P L D 1962 Dacca 453 (PLP)

3. The defence of the landlords decree‑holders was that there was no fraud nor any suppression of summons and other processes.

4. The learned Munsif after a consideration of the evidence on record cache to the finding that it was true that service was not effected upon the females individually in so far the rent suit was concerned. He, however, found that the plaintiffs failed to prove that summons had been suppressed. In conclusion he found that no fraud of any kind was proved. The suit was accordingly dismissed.

5. On an appeal preferred by the plaintiffs, the learned Additional District Judge found that there was little evidence to show that Profulla had any authority to receive summons on behalf of the plaintiffs and their mother and it was also found that the alleged service of summons could not be regarded as a personal service upon the present plaintiffs. The learned Additional District Judge also found that a cunning device was adopted to secure a fraudulent decree as he took the view that the claim of price of paddy at the market rate was in excess of the stipulated fixed price of Rs. 7 for the same. He, therefore, found that the auction sale held in execution of the decree was of fraudulent nature and the sale was also liable to be set aside. The appeal before him was allowed and the decree passed in Rent Suit No. 1154 of 1951 of the Court of the Munsif, Bagerhat and the auction sale held in execution of that decree were set aside.

6. In the present second appeal Mr. U. K. Roy appearing on behalf of the defendants appellants has contended that the finding of the learned Additional District Judge to the effect that the decree was fraudulent or that the sale should be regarded‑ as fraudulent was supported by no reliable evidence on record. He has also contended that it might be a case of mere non- service but not a case of fraudulent suppression of summons. He has next contended that at any rate in the absence of a prayer for setting aside the sale on the ground of fraud, the learned Additional District Judge was wrong in setting aside the a said sale. He has further contended that in any view of the matter Profulla Kumar being a party to the compromise decree, even if found to have been vitiated by fraud, could not be set aside in its entirety.

7. Mr. B. K. Das appearing on behalf of the plaintiffs respondents has contended that there were elements of fraud which if pieced together would show that the landlords decree‑holders with the connivance of Profulla Kumar managed to secure a fraudulent decree and in execution of the same also managed to get the property in question. He has also contended that the sale held in pursuance of the decree which appears to have been vitiated by fraud should also be set aside although no specific prayer was made on behalf of the plaintiffs inasmuch as according to him, the entire plaint would show that the decree and the sale were attacked and not merely the decree alone. He has also contended that although the compromise decree was as between Profulla Kumar on one side and the landlords on the other yet there being antecedent fraud on the part of the plaintiffs landlords in that rent suit, the decree as a whole should be set aside.

8. On the point as to whether there has been any suppres sion of summons Mr. Roy has argued at length. He has referred to the peon's return Exh. `A' according to which Profulla Kumar who was defendant No. 1 in the rent suit was regarded as the authorised agent to accept the summons on behalf of the present plaintiffs. The return shows that Profulla Kumar having refused to give receipt ‑the service of the summons was effected by hanging. This leads us to the question as to whether there was a regular service as required by law. Mr. Roy has conceded that such a service could be placed, if at all, within the ambit of order V, rule 15 of the Code of Civil Procedure. Rule 15 is in the following terms: "Where in any suit the defendant is absent from his residence at the time when service is sought to be effected on him thereat and there is no likelihood of his being found thereat within a reasonable time, then unless he has an agent empowered to the summons on his behalf, service may be made on any adult male member of the family of the defendant who is residing with him" "Provided that where such adult male member has an interest in the suit and such interest is adverse to that of the defen dant; a summons so served shall be deemed for the purposes of the third column of Article 164 of Schedule I of the Limitation Act, 1908, not to have been duly served." Explanation. "A servant is not a member of the family within the meaning of this rule."

9. It may be noticed here that unless the defendant con cerned has any agent empowered to accept service of the summons on his behalf, service may be made on any adult male ‑member of the family of the defendant who is residing with him. In the present case it has been found as a fact that the plaintiffs who were minors at that time were not actually residing in the place or in the address where the summons was sought to be served. In fact these plaintiffs were not residing with Profulla Kumar in their paternal homestead. They removed for certain reasons to their maternal grand‑father's place. As such it was the duty of the contesting defendants in this case to show that Profulla Kumar could be regarded as an agent empowered to accept service of the summons on his behalf.

