Authored By : William Comer Petheram, S.C. Ghose

William Comer Petheram, C.J.

1. Early in the year 1892 a suit was brought by MahomedGolab, the present defendant, in the Small Cause Court of Rangoon, againstIsmail Khan and Mahomed Sulliman, the present plaintiff, on a promissory notedated the 21st of May 1891, made by Ismail Khan in favour of Mahomed Sullimanand by him endorsed to the plaintiff.

2. The suit came on for hearing on the 17th of February1892, when it appears from the record of the proceedings that Ismail Khanconfessed judgment and Mahomed Sulliman, the present plaintiff, admitted his endorsement,and a decree was made in the plaintiffs favour against them both. On the 15thof March 1892, Mahomed Sulliman petitioned the Small Cause Court to stayexecution on the ground that the decree had been obtained by fraud, and in hispetition stated that he was about to take proceedings to have the decree setaside, and such further or other proceedings as he might be advised. Thispetition was rejected with costs on the 25th of March, and the plaint in thepresent suit was filed on the 28th of the same month in the Court of theRecorder of Rangoon, The nature of the relief sought, and the stories both ofthe plaintiff and the defendant, are so fully and accurately described in thefirst three paragraphs of the learned Recorders judgment, that it is onlynecessary for me to refer to those paragraphs here. The learned Recorder thengoes on to say that he cannot believe the story told by the defendant, and thatthough the story told by the plaintiff is a remarkable one, he thinks on thewhole he has made out a case; but, if I understand him rightly, his principalreason for thinking so is that in his opinion the plaintiff had a good defenceto the action on the note, and the decree ought not to have been made againsthim in the first action on the merits.

3. The question whether a suit will lie to set aside adecree of a Court of Justice on the ground that it was obtained by fraud isdealt with in the following cases:

Raj Mohun Gossain v. Gour Mohun Gossain 4 W.R. 47 : 8 Moo.I.A. 91 was decided by the Privy Council in 1865. It was there held that adecree of an Appellate Court having been obtained after a compromise not toprosecute, the appeal was an adjudication obtained, not only with greatimpropriety but in effect by fraud and not binding upon the person who had beendefrauded.

4. In Patch v. Ward L.R. 3 Ch. 203 Lord Cairns, L.J.,states) the law as follows: "Now it is necessary to bear in mind what ismeant, and what must be meant, by fraud, when it is said that you may impeach adegree, signed and enrolled, on the ground of fraud. The principle on which adecree may be thus impeached is expressed in the case which is generallyreferred to on this subject- The Duchess of Kingstons case (2 Sm. L. C, 593,601), where the Judges, being consulted by the House of Lords, replied to oneof the questions : Fraud is an extrinsic collateral act, which vitiates themost solemn proceedings of Courts of Justice. Lord COKE says it avoids alljudicial acts, ecclesiastical or temporal. The fraud there spoken of mustclearly, as it seems to me, be actual fraud, such that there is on the part ofthe person chargeable with it the mains animus, the mala mens, putting itselfin motion and acting in order to take an undue advantage of some other personfor the purpose of actually and knowingly defrauding him. And that that is sois, 1 think, further illustrated by looking at the form of decree which thisCourt is in the habit of making when a bill to impeach on the ground of fraud adecree signed and enrolled is successful. In Carew v. Johnston 2 Sch. &Let., 308 Lord REDESDALE made a declaration in these words: Declare that theseveral decrees and proceedings in the said cause instituted by the said latedefendant, John Pine, deceased, against the said Thomas Pyke, deceased, andothers, appear to have been erroneous and unjust, and to have been fraudulentlyobtained and had by the said John Pine, and by the defendant Johnston (who wasthe assignee of the said John Pine of the benefit of such suit, and the personreally interested therein) by taking advantage of the real imbecility of mindof the said Thomas Pyke, and the embarrassed state of his affairs in Ireland,and the negligence and misconduct of those who, by reason of the incapacity ofthe said Thomas Pyke, took upon them the care and custody of his person andfortune, and treated him as a person of unsound mind and incapable of managinghis affairs, without, obtaining any authority to do so by suing out anyCommission either in England or Ireland in the nature of a writ to inquire ofthe idiocy or lunacy of the said Thomas Pyke. I apprehend the fraud,therefore, must be fraud which you can explain and define upon the face of adecree, and that mere irregularity, or the insisting upon rights which, upon adue investigation of those rights, might be found to be overstated oroverestimated, is not the kind of fraud which will authorise the Court to setaside a solemn decision which has assumed the form of a decree signed andenrolled."

