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•Present : Mr. Justice Middleton and Mr. Justice Wood Renton.Jtdy 29,1910
BUYZER v. ECKERT.
G. R., Colombo, 15,522.
Surveyor's license cancelled by District Court on petition of defendant—Action iff the Court of Requests by surveyor against defendant fordamages on the ground that defendant had placed false documentaryevidencebeforeDistrictCourt—Action not maintainable—Jurisdic-
tion of inferior court to set aside decree of superior court jnt the.ground of fraud—Evidence Ordinance, s. 44.
Plaintiff's license to practise as surveyor was cancelled by theDistrict Court on proceedings instituted by the Surveyor-Generalon the petition of , the defendant. Plaintiff subsequently institutedthe present action in the Court of Bequests, claiming damagesagainst the defendant, on the ground that he had maliciously placedfalse documentary evidence before the District Court, and claimingalso a declaration of the invalidity of the documentary evidence soadduced.
Held, that the action was hot maintainable. An action cannotbe prosecuted in an inferior court with the direct object of settingaside a decree of a superior court.
HE Surveyor-General, acting on a petition sent to-him by thedefendant charging the plaintiff—a surveyor—with gross mis-
conduct in the preparation of a survey, instituted proceedings againstthe plaintiff in D. C., Colombo, 377, Special, for the cancellation ofthe surveyor’s license. For the purpose of proving the inaccuraciesof plaintiff’s plan the defendant got the land surveyed by twosurveyors and had the plans produced in evidence. The plaintiff’s .license was cancelled by the District Court. He thereupon broughtthis action in the Court of Bequests, Colombo, claiming damagesagainst the defendant, on the ground that he maliciously placedfalse survey plans before the District Court in 377, Special, andclaiming also, a declaration of the invalidity of the documentaryevidence so adduced.
At the trial the following issues, inter alia, were framed :—
Can a judgment of the District Court, affirmed in appeal bythe Supreme Court, be impeached on the ground of fraudin an action inter partes in this Court, where-such judgmentis pleaded as res judicata by the party in whose favourit has been given?
' (2) Can a plea of fraud be set up in such circumstances?
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Does an action for damages lie against the party, relying onthe impeached judgment on an allegation that he hadmaliciously and fraudulently put false and misleadingdocuments, through the acts of others, before the Court?
The learned Commissioner of Bequests (M. S. Pinto, Esq.) dis-missed plaintiff’s action, relying on Abdul Azeez Marikar v. AbdulCaffoor 1 and Templeton v. Louriet.* The plaintiff appealed. WoodBenton J., before whom the case was first argued, sent the case forargument before a Bench of two Judges.
San8oni, for the plaintiff, appellant.—A decree which has beenobtained by fraud practised on the Court may be impeached. Butthe present action is not one. to set aside the decree, but for damagesagainst the person who had practised fraud upon the Court andthereby caused the cancellation of the plaintiff’s license as a sur-veyor. The defendant’s plea of res judicata may be met by section44 of the Evidence Ordinance, which enables the plaintiff to leadevidence to prove the fraud.
A court of inferior jurisdiction may treat as a nullity the decreeof a court of superior jurisdiction if the decree of such court beimpeached on the ground of fraud, and . if the inferior court is other-wise competent to deal with the action. .All that the appellant asksis that the decree of the Distriot Court be ignored and not takennotice of for the purpose of this action. He does not ask the Courtof Bequests to set aside the decree of the District Court, but onlyasks the Court of Bequests to state (if proved) that the DistrictCourt was imposed upon and a fraud practised upon it. Counselcited the following authorities:Sanjiva Bow’s Civile Procedure
Code, vol. I., p. 201; Amir Ali’s Evidence Act, pp. 286 and 288;Nistarini D'assi v. Nundo Lall Bose;3 Rajib Panda v. Lakhan SendhMahapatra;* Barkat Vn Nissa v. Fazl. Haz et ,al.;s Bansi Lai v.Dhapo;• Kriahnabhupati v. Ramamurti;7 Hubibhoy v. Cassimbhoy;*Naick v. Naick;3 Khagendra Nath Mahata v. Prau Nath Roy;10 RadhaRaman Shaha v. Prau Nath Roy.11
F. M. de Saram, for the defendant, respondent.—The plaintclearly shows that the object of the plaintiff is to get the decree of
the District Court set aside. He
in his plaint, avers that the decree 1 2 3 4
1(1908) 1 S. C. D. 76.
2(1900) 25 Bom. 230. .
3(1899) 26 Cal. 891 (898).
(1899) 27 Cal. 11 (13).
4(1931) 26 AU. 272.
11 (1901) 28
pleads the District Court decree
has been obtained by fraud, and
• (1902) 24 AU. 242.
■> (1892) 16 Mad. 198. ■
(1882) 6 Bom. 703 (707).
3 (1905) 16 Mad. L. J. R. 59.
10 (1902) 29 Cal. 395.
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claims damagees. The Indian cases quoted by the counsel for the July 29,1910appellant would apply if the judgment in the District Court action suyzer v.was not* referred to in the plaint, and was pleaded for the first timeEckert
by the defendant in his answers. Section 44 of the EvidenceOrdinance would in that case apply, and it would be open to the•plaintiff, after that judgment had been proved by the defendant, toshow that the judgment had been obtained by fraud. But in thepresent case section 44 has no applicability. Plaintiff bases hisclaim for damages on the result of the inquiry in the District Courtaction, and he seeks to show that the decree of the District Courtwas void on the grpund of fraud.
The defendant cannot in this manner set aside the judgment ofa superior court. So long as that judgment stands, it can bepleaded as res judicata; and the defendant, in his answer, did infact plead it as res judicata.
Plaintiff's remedy, it is submitted, should be either to institutean action in a court of concurrent jurisdiction to set aside the *decree of the District Court on the ground of fraud, or to apply tothe Supreme Court for restitutio in integrum.
In Flower v. Lloyd1 it was held that a separate action could bebrought to set aside the decree on the ground of fraud, or wherethere was no fraud, but discovery of fresh evidence, by a Bill ofBe view. Our Courts have recognized such actions being broughton the ground of fraud. (Perera v. Ekenaike2) The proceedingsby way of a Bill of Review would be analogous, it is submitted, toan application for restitutio in integrum.(Gooneratne v. Dingiri3
Sinnatamby v. Nallatamby,4 Silindu v. Akura.5)
Cur. adv. vult.
July 29, 1910. Middleton J.—
The plaintiff here brings his action in the Court of Requests,waiving any right he may . have to recover damages beyond theamount of the Court's jurisdiction, on the plaint alleging fraudand conspiracy in the preparation and use of two plans used againsthim by the defendant in certain proceedings in. the District Court,by the decree in which the plaintiff was struck off from the roll ofland surveyors. He nominally claims for damages, but it isperfectly clear, upon reading the plaint, that it. is directed to theannulling of the. aforesaid decree of the District Court.
. The plaintiff's counsel relied on section 44 of the Evidence Actand many Indian decisions, amongst which was a case cited atpage 201 of Sanjiva Row’s Indian Code of Civil Procedure, said there
1 11877) 6 Ch. D. 297.8 (1898) 4 N. L. B. 249.
* (1897) 3 N. L. B. 21.4 (1904) 7 N. L. B. 189.
6 (1904) 7 N. L. B. 296.
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July 39,1910 te be reported in 11 Calcutta Weekly Notes 579, to the effect thatB court of inferior jurisdiction is competent to declare a decree ofj. a superior court to be a nullity on the ground of fraud if x,cher-
Bwise it has jurisdiction to entertain the suit. The original report
Eckert could not be produced, but I strongly suspect that the case went nofurther than holding that if in an inferior court it was proved byevidence that a decree of a superior court set up against one of theparties was obtained by fraud. It was open to the inferior court tohold, as regards the parties to the action, that the decree of thesuperior court was not binding on them, and might be ignored.
I think, however, that this is a very different thing to holdingthat an action may be prosecuted in an inferior court with thedirect object of setting aside a decree of a superior court.
In the present case it seems to me that the plaintiff’s action hasnc other object than the avoiding of the decree of the District Court,by which he was debarred from practising his profession, while heseeks to veil his object by shrouding it in a claim for damages.Section 44 may equally support a case such as I have considered tobe the one in 11 Calcutta Weekly Notes, or an action directly broughtfor the purpose of annulling a decree on the ground of fraud orcollusion. Section 44 does not however give the power the plain-tiff’s counsel in effect contends . for, of bringing an action in aninferior court for the purpose of setting aside the decree of a superiorcourt. It may be done incidentally as I have indicated, but it isnot to be countenanced when directed obviously to. that object.The contention of counsel for the plaintiff is based on section 9 ofthe Indian Act of 1908, which is practically the same as section 11of Act 14 of 1882, the old Code; but even under it or the old CodeI doubt if any action can be maintained in an Indian inferior courtwhich has the object of setting aside a decision in an action obtainedin a superior court. The court must be one of concurrent juris-diction (26 Calcutta 898).
