P L D 1959 (W (PLP)

(3) Whether defendant No. 2 obtained a decree with respect to the property in dispute and what is its effect ? (4) Whether the present suit is barred by the rule of res judicata ?" After the appeal filed by Nizam Din respondent against the first, judgment and decree of the trial Court was accepted and the case was remanded for re‑trial, Abdul Majid filed a replica tion on the 6th May 1954, in which he alleged that the ex‑parte decree had been obtained by fraud and gave particulars of the manner in which that fraud was practised. The Court then framed the following additional issues : "3‑A. Whether the said decree was obtained by fraud ? 3‑B. Whether the plaintiff is not competent to raise the objection of fraud in respect of the said decree. 3‑C. Whether the objection referred to in issue No. 3‑A is within time ?"

5. The trial Court decided issues Nos. 1 and 2 in favour of the plaintiff (Abdul Majid), issue No. 3 in favour of the defendant (Nizam Din) and issue No. 4 against the defendant. On issue No, 3‑A the finding was that only one of the allegations of fraud, namely, that mentioned as ground No. 2, had been established and not the'remaining three which had been specified in the replication dated the 6th May 1954 and which were to the following effect : -- (1) That Ghulam Muhammad was wrongly stated in the former suit as residing in Lalamusa. (2) That Muhammad Din, real brother of the defendant was falsely represented as a stranger. (3) That no suit for specific performance was brought or decreed. (4) That the defendant Nizam Din did not incur any expenses and the contract, if any, was without any consideration. Issue No. 3‑A was decided in favour of the plaintiff and No. 3‑B against the defendant (Nizam Din). On issue No. 3‑C the find ing was that even if it be held that the case was covered by Article 95 of the Limitation Act and that the plaintiff had come to know of the ex parte decree on the 5th November 1949, as the suit was filed within three years of the last mentioned date, it was within time. This issue was, therefore, found in favour of the plaintiff. As a result of these findings the plaintiff's suit was decreed. In the appeal filed by Nizam Din respondent, in the Court of the learned Additional District Judge, Gujrat, against the second judgment and decree of the trial Court, the contest centred round only two points, namely, whether the ex parte decree obtained by Nizam Din against Ghulam Muhammad was binding on the plaintiff-appellant and whether the suit was within time. Disagreeing with the trial Court, the learned Additional District Judge gave findings on both these points against the appellant and, holding that the appellant had failed to prove that any fraud had been committed by Nizam Din respondent and holding also that the suit was time barred, because though the appellant had come to know of the ex parte decree on the 5th November 1949, he did not challenge it on the ground of fraud until the 6th May 1954, accepted the appeal and, setting aside the judgment and decree of the trial Court, ordered that the plaintiff‑appellant's suit be dismissed.

6. Very lengthy arguments were addressed to me by the learned counsel for the parties on the two points which were the centre of controversy in the lower Appellate Court, namely, fraud and that such a plea could not be said to be barred by time. Having expressed clearly the view that such a plea could be taken up by the appellant, at any time, without regard to the period of limitation, it was unnecessary to determine on what date the appellant's predecessor‑in‑interest, Ghulam Muhammad respondent, had come to know of the ex parte decree and, therefore, no clear finding on this point was given by that Court. The learned Additional District Judge appears to have misunder stood the reasoning of the trial Court and remarked in his judgment that the learned Senior Civil Judge has admitted that on 5‑11‑49 Ghulam Muhammad had come to know that an ex parte decree had been passed against him. The learned Additional District Judge further remarked that as the ex parte decree was attacked for the first time' on the ground of fraud on the 6th May 1954, the appellant's plea in this respect was barred by time, having been raised after the expiry of three years, provided by Article 95 of the Limitation Act. The trial Court having not given any clear finding as to the date on which Ghulam Muhammad respondent had come to know of the ex parte decree, it was not correct on the part of the learned Additional District Judge to remark that the Senior Civil Judge had "admitted" that Ghulam Muhammad respondent had come to know of that decree on the 5th November 1949. The learned Additional District Judge himself did not give any finding on this point and, therefore, it cannot be said that there was a finding of fact by the lower Appellate Court, on this point, and that that finding cannot be upset in the present appeal. I; am supported in this view by a case of the Lahore High Court Nirbho Ram Nagar Mal v. Murari Lal Bhagirat Mal (A I R 1928 Lah. 158), in which it was held that‑where a finding of fact arrived at by a trial Court was upheld by the Appellate Court, without giving a clear finding of fact, it could not be considered to be an' independent finding on the evidence, such as can be treated as a finding of fact closing the door to a second appeal.

