1. This appeal is in a suit instituted by the appellant, Kunja, on 19th March 1938 in the First Court of the Subordinate Judge at Howrah to set aside on the ground of fraud a decree passed by this Court in its ordinary original jurisdiction. The question in this appeal is whether the suit is maintainable on the allegations made in the plaint and on the facts either admitted or conclusively proved. The respondent, Krishnadhan, brought Suit No. 1209 of 1930 against the appellant in the original side of this Court for recovery of the sum of Rs. 7068-9-6 due on a promissory note said to have been executed at Calcutta on 30th June 1927 by the latter in his favour. The promissory note was filed with the plaint but was taken back by his Solicitors, Messrs. O.C. Ganguly & Co., after keeping on the record an authenticated copy. At the time of the hearing of the suit the original promissory note was not before the Court. After entering appearance in that suit the appellant asked the respondents' solicitors to give him inspection of the original promissory note. That request was not complied with, the said solicitor taking up the position that it had been mislaid is his office after it had been taken back by him from Court. The appellant eventually filed & Chamber application in December 1930, in which he brought to the notice of the Court the fact that he could not get inspection of the original promissory note. He asked for an order on the respondent to produce it for inspection within a definite time and for dismissal of the suit in case it was not produced within the time limited by the Court. This application was moved on the basis of an affidavit affirmed by him on 16th December 1930.
2. Probodh Chandra Ghose, the court clerk and Birendra Coomar Ganguly, the cashier and record keeper of the respondent's solicitors filed a joint affidavit in answer on 18th December 1930. In that affidavit, the former stated that the original promissory note had been filed with the plaint before the Master and that in the usual course of practice it was taken back and kept in an almirah in the Solicitor's office. The latter affirmed that he himself had kept it there in the course of his duty. They both affirmed that since the requisitions for inspection from the appellant they had been making diligent searches for it but without success. In answer to this affidavit the appellant filed another affidavit affirmed by him on 5th January 1931. In it he made a definite case that the promissory note wag a forged one and that it was being suppressed by the respondent to prevent detection of the forgery on the false plea that it was missing. On these materials the Chamber application was moved on 13th January 1931. A consent order was passed on that date. The prayers for production of the promissory note and for the dismissal of the suit in case it was not produced were not allowed, on the respondent undertaking to file an affidavit swearing to its loss and to file his account books which were then in the custody of the Criminal Court at Howrah. The respondent fulfilled these undertakings later on. The appellant having got leave to defend the suit filed his written statement on 24th February 1931. He denied having executed the promissory note and suggested that it and another document, a letter evidencing deposit of title deeds marked later on as Ex. N in that suit, had bean forged on two blank sheets of paper containing his signature, such papers having in the past been delivered by him to the respondent for being used in legal proceedings.
3. At the trial before Ameer, Ali J., the appellant pressed his case that the suit had been brought on a forged promissory note, and for supporting the said case contended that the original promissory note had been fraudulently suppressed. Evidence was led by respondent to meet the last mentioned contention, He examined Probodh Chandra Ghose, Birendra Coomar Ganguly and Mr. Ordhendu Coomar Ganguly, a partner of Messrs. O.C. Ganguly & Co., to prove that the original promissory note had not been suppressed but had in fact been lost from the Solicitor's office after it had been filed with the plaint and taken back from Court. In support of his case of forgery the appellant examined himself, Becharam Chatterjee and Tridev Chandra Chatterjee. They said that on the date of the promissory note in question the appellant was at Benares where he stayed up to 30th June 1927 and returned to Howrah in July 1927. Tridev produced his diary in support of his testimony. This diary was marked an exhibit in the case. On those materials and on others including the letter Ex. N Ameer Ali J. decreed the suit on 17th August 1933. In decreeing the suit he took into consideration Kunja's case of the alleged suppression by Krishnadhan of the original promissory note.
