JUDGMENT
Raj Kishore Prasad, J.
1. This appeal, by defendant 1, which arises out of a suit for setting aside an ex parte decree, on the ground, of fraud, is from a judgment of reversal of the learned Additional Subordinate Judge, Chapra, who reversed the judgment of the first court, and decreed the plaintiff’s suit.
2. The facts are these: Defendant 1, the appellant as plaintiff brought a title suit, Title Suit No. 23 of 1952 in the court of the 3rd Munsif at Chapra against the plaintiffs respondents.
3. In that suit, the appellant claimed a declaration that the respondents’ right to redeem the zerpeshgi which was the subject matter of that suit, had been extinguished, because of the expiry of the statutory period of 60 years, and therefore, he also asked for confirmation of his possession.
4. The present plaintiffs were defendants 1 to 3 to the previous suit. The present plaintiff 3, then defendant 3, however died during the pendency of the present suit, and her name was expunged. The previous suit was decreed ex parte on the 11th September, 1952, against the present plaintiffs.
5. The plaintiffs therefore, brought the present suit for setting aside the aforesaid ex parte
decree on the ground that the then plaintiff, now defendant 1 appellant fraudulently got a false service report of summons on the plaintiffs filed in court, in collusion with the court peon, and as such, they could have no knowledge of the suit and fraudulently, thereafter, obtained an ex parte decree against them. The plaintiffs, here, further alleged that the claim of the present defendant in that suit was false as there was no zerpeshgi and he was never in possession as such.
6. The suit was contested by defendant lf who alleged that his claim in his former suit was true and that the summons was duly served on the present plaintiffs but they, in spite of having knowledge of the suit, did not choose to appear and allowed an ex parte decree to be passed against them. He, therefore, alleged that there was no fraud in obtaining the ex parte decree and as such, it cannot be set aside.
7. The trial Judge, who heard the suit in the first instance, held that the present plaintiffs had failed to prove non-service of summons in the former suit, and, that they had also failed to prove, any sort of fraud. He, therefore, did not go into the question of falsity or otherwise of the appellants’ claim in the previous suit. The plaintiffs’ suit, accordingly, was dismissed.
8. The plaintiffs, thereafter, took the matter in appeal, which was heard and decided by the learned Additional Subordinate Judge. He on a consideration of the evidence, held that the plaintiffs had succeeded in proving that summons was not served on them, and that a false service of summons was obtained by perpetrating fraud by defendant 1, the appellant. He further held that the appellant, who was the plaintiff in the previous suit, had strong motive to commit fraud and thereby to obtain a false service of summons, whereby to keep back the plaintiffs from having any knowledge about the suit, and, to deprive them of any opportunity of setting up their defence, in order to obtain an ex parte decree, because he observed that, if the Revisional Survey entry was correct, 60 years’ limitation under Article 148 of the Limitation Act had not yet expired till before the suit, and, as such, the suit brought in 1952, was premature. He therefore, in disagreement with the trial court, decreed the plaintiffs’ suit, and, set aside the ex parte decree.
9. On second appeal to this Court, the finding of the court of appeal below, that there was no service of summons on the plaintiffs and that there was fraudulent motive for suppressing the service of the summons on them, has been attacked by Mt. Kailash Ray, who appeared for the appellant, to quote his own words on the following grounds, (11 that the initial onus to prove service, even assuming that it was on the defendants, was discharged by them by the examination of the peon (D. W. 1) and, by the proof of the service report (Ext. A) and, therefore, thereafter, the entire onus was on the plaintiffs which they had failed to discharge; (2) that fraud Or want of knowledge of the plaintiffs had not been proved by any legal evidence; (3) that the real reasons given and the materials relied upon by the trial Judge. In coming to the conclusion that summons was served on the plaintiffs in the previous suit have not been considered by the court of appeal below before coming to a contrary conclusion, and, therefore, the judgment in appeal is not a proper judgment of reversal in accordance with law, and, (4) that the merits of the earlier case could not be made a substantive question in the present suit, and therefore even if the plaintiffs’ suit succeeds, and the original suit is revived and reheard on merits, the observations made in the present suit should nab affect the appellant in the previous suit.
10. The above contentions put forward on behalf of the appellants were combated by Mr. A.S. Sinha, who appeared for the plaintiffs respondents, and, he contended that the question of service of summons was purely a question of fact, and therefore, this Court cannot interfere with the finding of the court of appeal below, arrived at on a consideration of the evidence on the record, that no summons was served upon the plaintiffs and that there was fraudulent suppression of summons. He, further, submitted that, in a case like the present, where the court of appeal below has considered the evidence of both sides for determining the question whether summons was served on the plaintiffs or not, the question of onus was of no importance.
