P L D 1959 (W (PLP)

Kadirbux, respondent in this petition filed Suit No. 39 of 1951 in the Civil Court at Gambat, for possession by partition of some land alleging that the land in dispute belonged originally to Pario son of Qabul whose heirs he and the present petitioners were, and in that suit a decree was passed awarding the plaintiff 0/3/1‑1/3 out of a rupee. Against this decree there was an appeal to the District Judge which failed. The suit out of which this revision petition arises was filed by the present petitioners with a prayer that the decree obtained in the previous suit be set aside on the ground that it has been obtained by fraud. The allegations on which this plea is based will appear from paras 4, 5 and 6 of the plaint which run: 484 48_5 472_ and 4_67 "

4. That the land S. Nos. 0-31 ' 6‑21 ' 0‑5 ' 0‑13 situated in Deh Waryam Wandiar Taluka Nirwah originally belonged to deceased Lal Khan son of Dino the husband of Plaintiff and Gul Muhammad. Plaintiff No. 2 in equal shares. After the demise of Lal Khan some 15 years ago, the plaintiffs No. 1 and 2 being the only heirs inherited his 0‑8‑0 annas share. Thus the plaintiffs 1 and 2 became owners. Since then the plaintiffs are in possession and enjoyment of the above survey numbers.

5. The defendant who has or had no right, title or any interest in the S. Nos. shown in para. No. 4 of the plaint, knowingly with intent to defeat, deceive, and usurp the plaintiffs land together with other land S. Nos. 473, 474 , 475 , 476, 478, 479,and671, 5‑3 315 6‑21 5‑25 3‑16 5‑34 4‑31 situated in same Deh Waryam Wandiar ; put in a false and bogus claim for partition and possession in the Civil Court Gambat being Suit No. 38 of 1951, claiming 1/3rd share.

6. The plaintiffs being illiterate cultivators, through their ignorance and specially the plaintiff No. 1 being a poor old lady did not occur the fact of the fraudulent inclusion of the land shown in para. No. 4 in the said suit as a result of which the defendant's Suit No. 38 of 1951 was decreed as prayed for by him. The plaintiffs filed appeal in the District Court Khairpur being Civil Appeal No. 7 of 1953. The learned District Judge decreed the defendant's suit to the extent of 3‑1 I/3 out of lands shown in paras. No. 4‑5 above on 31‑10‑1953". One of the defences to the suit was that the suit is barred by the rule of res judicata by virtue of the Judgment in Suit No. 38 of 1951. The trial Court framed the following preliminary issues :‑