4. Kunja preferred an appeal against the judgment of Ameer Ali J. That appeal was heard by Costello and Lort-Williams, JJ., who dismissed the same on 30th July 1934. After delivery of their judgment but before it was signed, some anonymous letters reached the said learned Judges, which contained statements to the effect that the said promissory note and the letter Ex. N, on which the learned Judges had mainly relied upon in dismissing the said appeal, were forgeries. The learned Judges put off signing their judgment and gave him (Kunja) an opportunity to prosecute enquiries and to place further materials before the Court within a month. He later on filed an application in which he gave particulars of the forgery of the promissory note and of Ex. N. An affidavit sworn by one Bhujendra Nath Sen, a former clerk in the office of Messrs, O.C. Ganguly & Co., who had previously sworn to an affidavit to the effect that the promissory note had been received by him from Krishnadhan and had been mislaid in the Solicitor's office, was made an annexure. In this affidavit Bhujendra stated that the promissory note and Ex. N had been forged, that Krishnadhan had admitted before him in detail how and when they were forged and that he himself was an accomplice of Krishnadhan in the matter of the suppression of the original promissory note. This application was refused on the ground that it was filed beyond the time granted and the judgment was signed. Kunja thereafter filed an application for review on the ground that he had discovered new and important evidence which would show that the promissory note and Ex. N had been forged. The additional evidence which was attempted to be introduced was to be the evidence of the self-same man Bhujendra. This application for review was rejected in 1939. The learned Judges in rejecting the application for review observed that if the additional evidence intended to be produced was prima facie credible they would have granted the application for review and would have afforded Kunja an opportunity to place that evidence at the new trial. But as Bhujendra was a self-convicted perjurer whose testimony could not be relied upon, they refused to admit the application for review.
5. When the decree so passed by this Court was sought to be executed in the Court of the Subordinate Judge at Howrah, Kunja filed this suit, in which this appeal arises, in that Court in the year 1938. The principal point is whether the suit is at all maintainable. As we hold in agreement with the learned Subordinate Judge that it is not, we do not enter into other questions canvassed before him. In fact we did not hear any of the parties on the other questions. For deciding the question of the maintainability of the suit the plaint will have to be examined in some detail, keeping in view the facts which we have recited above and about which there cannot be any possible dispute. In the plaint the plaintiff admits that his case in the suit brought to enforce the promissory note was that the latter was a rank forgery and that he had led evidence to prove that it was so. He admits that this Court granted a decree in favour of the defendant, though the promissory note was not produced on a false plea that it was missing. After making this statement he makes the general allegation that this Court was 'misled by the fraud of the defendant.' The averment thus made only amounts to the fact that Krishnadhan had managed to get a decree on a false claim by producing perjured evidence. This is all that is contained in para. 9 of the plaint. In paras. 10 and 11 he states that after the judgment of Costello and Lort-Williams JJ. he started enquiries, after the anonymous letters received by the said learned Judges had been shown to his Solicitor by the Registrar of this Court, and as a result of those enquiries he got definite information regarding the fraud from Bhujendra who gave him a signed statement. The information given by Bhujendra was what was embodied in the affidavit of Bhujendra which the learned Judges had before them when the application for review was moved and on which they commented in their order. In para. 13 he specifies the heads of fraud which according to him entitled him to reopen in the suit the final decree passed against him. At the end of sub-para, (i) he makes the statement that
there was a premeditated contrivance whereby the defendant in conspiracy with Bhujendra and others managed to keep the plaintiff and the Court in ignorance of the real facts of case and obtained a decree by that contrivance.
