Skip to content


Rajendra Kumar Bose Vs. Gangaram Koyal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in6Ind.Cas.472
AppellantRajendra Kumar Bose
RespondentGangaram Koyal and ors.
Cases ReferredIndia See Guthrie v. Abul Mazaffar
Excerpt:
fraud - pleadings--plaintiff's case resting solely on fraud--fraud, negatived--case on mistake, whether allowable--alternative claim. - .....well established that where pleadings are so framed as to rest the claim for relief solely on the ground of fraud, it is not open to the plaintiff, if he fails in establishing the fraud, to pick out from the allegations of the plaint facts which might, if not put forward as proofs of fraud, have yet warranted the plaintiff in asking for relief. a defendant, in answering a case founded on fraud, is not bound to do more than answer the case in the mode in which it is put forward. if, indeed, relief is asked alternatively, either on the ground of fraud, or, failing that ground, then on some other equity, a plaintiff may fail on the first but succeed on the latter alternative. but then the attention of the defendant has been distinctly directed to it, and he has been called to answer the.....
Judgment:

Lawrence Jenkins, C.J.

1. This appeal arises out of a suit brought to rectify a decree passed in a previous suit No. 830 of 1904. If regard be had to the allegations of the plaint, it is apparent that the plaintiff's case rested on fraud; and the Munsif has correctly described the position when he said: 'The plaintiff's case is that the decree was vitiated by fraud which consisted in the present defendants having misled the Court to pass the decree'. The fraud was negatived, and thereupon a case of mistake was set up, and on this ground the Munsif passed a decree in the plaintiff's favour. This was confirmed by the lower appellate Court and also by the judgment of this Court on appeal when the case was heard by a single Judge. Prom this decree this present appeal is preferred.

2. I take it to be well established that where pleadings are so framed as to rest the claim for relief solely on the ground of fraud, it is not open to the plaintiff, if he fails in establishing the fraud, to pick out from the allegations of the plaint facts which might, if not put forward as proofs of fraud, have yet warranted the plaintiff in asking for relief. A defendant, in answering a case founded on fraud, is not bound to do more than answer the case in the mode in which it is put forward. If, indeed, relief is asked alternatively, either on the ground of fraud, or, failing that ground, then on some other equity, a plaintiff may fail on the first but succeed on the latter alternative. But then the attention of the defendant has been distinctly directed to it, and he has been called to answer the case according to both alternatives. See Hickson v. Lombard 1 L.R. H.L.P. 336. This statement of the law has been treated by the Privy Council as applicable in India See Guthrie v. Abul Mazaffar 15 W.R. 50 (P.C.) : 7 B.L.R. 680 : 14 M.I.A. 53 and the present case falls precisely within it; for the charge was one of fraud, and that having failed, the plaintiffs by picking out stray allegations from their plaint have endeavoured to make good a case entitling them to rectification on the ground of mistake. I refrain from discussing the question as to how far the Courts in India can entertain a separate suit to rectify a consent decree on the ground of mistake, as, for the reasons I have already stated, the decree of the lower appellate Court should be set aside and the suit dismissed with costs throughout.

Doss, J.

3. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //