P L D 1963 Dacca 921 (PLP)

These are, according to the learned Subordinate Judge, fraud of the second type though not of the first type, and the fact that the plaintiff appeared in the money suits and filed written statements should not be any bar for setting aside the ex parte decrees, because, according to him, the true test in such a case would be whether fraud was practiced in relation to the proceedings in Court, and decrees were obtained by practicing fraud of some sort upon the Court and the parties. He is of the opinion that when the two money suits were filed on the basis of the Railway receipt, Exh. 1 to 1 (F), which and the endorsements thereon were impugned by the plaintiff of the present suits as fraud and fabricated, and in view of the fact that the plaintiff deposed against defendant No. 4 Tajul Islam in the criminal case where it was found to be forged and fabricated by the Criminal Court, it was apparent that there was no case of defendant No. 1 in those money suits against the plaintiff and the same were bound to be dismissed as against the plaintiffs.

14. Then the learned Subordinate Judge referred to the plaints of the money suits, Exhs. 2 to 2 (a), where the plaintiffs of those two money suits alleged that they had been put to loss by the gross misconduct of the Railway servants and so, according to the learned Judge, the real defendants where the Railway defendants and the plaintiff was merely a nominal defendant to introduce the history of the transaction.

15. Then he refers to the judgment in the criminal case, Exh. 3 (at page 43, Part 11 of Paper Book) and the finding of the learned Sessions Judge in the judgment that defendant No. 2 had no connection with the plaintiff and defendant No. 2 cheated the rice mills by forging the Railway receipt after stealing away the same from the Station Master. Relying on the findings of the Criminal Court the learned Judge held that after the judgment of the criminal case defendant No. 1 was not in a position to make out any case whatsoever against the plaintiffs in those two money suits and contrary to their plaint case.

16. Then the learned Judge referred to the two applications for adjournment, dated 25th February 1953, for examination of the signatures of the Station Masters by handwriting expert as the Railway defendants denied the same. So, according to the learned Subordinate Judge, these petitions clearly show that up to that time the case of defendant No. 1 was directed only against the Railway defendants, and they based their claim on the Railway receipts taking them to be genuine, and so defendant No. 1 had no case against the plaintiff even at the time of the second petition on the date of positive hearing. Then the learned Judge went on to consider the third petition which was filed on that date by the, plaintiffs of the two money suits joints given ap their claims against the Railway defendants Nos. 1, 2 and 5 to Money Suit No. 42 of 1949 and against defendants Nos. 1, 2, 5 and 6 of Money Suit No. 61 of 1949 after the disposal of the criminal case alleging that defendants Nos. 3 and 4 had stolen the Railway receipts in dispute from Railway Station, and bona fide belief the plaintiffs in the money suit:, took the Railway receipts signed and sealed by the Station Masters, Purbadhala and Jharia‑Jhanjail as genuine, and so the plaintiffs made defendants Nos. 1, 2, 5 and 6 parties to those suits, and they did not press their claim against the Railway defendants, and confined their claim only against defendant No. 3.

17. After considering the plaint case in the two money suits, the findings in the judgment of the criminal case, allegations in the two petitions for adjournment, and the statements and reasons in the third, that is, the joint petition giving up the claim against the Railway defendants, the learned Judge held that defendant No. 3 in those money suits was a nominal defendant, and to proceed against him was a complete change of front; that it was a fraud and was quite contrary to the finding of the Criminal Court; and the evidence on record and that the allegations in the third petition were totally false and fraudulent as they contain willful and gross misrepresentation of the fact which was a contrivance to‑keep the Court in ignorance of the real fact ; that it was a deliberate fraud practice upon, the Court who got a false impression that the plaintiff was a party to the criminal case and the Criminal Court's judgment was against the plaintiff and that "the Court was thus misled by defendant No. 1 and the Court might have the further impression that after the finding of the Criminal Court, the plaintiff had no case and he accordingly absented himself in the suits." Then the learned Subordinate Judge observed: "The real and material facts were that (a) the Railway defendants were the real defendants and the plaintiff was the nominal defendant; (b) that the plaintiff had no connection with defendant No. 2 ; (c) that the Railway receipts and the endorsements therein alleged to be made by the plaintiff were forged and fabricated; (d) that the finding of the Criminal Court was in favour of the plaintiff; and (e) that defendant No. 2 was the real culprit who had no connection with the plaintiff. These real and material facts were not brought to the notice of the Court by defendant No. 1 or by the lawyer of the plaintiff and these were fraudulently suppressed by defendant No.

1. These material facts, if not suppressed and if made known to the Court, would have caused the Court to give a different order from what it actually decided, and the result of the suit would have been otherwise, and the Court would have surely dismissed the suits against the plaintiff who do not appear to have had any dealings whatsoever with the rice mills any time." Even if these are correct, they may be good grounds for appeal against the decrees sought to be set aside. These observations of the learned Subordinate Judge look like the observations of a Court sitting on appeal against the judgment and order of a Court which passed ex parte decree. These are nothing but speculative findings of the learned Subordinate Judge. The plaints of the two money suits clearly show that in view of the facts and circum stances of the case, the plaintiffs of the money suits specifically prayed for decrees against the defendants whom the Court found liable and the prayer was for decree against the "proper defendants". We do not understand, how, in view of the facts and circumstances of the case of plaintiffs of the two money suits, it can be said that defendant No. 3 M. R. Khan, the plaintiff of the present suits, was treated as a nominal defendant and that no decree was asked for though in view of the Railway receipts the plaintiff had to file a case also against the Railway defendants. Even if all these are taken to be true, then it may only lead to show that the claims of the plaintiffs in the two money suits against defendant No. 3 were false and fraudulent, but that cannot be a ground for setting aside an ex parte decree by a separate suit as falsity of the claim or perjured evidence by which the decree has been obtained cannot be set aside in a new action. In the case of Patch v. Ward (8 M I R 91), Lord Cairns, L. J., stated the law as follows: --‑ "I apprehend the fraud, therefore, must be fraud which you can explain and define upon the face of decree, and that mere irregularity, or the insisting upon right be found to be over stated or over‑estimated, is not the kind of fraud which will authorize the Court to set aside a solemn decision which has assumed the form of a decree signed and enrolled." In the case of Flower v. Lloyd (L R 10 C D 327), James, L. J., observed: "Assuming all the alleged falsehood and fraud to have been substantiated, is such a suit as the present sustainable? That question would require very grave consideration indeed before it is answered in the affirmative. Where is litigation to end if a judgment obtained in an action fought out adversely between two litigants sui juris, and at arms length could be set aside by a fresh action on the ground that perjury had been given to interrogatories, or a misleading production of documents, or of a machine of a process had been given? There are hundreds of actions tried every year in which the evidence is irreconcilably conflicting, and must be on one side or the other willfully and corruptly perjured. In this case, if the plaintiffs had sustained on this appeal the judgment in their favour the present defendants, in their turn, might bring a fresh action to set that judgment aside on the ground of perjury of the principal witness and subornation of perjury; and so the parties might go on alternately ad infinitum. There is no distinction in principle between the old Common Law action and the Chancery suit, and the Court ought to pause long before it establishes a precedent which would or might make in number less cases judgments supposed to be final only the commence ment of a new series of actions. Perjuries, falsehoods, frauds, when detected, must be punished severely, but in their desire to prevent parties litigant from obtaining any benefit from such foul means, the Court must not forget the evils which may arise from opening such new sources of litigation amongst such evils not the least being that it would be certain to multiply indefinitely the mass of those very perjuries, falsehoods and frauds."

18. Relying on the above observations of Lord Cairns and James, L. JJ. and other decisions referred to in the judgment, the Division Bench of Calcutta High Court held in the case of Mahomed Golab v. Mahomed Solaiman (I L R 21 Cal, 612 (619)). "The principle upon which these decisions rest is that where a decree has been obtained by a fraud practiced upon the other side by which he was prevented from placing his case before the Tribunal which was called upon to adjudicate upon it in the way most to his disadvantage, the decree is not binding upon him, and that the decree may be set aside by a Court of justice in a separate suit, and not only by an application made in the suit in which the decree was passed to the Court by which it was passed, but I am not aware that it has ever been suggested in any decided case ; and in my opinion it is not the law that because a person against whom a decree has been passed alleges that is wrong and that it was obtained by perjury committed by, or at the instance of, the other party, which is of course fraud of the worst kind that he can obtain a rehearing of the question in a fresh action by merely changing the form in which he places it before the Court, and alleging in his plaint that the first decree was obtained by the perjury of the person in whose favour it was given. To so hold would be to allow defeated litigants to avoid the operation, not only of the law which regulates appeals, but that of which relates to res judicata as well, The reasons why this cannot be the case are very clearly stated by James, L. T. in the passage I have quoted, and it is because the reports in which those cases are to be fraud may not be assessible to same of the judicial officers in this country that I have quoted his remarks and those of Lord Cairns as fully as I have done."

19. The case of the plaintiffs in the money suits was that defendant No. 4 Tajul Islam was an agent of defendant No. 3 and that defendant No. 3 introduced defendant No. 4 to them as his agent, and on the instruction of defendant No. 3 money was paid to his agent defendant No. 4 and the fact of payment of money by cheque and by cash and receipt of the said money have never been disputed in any Court by anybody. It is surprising that the learned Subordinate Judge in order to find that the claims of the plaintiffs against defendant No. 3 were false and fraudulent, relied on the finding arrived at by the learned Sessions Judge in the criminal case which is not admissible in evidence except for a limited purpose. In support of this view he also referred to joint petition of the plaintiffs of the two money suits (Exh. 5, at pages 39, 40, Part II of the Paper Book in Appeal No. 35 of 1957) from where it appears that the plaintiffs gave up their claim against the Railway defendants stating amongst others that "after the finding of the criminal case against defendant No. 4 Tajul Islam that defendant No. 3/4 had stolen the R. R's. in dispute from the Railway Station etc.", as an evidence of misrepresen tation to the Court and willful and gross mis‑representation of facts which was a contrivance to keep the Court in ignorance of the real facts and of deliberate fraud practiced upon the Court who got a false impression that the plaintiff was a party to the criminal case and the Criminal Court's judgment was against the plaintiff. We do not agree. First of all, this statement was made by the plaintiffs in an application for giving up their claim against the Railway defendants from the ex parte order of the learned Subordinate Judge it is quite clear that the said application was never used as an evidence nor was it made the basis of the ex parte decree. We have already quoted the material portion of the ex parte order which is based on the evidence of P. W. 1 Anoo Mian and on Exhs. 1, IA to 1F, 1/1 lA/1 to 1F/1 and 2 and 2A, produced by the police Inspector as the plaintiffs had called for them and marked for the plaintiffs. The main object of the application Exh. 5 was for giving up of the plaintiffs claim against the Railway defendants. How can it be a fraudulent, willful and gross mis‑representation of fact which a contrivance to keep the Court in ignorance of the real fact and how it was a deliberate fraud practiced upon the Court and how it got a false impression that the plaintiff was a party to the criminal case and the Criminal Court's judgment was against the plaintiff, and thus the Court was misled by defendant No. 1, when the application was not relied on either by the plaintiffs of the money suits or by the Court in passing the ex parte decrees?

20. Secondly, even, if it created any impression, at best, it is a false evidence and cannot be said to have prevented the plaintiff either from placing his case before the Court or from appearing in the case, and the Court was kept ignorant of that.

21. Further, it appears the plaintiffs of money suits, on the date of hearing, filed application for adjournment, and when the Court refused 'their prayer for adjournment for the purposes, treating one of them as belated step on the 6th date of the peremptory hearing of the cases directing them to be ready at once, the plaintiffs of those suits had no other alternative then to give up their claim against the Railway defendants and to proceed against the rest on the allegation that the money was paid to defendant No. 4 agent of defendant No. 3, on the instruction of the latter. From these circumstances, we are unable to agree with the learned Subordinate Judge that there was a fraudulent and willful mis‑representation of the fact on account of the contrivance to keep the Court in ignorance of the real fact, and that it was a deliberate fraud practiced upon the Court who got a false impression that the plaintiff was a party to the criminal case and the Criminal Court's judgment was against the plaintiff and the Court was thus misled by defendant No.

1. Even if it is a fraud, it is not a fraud relating of the Court preventing the plaintiff to place his case or to appear in the case to enable him to set aside the decree by a new action.

22. Further, the observation of the learned Subordinate Judge that the Court might have the further impression that after the finding of the Criminal Court the plaintiffs had no case and he (defendant No. 3) accordingly absented himself in the suits is absolutely unwarranted and unjustified and even contrary to the case of the present plaintiff.

23. Further, we do not understand how can it be justified to come to a finding that the "real and material facts were that (a) the Railway defendants were the real defendants and the plaintiff was the nominal defendant; (b) that the plaintiff had no connection with the defendant No. 2; (c) that the Railway receipts and the endorsements therein alleged to be made by the plaintiff were forged and fabricated; (d) that the finding of the Criminal Court was in favour of the plaintiff; and (e) that the defendant No. 2 was the real culprit who had no connection with the plaintiff." How these are real and material facts, who is to bring them to the notice of the Court, how defendant No. 1 is 8 bound to bring them to the notice of the Court, and how these were fraudulently suppressed by defendant No. 1? These facts, if at all material, should have been made known to the Court by the present plaintiff, defendant No. 3 in those suits. If he has not done so and suffered an ex parte decree, that cannot be set aside by a separate suit, All these unwarranted and unjustified findings, not supported by any evidence on record. Even if they are true, cannot make a separate suit for setting aside the ex parted decree maintainable. It was the duty of Mr. M. R. Khan, defendant No. 3 in the two money suits to establish those facts, and not of the plaintiffs of those suits, and to bring it to the notice of the Court, and even if the plaintiffs failed to bring it to the notice of the Court, it may be said that the decree obtained by them is based on suppression of material facts or on perjured evidence, but that cannot be a ground for maintainability of a separate suit for setting aside the decree obtained by the plaintiffs of the money suits as these commissions or omissions never prevented defendant No. 3 in those two money suits from appear ing and placing his case before the Court.

24. Now coming to the first two points in the summary of the plaintiff's case by the learned Subordinate Judge in his judgment, though it is alleged in the plaint that there were fraud, collusion and contrivance between the plaintiff's lawyer and the defendants companies of the two money suits, by which the, plaintiff was systematically kept in ignorance about the progress of the suits and the date of positive hearing and his Pleader was prevailed upon and that due to these fraud and collusion no step was taken and no attendance report was made by the plaintiff's lawyer on behalf of the plaintiff throughout the protracted pro ceeding in the two suits and even on the date of positive hearing, we can simply say that except these vague allegations of fraud and collusion between the plaintiff's lawyer and the defendant companies, no evidence has been led to substantiate am of these allegations of fraud and collusion. The only witnesses examined in this case are the plaintiff himself as P. W. 2 on commission and P. W. 1 Hirendra Cha ndra Biswas, a karmachari of the plaintiff., who was working under the plaintiff since January 1955, though the money suits were filed in the year 1949 and the ex parte decrees were passed in 1953. P. W. 1 Hirendra Chandra Biswas is a formal witness. There is absolutely nothing in his evidence to support the allegations of collusion and fraud between the plaintiff's lawyer and the defendants companies. The relevant portion of the evidence of the plaintiff himself as P. W. 2 runs as follows (page 17, Part I of the Paper Book of Appeal No. 35 of 1957): "During the time of the criminal case of Tajul Islam I had a talk with Mr. S. Somani, Managing Agent of Nabajug Rice Mills. Mr. Somani told me at that time that when they have detected the real culprit they will not proceed with the suit instituted against me." Then at page 18 he has stated: "When I met Somani it was in 1952. I cannot say the month in which we met. I do not remember if any other person was present at the time of my meeting and talk with Somani. I have not written any letter to Somani after hearing about the decree." At line about 13 of the same page he has stated: "The charge of the previous suit which has been decreed against me was with my lawyer, Himangshu Babu. It was not in the charge of any of my employees. I do not know if any witness was summoned or cited on my behalf in the said suit. After I came back after filing the W. S., the Pleader did not write me any letter. I also did not 'write any letter. After return of my karmacharl, Hirendra from Chittagong and after the receipt of the information of the ex parte decree obtained by Somani against me I did not write any letter to my Pleader." At page 19 this witness has stated: "For the last 6/7 years I have been carrying on my business by looking into the papers at home in this manner. Two months before this date I was in Narayanganj for 6 months. I was there for a change. I also used to look after any business which I have there."

25. The only relevant statement he has made, on which Mr. Suhrawardy, the learned counsel for the respondent like the learned Subordinate Judge, relied on is the statement. "During the time of the criminal case of Tajul Islam I had a talk with Mr. S. Somani, Managing Agent of Nabajug Rice Mills. Mr. Somani told me at that time that when they have detected the real culprit they will not proceed with the suit instituted against me." Mr. Somani is the agent representing the Nabajug Rice Mills the plaintiff in Suit No. 42 of 1949. How can it be said that it is also a misrepresentation, if at all, on behalf of the plaintiff of Suit No. 61 of 1949? Nowhere in his deposition the plaintiff has stated that on account of this statement he did not attend the Court at Chittagong on the date or dates fixed for the peremptory hearing. On the other hand, it is quite clear from his deposition that after filing the written statement he did not go to Chittagong nor did he write any letter to his Pleader and his Pleader also did not write any letter to him.' From this deposition of the plaintiff it is quite clear that he was not taking any interest in those suits against him and he was negligent to the extreme, He says that he entrusted those cases to his Pleader. If he suffers any loss on account of the ex parte decree due to the negligence of his Pleader, his only remedy is to proceed against his Pleader. Simply because the Pleader did not write to him or did not appear, or appeared on the date of positive hearing and informed the Court that since the filing of the written statement he had no instruction, do not necessarily follow or go to show that he was in collusion with the plaintiffs of those two money suits. What his Pleader informed the Court is a fact proved by the plaintiff himself. No particulars of the collusion or fraudulent activity on the part of the plaintiffs of the money suits has been stated nor even suggested either in the plaint or in his deposition. Therefore, it appears that on account of sheer negligence of defendant No. 3 (present plaintiff) himself, who knew about those suits and appeared and filed written statements but subsequently did not care to take any step in the suits, the ex parte decrees were passed against him.

26. It is true that it is very difficult to prove fraud, collusion and contrivance by direct evidence; it can be proved by circum stantial evidence otherwise many a knave will escape. "Charge of fraud and collusion like those contained in the plaint in this case must, no doubt, be proved by those who make them proved by established facts or inferences legitimately drawn from those facts taken together as a whole. Suspicions and surmises and conjectures, are not permissible substitutes for those facts for those inferences, but that by no means requires that every puzzling artifice or contrivance resorted to by one accused of fraud must necessarily be completely unraveled and cleared up and made plain before a verdict can be properly found against him. If this were not so, many a clever and dexterous knave would escape (vide Satish Chandra Chattarji v. Kumar Satish Kanta Roy and others 28 C W N 327 (332) (P C)."

27. But in the present cases, no such circumstance has been brought out or proved by the plaintiff to justify an inference of collusion of the plaintiffs of the two money suits with the lawyer of defendant No.

3. It will be too much to infer a collusion simply from the fact that the Pleader represented to the Court that after filing the written statement he had no instruction and this fact has been amply corroborated by the admission of defendant No. 3 in his deposition that he had never been to Chittagong after the filing of the written statement and did not write any letter to his Pleader since then. If the defendant does not take any interest and his Pleader appears before the Court and represents that he has no instruction after filing of the written statement, certainly that does not lead to an inference of fraud on account of a collusion between the defendants companies and the plaintiff's Pleader. Therefore, it is impossible for us to hold in agreement with the learned Subordinate Judge, in the absence of any evidence direct or circumstantial, that there was fraud practiced upon the plaintiff or Court by the defendants companies in collusion with the plaintiff's Pleader preventing him from appearing in the case and placing his case on the date of hearing nor we can agree with the learned Judge in holding that there was a sudden change of front or a new case was made out in the money suits for which the defendant No. 3 (present plaintiff) ought ,to have been served with a notice and given an opportunity to meet that new case.

28. Further, it appears from the findings of the learned Subordinate Judge that he could not come to any definite finding on any matter and all his findings are preceded by the words "might have", e.g.: "Who might have kept silent in the belief that the cases were really against the other defendants and the defendant Rice Mills had no case against the plaintiff and the defendant Rice Mills had also assured the plaintiff to that effect in the mean time during the criminal case." Where is the assurance by the defendants to the plaintiff, we do not find nor the plaintiff said anywhere in his deposition that he did not appear in the case or did not take any interest in the case on any such assurance, rather his case is that he relied on his Pleader who betrayed him. The finding of the learned Sub ordinate Judge: "But here this sort of fraud was practiced after gaining over the plaintiff's Pleader to keep the plaintiff in ignorance of the cases, which stands on the same fotting as the fraudulent suppression of the summons. Actual positive fraud, meditated and intentional contrivance that were practiced by the defendant may thus be enumerated," cannot be supported by the evidence on record, and his findings are all illegal and unwarranted and based on pure surmises and conjectures.

29. Another additional ground for setting aside the ex parse decree given by the learned Subordinate Judge in the concluding portion of his judgment is that it is equitable because the parties would practically be relegated to their old position in the money suits which might now be tried with opportunity to the plaintiff to fight out the money suits on merits. We fail to appreciate this additional ground for setting aside the ex parte decree. He should have remembered that it is not an application under Order IX, rule 13 of the Code of Civil Procedure for setting aside the ex parte decree that on the decree being set aside the original suit would be restored to its file.

30. The question whether an ex parte decree having been set aside in a subsequent suit the original suit revives or not, came up before the Full Bench of Patna High Court in the case of Nirsar, Singh v Kishuni Singh (A I R 1931 Pat. 204). It has been held that it depends upon the pleadings. the issues and the actual decision in the subsequent suit and if upon an issue properly raised and tried in the subsequent suit it is held that the claim itself of the plaintiff in the original suit, was false and fraudulent the effect of such a decision is to put an end to that suit, and the suit cannot be revived and retried, and that if, on the other hand, the ex parte decree is set aside on the ground that it was obtained by suppression of summons by means of fraud and the defendant in the original suit was prevented from appearing in the suit and defending it by reason of fraud committed by the plaintiff, the first suit is revived and the plaintiff of that suit is entitled to have it tried and disposed of in accordance with law in spite of the fact that in the subsequent suit the Court went into the question as to the plaintiff's claim being false as a ground for holding that there was reason for him to obtain stealthily a decree behind the back of the defendant by fraudulently keeping him out of the know ledge of the suit and preventing him from defending the action. In the present case, from the statement of the facts of the cases it will appear that the two money suits were filed against the Railway defendants as well as against the plaintiff of the present suits and his agent, Tajul Islam. The plaintiffs of the money suits gave up their claims against the Railway defendants and confined their claim against defendant No. 3 (present plaintiff) and his agent defendant No.

4. The learned Subordinate Judge dismissed the two mosey suits against defendant No. 4, the agent of defendant No. 3, on the ground that he being an agent of a disclosed principal he was not liable. Now the present plaintiff asserts that he hats no connection with Tajul Islam who was not his agent and the claim against him was false and fraudulent. If the decrees are set aside on the ground that the claim was false and fraudulent as has been done by the learned Judge the suit cannot be revived.

31. There is a further difficulty. The plaintiffs filed money suits both against defendant No. 3 and his agent defendant No.

4. The suits were dismissed against defendant No. 4 as an agent of the disclosed principal. That order of dismissal cannot be set aside in these suits. What would be the position of the plaintiffs of the money suits if it is found on retrial that Tajul Islam was not the agent of the defendant No. 3 M. R. Khan, when the fact of payment to and receipt of money by defendant No. 4 by cheque and by cash has not been denied by any of the two defendants? If the plaintiffs in the re‑trial fails to prove agency of defendant No. 4, can be asked for a decree against defendant No. 4 Tajul Islam who received the money and against whom the suits were dismissed? Certainly not. Therefore, the learned Subordinate Judge, it appears totally misconceived the law both in respect of maintainability of the suit and the revival of the suit after setting aside the ex paste decree. In this view of the matter, we think the points raised by the learned Advocate for the appellants that the suits are not maintainable is of substance, and there was no necessity of serving any notice of giving up the claim of the plaintiffs in respect of some of the defendants and the plaintiff has failed to prove any collusion or contrivance as alleged by him.

32. It is contended by Mr. H. S. Suhrawardy, the learned counsel for the respondent, that the findings arrived at by the learned Subordinate Judge as to the fraud and fraudulent contrivance which prevented the plaintiff from appearing and placing his case before the Court and of the fraud practised upon the Court are findings of fact and should not be interfered in these appeals In support of this contention the learned counsel has referred to the case of W. J. Rees v. John Young (66 I C 745 (758)), and the case of W. C. Macdonald v. Fred Latimer and others (A I R 1929 P C 15). We are unable to accept this contention of the learned counsel as sound. It is no doubt true, where the question for consideration for the appellate Court is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral evidence adduced in the case, the appellate Court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in Court. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is and it is nothing more than a rule of practice‑‑that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special features about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact. The appellate Court is wrong in thinking that it would detract from the value to be attached to a trial Judge's finding of fact if the Judge does not expressly case his conclusion upon the impressions he gathers from the demeanor of witnesses. The duty of the appellate Court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial Court arrived at or whether there is an element of improbability arising from proved circumstances which, in the opinion of the Court, out‑weighs such finding [vide A I R (38) 1951 S C (Ind.) 120).

33. In the present cases, it is not so much the question of findings of fact based on oral evidence as the misconception and mis-appreciation of law as to the maintainability of separate suit to have a decree set aside the total absence of evidence of fraudulent collusion and contrivance between the defendants and the plaintiff's Pleader in the two money suits.

34. In the present case the only statement on which Mr. Suhrawardy relies is the statement of the plaintiff himself. There is no evidence that Mr. Somani and the plaintiff deposed in the criminal case on the same date nor is there any evidence to show that they at all met in course of the criminal case and that Mr. Somani made any such statement to the plaintiff, and on account of such statement the plaintiff did not appear in the suits against him.

35. Mr. Suhrawardy next contends that this statement of the plaintiff has not been rebutted. There is no question of rebutting the statement or challenging it. Question is what is the evidentiary value. It is an uncorroborated statement of the plaintiff himself. In the circumstances, it is very difficult to believe that Mr. Somani has express his opinion that he would not proceed against the present plaintiff, defendant No. 3 in the money suits, when it was said to have been found by him that the Railway receipts were forged and his case against the Railway was not likely to stand. The plaintiff further admitted that he did not remember whether any person was present at the time when Mr. Somani made this statement. Therefore, it is very difficult to believe the uncorroborated statement of the plaintiff and this aspect of the matter the trial Court has not taken into consideration. Even if it is believed that Mr. Somani said so, how it improves the position of the plaintiff who has not proved or even suggested that on account of such statement of Mr. Somani he did not appear in the suits? More or less, it appears that the trial Court was misled by the head‑line of the report in 4 D L R 636, and was swept away by his findings, as it appears from the judgment, that the claim of the plaintiffs in the two money suits could not have been substantiated in view of the findings of the Criminal Court, and he concentrated his attention to the falsity of the claim as the plaintiff has denied to have any connection with his alleged agent, defendant No. 2 Tajul Islam (defendant No. 4 in the money suits.) The result, therefore, is that both the appeals are allowed with costs, and the judgment and decrees of the learned Sub ordinate Judge are set aside and the plaintiff's suits are dismissed with costs. IDRIS, J.‑

I agree with my Lord the Chief Justice. Appeals allowed.