9. Assuming that the lower Appellate Court did give a clear finding on this point, the question arises whether such a finding of fact was based on any evidence so as to be binding on this Court. A reference to the record of the trial Court would show that on the 28th July 1953 Shahbaz Khan, D. W. 4, produced a copy of an entry (Exh. D: W. 4/1), made in his register on the 5th November 1949, regarding an application for getting an ex parte decree set aside, which he claimed to have written at the instance of Ghulam Muhammad respondent. In his subsequent evidence recorded on the 8th July 1954, Shahbaz Khan, as D. W. 1, stated further that Ghulam Muhammad, son of Bhagwan Das, was known to him since the year 1948 and that he got the application for getting the ex parte decree set aside written on the 5th November 1949. Ghulam Muhammad respondent, when questioned on this point, denied all knowledge of this fact. No other witness was produced in the trial Court to corroborate the testimony of Shahbaz Khan. The original application was not placed on the record of the case in which the ex parte decree was obtained, nor was it alleged that the application was, in fact, presented by Ghulam Muhammad respondent in the Court. If Ghulam Muhammad had come all the way from Lalamusa to Gujrat for getting such an application written, he would have presented it in the Court at Gujrat M instead of taking it away with him. As no explanation for this strange conduct was given and as it was not even explained how Nizam Din respondent came to know of the existence of any such application, in my opinion, the Courts below were not justified in presuming that any such‑application was written at the instance of Ghulam Muhammad. In fact, the evidence of Shahbaz Khan, as well as the copy of the entry, Exh. D.W. 4/1, produced by him in the Court, should have been ignored for deciding this question. If that had been done, nothing else would have remained on the record to show that, on the 5th November 1949, Ghulam Muhammad had come to know of the existence of such a decree.

10. On the 30th December 1952, when Nizam Din res pondent filed the written statement in the Court, no doubt, the appellant came to know that such a decree had been obtained by him. The appellant, in the application filed on the 8th May 1954, challenged the validity of that decree on the ground of fraud and as this was done within three years of the date when he came to know of such a decree, his suit cannot be held to be barred by time under Article 95 of the Limitation Act, because the period of three years, provided by that Article, is to be computed from the date when such fraud comes known ‑to the party wronged and not from the date of the decree sought to be impeached. The finding of the lower Appellate Court on the question of limitation not being based on evidence canno be upheld and, consequently, in this second appeal, the matter can'' be gone into again.

11. The respondent's contention regarding the finding on the question of fraud also cannot be accepted, because though the lower Appellate Court has held clearly that no such fraud was committed that finding is based on a misreading of the evidence. But of the four grounds specified in the replication dated the 6th May 1954, the trial Court held that the appellant had been able to establish the existence of one of the grounds only, namely, that Muhammad Din, real brother of Nizam Din respondent, who appeared as a witness in the Court, made a false statement that he was not his real brother and that, there fore, the decision of the Court granting ex parte decree to Nizam Din was based on perjured evidence. The lower Appellate Court, while conceding that Muhammad Din did state that he was not real brother of Nizam Din respondent, came to the conclusion that this could be no ground for holding that any fraud had been committed, because it could not be said that the Court was misled to such an extent that, if the true relationship had been known to it, Nizam Din would not have been granted the decree asked for.