The proper course in such a case as this is laid down by this' Courtin Gunaratne v. Dingiri Banda1 and in Sinnetamby v. Nallatamby,2by proceedings by way of restitutio in integrum, or even, as I said inmy judgment in the latter case, an action in the District Court mightbe brought on the ground of fraud to set aside the judgment.
On the" ground that this action is brought for the purpose ofsetting aside a judgment of a superior court, I would hold that theproceedings do not lie in their present form, and would dismiss theaction with costs, without prejudice to any right the plaintiff mayhave to raise the question in the manner I have indicated, either bysubstantive action in the District Court for fraud or by way ofrestitutio in integrum.
"Where a decree has been obtained by fraud of one of the parties,the plea of res judicata inay be met with a replication alleging fraud> (1898) 4 N. L.349.* (1904) 7 N. L. R. 139.
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in its obtainment, and, as has been stated by Lord Walsingham in July 29,1910the Duches of Kingston's case,1 “ Fraud is an extrinsic collateral Wmnrimmract, which vitiates .the most solemn proceedings of Courts of Justice. ” j.
Bee also Indian Law Reports.1fyiyzerv
The appeal must be dismissed with all costs in this Court and the EekertCourt below.
Wood Renton J.—
This is an appeal against a judgment, of the Commissioner ofRequests, Colombo, dismissing an action brought by the plaintiiTt-appellant, who is a surveyor, in the Court of Requests, claimingdamages against the defendant-respondent, on the-ground that hehad maliciously placed false documentary evidence before theDistrict Court of Colombo, in special case No. 377 of that Court, .and claiming also a declaration of the invalidity of the documentaryevidence so adduced. The special ca6e to which I haye just referredconsisted of proceedings instituted by .the Surveyor-General on thepetition of the respondent for the cancellation of the surveyor’slicense, and it resulted, in fact, in that license being cancelled. Wewere informed by counsel at the argument that the appellant hadbrought the present action in the Court of Requests, reducing hisclaim for damages to an amount which would give that Courtjurisdiction, so as to save himself the expense of suing in the. DistrictCourt, or of applying to .the Supreme Court itself for restitutio inintegrum. The decree of the District Court, which was affirmed bythe Supreme "Court in appeal, cancelling .the appellant’s license,still stands unreversed. That being so, two questions arise forconsideration: (1) whether such an action as .the present will lie atall; and (2) whether it can be brought in a court of inferior jurisdic-tion. After careful consideration of all that was urged before us atthe argument of the appeal by counsel on both sides on this point, .
I think that while the appellant’s action sounds in damages, it ism substance an action to obtain a reversal of the decree of theDistrict Court in the special case. It would clearly have been opento the appellant to have applied to the Supreme Court on anallegation that the decree against him in .the special case1 had beenobtained by th fraudulent production of false evidence, for anorder of restitutio in integrum, and I am not prepared to say, on thematerials before me at present, that an action to set aside thedecree directly might not perhaps have been brought in a Courtwhose jurisdiction is • concurrent with that of the Court whichpronounced i.t. But I do not think that such ^ an action as this,-which is in fact, as the appellant himself stated in his petition ofappeal, .an action impugning the decree of the District Court in thespecial case, can be brought in a Court of Requests. No English
* Smith's Reading Cases, 9th edition 812/177.* (1882) 6 Bom, 703.
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authority was cited in support of the argument that such an actionwould' lie, and it seems to me that the provisions of section 44 ofthe Evidence Ordinance, and of all the cases cited to us under thatsection, as .to the right of any party to a suit or other proceedings,to show that any judgment, order, or decree, which is relevant underthe earlier sections of the Ordinance, and which has been proved bythe adverse party, was obtained by fraud or collusion, contemplatecases where that issue arises incidentally in a suit or proceeding,otherwise competent, and not where, as here, .the section is reallyone to. set aside the decree of a higher Court. It would be in-convenient in the highest degree if it were Competent for a Court ofBequests to entertain an action of .that hind, and I am glad to beable to come to the conclusion that section 44 of the EvidenceOrdinance confers upon it no power to do so. On these groundsI think that the present appeal must be dismissed with the costsof appeal and with all costs of the action in the Court below.
BUYZER v. ECKERT