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Petitioner: HEMNALINI BASU VS Respondent: MD. SABED ALI BHUIYAN
P L D 1960 Dacca 611
P L D 1960 Dacca 611
Before Chowdhury, J
HEMNALINI BASU‑Appellant
versus
MD. SABED ALI BHUIYAN‑Respondent
Second Miscellaneous Appeal No. 8 of 1956, decided on 19th March, 1958.
Specific Relief Act (I of 1877), S. 42‑Suit for declaration that ex‑parte decree passed against plaintiff was fraudulent and not binding upon him‑Maintainable without prayer for setting aside decree‑Fixed court fee under Art. 17, Sch. II, Court Fees Act (VII of 1870)‑Sufficient.
A suit for a declaration that the ex parte decree passed in a suit against the plaintiff is fraudulent and is not binding on him without a prayer for setting aside the decree is maintainable under section 42 of the Specific Relief Act, 1877. If the decree is fraudulent, then it is void ab initio, and it loses all its binding effect, and it will automatically be set aside. So, no consequential relief need be prayed for.
Such a suit is maintainable on payment of a fixed court fee under Article 17, Schedule II of the Court Fees Act, 1870.
Zinnatunnessa Khatun v. Girindra Nath Mukerjee I L R 30 Cal. 788 ; Rani Prayag Kumari Debi and others v. Siva Prosad Singh 42 C L J 280 and Ramkamal Banik Saha v. Shyamsundar Banik Saha 37 C L J 482 ref.
Rajendra Kumar Banik for S. C. Bose for Appellant.
T. H. Khan for D. C. Bhattacharyya for Respondent.
JUDGMENT
This appeal is against the order of remand by the lower Appellate Court. It arises out of a suit for a declaration that the ex‑parte decree passed in Money Suit No. 14 of 1952 on 4th August, 1955, against the present plaintiff as a defendant in that suit is fraudulent, and not binding upon the plaintiff of this suit.
2. The facts of the case, shortly stated, are as follows:
" Hem Nalini Basu, the defendant in this suit, filed Money Suit No. 14 of 1952 in the First Court of the Munsif, Sadar, Mymensingh, against the present plaintiff Sabed Ali Bhuiyan claiming house rent for 30 months less Rs. 940 paid to her by the plaintiff. The said money suit was fixed for hearing on 21st June, 1953. On that date, on the joint petition of both the parties, the case was adjourned to 4th August, 1953, for effecting a compromise. On 3rd August 1953, the plaintiff and the defendant's husband and their common friend Nakul Kishora Roy and others set for effecting a compromise. All the terms of the compromise were finally settled, and it was agreed between the plaintiff' and the defendant's husband that a solenama would be filed in Court on 4th August, 1953. On this understanding, the plaintiff sent one of his men to Court on the 4th August, 1953, and he himself left Mymensingh in connection with his other business. Taking advantage of this situation the defendant's husband, instead of filing the com promise petition, fraudulently got an ex parte decree passed in the money suit on the 4th August, 1953, to the prejudice of the plaintiff. Hence, the plaintiff filed the present suit.
3. The defendant Hem Nalini Basu denied the plaintiff's case in toto and raised various pleas, namely, that the suit was not maintainable in the present form that the plaintiff should pay ad valorem court‑fee on the plaint : that as no consequential relief was prayed for, the suit was barred under section 42 of the Specific Relief Act ; that the suit was barred by limitation ; and that as the plaintiff filed a case under Order IX, rule 13 of the Code of Civil Procedure on the same ground which was dismissed on contest by the Appellate Court, the suit was barred by the principle of res judicata. On merits, it is contended that Money Suit No. 14 of 19.12 was never compromised ; that there was no final talk of any such compromise, and the terms of compromise were never settled and confirmed, and that the defendant or her husband practised no fraud on Court or on the plaintiff for obtain ing the ex parte decree in question.
4. The trial Court dismissed the suit holding that the plaintiff ought to have prayed for setting aside the decree on payment of ad valorem court‑fee, and when he had not done so, the suit simply for a declaration that the decree is not binding was not maintainable ; that the suit was barred by res judicata in view of the fact that the self‑same story of fraud alleged in his application under Order IX, rule 13, was dismissed ; and that the Court was reluctant to believe the plaintiff's story of com promise set up in the plaint.
5. There was an appeal by the plaintiff. In the appeal a new question was raised as to whether the written statement said to have been filed by Hem Nalini Basu, the defendant, was really signed by her. The learned Subordinate Judge who heard the appeal has held that the suit for declaration that the decree, dated the 4th August, 1953, is fraudulent and is not binding against the plaintiff is really a suit for a declaration with consequential relief, and the plaintiff is entitled to put his own valuation on the relief claimed, but, as the plaintiff has not paid ad valorem Court fee on the value of the suit, but paid fixed court‑fee, strictly speaking, the suit was not maintainable. Therefore, he thought that the plaintiff 'should be given an opportunity to amend his plaint, and to pay ad valorem court‑fee under section 7 (4) (c) of the Court Fees Act, and sent the case back on remand to the trial Court for the purpose. He did not agree with the trial Court that the suit is barred either under section 42 of the Specific Relief Act or by the principle of res judicata.