12. It is not disputed that a judgment, or decree obtained by fraud is a nullity. If any authority for this proposition is needed, reference may be made to Grindlay's Bank Limited v. Muree Brewery Company Limited and another (P L D 1954 Lah. 745) and Logadapatti Chinnayya v. Kotla Ramanna (19 I C 579). It is also not disputed t hat a decree cannot be set aside merely on proof of the fact that it was obtained by perjured evidence, nor on the ground that there was an erroneous finding of fact. Such a decree also' cannot be set aside merely on proof of non‑service of the summons. For authorities, reference may be made to Badri Narain Mandar v. Parabti Pasbar (A I R 1957 Pat. 384), Kadirvelu Naigar v. Kuppuswami Naiker (45 I C 774) and Abdul Majid and others v. Khalil Ahmad (P L D 1955 F C 38).

13. The learned counsel for the appellant, however, put his case thus : The appellant does not rely merely on the fact that in the previous suit Ghulam Muhammad was not duly served. So also does not rely merely on the fact that Muhammad Din, an important witness in that case, did not disclose his real relationship with Nizam Din respondent. He also does not rely on the mere fact that Nizam Din could not under the law, ask for a decree for possession against Ghulam Muhammad, without adding a prayer for specific performance of the agreement alleged to have been entered in between the two. His case is that as Nizam Din's claim was altogether false, as without adding a prayer for specific performance of the alleged agreement he could not ask for a decree for possession of that property and as the agreement was without consideration, he contrived to obtain an order of substituted service from the Court so that Ghulam Muhammad may not attend and oppose his false claim and, therefore, managed to get the decree which otherwise he could have not obtained. To support this contention he referred, first of all, to Hakim Anayat Ullah v. Khalil C71lah Khan and another (A I R 1938. All. 432), in which .it was held that a decree for specific performance only declares the right of the decree‑holder to havc a transfer of the property covered by the decree executed in his favour, and so long as the sale deed is not executed in his favour, by the judgment‑debtor, or by the Court, the title to the property remains vested in the judgment‑debtor. He also referred to Rajani Kanta Das v. Purna Chandra Kunda (48 Cal. 298), in which it was held that where it was found not merely that the decree was obtained by perjured evidence but also that the claim was a false one and that the falsity of the claim was necessarily known to the party putting forward that claim the decree in question had been properly set aside and to Ram Chandra Prasad and another v. Firm Prabhu Lal Ramratan and another (A I R 1927 Pat. 183), in which it was held that after non‑service of the summons is proved it is open, to the Court to go into the question as regards the merits of the previous suit with the object of finding as to whether fraud was actually perpetrated, and as to whether if an opportunity had been given to the defendant he could have produced evidence which might have led the Court to come to a different decision. He admitted that the onus of proving that the previous decree had been obtained by fraud rested on the plaintiff, but contended that, bearing in mind all the circumstances of the case, the lower Appellate Court should have held that that onus had been discharged. He contended further that the failure on the part of that, Court to apply its mind to the proved facts vitiated its findings and, therefore this Court would be justified in reviewing the whole evidence and upsetting the finding of fact arrived at by the lower Appellate Court. In my opinion, there is considerable force in the con tentions raised by the learned counsel and, as proper attention was not paid by the lower Appellate Court to all the, facts and the circumstances which were brought out in the evidence, the finding on the question of fraud given by that Court cannot be considered to have concluded the matter, so as to prevent this Court, in second appeal, from going into it.

14. When the case was remanded by the lower Appellate Court on the 5th April 1954, it expressed the opinion, that it was not understood how Nizam Dirt get over the difficulty that there was no sale deed in his favour, but had merely an agreement to sell contingent on the success of the litigation. The Court further remarked that several valid objections could be raised against the decree, which might either destroy the entire decree, as far as Abdul Majid was concerned, or may "set up" a possibility under which Abdul Majid may be declared himself not bound by that decree. The Court also observed that the copy of the judgment did not show how the difficulty about the' execution of the sale deed was got over and how Nizam Din was held entitled to the possession of the shop on the basis of a mere contigent agreement. None of these points was referred to, or discussed, in the judgment dated the 15th December 1955 and reversing the previous findings given by the same Additional District Judge it was held by him, in the subsequent judgment, that it had not been proved that any fraud had been committed on the Court in the former suit by the plaintiff (Nizam Din). The question whether Nizam Din could or could not, obtain a decree for possession without asking for a relief of specific performance went to the very root of the matter and without giving a clear finding, on this point, in favour of the respondent, the lower Appellate Court, in my opinion, was not justified in dismissing the plaintiff's suit.

