H.K. Bose, J.
1. This appeal is against a judgment and decree of P.C. Mallick, J., dismissing a suit to set aside an ex parte decree on the ground of fraud. The ex parte decree was passed by the Madras City Civil Court on April 5, 1949 in suit No. 555 of 1948, which was brought by the respondent in this appeal against the appellant herein for recovery of price of goods sold and delivered. On 16th January 1951 the present appellant filed a suit in this Court against the respondent for setting aside of the said ex parte decree on the ground that the respondent obtained the said decree by fraud. This suit came up for hearing before Mallick J. The learned Judge has come to the conclusion that the plaintiff has failed to establish the case of fraud set up by him and he has, therefore, dismissed the plaintiffs suit.
2. Before us the learned counsel for the appellant has contemted that the learned trial Judge is wrong in his finding that the case of fraud has not been established. The learned counsel has drawn our attention to the evidence given by Radhakissen Sunderlal, the Chief Accountant of the defendant company where this witness his deposed about the various attempts made to effect service of the Writ of Summons on the defendant Nemchand Tantia in the said Suit No. 555 of 1948 of the City Civil Court, Madras. (Q. 43 and Q. 54 to 68) and has submitted that although the definite evidence and admission of this witness in the box is that the Summonses issued for service were not returned, in the application which was made before the Madras City Civil Court for substituted service on 9th February 1949 it was falsely stated in paragraph 3 of the affidavit filed on behalf of the plaintiff company in the said suit and which was affirmed by one Pandurangam Chetty, that two sets of Summonses which were taken out for service on the defendant had been 'returned unserved' although the real fact is that the summonses had not been returned at all as admitted by the witness Sunderlal in the box. It is argued that this false representation was made deliberately with a view to mislead the Court into thinking that the defendant Nemchand Tantia was evading service and thereby inducing the Court to pass an order for substituted service. The learned trial judge has interpreted the expression 'returned unserved' to mean that no service was effected of the Summonses issued and the learned judge felt that although the language might not have been strictly correct, he would not be justified in taking the view that it was meant to mislead the Court or it did in fact mislead the Court. We are unable to persuade ourselves to take a different view with regard to this matter. That the expression was a misleading one and it did not give a true picture of he situation admits of no doubt. But whether it actually misled the Court or no is another matter. It appears from the original order which was made by the Court for substituted service on 17th February 1949 that there is an endorsement to the effect 'Defendant's postal summons alone were once returned unserved'. So it is reasonable to presume that the learned judge's attention had been drawn to this fact before he made the order for substituted service. Now even assuming that the learned judge's attention was not drawn to this fact and he was to a certain extent misled by the unhappy expressions used in paragraph 3 of the affidavit we are unable to hold that the plaintiff had any intention of actually misleading the Court by the use of these incorrect expressions. The fact that the plaintiff company was making repeated attempts and all possible endeavour to effect service on the defendant, clearly negatives the theory that there was any attempt at fraudulent suppression of the Summons. The Summonses were attempted to be served through Court, and Summonses enclosed in registered envelopes properly addressed to the defendant, were sent through Court, and it is puerile to suggest that the Court officers and officers or employees of the postal department had all entered into an unholy conspiracy to suppress the service of the Summons.
3. The report of the bailiff of the Small Causes Court, Calcutta. who was entrusted with the service of the Summons and which report is printed at page 165 of the Paper book shows very clearly that the bailiff actually went to the defendants' address at 15 Noormull Lohia Lane and 140A Cross Street and attempted to effect service on the defendant but the defendant's gomosta told him that the proprietor was not expected to come back from Bombay before the middle of March and the Gomosta himself refused to accept service unless a ropy of the plaint was supplied to him. This bailiff has given evidence at the hearing before Mallick, J. and no reason has been shown why his evidence cannot be accepted.
4. So these are circumstances which lead us to hold that the case of the appellant before us that the respondent is guilty of fraudulent suppression of the Summons and that the Summons was not served on the appellant is not true.
5. The learned counsel for the appellant has placed reliance on a decision of a single judge of the Lahore High Court reported in Tarachand v. Santokh Singh, (AIR 1935 Lah 129). In that case the facts were that the plaintiff who had brought a suit against four defendants was asked by the Court to supply the addresses of the defendants for the purpose of sending the Summons to the defendants by registered post. The plaintiff knew about the whereabouts of the defendants but without supplying the addresses to the Court for service of the Summons by registered post, he applied for and obtained an order for substituted service by making a false representation that the defendants were deliberately avoiding service. The Court therefore held that the order for substituted service had been obtained by practising fraud upon the court and so the defendants had not been properly served as required by law.
