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Petitioner: K. S. M. ABDUL KHALEQUE SOWDAGAR AND ANOTHER VS Respondent: MAJUTAR RAHMAN KHAN AND ANOTHER
P L D 1963 Dacca 921
P L D 1963 Dacca 921
Before Chowdhury, C. J. and Idris, J
K. S. M. ABDUL KHALEQUE SOWDAGAR AND ANOTHER--‑Appellants
versus
MAJUTAR RAHMAN KHAN AND ANOTHER ---Respondents
Appeal from Original Decree Nos. 34 and 35 of 1957, decided on 7th June 1961.
Decree‑Ex parte decree‑Obtained on suppression of material facts or on perjured evidence or falsity of claim‑‑No ground for separate suit for setting aside decree‑Fraud alleged to vacate decree must he actual and positive, relating to Court proceedings or premeditated and intentional to procure decree.
A. S. M. Mufakher for Appellants.
H. S. Suhrawardy and Md. Mozammel Huq for Respondent No. 1.
JUDGMENT
CHOWDHURY, C. J.‑These two appeals arise out of two suits, being Other Suits Nos. 16 and 17 of 1955 in the 3rd Court of the Subordinate Judge, Chittagong, filed by respondent No. 1 Mr. M. R. Khan as a plaintiff for setting aside the two ex parte decrees passed against him in the two money suits, being Money Suits Nos. 61 and 42 of 1949 in the first Court of the Subordinate Judge, Chittagong, on 25th February 1953, for a sum of Rs. 17,316 and Rs. 21,561, respectively, in favour of the plaintiffs of the two money suits, namely, the Chittagong Rice and Oil Mills & Co , represented by Abdul Khaleque Sowdagar and Nabajug Rice Mill, Chittagong, represented by Mr. Sugarmal Somani.
2. As the; basis of the claim in both the money suits is similar and against the same defendants, they were heard together at the instance of the parties and disposed of by the same judgment. The two other suits filed by the present plaintiff respondents for setting aside the ex parte decrees in those two money suits were also heard together and disposed of by the same judgment. So both the appeals arising out of the two suits for setting aside the ex parte decrees in the two money suits are also taken up for analogous hearing and this judgment will govern both the appeals. Appeal No. 34 of 1957 arises out of the Other Suit No. 16 of 1955 and Appeal No. 35 of 1957 arises out of the Other Suit No. 17 of 1955.
3. Facts of the cases, shortly stated, are as follows: The plaintiffs of the two money suits, namely, the Chittagong Rice and Oil Mills & Co., and Nabajug Rice Mills, Strand Road, Chittagong, filed two suits, namely, Money Suits No. 61 of 1949 and No. 42 of 1949, respectively, in the first Court of the Subordinate Judge, Chittagong, against the Railway authorities and defendant No. 3 M. R. Khan, a paddy merchant of Mymensingh, and his agent defendant No. 4 Tajul Islam, on the allegation that Tajul Islam, defendant No. 4 as an agent of defendant No. 3 sold paddy of different quantities to the two plaintiffs of the money suits on the basis of certain Railway receipts showing booking of the alleged goods to Strand Road, Chittagong, and received a sum of Rs. 16,000 paid by the plaintiff of Money Suit No. 61 of 1949 to defendant No. 3 as an advance through defendant No. 4, who signed the receipt on behalf of defendant No. 3 and the balance was to be paid on taking delivery of the paddy, and Rs. 20,000 paid by the plaintiff of Money Suit No. 42 of 1949 of which Rs. 16,000 was paid by cheque on Tripura Modern Bank Ltd., Chittagong, and Rs.4,000 in cash to defendant No. 3 through the defendant No. 4 who signed the receipt on behalf of defendant No. 3, and the said defendant No. 4 also encashed the cheque. The plaintiff of the two money suits having failed to obtain delivery of the consignments informed the Traffic Manager, E. B. Railway, and prayed for speedy despatch. After having failed to obtain the delivery of the goods in respect of each of the said consignments, the plaintiffs of both the money suits have to serve notice on the Railway authorities, and in reply to that got information that the goods did not appear to have been booked and loaded in the wagons mentioned in the notice and dispatched to the destination. Thereafter, they filed the two money suits against the Railway imp leading Mr. M. R. Khan and his agent Tajul Islam as defendants Nos. 3 and 4, respectively, praying for a decree against proper defendant in both the money suits. Summons of the two money suits were duly served on the defendants and defendant No. 3 appeared in both the suits by filing written statement in each suit.
