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Sukhamoy Roy Vs. Salilananda Basak and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKolkata High Court
Decided On
Case NumberLetters Patent Appeal No. 1 of 1976
Judge
Reported inAIR1983Cal83,86CWN1025
ActsCode of Civil Procedure (CPC) , 1908 - Section 11 - Order 9, Rule 13; ;West Bengal Premises Tenancy Act, 1956 - Sections 13(6) and 17(3)
AppellantSukhamoy Roy
RespondentSalilananda Basak and ors.
Appellant AdvocateM.N. Ghose and ;Ranajit Kumar Mukherjee, Advs.
Respondent AdvocateAnil Kumar Sett, Adv.
DispositionAppeal dismissed
Cases ReferredNirsan Singh v. Kishuni Singh
Excerpt:
- .....premises so purchased became a tenant on attornment under the plaintiffs. the plaintiffs brought title suit no. 31 of 1957 for eviction of the defendant on the ground of default in payment of rent since may, 1954. in this suit the plaintiffs claimed the monthly rent payable by the defendant to be rs. 20/-. the defendant appeared to contest but his defence having been struck off under section 17 (3) of the west bengal premises tenancy act, the suit was decreed ex parte. it was so decreed on sept. 5, 1957.3. as and when the said decree was put into execution the defendant filed title suit no. 259 of 1958 for a declaration that the decree obtained in title suit no. 31 of 1957 by the plaintiffs was a fraudulent and collusive decree and for permanent injunction restraining the plaintiffs.....
Judgment:

Sen, J.

1. This is an appeal under Clause 15 of the Letters Patent by the tenant-defendant (hereinafter referred to as defendant) and it arises out of a suit for eviction which has been concurrently decreed by the three Courts below. The only point which has been raised before us is with regard to the maintainability of the suit.

2. It is not in dispute that the plaintiffs respondents (hereinafter referred to as plaintiffs) acquired the premises of which the suit premises is a part by purchase from one Profullamoyee Dasi. The defendant who was a tenant in existence in a part of the premises so purchased became a tenant on attornment under the plaintiffs. The plaintiffs brought Title Suit No. 31 of 1957 for eviction of the defendant on the ground of default in payment of rent since May, 1954. In this suit the plaintiffs claimed the monthly rent payable by the defendant to be Rs. 20/-. The defendant appeared to contest but his defence having been struck off under Section 17 (3) of the West Bengal Premises Tenancy Act, the suit was decreed ex parte. It was so decreed on Sept. 5, 1957.

3. As and when the said decree was put into execution the defendant filed Title Suit No. 259 of 1958 for a declaration that the decree obtained in Title Suit No. 31 of 1957 by the plaintiffs was a fraudulent and collusive decree and for permanent injunction restraining the plaintiffs from executing the said decree for eviction. In making out the case of fraud in this suit the defendant pleaded that he was never a tenant on a monthly rental of Rs. 20/-; he was a tenant on a monthly rental of Rs. 12/- and that wassettled in a S. C. C. Suit between the defendant and Profullamoyee, the predecessor-in-interest of the plaintiffs; that fact was known to the plaintiffs but even then they laid a false claim in Title Suit No. 31 of 1957 of default treating the monthly rent to be Rs. 20/-. According to the defendant, when he appeared to contest that suit, in view of the falsity of the claim the plaintiffs agreed to have the suit dismissed for non-prosecution on acceptance of Rs. 200/- paid to them and on a further agreement that after dismissal of that suit the parties would sort out the quantum of arrears, if any, exceeding the sum of Rs. 200/- so paid amicably between them; in terms of that agreement though a sum of Rs. 200/- was paid to the plaintiffs and though the defendant believing the plaintiffs' assurance that they would not proceed with the suit retired from the suit, the plaintiffs suppressed the said agreement and obtained an order striking out his defence on an application filed under Section 17 (3) of the W. B. Premises Tenancy Act the notice whereof was not served upon the defendant and in that process the plaintiffs fraudulently obtained the ex parte decree for eviction in Title Suit No. 31 of 1957. This suit of the tenant-defendant being Title Suit No. 259 of 1958 was contested by the plaintiffs who denied the material allegations of fraud or falsity of the claim.

4. Upon the pleadings the learned Munsif who tried the said suit namely Title Suit No. 259 of 1958, framed amongst others the following issue, namely:

'was the decree in Title Suit No. 31 of 1957 obtained by fraud and misrepresentation as alleged.'