10. The learned Additional District Judge seems to have relied upon the evidence of P. W. 1 and P. W. 3 who has deposed to the effect that the plaintiffs were in bad terms with Profulla Kumar and that they could not put up in their peternal house owing to the troubles created at the instance of the latter. He has also referred to the evidence of P. W. 3 according to whom the plaintiffs being unable to stand torture by Profulla Kumar were living at P. W. 1's house. In view of this position, it is difficult to hold that Profulla Kumar could be regarded as an authorised agent to receive summons or that he had no adverse interest against the minors. The finding of the learned Additional District Judge to the effect that there is little evidence to show that Profulla Kumar had any authority to receive summons on behalf of the plaintiffs and their mother seems to be unassailable in these circumstances. It must, therefore, be held that no summons was served according to law upon the plaintiffs who were defendants in the rent suit. Even if it is regarded as mere non‑service of summons it has to be considered along with other facts and circumstances as appear from the evidence on record. The learned Munsif has observed that the plaintiffs have failed to prove that the summons were suppressed. The learned Additional District Judge, on the other hand, points that the plaintiffs in the rent suit were actuated with a motive to get a decree for an enhanced claim as price of paddy although it was stipulated to be a fixed price at the rate of Rs. 7 only besides Rs. 20 which was agreed to be the cash rent. The learned Judge has also referred to the circumstances that Profulla Kumar instead of contesting the rent suit, according to the written statement as filed therein preferred to have a compromise decree on the basis of the. Exaggerated claim of the plaintiffs in their rent suit. These and other circumstances, according to the learned Judge, were a pointer to the fact that there was a fraudulent device' on the part of the landlords and Profulla Kumar in having a decree as against the present plaintiffs as well, Mr. Roy has contended that mere falsity of claim cannot be a ground for holding that the decree was vitiated by fraud But to me it seems that it is not merely the falsity of clam which has been the basis of the finding that there was fraudulent suppression of summons but the fact that service was not effected at the address where the present plaintiffs were residing for the time being and the further fact) that the landlords were interested in getting a decree in excess of the stipulated rate as per kabuliyat Exhs. 1 coupled with the fact that the landlords defendant have not taken the stand that there was some mistake for which they could not be held responsible for an irregular service of summons would be enough for the purpose of holding that there was some fraudulent motive on the part of the landlords plaintiffs in the relevant rent suit. In the case of Kunjabeharl Chakravarty v. Krishnadhon Majumdar (44 C W N 912) it has been observed as follows at page 917: ‑ "In the case of ex parte decrees when the defendant had never' appeared the contrivance may consist in suppressing the summons. The fact of suppression would itself be the contrivance, and indeed a most effective contrivance for keeping the defendant in ignorance of his rights and from placing his case before the Court. Mere non‑service would not do. But when the fact of non‑service of summons is proved by the plaintiff in the later action, and the claim on which the decree was passed is proved to be a false one, the Court may and should ordinarily infer deliberate and hence fraudulent suppres sion, for the last‑mentioned circumstance supplies the motive for the suppression and indicates that the suppression is itself fraudulent Ram Chandra Prasad v. Firm Parbhu Lal Ramratan I L R 6 Pat. 458." Nowhere in the written statement or in the evidence or at any stage before the Courts below was it suggested that there was a mistake as to the address or descriptions of the particulars of the defendants in the rent suit. If it were a case of a mistake certainly that would not lead to an inference of fraud but the absence of any pleading or evidence in that way, rather, in view of the fact that the principal defendants have tried to justify the service of summons as being in accordance with law, it seems clear that the finding of the learned Additional District Judge to the effect that the decree was fraudulent, cannot be assailed. The learned Judge in arriving at his conclusions relied upon some material evidence and as such it is difficult to hold that the finding of fraud is based on no evidence.

11. With regard to the question as to whether the sale as well ought to have been set aside, it seems the plaintiffs came with a case of fraud in respect of the decree which was the found ation of the sale, and the plaintiffs were also interested in getting rid of such a sale. Mr. Roy has relied upon the provisions of order II, rule 2 of the Code of Civil Procedure and has argued that the plaintiffs having failed to ask for a relief by way of setting aside the sale, should be presumed to have omitted the same relief and as such they are precluded from asking for it again. But in view of Order VII, rule 7 of the Code of Civil Procedure it seems that it lies within the competence of the Court to grant an effective relief which may not be inconsistent with the main case as made out in the plaint. I am, therefore, of the opinion that although the relief for setting aside the sale was not formulated in precise terms in the prayer portion of the plaint yet there was nothing irregular on the part of the learned Additional District Judge in setting aside the sale as well in view of the fact that the decree which was the foundation of the sale was found to have been vitiated by fraud.

12. With regard to the other question as to whether Profulla Kumar being a party to the compromise decree should also get the advantage of setting aside the entire decree, it seems clear that the fraud in regard to the effecting of service of summons took place some time before the said compromise was arrived at between Profulla Kumar and the landlords concerned. There being fraudulent suppression of summons at least in regard to the present plaintiffs, it is difficult' to think that the rent suit could proceed in the manner as shown in the present case Unless there was good service according to law the rent suit could hardly proceed according to the provisions of the Bengal Tenancy Act, I am, therefore, inclined to thinly that there having been fraud prior to the incident of the compromise the whole proceeding was vitiated by such fraud and it is not just and proper that any person being a party to such fraud should be allowed to take advantage of the same: I am, therefore, of the opinion that the entire decree and the consequent sale should be set aside. For all these reasons the appeal must fail. The result, therefore, is that th s appeal is dismissed with costs. K. B, A. Appeal dismissed.