4. During the pendency of these suits there was a criminal case started by the Government in which it was found that the receipts said to have been issued by the Railway Stations and the signature of the Railway Station Master was forged and the accused Tajul Islam in that criminal case was convicted. The criminal case and the ultimate conviction of the accused took place during the pendency of the two money suits.
5. The two money suits, after several peremptory dates of hearing, ultimately came up for hearing on the 25th February 1953, when the Court recorded the following order (vide page 29, Part II of Paper Book in Appeal No. 35 of 1957)
"The defendant is ready in this suit and in analogous Money Suit No. 35 of 1952. The plaintiff's petition filed on 20th February 1953, is put up, and on practically the same ground taken in the petition of 20th February 1953, the plaintiff applies for adjournment today. In these petitions (one of today and another of 20th February 1953) adjournment is asked for because certain documents have not been produced. The learned Pleader for the defendant says that the defendant's witness has brought the necessary documents required by the plaintiff. That being so the petitions for adjournment filed in this suit and in analogous Money Suit No. 35/52 are all rejected.
Railway receipts by the handwriting expert as the defendant has denied in the written statement the signature of the Station Master in the Railway receipts. A similar petition has been filed in analogous Money Suit No. 35/52. This is a much too belated step. The plaintiff has since obtained three adjourn ments of hearing date in this suit and the fifth in the analogous suit. The defendant has been ready on three successive peremptory hearing dates. The prayers for examination of signature in Railway receipts by handwriting expert made in both the suits are rejected. The plaintiff to be ready at once in both the suits."
6. Then the plaintiffs of both the suits filed a joint appli cation giving up their claim against the Railway authorities. When the two suits were taken up for hearing on 25th February 1953, against the other defendants "the learned Pleader for defendant No. 3 says that he has no instruction after filing the written statement by defendant No. 3 who is absent on calls" (vide page 30, part II of the same Paper Book). The suits were taken for ex parte hearing and the Court passed ex parte decrees against defendant No. 3 holding
"The pleadings and ex parte evidence are that the plaintiffs' transactions were with M. R. Khan whose employee or agent Tajul Islam acted as go‑between disclosing fully that the principal was M. R. Khan. In the circumstances Tajul Islam cannot be liable.
The plaintiffs cannot now recover price of paddy, but they will get refund of advances paid, that is, Rs. 16,000 in Suit No. 61/49 and Rs. 20,000 in Suit No. 35/52 with corresponding costs against M. R. Kh4n alone,"
and dismissed the suits against defendant No. 4 Tajul Islam but awarded cost against the plaintiffs to the Railway defendants. It may be mentioned here that the original Money Suit No. 42 of 1949 after transfer and re‑transfer assumed the number of Money Suit No. 35 of 1952 vide pages 38 and 39, Part 11 of Paper Book in F. A. No. 35 of 1957.
7. On the 18th July 1955, the present plaintiff (defendant No. 3 in the two money suits) filed these suits, being Other Suits No. 16 of 1955 and No. 17 of 1955 in the Third Court of Subordinate Judge, Chittagong against the plaintiffs of the two money suits imp leading only Tajul Islam, the defendant No. 4 of the two money suits as defendant No. 2, for setting aside the ex parte decrees passed in the said two money suits, mainly, on the grounds that the clams of the plaintiffs of the two money suits against this plaintiff of the present suits were absolutely false and fraudulent and also denying that defendant No. 4 Tajul Islam was his agent; that the plaintiff entrusted the conduct of the cases to his Pleader Babu Himangshu Bhusan Majumdar who gave him an impression that he was a nominal defendant in the money suits, and the claim not having been made out against him, there could not be any decree against him, and this statement of his lawyer was also confirmed by Mr. S. Somani, the Managing Director of the Nabajug Rice Mill, the plaintiff of Money Suit No. 42 of 1949, with whom he came into contact later on; that as a criminal case was started against Tajul Islam, defendant No. 4 in the two money suits, he was under the impression that the aforesaid money suits were either pending or stayed ; but now it transpires that the plaintiffs of the said money suits obtained fraudulent ex parse decrees in collusion with his lawyer Babu Himangshu Bhusan Majumdar, Pleader, Judge's Court, Chittagong, who in collusion with the plaintiffs of those suits took no step and made no attendance on his behalf throughout the protracted proceeding in the two suits, and not even on the date of positive hearing; that though the plaintiffs of the two money suits were fully aware of the fact that defendant No. 4 Tajul Islam was the villain of the evil drama, and defendant No. 3, i.e., the present plaintiff had nothing to do with the alleged transaction and the payment of money; and that the alleged Railway receipts and the signature of the plaintiff thereon were forged and fabricated documents, the defendants and the present plaintiff's lawyer deliberately and purposely suppressed and withheld the said evidence from the Court, the disclosure of which would have led to an altogether different result of the suits, and the whole claim as against the plaintiff (defendant No. 3 in those money suits) would have fallen through.