5. In Flowery Lloyd (L.R. 10 Ch. D. 327) decided on appealby JAMES, BAGGALLAY and Thesiger, L.JJ., the suit was dismissed on the groundthat the fraud was not proved, but JAMES, L.J., on his own behalf and that ofTHESIGER, L.J., said: "Assuming all the alleged falsehood and fraud tohave been substantiated, is such a suit as the present sustainable Thatquestion would require very grave consideration indeed before it is answered inthe affirmative. Where is litigation to end if a judgment obtained in an actionfought out adversely between two litigants sui juris and at arms length couldbe set aside by a fresh action on the ground that perjury had been committed inthe first action or that false answers had been given to interrogatories, or amisleading production of documents, or of a machine, or of a process had beengiven There are hundreds of actions tried every year in which the evidence isirreconcilably conflicting, and must be on one side or other wilfully andcorruptly perjured. In this case, if the plaintiffs had sustained on thisappeal 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 perjuryof the principal witness and subornation of perjury; and so the parties mightgo on alternately ad infinitum. There is no distinction in principle Betweenthe old Common Law action and the old Chancery suit, and the Court ought topause long before it establishes a precedent which would or might make innumberless cases judgments supposed to be final only the commencement of a newseries of actions. Perjuries, falsehoods, frauds, when detected, must bepunished and punished severely, but in their desire to prevent parties litigantfrom obtaining any benefit from such foul means, the Court must not forget theevils which may arise from opening such new sources of litigation, amongst suchevils not the least being that it would be certain to multiply indefinitely themass of those very perjuries, falsehoods, and frauds." BAGGALLAY. L.J.,said: "I desire to reserve for myself an opportunity of fully consideringthe question how, having regard to general principles and authority, it wouldbe proper to deal with cases if and when any such shall arise, in which itshall be clearly proved that a judgment has been obtained by the fraud of oneof the parties, which judgment, but for such fraud, would have been in favourof the other."

6. The principle upon which these decisions rest is thatwhere a decree has been obtained by a fraud practised upon the other side bywhich he was prevented from placing his case before the tribunal which wascalled upon to adjudicate upon it in the way most to his advantage, the decreeis not binding upon him, and that the decree may be set aside by a Court ofJustice in a separate suit and not only by an application made in the suit inwhich the decree was passed to the Court by which it was passed, but I am notaware that it has ever been suggested in any decided case; and in my opinion itis not the law that because a person against whom a decree has been passedalleges that it 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 worstkind, that he can obtain a rehearing of the questions in dispute in a freshaction by merely changing the form in which he places it before the Court, andalleging in his plaint that the first decree was obtained by the perjury of theperson in whose favour it was given. To so hold would be to allow defeatedlitigants to avoid the operation, not only of the law which regulates appeals,but that of that which relates to res judicata as well. The reasons why thiscannot be the case are very clearly stated by JAMES, LJ., in the passage I havequoted, and it is because the reports in which those cases are to be found maynot be accessible to some of the judicial officers in this country that I havequoted his remarks and those of Lord CAIENS as fully as I have done.

7. The question then is : Does it appear from the evidenceon this record that the plaintiff Mahomed Sulliman was prevented by the fraudof the defendant Mahomed Golab from placing his defence to this claim beforethe Small Cause Court -Judge on the 17th of February 1892 The story which theplaintiff himself tells is that one day Sulliman Molla, Ismail Khan, who wasthe maker of the note, the defendant, who was the person to whom the plaintiffhad endorsed it, and two other persons took him to the house of Mr. Vertannes,an Advocate at Rangoon, and the person who appeared for Mahomed Golab both inthe Small Cause Court and in the Recorders Court; and that when there he bythe direction of Abdul Kader and Sulliman Molla told Mr. Vertannes that he hadsigned the note, had received the money, and would confess judgment in Court;that about fifteen days after Molla Sulliman said "I am going to sueIsmail Khan, come and give evidence"; that afterwards Sulliman Molla,Abdul Kader and the defendant took him to the Court, and upon his complainingthat he had not received his subpoena ox subsistence allowance, Sulliman Mollasaid that the money was with the peon and that he would be paid, and paid himRe. 1 out of his pocket; that the case was called on and the Judge asked him ifhe had signed the note, and when he said he had, the interpreter said "ifIsmail Khan fails to pay, you will have to do so "; that he said he hadnot received any money but was merely asked to sign the document and did so;that thereupon all four cried out that a decree had been made against him, thathe himself cried out and the Judge turned him out of Court. He does not say whowere the four who cried out.