15. With regard to the four specific allegations of fraud, the trial Court, as stated above, held that only one of those allegations, namely, that relating to the false statement of Muhammad Din, had been established, but the lower Appellate Court did not accept even that finding to be correct. Three of these allegations were disposed of by the lower Appellate Court in two short sentences by saying that :‑ "It was also rightly held that the decree cannot be set aside on the ground that it proceeded on a wrong allegation of facts. Similarly the decree cannot be set aside on the ground that a suit for possession could not have been brought without enforcing the agreement to sell. The only ground, therefore, which has‑ to be discussed is whether Muhammad Din was the real brother of Nizam Din, and whether he was fraudulently mentioned as a stranger ? Regarding the fourth allegation, namely, the non‑service of summons, the lower Appellate Court observed that as Ghulam Muhammad respondent himself had admitted that he was residing at Lalamusa, the appellant's allegation that he did not reside there, could not be accepted as correct.

16. It is, no doubt, true that Ghulam Muhammad respon dent had admitted in various documents executed by him that he resided at Lalamusa and did not mention Sargodha as being the place of his residence, but this fact alone could not necessarily lead to the. inference that he had been duly served. A reference to the plaint of the suit filed by Nizam Din against Ghulam Muhammad would show that it was stated therein that Ghulam Muhammad lived at Lalamusa, but to his address at that place was not given. On the first date of hearing, namely, the 30th April 1949, the Court passed an order that if the defendant cannot be served personally, or he refuses to accept service, a copy of the summons should be affixed on the outer door of his house. On the second, date of hearing, namely, the Ist June 1949. On the basis of a report to the effect that Ghulam Muhammad had refused to accept service of the summons, it was ordered that a copy of the summons be sent to him by registered post and he may also be served by means of a pro clamation and by issue of a notice in a newspaper. On the next date of hearing, namely, the 4th July 1949, it was mentioned in the order of that date that the defendant had been serve d by means of a proclamation and by means of a notice issued in a newspaper. The original reports on the summonses issued to the respondent are not on the record, presumably, because the same had been destroyed and, therefore, it is not possible to find out under what circumstances he could not be personally served. No evidence was led at the trial to show that any attempt was made to serve him at his place of residence, if any, situated at Lalamusa. Though the initial burden of proof was on the appellant, as both parties had led evidence and as certain facts were within the knowledge of Nizam Din, it was in my opinion, his duty to bring some evidence on the record to show that though attempts were made to have Ghulam Muhammad personally served, either he was evading service, or he could not be found at his place of residence. No such evidence was placed on the record and as even his correct address was not given by Nizam Din respondent, it would not be unreasonable to infer that no serious attempt was made to serve him personally. This finding alone may not be sufficient to held that Ghulam Muhammad's non‑service was procured by fraud, but coupled with the other facts, to which I will presently refer, it was an important circumstance which the Courts below should have kept in mind in deciding the matters in issue.

17. With regard to the alleged falsity of the claim made by Nizam Din respondent, though it cannot be said that the claim was false in the sense that he made false allegations, it is apparent that his claim was false in the sense that he could not have asked for a decree for possession of the shop without adding a prayer for specific performance of the agreement. A reference to the agreement dated the 14th December 1948 would show that in accordance with its terms Nizam Din was not entitled to possession of the property immediately and what he could ask from the Court was a decree for specific performance of the agreement. He mentioned the relevant facts in the plaint, but at the end prayed for a decree for possession of the shop, which prayer, in the light of ‑ the rest of the allegations made in the plaint, was unintelligible. The Court did not apply its mind to the question whether, in these circumstances, a decree for possession could be passed in favour of Nizam Din, or not. Not having acquired the property and having only obtained an agreement under which he could ask for a deed of transfer from Ghulam Muhammad, Nizam Din could not, in my opinion, ask for a decree for possession and the Court had no justification in granting him such a decree.