8. The learned Subordinate Judge, Third Court, Chittagong, by his judgment dated the 31st August 1956, decreed both the suits (Other Suits Nos. 16 and 17 of 1955) and set aside the ex parte decrees in the two Money Suits Nos. 61 and 42 of 1949 against defendant No. 3 plaintiff in the present suits, holding that the decrees in the disputed money suits were liable to be set aside as fraudulent, and that such a view was not only legal but also very equitable as the parties would practically be relegated to their own position in the money suits which might now be tried with opportunity to the plaintiff to fight out the money suits on merits. Against this decision these two appeals have been filed.
9. In support of the appeals, Mr. Mofakher, the learned Advocate for the appellants raised three points, namely, (1) that a separate suit for setting aside an ex paste decree on the ground that the claim in the suits is false and the ex parte decree is based on false evidence is not maintainable; (2) that the collusion and contrivance between the Pleader of the present plaintiff and the plaintiffs of the two money suits as alleged by the plaintiff have not been proved and the judgment of the learned Subordinate Judge is based absolutely on unwarranted inference and conjecture not supported by any evidence on record; and (3) that the learned Subordinate Judge is absolutely wrong in holding that on account of giving up of the claim against the Railway there was a change of front and making of a new case departing from the original case of the plaintiff requiring notice of the same to the other defendants.
10. Before we take up these points for consideration, we think it necessary to deal with the judgment of the learned Subordinate Judge with reference to the facts relevant to the case.
The relevant issues framed by the learned Subordinate Judge are issues Nos. 1 and 3. and they run as follows;
"(1) Is the suit maintainable in the present form?
(3) Is the decree of the disputed money suit liable to be set aside as fraudulent?"
In dealing with the first issue, the learned Subordinate Judge formulated the principle correctly at page 29, Part 1 of the Paper Book, stating:
"It is now a settled law that an ex parte decree can be set aside on ground of fraud only if it is proved that the plaintiff was prevented by the fraud of the defendant in relation to the pro ceedings before the Court, from placing its case before the Court. That proposition of law was well enunciated in the leading case of Md. Golab v. Md. Solaiman I L R 21 Cal. 612, and it has been reviewed in several cases of which the case of Durgabati Banerjee v. Taharullah Miah 44 C W N 849 may be cited."