11. The question whether a suit lies to set aside an ex parte decree, and if so on what ground, and, what principle should govern such a suit, and on whom does the onus lie to prove non-service of summons, and, whether the court can enter into the merits of the previous claim in such a suit, and what is the effect of setting aside an ex parte decree, and, whether the previous suit revives, all these, and other allied questions arising and raised in the appeal, have by now been firmly established by a long series of decisions of this Court, and, of the Privy Council, and therefore, it is not necessary to examine the several Patna decisions, relied upon by the learned counsel for the parties, in support of their respective contentions, individually.
12. The cases, referred to at the Bar, were: Ramchandra Prasad v. Prabhulal Ramratan, ILR 6 Pat 458; 8 Pat LT 193: (AIR 1927 Pat 183) which was followed by Sir Fazl Ali J. (as he then was), in Jagdeo Prasad v. Bhagwan Hajjam, AIR 1938 Pat 135, the Full Bench decision in Nirsan Singh v. Kishuni Singh, 12 Pat LT 493: (AIR 1931 Pat 20(2)), Damodhar Prasad v. Ram Sarup Kumar, AIR 1923 Pat 327, Laganmani Kuer v. Ram Govinda, 1942 Pat WN 88: (AIR 1942 Pat 357). Bihari Lal Mitter v. Tanuk Lal Mander, AIR 1926 Pat 397, Badri Narain v. Parsoti Pasban, AIR 1937 Pat 384 Bisesar Pathak v. Phaguni Mahton, AIR 1948 Pat 33 and Kedar Nath v. Keshri Mull, AIR 1937 Pat 17.
13. The relevant decisions of the Privy Council, on the question under consideration, are Rajwant Prasad v. Ram Ratan. AIR 1915 PC 99: 42 Ind App 171; Hip Foog Hong v. H. Neotia and Co., AIR 1918 PC 184; Eliza F.T. Higgs Vatcher v. Henry Paul, AIR 1914 PC 184; T.B. Barret v. African Products Ltd., AIR 1928 PC 261 and Lakhshmanna v. Venkateswarlu, AIR 1949 P C 278: 76 Ind App 202.
14. I have read all the above mentioned decisions of this Court and of the Privy Council as also the decision of the Supreme Court in Yeshwant Deorao v. Walchand Ramchand, AIR 1951 S C 16, and, on a consideration, and review of the above authorities, the principles, which emerge, and which should apply to a suit, like the present and which would answer the questions raised at the Bar, may usefully be re-staled and summarised thus:–
15. It is a well established principle that a decree once passed cannot be challenged by a separate suit except on the ground of fraud practised on the Court. It is not open to suitors who have exhausted the remedies competent to them; and after final decree has been obtained against them, to institute a fresh suit or series of suits, the object of which is to declare that a decree, competently and with adequate jurisdiction obtained therein, is not applicable to them, although they are named in that decree. Such a suit is equivalent to a suit for the rescission and destruction of a former decree of a competent Court. That
rescission and destruction could be obtained only on the ground of fraud practised on the courts: AIR 1915 PC 99 : 42 Ind App 171.
16. Where a new trial is sought upon the ground of fraud must be both alleged and proved and the better course in such a case is to take independent proceedings to set aside the judgment upon the ground of fraud, when the whole issue can be properly defined, fought out, and determined: AIR 1918 P C 184.
17. By whatever procedure it is sought to overthrow a judgment on the ground of fraud, the fraud must be definitely alleged and its particulars unequivocally stated. AIR 1928 P C 261.
Full particulars of fraud ought to be given in the pleadings either as originally framed or as
amended for the purpose : AIR 1914 PC 184.
18. No doubt, decree passed by a competent Court cannot be set aside by a suit, simply on the ground that it is based on a false claim or on the mere ground that there was no service of summons or notice, but after the Court comes to a finding as in the non-service of summons or notice, it is open to it to go into the merits of the previous suit with the object of determining as to whether there was a motive for wilful or fraudulent suppression of the notice or summon in order to obtain a decree based on a false claim.
19. Where, therefore, the mere non-service of summons is not by itself sufficient to prove fraud, it is permissible for the Court to go into the merits of the original claim and if the claim is found to be false, to draw such inference as to fraud as the circumstances may warrant, AIR 1936 Pat 135.
20. The question as to the falsity of claim does not by itself constitute fraud. This question can be gone into only to make the case of fraud probable and to show why the fraud was committed. Fraudulent motive or design is not capable of direct proof; in most cases, it can only be inferred. In the very nature of things fraud is secret in its origin or inception and in the means adopted for its success. Each circumstance by itself may not mean much, but taking all of them together, they may reveal a fraudulent or dishonest plan: AIR 1951 S C 16.