6. What this 'conspiracy' and 'contrivance' were are indicated in the other sub-paragraphs of the said paragraph. A summary of the said sub-paragraphs can be made as follows : In 1927 Krishnadhan became displeased with him and formed the idea of putting him in trouble. In that year he called in his aid the services of a forger and had his signature forged on two blank sheets of paper. Bhujendra was thereafter prevailed upon by him to type on those two sheets the body of the promissory note and of the letter of deposit of title deeds (Ex. N). The promissory note was filed with the plaint but was taken back and was suppressed on a false plea that it had been mislaid thereafter, the object being that if it had been produced in Court the forgery would have been discovered at once. By reason of the false affidavits filed in the suit suspicions that would have otherwise arisen from the non-production at the hearing of the original promissory note were allayed and his solicitor and counsel were 'thoroughly deceived'; the Court was intentionally misled on the wrong track and was induced to pass a decree on the basis of the admission contained in the fabricated letter of deposit (Ex. N). Bhujendra's mouth was shut by reason of an affidavit which the defendant caused him to swear and file in Court. The defendant thus got a decree on a false claim known to him to be false by leading false evidence. The evidence in support of his case was led on three points, namely (1) that Krishnadhan had asked Kunja to depose falsely for him in a case and on his refusal there was a heated discussion, (2) that the promissory note was forged and that Krishnadhan and Bhujendra admitted the forgery in the presence of some of the clerks in the office of Messrs. O.C. Ganguly & Co., (3) that the story of the loss of the original promissory note was a myth, Krishnadhan's son having taken it from the Solicitor's office after it had been taken back from Court.
7. The evidence so produced by the appellant has been disbelieved by the learned Subordinate Judge. As we are dismissing the appeal on the ground that the suit is not maintainable, we do not discuss the value to be attached to this evidence, but we simply mention it for the purpose of indicating what was the nature of the fraud which according to the appellant had been committed by the respondent on him and en the Court which had 'misled' the Court in passing the decree. As we have already remarked, his allegations in the plaint that by a 'premeditated contrivance' of the defendant he and the Court which passed the decree were kept in ignorance of the real facts has no other meaning and the sum and substance of his case is that (a) the claim of the defendant was false and false to his knowledge, (b) it was decreed on perjured evidence, (e) the original promissory note was intentionally suppressed on a false plea and (d) that he is now in better position to substantiate the first three points as he has since the decree passed by this Court discovered more evidence.
8. We do not think that he can re-open the decree on any one of these grounds. The first three grounds were urged by him in resisting the suit for enforcing the promissory note. They were agitated and decided against him. No new fraud has been pleaded. The discovery of more evidence was made the ground for the application for review but that application was also refused. We agree with the view of the learned Subordinate Judge that all that is sought by the appellant in this suit is to consolidate the grounds taken by him in the previous trial by new and fresh materials and that the whole gamut of contentions unsuccessfully advanced by him in the previous trial to repel the defendant's claim on the promissory note has been made the basis of the so-called fraud for avoiding the decree. This is the special aspect of this case which distinguishes it from many of the cases placed before us by the appellant's advocate, Mr. Mookerjee.
9. It is now well settled that a decree cannot be reopened on the ground that it has been obtained by perjured evidence. In Mahomed Golab v. Mohamed Sulliman (1894) 21 Cal. 612 Sir Comer Petheram, C.J. laid down that proposition and pointed out that if the law was otherwise there would be no finality to litigation. In Lakshmi Charan v. Nur Ali (1911) 38 Cal. 936 however the observation of Petheram C.J. in Mahomed Golab v. Mohamed Sulliman (1894) 21 Cal. 612 was discarded on the ground that it was obiter, the learned Judges proceeding further to observe that in the light of later decisions of the English Courts it cannot be said that the law was laid down correctly by Petheram C.J. The reasoning adopted and the English decisions relied on there were subjected to critical analysis in Mosuful Haq v. Surendra Nath Roy Chandra (1912) 16 C.W.N. 1002 and Petheram C.J.'s dictum was followed. The later cases of this Court have all along accepted the dictum of Petheram C.J. as sound and have either criticized or distinguished Lakshmi Charan v. Nur Ali (1911) 38 Cal. 936. A useful review of the case law is given in Muktamala Dasi v. Ram Chandra : AIR1927Cal84 . The proposition is well settled that a decree can be reopened by a new action when the Court passing it had been misled by fraud, but it cannot be reopened when the Court is simply mistaken; when the decree was passed by relying upon perjured evidence, it cannot be said that the Court was so misled. (Kerr on Fraud and Mistake, p. 425, Edn. 6.) To us it seems that to sustain an action for setting aside a decree the fraud alleged and proved must be
actual positive fraud, a meditated and intentional contrivance to keep the parties and the Court ID ignorance of the real facts of the case and obtaining that decree by that contrivance.
