted. This is clear from the following observations:

'The principles upon which judgments are set aside for fraud is tersely and forcibly stated of Lord Chief Justice De Grey in Meadows v. Kingston, (1775) Amb 756 thus: 'Fraud is an extrinsic collateral act which vitiates the most solemn proceedings of Courts of Justice'. In the Queen v. Saddllers Co., (1863) 10 HLC 404 (431_ Willes, J., says: 'A judgment or decree obtained by fraud upon a Court binds not such Court nor any other, and its nullity upon this ground, may be alleged in a collateral proceeding'.

It may further be noted that in the said case relied upon by Mr. Oza some support has been sought from some English decisions which certain foreign Court judgments were attacked on the ground of their having been obtained by fraud. The principles involved in such cases, in our view, is entirely different. Thee such foreign judgments are only one piece of evidence. The Indian law as it stands to-day on the subject, is to be found in Section 44 of the Indian Evidence Act which section also permit a party to prove that a judgment which is otherwise admissible in evidence has no value as it was obtained by fraud. Mr. Oza particularly relied upon the following passage occurring in the said decisions:

'And then he quotes the language of Mr. Solicitor General Wedderburn, summing up all the authorities, viz.: 'A sentence is a judicial determination of a cause agitated between real parties upon which a real interest has been settled; in order to make a sentence there must be a real interest, a real argument, a real defence, a real decision. Of all thee requisites not one takes place in the case of a fraudulent and collusive suit; there is no judge, but a person invested with the on signs of a judicial office is misemployed in listening to a party litigating, there I no arty defendant, no real interest brought into question'.

The contents of this very passage itself show that it is has no application to a case like the one before us. The principles enunciated therein at best can apply to a case where the suit is a collusive and a fraudulent one. In a case where the parties were fighting their respective cases the said principles obviously had no application.

(12) The next case relied upon by Mr.Oza is Andrew Rozario v. Mahamed Ibrahim Sarang AIR 1974 Bom 460. The head note (b) of the report of the said decision reads as follows:

'Many decrees are obtained by the fraud of the successful party which cannot be set aside by ..... another suit and when the authorities are examined the difficulty, in laying down any principle to establish a distinction between fraud which, is proved, will enable the successful party to set aside a decree and those which ill not support such a suit, in apparent.

Whenever a plaintiff or defendant obtains a decree by perjury the Court has been misled and not mistaken and the judgment so obtained can be impeached on the ground of fraud.

Where the Court was misled by the insolvent plaintiff who concealed in the suit for debt due prior to insolvency, and where it was still open to the Official Assignee to sue him for the debt.

Held the decree could be set aside by the debtor'.

In our opinion, the second para of the head-note does not seem t o correctly represent the fact. To us it appears that was not the dictum that the learned Chief Justice laid down. The body of the report of the judgment shows that it was only a criticism by the learned Chief Justice of an English decision which was dealing with at that stage of the judgment. Besides, at that stage the learned Justice was examining the effect of the finding in a judgment of a foreign Court and the principle that govern a suit brought to set aside a foreign judgment .the learned Chief Justice himself pointed out this distinction later in the following observation:

'It is possible however, the decision in (1882) 10 QBD 295 might not be held applicable to a suit to aside a judgment obtained in an English Court on the ground that the successful party had committed perjury'.

The facts of the case which the learned Chief Justice Macleod was dealing with, were also very different from those of our case. He was dealing with legal status of a decree obtained by the original owner of a chose inaction, who had infect no right to sue at the time by reason of the chose inaction having become vested in another. His Lordship found that there was no direct authority on the point or any discussion in the text books on that particular subject, and therefore, examined several English decisions from that point of view. In our view, this does not do awayin any way the weight of the decsions discussed by us hereinabove and it cannot help the plaintiff.

(13) The last authority to which our attention was drawn by Mr.Oza is of own High Court in Choksi Bhudarbhai Mathurbhai v. Purshottamdas Bhogilal Shah, 2 Guj LR 590: (AIR Guj 10). In the said suit the question that arose was as to whether a Court could entertain a suit to set aside the decree on the ground of fraud practiced in the service of summons and whether such a suit is maintainable. The lerned Judge held that where the only fraud alleged is a bare non-service of the summons, such a suit would not be maintainable. The learned Judge has examined various cases cited and then then has made the following observation:

In our judgment, the contentions of Mr. Shah cannot be accepted. Fraud vitiated the most solemn transaction and of a plaintiff suppresses a vital fact on the basis of which the Court is induced to pass ex parte order and obtain the decree in his favour. It would amount to fraud in relation to the proceedings of the Court. A suit to set aside such a decree is maintainable notwithstanding the fact that it has been preceded by an application under Order 9f R. 13, C.P.C. Where, however, the only fraud alleged is a bare non-service of summons such a suit would not be maintainable. But it is quite a different mater where the whole suit is attacked on the ground of fact, and the incident of improper or defective service is relied on as one indicia of fraud. A fraudulent suppression in the matter of service of summons can afford a sufficient ground for setting aside an ex parte decree and the jurisdiction of the Court to set aside a decree on the ground of fraud cannot in such cases be denied though it is to be exercised with care and reserve. Of course, the fraud must be actually positive amounting to the intentional contrivance to keep the parties and the Court in iggnorance of the real fats and obtaining a decree by such a contrivance. The fraud must also be extrinsic to the proceedings of the Court, that is it must be in the conduct of the suit by keeping the defendant out of Court by a deliberate employment of the Court in such a way that the defendant is prevented from placing his case before the Court. In suits to set aside an ex parte decree on the ground of fad, it is the plaintiff's mental approach to the suit which is material and the mere proof of non service of summons or falsity of the claim by themselves will not be sufficient to sustain an action unless they form part of the scheme of effecting a general design to commit fraud. A decree can be reopened by a new section when the Court passing it had been misled by fraud, but it cannot be reopened when the Court is simply mistaken. There is thus a substantial difference between a mere mistake of the Court and the court being misled and in the case of ex parte decrees where the defendant had never appeared in court the attempt to misled the court by suppressing the summons, would itself be the contrivance and really an effective one for keeping the defendant in ignorance of the suit and depriving him of his legitimate right of defending the suit. On this view of the matter, the first contention of Mr.Shah cannot be accepted.'