1. Whether the suit is res judicata by virtue of a Judgment in the Suit No. 39 of 1951 ? The trial Court while dealing with the question said "I find that the previous suit was between the same parties well represented by their pleaders in this Court as well as the District Court and the suit was for the partition of the land and the District Court decided it on merits in favour of the defendant and ordered the execution of the decree by this Court and the decree has been executed by this Court and such Revenue Officer's intimation received. The plaintiffs have never raised the plea of fraud in the District Court even. It was therefore the duty of the plaintiffs to go in appeal to the High Court to set aside the judgment and decree of the District Court but they have failed to do so. So the parties in this suit are the same as in the previous suit and the subject matter is also the same. The question about the land has been decided by the District Court. Under section 11, C. P. C. no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties. It, therefore becomes res judicata in this case and the Court shall not try this case. This Court cannot cancel the Judgment or decree of the District Court and proper remedy for the plaintiff is to approach the higher Appellate Court to reverse the judgment and decree of the lower Court. Since both the parties have contested the previous case on merits throughout, with respect to the same subject in dispute i.e. the same land, raising no plea of fraud, this case comes under the purview of res judicata". On appeal the learned District Judge said :‑ " . . . . . legal position is quite clear that supposing there was fraud, practised on the appellants in the prior suit and if they felt aggrieved by the decree passed in that suit it was open to them to raise such a plea in the "...lower Court in that suit or raised such plea in the District Court or go in revision or appeal to higher Courts. Since they did not do so, they cannot raise that plea by filing the present suit and cannot challenge the original decree and say it is nullity and be cancelled by separate suit." To me it seems strange contention to put forward in a case where the decree is being challenged on account of fraud that the matter is res judicata. If that was so no suit for setting aside a decree on the ground of fraud could ever lie. If the decree in fact was obtained by fraud the decree is no decree at all in the eye of law. Under section 44 of the Evidence Act any person who is sought to be bound by a decree is entitled to show that the decree was obtained by fraud. Even if this section did not exist I do not see how the plaintiffs could have been prevented from leading evidence to establish that it was obtained by fraud. Fraud vitiates all proceedings and nothing that is product of, fraud is of any validity. Faced with this situation learned counsel for the respondent contends that the lower Courts have given effect to the plea of res judicata because they considered the plea of fraud to be based only on the allegation that the previous suit was false to the knowledge of the plaintiff in that suit i.e., the present respondent. But neither of the lower Courts have said so and there was not before them sufficient material for saying so. I have already reproduced paras. 4‑6 of the plaint wherein the plea of fraud is contained. True these paragraphs do not specify the allegations on which the previous suit was based and therefore the exact plea does not become clear to one on a mere perusal of these paragraphs but it cannot at the same time b said that there is no plea in these paragraphs except that of the falsity of the previous claim. It will be observed that the present suit relates to four survey numbers only out of the whole of the property which was the subject matter of the previous suit and in para. 6 it is stated that "the fact of the fraudulent inclusion of the land shown in para No. 4 in the said suit" did not occur to the plaintiffs. I questioned learned counsel for the parties as to what were the allegations in the previous suit and neither counsel knew them. I then sent for the records of the previous suit and I found that it was based on an allegation that the property in dispute belonged to Pario son of Qabool and the parties were heirs of Pario. Read along with the record of that suit the position of the plaintiffs becomes clear to one. They are saying that whereas the previous suit related to property left by Pario the present defendant surreptitiously introduced in that suit the present Survey numbers which never belonged to Pario and which were the property of the plaintiffs themselves i.e. half belonging to Gul Muhammad and the other half to Mst. Izzat as the widow of Laldino to whom the other half share originally belonged. Now if it be correct that in the previous suit the present defendants purported to be fighting only a case with respect to the land left by Pario but with a fraudulent intention they mentioned some survey numbers in the plaint which never belonged to Pario but were the property of the present plaintiffs (defendants in that suit) it would be fraud which would vitiate the decree. It would not be just a case of putting up a false claim and supporting it by evidence that is untrue. It would be a case where on account of fraud the defendant is prevented from properly defending a suit. In a case which is‑being fought on one cause of action if property be introduced surreptitiously which has nothing to do with that cause of action and a decree be secured even in respect of that property the decree would be vitiated by fraud. The defendants do not know that property not included in that cause of action has been mentioned in the plaint nor is the Court aware of that fact and the Court passes a decree with respect to the property of the defendants themselves without knowing that it does so. In the suit on which the plea of res judicata is based the Court intended to pass a decree only in respect of the property which related to the previous cause of action i.e., the property left by Pario. I went through the records of the previous case in order to see whether there was some foundation for the plea of the plaintiffs that the survey numbers which are the subject matter of the present suit had never belonged to Pario and had been deliberately and fraudulently introduced. I found (I am only stating what prima facie appears to me and it will be for the lower Courts to go thoroughly into the matter) that survey numbers 472 and 467 did belong to Pario. Survey number 485 had belonged to Laldino as stated in the present plaint and had never belonged to Pario while S. No. 484 was not mentioned in the Revenue records at all though a decree in respect of it had in fact been passed. Some cases were quoted before me in support of the proposition that mere falsity of a claim or the falsity of the evidence which supports a claim cannot be the founda tion of a suit impeaching a decree on account of fraud. I have no quarrel with that proposition but as already stated this is not a case merely of a false claim being made. As the question as to what amounts to fraud which will vitiate the decree has been discussed during arguments I will state my views. Every representation made to a Court which is deliberately false amounts to a fraud and would vitiate a decree subject to the exception that a mere falsity of a claim to the knowledge of the person putting forward the claim would not be ground for setting aside the decree on the ground of fraud. Even where a claim is false there is a false representation made to a Court but this cannot by itself be a ground for setting aside a decree because if such ground was accepted there would be no end to litigation for every decree which does not proceed on some legal ground alone would be liable to be challenged on the ground that the party has deliberately put forward an untrue case. If it was untrue it would be untrue, at least in most cases, to the knowledge of the party. In the result this revision petition is accepted and the decree of the trial Courts are set aside and the case is remanded to the trial Court for a fresh decision in accordance with law. The Court will after allowing the appellants an opportunity of pro ducing the records of the earlier case and after allowing an amendment of the pleadings if necessary, determine the question as to what exactly is the plea of the appellants and will decide the question of res judicata in the light of what has been stated above. Costs shall be costs in the cause. A. H. Petition accepted.