P L D 1964 (W (PLP)

Dates of hearing: 21st and 22nd January 1964. This revision petition raises an important question involving the interpretation of section 44 of the Evidence Act. The question rais?ed is as to whether one of the parties to a preliminary decree in a partition suit can in the proceedings for the final decree for partition by metes and bound call into question preliminary decree, on the ground that the decree was "obtained by fraud or collusion"? The facts which are not in dispute are that Mst. Hajira Bibi sued Abdul Aziz and Mst. Asmat Ara Begum for possession by parti?tion of her J share in the serai outside Bajori Gate, Peshawar City. On 26‑1‑56 the parties presented a compromise under which the plaintiff's right to J share in the serai and two garages in suit was admitted and the defendants withdrew their claim of Rs. 90,000 for the cost of improvements. It was further stipulated that the interest of the plaintiff in the suit semi and garages had been taken on lease by the defendant for a period of seven years with effect from 1st February 1956 up to 31st January 1963 at the monthly payment of Rs. 100 as evidenced by the registered lease deed dated 25‑1‑

56. The other condition agreed to by the plaintiff was that she would apply for the final decree only after tire expiry of the term of the lease. A preliminary decree in terms of the compromise was passed on 26‑1‑56.

2. On 31‑1‑63, after the expiry of the lease period, the plain?tiff moved the Court for final decree. Mst. Asmat Ara Begum, among other grounds, resisted the application on the ground that she was a perdahnashin lady and she had no knowledge of the preliminary decree and in case the plaintiff had obtained a preli?minary decree, that must have been obtained through fraud and mis‑statement, in particular when she was minor at that time. In other words, the preliminary decree was challenged on account of fraud. The learned Judge by his order dated 18‑5‑6>3 repelled all the objections raised by the defendant. With regard to the objection that the preliminary decree had been obtained by fraud the learned Judge thought that the preliminary decree could not be assailed on ‑the ground of fraud in the proceedings for final decree and that "the defendants shall have to institute a separate suit for getting the preliminary decree annulled on the basis of the allegation of fraud."

3. The objection that the preliminary decree was not binding on the defendant as she was minor at the time of the passing of the preliminary decree, was also repelled by the learned Civil Judge, on the ground that "she was sued as a major but at that time she did not object that she was minor. Therefore, at this stage she cannot be allowed to re‑open the same question which she should have raised

4. Khan Abdul Latif Khan, learned counsel for the petitioner, vehemently argued that in order to render the decree inoperative it was not necessary that it should be reversed or superseded by instituting a regular suit and that this could be done in the proceedings initiated on application for final decree.

5. Mr. Muhammad Afzal Khan Bangesh, learned counsel for the respondent No. 1 on the other hand, argued that the validity of the preliminary decree on account of fraud could not be called into question in application for final decree and that section 40 of the Evidence Act comes into play only when any judgment, order or decree is put forward as a bar for the Court from taking cognizance of a suit or "holding a trial" and this necessarily means that there should be two separate proceedings or suits, one in which the decree, judgment or order has been passed and which prevents the Court from taking cognizance of a suit or holding a trial and the second suit or the proceedings in which the judgment or decree was delivered by a Court not competent to deliver having been obtained "by fraud or collusion". In other words, it was argued that since the application for final decree is a continuation of the previous proceedings the requisite condition that there should be two separate proceedings or suits has not been fulfilled.