18. The falsity of the statement made by Muhammad Din, brother of Nizam Din respondent, is apparent on the face of the record. It has been definitely established that he was real brother of Nizam Din, but this fact was concealed by him from the Court. He also disputed it during the trial of the present case. If the concealment of his real relationship with Nizam Din could not, in any way, affect the decision of Nizam Din's suit it is obvious that Muhammad Din would not have concealed this fact from the Court. It might be that the trial Court would have passed a similar order even if it had come to know that one of the witnesses, who was deposing to certain important facts, was real brother of the plaintiff, or it might be that the Court would have asked for further evidence from ' Nizam Din before passing the decree asked for. Whatever, might have happened the fact remains that a certain fact was deliberately suppressed and, coupled with the other circumstances of the case, it did, to same extent, support the allegations of fraud made by the appellant.

19. As to whether the agreement dated the 14th December 1948 between Nizam Din and Ghulam Muhammad respondent was or was not without consideration, there was on the record only the evidence of the two brothers, Nizam Din and Muhammad Din, and that of one Munshi Moman Khan. Nizam Din claimed to have been maintaining Ghulam Muhammad for a period of three months and to have borne all the expenses of the litigation, but no documentary, or other reliable evidence, was produced to show how much money was actually spent by him for the purpose alleged. According to Nizam Din's own statement the property in suit was worth Rs. 1,000 and what he paid in cash was only a sum of Rs. 100 as fee to one of the lawyers. The subject‑matter of the suit filed by Nizam Din was valued by him, in the plaint, at a sum of Rs. 500 though the appellant claimed to have purchased it for Rs. 2,

000. It is, therefore, apparent that either no consideration of the agreement dated the 14th December 1948 passed between Nizam Din and Ghulam Muhammad, or if any consideration was paid it was extremely inadequate.

20. In the circumstances explained, though it cannot be said definitely that if Ghulam Muhammad respondent had appeared and contested Nizam Din's suit, the latter would not have been successful in getting a decree for possession of the property, and the probability is that it would not have been a very easy task for Nizam Din to succeed in the suit. Realising the weakness of his case and the difficulties which he had to overcome, it was not improbable that Nizam Din resorted to the device of getting substituted service effected on Ghulam Muhammad, as that he may not come to know‑of the suit and the decree may be passed without any contest. Considering everything on the, record, therefore, I am of the opinion that the appellant had been able to prove satisfactorily that the previous decree had been obtained by Nizam Din by putting forward a false claim, by non‑service of the summons and by production of false evidence. The combined effect of all this was that fraud, in the legal sense, had been committed on the Court. The previous decree having been obtained by fraud must, therefore, be held to be void. This would not, however, mean that the appellant would be entitled to get immediate possession of the property in dispute, because if the decree obtained by Nizam Din is held to be void and not binding on the appellant, the suit filed by Nizam Din would still remain and unless he fails in the suit, Ghulam Muhammad would have no right to deal with that property and, consequently, Abdul Majid appellant would have no claim over it. The appellant can, therefore, be granted a part of the relief asked for by him, namely, that it be declared that the ex parte decree dated the 19th August 1949, obtained by Nizam Din respondent against Ghulam Muhammad respondent in suit No. 74 of 1949, relating to this shop, is void and of no effect against the rights, if any, of Abdul Maid appellant.

21. For reasons given above this appeal is accepted, the judgments and decrees of the Courts below are set aside, and the appellant is granted a declaration on the lines indicated above. It is further directed that after notice to the appellant and after hearing his objections, if any, suit No. 74 of 1949, filed by Nizam Din against Ghulam Muhammad, should be disposed of on merits. In the peculiar circumstances of this case, the parties shall bear their own costs throughout. K. B. A./A. H. Appeal accepted.