P L D 1969 Dacca 456 (PLP)

D. C. Bhattacharjee for the Opposite‑Parties. Dates of hearing : 15th, 18th and 19th December 1967. This application under section 115 of the Code of Civil Procedure is directed against an order made by the learned Munsif of Khulna setting aside an order disposing of Misc. Case under section 174(3) of the B. T. Act on compromise. The petitioner before me is one of the judgment‑debtors in a Rent Suit, which was decreed and in execution of which decree the opposite‑parties 1 to 3 purchased the holding as far back as 16‑8‑1964. The sale was confirmed and delivery of possession was taken. Thereafter a sale set aside case under section 174(3) was filed by the judgment‑debtors on 23‑1‑1961. It appears from the records that the auction‑purchaser entered appearance and contested the application. On 29th April 1963, however, compromise petition was filed purported to have been signed by both the judgment‑debtors and the auction‑purchasers in which it was decided that the auction purchaser will continue to hold 11.49 decimals of land of the jama and the judgment- debtors will continue to possess 6.90 dec. of land of the jama. Accordingly the Misc. Case was disposed of in terms of the compromise. On 14th of July 1964, however the auction‑pruchasers filed an application under section 151, C. P. C. stating that they were not aware of the compromise petition and they had not filed the same and the order of the Court was obtained by practising fraud on the Court. The judgment debtor filed an objection‑petition and the matter was heard by the learned Munsif who held that the auction pruchasers denied their signature in the compromise petition and in the vakalatnama filed with the compromise. There was no evidence on behalf of the judgment‑debtors controverting this evidence and he held that fraud had been practised on the Court and accordingly set aside the order recording the compromise. Mr. B. N. Chowdhury appearing on behalf of the judgment- debtor‑petitioner has first urged that the Court had no jurisdic tion to set aside the order under section 151 of the Civil Procedure Code. But it has been held in a number of cases including our Court that if fraud has been practised on the Court then the Court has the inherent jurisdiction to set aside the ‑order based on such fraud (vide D L R 79 and 45 C W N 392) Mr. Chowdhury then argued that in view of the evidence of P. W. 1 who is the only witness in the case the trial Court should not have set aside the order as he has done. Mr. Chowdhury took me through the evidence of this witness. He has drawn my particular attention to the fact that this witness denied the signature in the vakalatnama given to the pleader on 16th August 1954 and that he denied the signature of Basudeb one of the auction‑purchasers in the objection petition. In examination‑in‑chief the witness states that: "This signature which is also alleged to be mine is not mine, I do not know pleader Kalipada Chatterjee. I did not engage him for me in that case, through any executed power. I did not sign in any solenama. This signature which is in this solenama. I did not sign my name in it. Those are all forged signatures. That is a fraudulent solenama." In cross‑examination no question is put to this witness‑ regarding this evidence which is given in examination‑in- chief. This is the relevant evidence and the cross‑examining lawyer has carefully avoided testing this witness on this evi dence. Mr. Chowdhury argued that from the evidence in cross‑examination it would be clear that the witness is not a witness of truth. It is true that there are some statements which may be regarded as not correct. But the fact remains that the witness testified clearly as to his case in his application under ` section 151 of the Civil Procedure Code and there was no cross‑examination on that point. Merely because he has made some statements in cross‑examination the evidence given in examination‑in‑chief cannot be disregarded particularity when W no cross‑examination was drawn specifically to the evidence which related to the matter in issue. I hold that the learned Munsif acted legally in accepting the evidence and in holding that there was no evidence to controvert the claim in the petition before him. The evidence is also corroborated by the fact that this signature of the witness in the compromise petition tallies with the vakalatnama filed with it. But in the petition and the vakalatnama filed under section 151, C. P. C. the witness signed as Phani Bhushan Sardar Mistrial and he does the same in the vakalatnama filed in the High Court. But in the compromise -petition his signature is shown as Phanindranath Sardar and the writing is by a mature hand whereas the writing in the other two vakalatnamas is very immature. The lawyer Kalipada Mukharjee should have been examined by the petitioner before me but he has not done so nor has he dared to take an oath or.' give any evidence before the learned Munsif. The compromise petition obviously is a forged document inasmuch as the signatures of the auction‑purchasers were not those of real persons, but were forged and with the clear object of practising a fraud on the Court. The case of the auction‑purchasers is that they were not aware at all of the Misc. Case under section 174(3) and all the processes were suppressed. Be that as it may, the alleged compromise petition is clearly a forged document and the learned Munsif has acted within his jurisdiction by setting aside: the order based on such fraudulent document. The Rule is, therefore, discharged with costs. Rule discharge of. A. E/S. A. H.