6. As the decision of the case mainly hinges on the language of section 44, it will be convenient here to read that section which is in the following terms:‑ "Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under section 40, 41, or 42, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it; or was obtain. ed by fraud or collusion." It will be manifest from the language of the section reproduced above that the party to a "suit or other proceeding" will show that the judgment, order or decree, which is relevant, under section 40, i.e., which would as a judgment inter partes, operates as res judicata or "holding a trial" (words used in section 40 of the Evidence Act), which may be set up by the adverse party was passed by a Court (1) which had no jurisdiction to pass it or (2) was obtained by fraud or collusion. In other words section 44 permits a party to a suit or a proceeding to snow that a judgment, decree or order which is conclusive was obtained by fraud. The real object behind section 44 is that the judgment, order or decree obtained by fraud from a Court are wholly vitiat?ed and has no binding force either on the Court passing it or bind the party against which it is passed. This being the real purpose of section 44 the very object of section 44 would be defeated if we were to accept the argument that the party against whom the judgment or decree was obtained through fraud should be com?pelled to institute another suit and not permitted to move the Court from which the judgment or decree was obtained through fraud by an application or by raising a defence in the proceedings initiated for passing the final decree that the decree or judgment was vitiated on account of fraud. I may borrow the words of their Lordships in Reg v. Saddlers' Co. ((1863) 11E R 1088), when they observed:‑ "Judgment or decree obtained by fraud upon a Court, binds not such Court, nor any other; and its nullity upon this ground, though it has not been set aside or reversed, may be alleged in a collateral proceeding." I may also quote the opinion of the renowned Jurist M. Monir, as his Lordship then was, at page 337 of the Book "Principles and Digest of the Law of Evidence", 4th edition:‑ "In order to render the earlier decree inoperative it is not necessary that it should be reversed or superseded by proceed?ings arising out of the same case. On the other hand, it may be collaterally superseded and rendered ineffective even by a some ulterior and independent proceedings " The above passage leaves no room for doubt that earlier decrees can be rendered inoperative "by the proceedings arising out of the same case". Again at page 338 he expressed himself, thus:‑ "Having regard to the wide terms of section 44, it cannot be said that it is not open to a Court other than the Court from which a grant or administration has issued, in cases of fraud or collusion, to deal with the matter and decide whether the grant was obtained by fraud or collusion." I may also profitably borrow the observations of Banerjee, J. in Rajib Panda v. Lakhan Sahah Mahapatra (1 L R 27 Cal. 11), when at page 23, his Lordship observed:‑ "No doubt the most natural course for a party to a judgment who seeks to impeach it for fraud, is to apply to the Court which pronounced the judgment to set it aside. But if it is conceded, as it must be, that in addition to that course a party may also institute a suit directly to set aside a judgment obtained against him by fraud, there is not much reason why he should not also be allowed to avoid its effect in any suit in which it is used as evidence, by showing in that suit that it was obtained by fraud. On the contrary, by allowing a party to do so, we avoid multiplicity of suit. To repeat the words of Mr. Justice Banerjee "we avoid multiplicity of suits" by interpreting section 44 so as to allow the parties in judgment in rem to apply to the very Court who passed a decree of judgment that the judgment and decree were vitiated on account of fraud rather than to require him to resort to separate proceedings.

7. Much was tried to be made out of the words "has been proved by the adverse party" occurring in section 44 in support of the view that the judgment or decree has to be proved by the adverse party only in a subsequent proceedings of suit. The argument in my view cannot be accepted, in that the word "prov?ed" can be appropriately used when one of the parties in a judgment inter partes under section 40 moves the Court that the judgment obtained by the opposite‑party is vitiated on account of fraud. There is another aspect of the case and it is that under section 97 of the C. P. C. the preliminary decree if not appealed against cannot be called into question in a proceeding initiated for final decree. (See the decision of Ram Narain and c another v. Ram Das and others (A I R 1929 All. 65)), wherein it was held that " Court cannot at the time of passing the final decree go behind its own preliminary decree where it has become final by not being appealed against." In the instant case the proceedings for obtaining final decree were initiated on the application of the plaintiff and the petitioner resisted the proceedings, among other grounds, on the ground of fraud, and to counteract this plea the plaintiff would be considered to have "proved" prelimi?nary decree as a bar against the objection being raised. This being the position, the provisions of section 44 of the Evidence Act are fully attracted, in that petitioner could put forward the plea that the preliminary decree was obtained as a result of fraud and as such the learned Judge was under obligation to adjudicate on the question whether or not the preliminary decree was vitiated on account of fraud. The learned Judge, however, as already indicated, refused to determine this question and had consequently refused to exercise jurisdiction which vested in him.

8. For all the foregoing reasons, I accept the revision peti?tion, set aside the order of the learned Civil Judge, and remand the case to the Senior Civil Judge, Peshawar, for decision accord?ing to law, as I am informed that the Civil Judge, First Class, has since been transferred and no one has been posted at his place. Costs to follow the event.

9. The parties are directed to appear in the Court of Senior Civil Judge on 1st July 1964. S. Q.??????????????????????????????????????????????????????????????????????????????????????????????????? Revision accepted.