23. The question as to whether, when an ex
parte decree in a subsequent suit is set aside, the original suit in which that decree was obtained is revived Or not depends upon the pleadings, the issues and the actual decision in the subsequent suit. 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.
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 plaintiffs, the previous 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 knowledge of the suit and preventing him from defending the action: 12 Pat LT 493 : (AIR 1931 Pat 204(2)) (FB).
22. Keeping in view the above principles, the question now for consideration is, whether the court of appeal below has decided the appeal following the aforesaid principles. The answer must be in the affirmative.
23. The first question raised centres round the question of onus. On this point I cannot do better than quote below the decision of the Privy Council in AIR 1949 P C 278 referred to before, as given in the placitum:
“What is called the burden of proof on the pleadings should not be confused with the burden of adducing evidence which is described as ‘shifting’. The burden of proof on the pleadings never shifts, it always remains constant. The initial burden of proving a prima facie case in his favour is cast on the plaintiff when he gives such evidence as will support a prima facie case, the onus shifts on to the defendant to adduce rebutting evidence to meet the case made out by the plaintiff, aS the case continues to develop, the onus may shift back again to the plaintiff. It is not easy to decide at what particular stage in the course of the evidence the onus shifts from one side to the other. When after the entire evidence is adduced, the tribunal feels it cannot make up its mind as to which of the versions is true, it will hold that the party on whom the burden lies has not discharged the burden; but if it has on the evidence no difficulty in arriving at a definite conclusion, then the burden of proof on the pleadings recedes into the background.”
24. The finding of non-service of summons is attacked on the ground that the court of appeal below has proceeded on the assumption that the onus to prove non-service was on the defendant, and not on the plaintiffs. This, however, is not correct. It will appear from the judgment in appeal that the learned Judge has considered the evidence adduced by the plaintiffs first, and, then also the evidence adduced on behalf of the defendants, and, after a consideration of the evidence of both sides, he accepted the evidence given on behalf of the plaintiffs, and, disbelieved the evidence given on behalf of the appellant. That being the position, the question of onus, as observed by Das, J., in AIR 1948 Pat 83, in which the decision of Wort J., in AIR 1937 Pat 384 was distinguished is academic, and, has not in any way vitiated the finding arrived at by the court of appeal below. It is now well settled also by several decisions of the Supreme Court for instance, in Moran Mar Besselios Catholicos v. Thukalan Paulo Avira, AIR 1959 S C 31, that the question of burden of proof at the end of the case, when both parties have adduced their evidence, is not of very great importance and it loses much of its importance and the Court has to come to a decision on a consideration of all materials,
25. In the instant case, however, the court of appeal below has not at all lost sight of the fact that the onus was on the plaintiffs, in the first instance, and, the onus shifted to the defendant only after the plaintiffs’ evidence was accepted. In this view, therefore, the finding that summons was not served on the plaintiffs is not at all vitiated and the plaintiffs, in my opinion, have discharged their onus.
26. The second contention is equally unsubstantial. From the judgment in appeal, it is plain that the findings of fraud and want of plaintiffs’ knowledge of the former suit are based on legal and sufficient evidence. These findings, therefore, are not at all vulnerable.
27. It is also not correct to say that the court of appeal below has not considered the reasons and materials given by the trial court for coming to the conclusion that the plaintiffs had failed to prove non-service of notice on them in the previous suit. On reading the judgment of the two courts below, I find that the learned Additional Subordinate Judge has very elaborately considered all the reasons given by the first court, but, for reasons given by him, he was not in a position to accept those reasons, and, in doing so, it cannot be said that he acted illegally. It was open to the court of appeal below to reverse the finding of the first court after a consideration of the evidence and the reasons of the trial court, if they did not appeal to it. For these reasons in my Opinion, the third contention also has no merit.
28. The last question which arises for consideration is what would be the effect of setting aside the ex parte decree? In the present case no doubt the court of appeal below has gone into the question of the claim of the defendant appellant in the previous suit, but that it has done incidentally only to find out if there was motive on his part to suppress service of summons on the plaintiffs of the present suit. In this view, the original Title Suit No. 23 of 1952 certainly will now stand revived and it will be heard on merits. It is hardly necessary to say that whatever observations the court of appeal below has made regarding the plaintiffs’ claim in the previous suit, in the present suit, will not in any way affect or prejudice the determination of the question of the plaintiffs’ claim on merits in the previous suit on its revival.
29. The appeal, therefore, fails and is dismissed with costs.