10. This is the view adopted by Casparz and Doss, JJ. in Abdul Huq v. Abdul Hafez (1910) 14 C.W.N. 695 and by Jenkins C.J. and N.R. Chatterjea J. in Nanda Kumar Howladar v. Ram Jiban : AIR1940Cal232 . It is not possible to enumerate all the circumstances which would lead a Court to come to the conclusion that there was such a contrivance. In the case of ex parte decrees when the defendant had never appeared, the contrivance may consist in suppressing the summons. The fact of suppression would itself be the contrivance, and indeed a most effective contrivance for keeping the defendant in ignorance of his rights and from placing his case before the Court. Mere non-service would not do. But when the fact of non-service of summons is proved by the plain, tiff in the later action, and the claim on which the decree was passed is proved to be a false one, the Court may and should ordinarily infer deliberate and hence fraudulent suppression, for the last mentioned circumstance supplies the motive for the suppression and indicates that the suppression is itself fraudulent Ram Chandra Prasad v. Parbhu Lal Ramratan (1927) 14 A.I.R. Pat. 183. The case in Pran Nath Roy v. Mohesh Chandra (1897) 24 Cal. 546, which was affirmed on appeal by the Judicial Committee of the Privy Council, sub nominee Radha Raman Shaha v. Pran Nath Roy (1901) 28 Cal. 475, is of this type. The actual decision in Lakshmi Charan v. Nur Ali (1911) 38 Cal. 936 can be supported on this principle. In such cases the fact that the question of non-service of summons had been adjudicated in an earlier proceeding under Order 9, Rule 13, Civil P.C., would not bar the investigation of fraud, as the issues would not be the same Radha Raman Shaha v. Pran Nath Roy (1901) 28 Cal. 475.
11. The facts which would constitute the fraudulent contrivance would not necessarily be the same in the case of contested decrees, or ex parte decrees where the plaintiff in the later action had appeared in the earlier suit at some stage. The fraud must be one extraneous to the suit which terminated in the decree. The case in Khagendra Nath v. Pran Nath Roy (1902) 29 Cal. 395 illustrates the nature of such contrivance. There the defendant in the original suit was prevented from placing his case by a false lunacy proceeding against him and by threats which compelled him to leave his home and to hide himself. The learned advocate for the appellant has also contended before us that there is another broad head which would entitle the plaintiff in the later action to set aside a decree against him whether passed ex parte or on contest. He says that if the decree was passed on a false claim known to be false by the plaintiff in the original action, it has to be set aside. For this proposition he has relied upon Kedar Nath v. Hemanta Kumari (1915) 2 A.I.R. Cal. 69 and on the observation in Manindra Nath v. Hari Mondal (1920) 7 A.I.R. Cal. 126, where an attempt was made to reconcile the decisions of this Court on the basis of the decision in Kedar Nath v. Hemanta Kumari (1915) 2 A.I.R. Cal. 69. The decision in Kedar Nath v. Hemanta Kumari (1915) 2 A.I.R. Cal. 69 was based on the decision in Abouloff v. Oppenheimer (1883) 10 Q.B.D. 295 and Vadala v. Lawes (1890) 25 Q.B.D. 310. Those two cases will have therefore to be examined in some detail.