But the learned Judge committed a gross error in the application of the principle to the facts of the present cases and it was because of his mis-appreciation and misreading of the case reported in 4 D L R 636. "In our own High Court again the case law on the point has been reviewed in 4 D L R 636, where it has been held that an ex parte decree can be set aside by new action when the Court passing it has been misled by fraud to sustain an action for setting aside the decree; fraud, alleged and proved must be actually positive fraud, the meditated and intentional contri vance to keep the parties and the Court in ignorance of the real facts of the case and obtaining the decree by that contrivance," and he was misled by the head‑note of that case without reading the judgment in which the learned Judge of the High Court refer red to fraud in relation to proceeding in Court, and agreed with the Courts below that there was ne such fraud. Being thus misled by the head‑note of that case the learned Subordinate Judge was swept away by his finding that, in the circumstances, defendant No, 3 M. R. Khan in the two money suits seemed to be not liable on account of the judgment in the criminal case resulting in the conviction of the accused Tajul Islam defendant No. 4, as it will appear from his summarising of the case of the plaintiff at page 31 of the Paper Book of F. A. No. 35 of 1957 and from his finding in respect of that summary of the plaintiff's case. In summarising the case of the plaintiff the learned Sub ordinate Judge stated as follows :‑‑
"In the present suits it has been alleged in the plaints that (1) by deliberate and meditated contrivance between the defendants companies of the two money suits, the plaintiff was systematically kept in ignorance about the progress of the suit and the date of positive hearing, (2) due to this fraud and collusion between the plaintiff's lawyer and the defendant companies of both the money suits, no step was taken and no attendance report was made by the plaintiff's lawyer on behalf of the plaintiff throughout the protracted proceeding in the two suits even on the date of positive hearing that (3) although the defendants companies of the two suits fully knew the result of defendant No. 4 Tajul Islam the plaintiff the payment and signatures of the plaintiff thereon were forged and fabricated documents the defendants companies and the plaintiff's lawyer deliberately and purposely suppressed and withheld the said evidence and findings of the Criminal Court, simply because the disclosure of those evidence and information to the Court would have led to altogether different result in the suits and the entire claims as against the plaintiff would have been dismissed, ; that on the date of positive hearing the defendants compa nies at first managed to file an adjournment petition and a petition for examining the so‑called Railway receipts by hand writing expert in order to prove their case against the Railway, but when they found the plaintiff absent and his lawyer was also prevailed upon, the defendants companies completely changed the front and filed a joint petition saying that they would not proceed against the Railway authorities quite contrary to the case in their own plaints. This sudden change of front at the last stage should have been intimated to the plaintiff before he was proceeded against ex parte, and the defendants companies as well as the plaintiff's lawyer should have informed the Court that the suits could not be proceeded with without giving opportunity by way of notice to the absentee plaintiff to meet that new case."
Of this summary of the plaintiff's case if points Nos. 1 and 2 are established, it will undoubtedly go to prove that the plaintiff was prevented by the fraud of the defendants of the present suits from placing his case before the Court, and will come within the principle said to have been correctly stated by the learned Subordinate Judge. I shall deal with these two points later on.
11. The other three points except "his lawyer was also pre vailed upon" in point No. 4 cannot be a ground for setting aside an ex parte decree, because decrees are liable to be set aside on the ground of fraud in relation to proceeding before the Court by which the plaintiff was prevented from placing his case before the Court, but falsity of claim by itself is no ground for setting aside decrees on the ground of fraud nor perjured evidence by which the decrees might have been procured can be any ground for setting aside the ex parse decree by a separate suit. But the learned Subordinate Judge at page 32 of the Paper Book observed.
"To my mind it seems that the suits for setting aside such decrees on such grounds lie and can succeed if the grounds set forth as above are made out and proved to the hilt."
But before holding that the grounds set forth above were made out and proved to the hilt, the learned Subordinate Judge held "I must hold that the suits are maintainable in their present forms."
12. Now let us see whether the finding of the learned Subordinate Judge can be maintained on the basis that the grounds set forth above were made out and proved to the hilt. This will lead us to the consideration of issue No. 3 which, according to the learned Subordinate Judge, is a material issue in the suits. Falsity of claim itself may be taken into consideration, not for the purpose of setting aside the ex parte decree, but for the purpose of determining the motive for fraudulent suppression of summons and other cases of like nature by which the other side is prevented from placing its case before the Court, but from the falsity of claim and perjured evidence one cannot infer or presume fraud and fraudulent suppression of summons or fraud of like nature which prevented the party aggrieved by the ex parte decree from appearing or placing his case before the Court. It must be proved by those who allege such fraud. It must be actual and positive fraud relating to the proceeding of the Court, a premeditated and intentional contrivance of the real and material facts of the case in order to obtain decree by that contrivance.
13. The allegations of fraud collusion and contrivance between the plaintiff's lawyer and the defendants companies made in the plaints as stated in points Nos. 1 and 2 by the learned Subordinate Judge in summarising the cases of the plaintiff; are extremely vague and no material particulars of fraud has peen given in the plaint nor is there any evidence to establish these allegations of fraud and collusion between the plaintiff's lawyer and the defendant companies. In this state of evidence the learned Subordinate Judge himself stated at page 33 of the Paper Book that the present case might not fall within the first type of fraud after observing at page 33 as follows :‑
"According to the judicial pronouncements there appears to be only two types of cases of fraud, firstly, the general or commonest class or type of fraud which deals with the com monest kinds of fraud or contrivance. In such types generally fail the cases of fraudulent suppression of summons and other cases of like kind by which other side is prevented from placing his case before the Court, and the motive for such fraudulent suppression of summons is generally the falsity of the claim itself. The present case may not fall within this first type. But there is the second type or class of cases of fraud which may be called unusual class of cases of fraud which deals with unusual kind of fraud or contrivance. The present cases of the plaintiff. as evidence and facts show, fall within this second type".