Proceeding to consider such an issue the learned Munsif held that the issue on the point of fraud has to be considered from two aspects, namely, internal fraud and external fraud. On the findings of the learned Munsif, the case of internal fraud was based on falsity of the claim in the earlier suit which being upheld, he recorded a finding that the plaintiffs wilfully suppressed the truth viz., that the monthly rent was really Rs. 12/- and not Rs. 20/- and obtained a decree in that suit on a false claim without placing all the facts on the table before the Court. It was further found that this falsity of the claim and the deliberate suppression of the true fact are sufficient proof of the allegation that internal fraud was practised by the plaintiffs in obtaining the disputed decree in Title Suit No. 31 of 1957.

5. The learned Munsif then went on to consider the other case of fraud pleaded bythe defendant, namely, the external fraud. In considering this aspect the learned Munsif observed that though the matter rests entirely on oral evidence and though it might have been difficult for him to uphold the defendant's case in this respect solely on the evidence led on his behalf yet in view of a certain admission made by one of the plaintiffs in his cross-examination contrary to their pleading, the case of fraudulent suppression of an agreement pending the suit could be accepted. He held that on the materials on record he can safely hold that Title Suit No. 31 of 1957 was compromised and on payment of Rs. 200/- by the defendant the plaintiffs agreed to allow the suit to be dismissed for non-prosecution. But having arrived at such an agreement the plaintiffs suppressed the said fact and instead thereof obtained the ex parte decree which clearly makes out a case of external fraud. On such a finding the decree passed in Title Suit No. 31 of 1957 was declared to be illegal, fraudulent, void and not binding on the defendant and the same was set aside. It was so set aside on May 25, 1961. There is no dispute that a further appeal against the said decree by the plaintiffs failed and the judgment and decree as passed by the learned Munsif was upheld by the appellate Court.

6. It is only in the background of such facts that the plaintiffs instituted a fresh suit for eviction upon a fresh notice to quit which is a combined notice of suit as well under Section 13 (6) of the W. B. Premises Tenancy Act. The present appeal arises out of this suit being Title Suit No. 110 of 1963. This suit was filed on March 2, 1963. In this suit again the plaintiffs prayed for a decree for eviction on the ground of default but default since July 1958 and not the default as pleaded in the earlier suit. In this suit though the defendant denied the plaintiffs' allegation of default no reliable evidence having been adduced on his behalf to prove payment of rent for the period of default pleaded by the plaintiffs and the defendant not having availed of his protection under Sec. 17 of the West Bengal Premises Tenancy Act, the suit was decreed on Jan. 30, 1965. An appeal against the said decree being Title Appeal No. 365 of 1965 failed when the learned Subordinate Judge affirmed the decree for eviction on the ground of default by his judgment and decree dated Sept. 15, 1965.

7. The tenant-defendant preferred an appeal to this Court and the second appeal came up for hearing before our learned brother H. N. Sen, J. The only point which was canvassed at the hearing of the second appeal was to the effect that the present suit for eviction is not maintainable in view of the fact that the decree for eviction in the earlier suit, namely, Title Suit No. 31 of 1957 having been set aside that suit revived and continued to remain pending and until the said suit is disposed of, the subsequent suit is not maintainable. This was the only point canvassed in the second appeal, the other points including the ground of default were concluded by the concurrent findings of the two Courts below. The point so raised in the second appeal was overruled by our learned brother relying upon a Full Bench decision of the Patna High Court in the case of Nirsan Singh v. Kishuni Singh, AIR 1931 Pat 204 (2). This decision of our learned brother is now being challenged before us in this Letters Patent Appeal.

8. Mr. Ghosh appearing in support of this appeal, has seriously contended that our learned brother had failed to appreciate correctly the principles enunciated by the Full Bench in the case relied upon by him so that in the result there has been a misapplication of the principle enunciated therein to the facts of the present case. According to Mr. Ghosh, in a suit for setting aside a decree on the ground of fraud if no specific issue is raised on the question of falsity of the claim in the earlier suit and if such an issue had not been finally decided, then any finding recorded with regard thereto would not conclude the issue so that the claim in that suit still survives for the purpose of adjudication. According to Mr. Ghosh, such is the principle enunciated by the Full Bench in the decision relied on by our learned brother. But in the present case, according to Mr. Ghosh, in the suit brought by the defendant for setting aside the decree passed in Title Suit No. 31 of 1957 no specific issue regarding- the falsity of the claim in the original suit having been raised and decided it cannot be held that the earlier suit does not survive and does not require further adjudication.