8. He then says that when he came out he spoke to AbdulKader and Sulliman Molla and said: "I have given evidence according toyour instructions and now I am told I shall have to pay," and they saidthat they would give him a registered release, and that he was not to be afraidif he kept quiet; that a little after Abdul Kader said "come home in agari will get money and write the release," and that this took place infront of the Registration Office where they took him; that then Abdul Kadercalled a gari, and he and the plaintiff drove to 33rd Street. Abdul Kadei wentto the house and left the plaintiff in the gari. He brought with him SullimanMolla and Ismail Khan. Then Abdul Kader sent the plaintiff, Molla Sulliman, andIsmail Khan to the back of the Pagoda to No. 3 guard house on the Kokul side tobring defendant to have a deed of release written as the plaintiff was crying;that they drove out there and went to Minegoang, and that Molla Sulliman andIsmail Khan told the plaintiff to wait and they would search for and bringdefendant. The plaintiff waited; that then a constable came to speak to thegariwalla and the constable asked why the plaintiff was crying, to which hesaid that a fraudulent case had been brought against him by two persons, andthat they had gone out and he was waiting for them. At about 5 or 5-30 thosepersons returned; that the plaintiff waited from 2 P.M. They left at 1 or 1-30and got back at 6. They all came together. He says that Sulliman Molla, AbdulKader, Ismail Khan, defendant, Fakir Ahmed and Saimulla, the writer of thenote, Mahomed Ismail and Fareed Sahib were all present when Ismail signed thenote; that after the decree was made, the plaintiff spoke to these people aboutthe release; he spoke to defendant. They did not give it to him and heconsulted a lawyer and instituted this suit.

9. The learned Recorder has accepted this story-first,because he thinks it is corroborated by other witnesses; and, secondly andmainly, as I understand him, because he does not believe that the defendantgave value for the note, and he has decreed the suit. I am unable to agree withhim in his view of the facts.

10. I cannot find in this record any evidence which wouldcorroborate the statement of the plaintiff, if he had made such a statementwhich is by no means clear, that he was induced by the fraud of the defendantnot to defend the action. There is no doubt independent evidence that he was atthe places he mentioned in the company of Abdul Kader and Sulliman Molla, butthis may quite well have been the case, and still there may be no truth in thestatement that he had been defrauded by the defendant. On this question of corroborationit will be useful to study the case of Queen-Empress v. Ram Saran I.L.R. All.306 in which Straight, J., collects the English cases.

11. It is an elementary principle that a person who chargesanother with fraud must himself prove the fraud, and it is very certain thatthe plaintiff is not relieved from this obligation because the defendant hashimself told an untrue story. In the present case it is quite likely that thelearned Recorder may be right in his view of the defendants evidence, butwhether that is true or not, I find myself unable to believe that of theplaintiff, and if he is not believed his case must fail. He admits that when itsuited him to do so he told Mr. Vertannes that he endorsed the note andreceived the money. He now says that was untrue, and that he did not receiveit. For my part I see no more reason for believing one story than the other,and I think it impossible to act on the unsupported testimony of a man whoadmits that he tells what ever story suits him at the moment without referenceto its truth.

12. For these reasons I am of opinion that the action cannotbe maintained, and that this appeal must be allowed and the suit dismissed withcosts in both Courts.

S.C. Ghose, J.

13. I agree with the Chief Justice in thinking that the suitshould be dismissed. Upon the evidence, I do not think it has beensatisfactorily proved that the decree of the Small Cause Court was obtained bythe fraud of the defendant Mahomed Golab.

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Mahomed Sulliman vs.Mahomed Golab (30.03.1894 - CALHC)