6. As to the res judicata, the learned Subordinate Judge held that the scope of inquiry under Order IX, rule 13, did not cover the fraud alleged in the case, and, therefore, the decision on the application under Order IX, rule 13, would not operate as res judicata, and the suit would not be barred by the principle of res judicata.
7. As to the new point raised for the first time in the lower Appellate Court, namely, whether the written statement was signed and verified by Hem Nalini Basu, the learned Subordinate Judge, in view of the evidence, was in doubt whether it was signed and verified by the defendant, and, therefore, he thought it necessary to send the case back on remand to the trial Court to determine that question also.
8. As to the story of compromise and whether the plaintiff is entitled to get the declaration prayed for, the learned Sub ordinate Judge found on evidence and circumstances that though there was no completed contract about the compromise, there was no doubt that there was a talk of compromise and there were bona fide disputes about the liability of the present plaintiff to pay the entire rent claimed and held:
" Under the circumstances I think both the parties should be given another opportunity to prove their respective cases. This seems necessary, particularly in view of the fact that the power and the written statement have not been properly executed and verified."
On these findings, the learned Subordinate Judge allowed the appeal, and set aside the judgment and decree of the trial Court, and sent the case back on remand for. disposal of the case in the light of the observation made in the judgment after giving the parties opportunity to take necessary steps to examine necessary witnesses including Nakul Kishore Roy, and then to dispose of the case at an early date in accordance with law. This order of remand has been challenged in this Second Appeal by the defendant in the suit.
9. At the first instance, I must say in agreement with the argument advanced by Mr. Banik for the appellant that the lower Appellate Court should not have allowed the plaintiff appellant to raise for the first time the question whether the written state ment filed in the case by Hem Nalini Basu was really signed and verified by her. On evidence, it seems to me that there is no dispute that the written statement was signed and verified by Hem Nalini Basu. The only question that was disputed is whether it was signed at Mymensingh or at Champdani in the district of Hooghly (West Bengal). What happened is this that the written statement was signed and verified by Hem Nalini Basu. The written statement shows her signature at the top and below the verification, and, immediately after her signature, her husband signed his name as well us the name of his wife by his pen both at the top of the written statement and below the verification just after the signature of Hem Nalini Basu, the defendant, as her July constituted attorney. Subsequently, the signature by the husband as the legally constituted attorney and that of Hem Nalini Basu by his pen were penned through keeping the signature of Hem Nalini Basu herself both in the written statement and the verification. In course of examination and cross‑examination, her husband Radhikaranjan Basu stated at first that it was signed a Mymensingh, and then he says "I do not exactly remember where it was signed". Then he says, "Perhaps it was signed at Hooghly" though the verification itself shows that it was signed at Champdani in the district of Hooghly. However, when the signature of Hem Nalini Basu has not been disputed by the plaintiff, it does not matter whether she signed it at Hooghly or Mymensingh, and that by itself is of no consequence. Therefore, I find that no remand is necessary for determination of this question.
10. As to the bar of res judicata, I agree with the learned Subordinate Judge that the fraud alleged in this suit did not come within the scope of inquiry under Order IX, rule 13, and, therefore, the decision will not operate as res judicata in the present suit.
11. As to the maintainability of the suit, I am unable to agree with the Courts below. It is a suit for a declaration that the ex parte decree obtained in Money Suit No. 14 of 1952 against the present plaintiff is fraudulent, and does not bind the plaintiff. No consequential relief is left for the plaintiff to pray for. If the decree is fraudulent, then it is void a6 initio, and it loses all its binding effect, and it will automatically be set aside. So, no consequential relief need be prayed for. In support of this view reference may be made to the case of Zinnatunnessa Khatun v. Girindra Nath Mukherjee (I L R 30 Cal, 788).
12. In the case of Rani Prayag Kumari Debi and others v. Siva Prosad Singh (42 C L J 280), it has been held that "A party to a suit can, under section 44 of the Evidence Act, show that a decree obtained by opposite‑party against him in another suit was obtained by fraud, and it is not necessary for him to bring an independent suit for setting it aside." Then, at the bottom of that page, their Lordships observed as follows:
"The decree was passed by the High Court on the 31st August, 1917, and the present suit was instituted on the 6th March, 1919, which was well within three years. Then the plaintiffs prayed for a declaration that the decree was fraudulent and not binding upon them. The Court, in order to grant the relief prayed for by the plaintiff, has to see whether the decree was obtained by fraud, and the effect of the declaration prayed for would be to set aside the decree. The inquiry would be the same if a formal prayer were added for setting aside the decree, when there is no question of limitation, and the utmost that can be said is that formal amendment by adding such a prayer might be necessary."