6. In the case before us the fact remains that one of the summonses referred to in paragraph 3 of the affidavit in support of the application for substituted service which had been sent by registered post came back unserved on 8th December 1948. So part of the representations in paragraph 3 of the affidavit is true. Apart from that in paragraph 4 of the affidavit it was stated that the defendant knew about the suit and was avoiding service. It is possible that the learned judge who made the order for substituted service was satisfied on perusal of paragraph 4 and the fact that the registered envelope came back unclaimed that grounds had been made out for making an order for substituted service. Order 5 Rule 20(1) of the Code of Civil Procedure provides that if the Court is satisfied that the defendant is keeping out of the way for the purpose of avoiding service or for any other reason the Summons cannot be served in the ordinary way the Court can make an order for substituted service in the manner prescribed in the said rule or in any other manner it thinks fit. In the present case the Court thought fit to make an order for substituted service by posting a notice on the Court Notice Board and by advertisement in the Statesman. We. therefore, fail to see why the service in the present case was not a good service. We are satisfied on the materials placed before us that the circumstances of this case justified an order for substituted service.
7. The next point urged by the learned counsel for the appellant is that as the learned judge has found that the plaintiff company in Suit No. 555 of 1948 had no privity of contract with the defendant and the plaintiff had no right to enforce the claim for price of goods sold and delivered, the suit of the plaintiff was a false suit and its claim in the suit was a false claim, and coupled with the fact that certain misrepresentations of facts had been made in the application for substituted service, there had been sufficient case of fraud made out to justify the learned judge in setting aside the ex part decree.
8. Now the law which has bearing on this point has been summarised in the following words in the case of Kunja Behary Chakrabarty, v. Krishna Dhone : AIR1940Cal489 :--
'It is now well-settled that a decree cannot be re-opened on the ground that it has been obtained by perjured evidence. In Mahomed Golab v. Mahomed Suliman. ILR 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 Shah v. Nur Ali. ILR 38 Cal 936 however the observations of Petheram. C. J. in Mahomed Golab's case ILR 21 Cal 612 were discarded on the ground that they were 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 Huq v. Surendra Nath Roy, 16 Cal 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 criticised or distinguished Lakshmi Charan's case, ILR 38 Cal 936 (Supra). A useful review of the case law is given in Muktamala Devi v. Ram Chandra De : 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 6th Ed.).
'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 in ignorance of the real facts of the case and obtaining that decree by that 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 is proved by the plaintiff 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 itself is fraudulent.'
9. We are in agreement with this statement of the law except that it would have been better if the words 'should ordinarily' had been omitted therefrom, and the discretion of the Court left at large.
10. The learned counsel for the appellant also referred to the cases reported in Kedar Nath v. Hemanta Kumari, 18 Cal WN 447: (AIR 1915 Cal 69) and in Nanda Kumar v. Ram Jiban 18 Cal WN 681: (AIR 1914 Cal 232), but as the former case has been dealt with exhaustively in Kunja Behari's case : AIR1940Cal489 and the propositions laid down in the latter case are not in dispute, these cases need not be dealt with in detail in this judgment.
11. The learned trial judge in the case before us has found that the claim for the price of goods sold is not a false claim. He has found that the appellant before us brought the goods from the firm of Kishinchand Chellaram and the claim in respect of the price was a genuine claim. This finding has not been challenged before us. But the learned judge has also found that the plaintiff company had no right to claim the price as there was no privity of contract between the plaintiff company and the buyer and the claim for price had not been assigned by the firm of Kishinchand Chellaram to the plaintiff company. The claim for price, is, therefore, not a fictitious claim, but it may be that the plaintiff company had misconceived its rights to enforce the claim. It appears that a resolution was passed by the Board of Directors of the plaintiff company for taking over the assets of the firm of Kishinchand Challaram and it was thought that by this process the plaintiff company had acquired the right to enforce this claim but the learned judge has found that by mere passing of a resolution no transfer of assets could take place. So it cannot be said that the plaintiff had filed the suit knowing that the plaintiff had no right to enforce the claim nor can it be said that the claim is an altogether fictitious claim. We have also indicated already that the other facts and circumstances do not justify us in holding that there has been any fraudulent suppression of Summons.
12. In our view the learned trial judge was right in his conclusion that the appellant before us has failed to establish the case of fraud alleged by him, and he has rightly dismissed the suit.
13. In the result this appeal fails and it is dismissed with costs.
K.C. Das Gupta, C.J.
14. I agree.