What is very important to note is that the main principle that emerges from the said passage is that the fraud amounts to fraud on Court because the plaintiff was kept fraudulently out off Court and, thus, prevented from putting his case before the Court. We do not think the decision lays down any different principle than the one we are following.

(14)The result of the above train of reasoning is that the fraud alleged by the plaintiff does not amount to such fraud as would make the exparte award against her a nullity and her suit must fail.

In the light of the conclusion that we have reached that there is no right at all in the plaintiff

To file a suit to have the award declared a nullity, the question as to whether section 51-A is a bar to her inherent right to have it declared a nullity, does not arise for consideration, for unless she establishes such right, there is no question of any bar to such right of hers or the right of the Civil Court to entertain and decide such a question arises. True it is that the issue as was framed by the lower Court confined the question of maintainability of the suit in view of the provisions of Section 51-A of the Bombay Agricultural Debtors Relief Act. But the maintainability of the suit is a pure question of law. This is an old litigation and we have, therefore, thought it expedient and necessary to decide this point and dispose of the appeal one way or the other and accordingly we have heard the parties fully on the point. In the light of this decision of ours and for reasons aforesaid we do not find ourselves called upon to enter into the question as to whether the allegation of fraud in the suit to set aside the award on such an allegation is a matter in respect of the legality of the award or not as contemplated by Section 51-A and whether Section 51-A is a bar to the suit or not.

(15)Mr.Oza had urged one more point for our consideration that if section 51-A contemplates the barring of jurisdiction of a Civil Court of hearing of the suit for having an award declared a nullity, then it takes away the right of the party for all times of a remedy, because the Bombay Agricultural Debtors Relief Act does not provide such a remedy and the wrong will be left without a remedy. This can never be, urged Mr.Oza, the intention of the Legislature in enacting S. 51-A. Now, in our judgment, this is a fallacious argument. It cannot be said that the Act does not afford any right or remedy to agitate the question as regards the jurisdiction. As a matter of fact as stated aforesaid, there is a remedy provided by this Act to which the plaintiff had resort, that is to say, that she approached the B.A.D.R. Court to have the ex parte award set aside wherein as one of the grounds for setting aside that award, she had averred this very allegation she had made in the suit. This application was heard and decided against her. She again had the next remedy provided by the Act and approached the District Court in appeal against the said order of the learned Civil Judge. There also her appeal was dismissed. Mr.Oza, however, tried to point out to us that S.36, under which a party aggrieved by any order passed in ex parte proceedings can apply to set it aside, does not contemplate the setting aside of the ex parte order on the ground of any fraud perpetrated by the other side against the aggrieved party or on the Court. He relied upon sub-sec.(2) of Section 36 for this submission which is as follows:---

'When an application made under Section 4 is heard and disposed of ex-parte under sub-section (1), the decision on the preliminary issues or the award shall not, except for sufficient reasons be re-opened merely on the ground that any of the parties thereto did not appear at the hearing.'

Mr.Oza's contention was that the said provision only authorized the Court to set aside the award for sufficient reasons in respect of the non-appearance of the party at the hearing and it did not authorize the Court to travel beyond that ambit. We are unable to agree with Mr.Oza. The language of this enactment, in our judgment, is clear and it only restricts the right of the Court not to re-open an ex-parte award merely on the ground that any of the parties thereto did not appear at the hearing. Barring this restriction, for any sufficient reason the Courts are authorized to re-open an ex-parte order or an award. Under the circumstances, it cannot be said that the party aggrieved by any fraud perpetrated against that party or against the Court would go unremedied. It is obvious that if the plaintiff could establish the fraud alleged, there was sufficient authority in the Court under the Bombay Agricultural Debtors Act to set aside that award passed in her absence. But even assuming for argument's sake that if it were to be accepted that no such remedy was left open, it can always be within the purview of the Legislature to take away a remedy in respect of any particular wrong. But we do not think that the Legislature has gone to that extreme length and has provided sufficient remedy for a party aggrieved by any fraud whereby any ex-parte order was clinched by perpetrating fraud either on the party or on the Court. In the light of this reasoning we reject this submission of Mr.Oza.

(16) As a result of these conclusions reached in this appeal, we confirm the decree dismissing the suit of the plaintiff by the lower Court though on different grounds, and dismiss the appeal with cost.

(17) Appeal dismissed.


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