Therefore, it cannot be said that this suit for a declaration that the decree is fraudulent and not binding on the plaintiff without a prayer for setting aside the decree is not maintainable or is barred under section 42 of the Specific Relief Act. Under section 7 (4) (c) of the Court Fees Act, the plaintiff in a suit for a declaration with consequential relief is to value his own relief, and is to pay ad valorem court‑fees on such valuation. The learned Subordinate Judge who thought the suit was one under section 7 (4) (c) of the Court Fees Act might have realised the deficit court‑fees from the plaintiff and decided the case instead of sending it back on remand to the trial Court for payment of ad valorem court‑fees. In the case of Zinnatunnessa Khatun v. Girindra Nath Mukherjee, Maclean, C. J., held as follows:
" The safest course in these cases is to ascertain what the plaintiff actually asks for by his plaint, and not to speculate upon what may be the ulterior effect of his success. It may very well be that as the result of setting aside the decree in question some ulterior benefit may directly or indirectly flow to the plaintiff. But what we have to look at is what he asks for by his plaint. It is clear, looking at the plaint, that all that the plaintiff asks for is a declaratory decree, and he does not ask for any consequential relief."
Accordingly, his Lordship held that the suit as framed was a suit for a declaratory decree, and fixed court‑fee paid under Article 17, Schedule II of the Court Fees Act, was sufficient.
13. In the case of Ramkamal Banik Saha v. Shyamsundar Banik Saha (37 C L J 482), it has been held by their Lordships that no consequential relief need be prayed for in the circumstances of that case. There it was held as follows:
" A suit for a declaratory decree should not be dismissed on the ground that it is barred by the proviso to section 42 of the Specific Relief Act, unless it is quite clear that the plaintiff should seek further relief which be has failed to claim, although such relief flows directly and necessarily from the declaration sought for. The proviso to section 42 forbids a suit for a pure declaration without further relief but it does not compel a plaintiff to sue for all the reliefs which could possibly be granted or debar him from obtaining a relief which he wants, unless at the same time he asks for a relief which he does not want,"
In the present case, if the Court finds that the decree is fraudulent, then it is void ab initio, and it loses all its binding effect, and it automatically becomes set aside, and the plaintiff need not ask for setting aside the same. In this view of the matter, I think the suit filed as a declaratory suit on a fixed court‑fee is maintainable.
14. Now coming to the question of compromise and of the plaintiff's right to get the declaration prayed for, the evidence adduced on the side of the plaintiff is that there was a final talk of compromise on 3rd August, 1953, between the plaintiff and the defendant's husband in the presence of Nakul Kishore Roy and other officers of the plaintiff, and that D. W. 1 Radhikaranjan Basu, husband of the plaintiff, and Nakul Babu said that they would get a petition of compromise drafted by the lawyer on 4th August, 1953, which would have to be signed by the plaintiff. Relying on this evidence, the Appellate Court found at page 19 of the Paper Book as follows:
" From the evidence on record and circumstances of the case it is clear that there were talks of compromise, and there were bona fide disputes about the liability of the present plaintiff to pay the entire rent claimed."
It appears that the learned Subordinate Judge relied on the petition filed in the previous suit on the 4th August, 1953, praying for an adjournment of the case on behalf of the defendant of that suit (the plaintiff in the present suit) stating that there was a talk of compromise, and that there was every chance of the matter being finally settled, and; on account of the same, the defendant did not appear in Court. The learned Subordinate Judge, in view of the statement in that adjournment petition, could not believe the case set up by the plaintiff that there was already a completed contract about the compromise though he held that there was talk of a compromise. First of all, the learned Subordinate Judge should not have relied on that petition which was not exhibited in this case. Secondly, the statement in the petition for an adjournment of the case may mean two things‑one is that though the terms of compromise were settled it was not given final effect by filing a compromise petition, and, as the compromise petition was not filed, it was stated in the application that there was a talk of compromise, and there was every chance of the matter being finally settled ; and the other is that the talk of compromise was still in the negotiation stage, and did not take its final shape. Of these two meanings, the first one has the support from the evidence of P. W. 1, corroborated by P. W. 2. Be that as it may, the learned Subordinate Judge found beyond doubt that there was a talk of compromise. If it is found that the defendant or her husband, on her behalf, held out a hope of compromise, but, instead of compromising the suit, he (husband of the defendant), when found the defendant in that money suit absent, not only did not take any step to give effect to the take of compromise, but also vehemently opposed the application filed on behalf of the defendant of that suit for adjournment of the case, as it appears from the judgment in the case under Order IX, rule 13 of the Code of Civil Procedure, then there cannot be any doubt that the defendant or her husband stole a march over the present plaintiff, the defendant of that suit, and obtained the ex parte decree against him. In the circumstances, the learned Subordinate Judge should have decided whether the decree was fraudulent or not instead of sending the case back on remand to the trial Court.
15. The result, therefore, is that this appeal is allowed, and the order of remand is set aside,, and the case is sent back to the lower Appellate Court to decide the case according to law in the light of the observation made above on evidence already on record. Costs of this appeal will abide the result.
16. In view of the order passed in this appeal, no order is necessary in the alternative application under section 115 of the Code of Civil Procedure.
K.B.A. Appeal accepted.