9. On a careful consideration of the point thus raised by Mr. Ghosh we are unable to accept the same. What was held by the Full Bench of the Patna High Court was that where a decree is set aside primarily upon a finding of fraudulent suppression of summons and the falsity of the claim is gone into incidentally only to support the finding on the point of fraudulent suppression of summons, the merit of the claim in the original suit does not become concluded between the parties so that if the decree is set aside on such a finding of fraudulent suppression of summons the original suit revives. The Full Bench, however, made it clear that if, on the other hand, the decree is challenged on the ground of fraud based on fraudulent nature of the claim or falsity thereof and the Court upholds such a claim in setting aside the decree nothing remains of the former suit so that it does not revive for any fresh adjudication. No doubt, the learned Judges had observed that there should be a clear finding on the question of falsity of the claim upon an issue raised in that regard and Mr. Ghosh has laid much importance on this observation in contending that when in the present case no specific issue was raised in the suit for setting aside the decree on the point of falsity of the claim in the original suit, such an issue cannot be held to be concluded.

10. We are, however, unable to accept such a contention. In the present case as we have pointed out the issue that was framed was in wide terms, namely, whether the decree in Title Suit No. 31 of 1957 was obtained by fraud and misrepresentation or not. The judgment makes it clear that the issue thus framed was intended and understood to cover an issue as to falsity of the claim in the original suit. Moreover it is quite evident that the parties knew that the decree was being challenged on twofold frauds, namely, internal fraud based on falsity of the claim and external fraud based on suppression of an agreement between the parties that the suit will not be proceeded with Therefore, it is not correct to suggest as has been suggested by Mr. Ghosh that in the later suit for setting aside the decree there was no specific issue raised regarding the falsity of the claim in the original suit and in any event when parties stood the trial on such an issue, non-framing specifically such an issue is of no moment in our view. So far as the findings are concerned, they are very much specific as we have indicated hereinbefore and the decree setting aside the earlier decree passed in Title Suit No. 31 of 1957 is expressly based on both the frauds pleaded, namely, falsity of the claim and fraudulent suppression of the agreement that the suit will not be proceeded with. Such being position, we are unable to hold as contended for by Mr. Ghosh that the finding on the falsity of the claim is merely incidental. As a matter of fact, there is no scope for holding as such because it is nobody's case that the plaintiffs in the earlier suit made any attemptto suppress the summons of the suit and obtained a decree.

11. That apart there is one more un-surmountable difficulty for Mr. Ghosh to support the objection raised by him. In our view when in a subsequent suit, the decree passed in an earlier suit is set aside, the question whether the earlier suit revives or not depends mainly on the terms of the judgment and decree setting aside the earlier decree passed in the subsequent suit. Where it is so set aside on an effective finding that the claim in the earlier suit is either false or otherwise inadmissible or that the earlier suit itself cannot proceed any further for some reason or other as in the present case viz., that the parties having arrived at a settlement the suit is not to be proceeded with, the earlier suit does not revive. It cannot revive for the simple reason that the finding on which the decree has been set aside being binding between the parties would stand in the way of further proceeding with the suit. It goes without saying, however, that such a finding must be conclusive and not tentative as pointed out by the Patna Full Bench since otherwise it would not be binding. We have pointed out that in the defendant's suit for setting aside the decree one of the grounds of fraud alleged was suppression of a fact that there was an agreement between the defendant and the plaintiffs to the effect that on payment of Rs. 200/- by the defendant to the plaintiffs, they would not proceed with Title Suit No. 31 of 1957. If this agreement is believed as has been believed by the learned. Judges in the suit for setting aside the decree then the earlier suit does not survive. Therefore, when the learned Munsif in setting aside the decree passed in Title Suit No. 31 of 1957 recorded a finding that the parties to that suit had arrived at a settlement that on payment of Rs. 200/- by the defendant to She plaintiffs the latter would have the suit dismissed for non-prosecution, the original suit does not revive. It cannot revive because on a concluded finding between the parties, that suit had ended in a compromise. Such being the position, even if we accept the contention of Mr. Ghosh that the finding of the Court on the point of falsity of the claim was merely incidental and was not concluded by the decree passed in Title Suit No, 259 of 1958, the other finding brings to an end Title Suit No. 31 of 1957 in view of the agreement between the parties found by the learned Munsif. For reasons aforesaid, we are unable to uphold the contention of Mr. Ghosh that the effect of the decree passed in Title Suit No. 259 of 1958 would be torevive Title Suit No. 31 of 1957 and such revival would render the suit out of which the present appeal arises not maintainable.

12. In this view it is not necessary for us to consider another aspect, namely, the suit out of which the present appeal arises is a suit based upon a fresh notice to quit and on the ground of default for a period not covered by the earlier suit so that the fresh notice results in waiver of the earlier notice on which the earlier suit was based and further results in revival of the contractual tenancy between the parties which necessarily renders the earlier suit infructuous. We express no final opinion on this aspect because on the merits we find no substance in the contention put forward by Mr. Ghosh in support of this appeal.

13. In the result, this appeal fails and is dismissed.

14. There will be no order as to costs.

Sanyal, J.

15. I agree.


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