In dealing with this second type of fraud the learned Subordinate Judge held:
"(i) Defendant No. 1 filed those money suits mainly claiming relief against the Railway defendants,
(ii) the plaintiff appeared in those two money suits and filed written statements denying the liability and impugning the Railway receipts and the endorsements thereon as forgery,
(iii) the plaintiff was nominal defendant in those two money suits,
(iv) by petition of amendment being the third one on the date of positive hearing 25‑2‑1953, defendant No. 1 misled the Court that the Criminal Court found that the plaintiff and defendant No. 2 stole away the Railway receipts and forged the same, and that
(v) the main Railway defendants were given up and the ex parte decrees were taken against the plaintiff in his absence without giving him an opportunity to meet this new case."
These are, according to the learned Subordinate Judge, fraud of the second type though not of the first type, and the fact that the plaintiff appeared in the money suits and filed written statements should not be any bar for setting aside the ex parte decrees, because, according to him, the true test in such a case would be whether fraud was practiced in relation to the proceedings in Court, and decrees were obtained by practicing fraud of some sort upon the Court and the parties. He is of the opinion that when the two money suits were filed on the basis of the Railway receipt, Exh. 1 to 1 (F), which and the endorsements thereon were impugned by the plaintiff of the present suits as fraud and fabricated, and in view of the fact that the plaintiff deposed against defendant No. 4 Tajul Islam in the criminal case where it was found to be forged and fabricated by the Criminal Court, it was apparent that there was no case of defendant No. 1 in those money suits against the plaintiff and the same were bound to be dismissed as against the plaintiffs.
14. Then the learned Subordinate Judge referred to the plaints of the money suits, Exhs. 2 to 2 (a), where the plaintiffs of those two money suits alleged that they had been put to loss by the gross misconduct of the Railway servants and so, according to the learned Judge, the real defendants where the Railway defendants and the plaintiff was merely a nominal defendant to introduce the history of the transaction.
15. Then he refers to the judgment in the criminal case, Exh. 3 (at page 43, Part 11 of Paper Book) and the finding of the learned Sessions Judge in the judgment that defendant No. 2 had no connection with the plaintiff and defendant No. 2 cheated the rice mills by forging the Railway receipt after stealing away the same from the Station Master. Relying on the findings of the Criminal Court the learned Judge held that after the judgment of the criminal case defendant No. 1 was not in a position to make out any case whatsoever against the plaintiffs in those two money suits and contrary to their plaint case.
16. Then the learned Judge referred to the two applications for adjournment, dated 25th February 1953, for examination of the signatures of the Station Masters by handwriting expert as the Railway defendants denied the same. So, according to the learned Subordinate Judge, these petitions clearly show that up to that time the case of defendant No. 1 was directed only against the Railway defendants, and they based their claim on the Railway receipts taking them to be genuine, and so defendant No. 1 had no case against the plaintiff even at the time of the second petition on the date of positive hearing. Then the learned Judge went on to consider the third petition which was filed on that date by the, plaintiffs of the two money suits joints given ap their claims against the Railway defendants Nos. 1, 2 and 5 to Money Suit No. 42 of 1949 and against defendants Nos. 1, 2, 5 and 6 of Money Suit No. 61 of 1949 after the disposal of the criminal case alleging that defendants Nos. 3 and 4 had stolen the Railway receipts in dispute from Railway Station, and bona fide belief the plaintiffs in the money suit:, took the Railway receipts signed and sealed by the Station Masters, Purbadhala and Jharia‑Jhanjail as genuine, and so the plaintiffs made defendants Nos. 1, 2, 5 and 6 parties to those suits, and they did not press their claim against the Railway defendants, and confined their claim only against defendant No. 3.
17. After considering the plaint case in the two money suits, the findings in the judgment of the criminal case, allegations in the two petitions for adjournment, and the…
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