12. In none of those cases was any stress laid on the fact of knowledge of the decree-holder that his claim, which in fact was a false one, was false, but the facts imply that if the claim was false it was known to him to be so. Both those cases related to the foreign judgments. Suits were instituted in England to enforce the judgment of a Russian Court in one case and of an Italian Court in the other. The defence was that those judgments could not be enforced in an English Court, because they had been obtained by fraud of the plaintiff. The question considered was whether for the purpose of deciding the question of fraud the merits could be re-opened. The matter was put in clear terms by Lindley, L.J. in Vadala v. Lawes (1890) 25 Q.B.D. 310 at p. 316. He stated that there were two principles. The first was that a party to an action can impeach a judgment on the ground of fraud, whether the judgment impeached was a domestic or a foreign judgment. The second principle stated in general terms was that in an action to enforce a foreign judgment in an English Court, the English Court cannot go into the merits which had been tried in the foreign Court. This last-mentioned proposition is a corollary from the proposition that the English Court regards the foreign judgment as creating an obligation. After stating the two principles Lindley L.J. then proceeded to observe that the two rules had to be combined when the foreign judgment was impeached on the ground of fraud. When the case of fraud cannot be determined without re-opening the merits, the merits can be re-opened in an English Court:
You can re-open the whole case even although you will have in this Court to go into the very facts which were investigated and whioh were in issue in the foreign Court.
13. He did not place any importance on the technical answer that the issue in the English Court was not the issue in the foreign Court. He quoted with approval the observations in Abouloff v. Oppenheimer (1883) 10 Q.B.D. 295 to the effect that even if the self-same case of fraud had been investigated by the foreign Court arid had been negatived on the basis of false evidence adduced in that Court, still the English Court could go into the matter again to see the circumstances under which that judgment was given, The law thus formulated as a applicable to foreign judgments is wider in terms than what would be applicable to domestic judgments; for, a domestic judgment cannot be attacked simply because it was obtained by false evidence, and any direct issue already decided cannot be re-agitated on the principle of res judicata. As a foreign judgment is regarded in England not qua judgment but only as a jural act by which an independent obligation is created, the rule of res judicata cannot be invoked in the ease of a foreign judgment. This fact in our judgment distinguishes a foreign judgment from a domestic one and would accordingly prevent a Court from re-opening in a later action a domestic judgment where the fraud alleged was directly and substantially in issue in the former suit and had been enquired into and 'repelled. We are accordingly of opinion that 'a domestic judgment cannot be re-opened where the only allegation of fraud made by the plaintiff of the later action is that judgment had been given on a false claim. That allegation in substance means that the former adjudication was wrong, the Court determining on perjured evidence the claim as true which was in fact a false one. The principle of finality of litigation which is the cardinal principle applicable in the domestic forum would then have no meaning. In the case of a domestic judgment falsity of the claim, in our judgment, may be one of the material facts only in a limited class of cases, namely where the judgment was an ex parte one where no summons had been served and the direct proof falls short of actual suppression of summons. We do not accordingly agree with the view expressed in Kadar Nath v. Hemanta Kumari (1915) 2 A.I.R. Cal. 69, that simply because the claim on which the former judgment had been passed in a domestic tribunal was a false one known to the decree-holder to be false, the former judgment was to be set aside. The actual decision in that case can however be justified.
14. The decree passed in that suit was an ex parte one. The plaintiff, Hemanta Kumari Debi, in the later action alleged that sum-mons of the former suit had been fraudulently suppressed. That was the fraud alleged. She proved that the summons had not been served. At least the lower Courts found that there was no satisfactory proof of service of summons on her. In those circumstances falsity of the claim could be investigated in the later suit. If the claim on which the ex parte decree was passed was a false one, that would have furnished the motive for the suppression of summons, and from the said fact combined with the fact of non-service of summons the Court could have inferred that the summons had in fact been suppressed. For the same reason we are unable to agree with the distinction sought to be made in Manindra Nath v. Hari Mondal (1920) 7 A.I.R. Cal. 126. In the case before us the question whether the promissory note was a false one was adjudicated upon in the suit on the promissory note. The question whether it had been suppressed on a false plea was also considered. An application for review of judgment which sought to introduce further evidence of a nature like the evidence led in this case was made. The correct procedure and the only procedure for leading additional evidence was adopted. The rejection of the application for review has given finality to this attempt. The judgment in Mosuful Huq v. Surendra Nath Roy (1912) 16 C.W.N. 1002 in our judgment gives the correct interpretation of the law on the subject of production of additional evidence in cases of this kind. We accordingly hold that the suit is not maintainable and the appeal must be dismissed with coats. The connected application is also dismissed.