Report No. 69
In one respect, the scope of fraud is uncertain, namely, as to perjury. Can perjury be treated as a species of fraud, and thus operate as a ground for questioning a judgment? Most courts take a negative view on the point, and rule out perjury as a ground for questioning a judgment under the head of 'fraud'.
16.80. The reasons for the negative view have been given by various High Courts, including Madras,1 Calcutta2 and Allahabad.3
1. L. Chinniah v. K. Ramanna, 1913 ILR 38 Mad 203; followed in Kadirvelu Nainar v. Kuppuswami Naicker, AIR 1919 Mad 1044 (1046) (Over-ruling ILR 29 Mad 179).
2. (a) Moruful Hug v. Surendranath Roy, (1912) 15 Ind Cas 893 (Cal)-Contra tRkshmicharan, 1911 ILR 38 Cal 936.
(b) Mohammed Doloub v. Mohammed Suleiman, 1894 ILR 21 Cal 612.
3. Janaki Kaur v. Laxmi Narain, AIR 1915 All 400.
16.81. The reasons were thus stated by Sadasiva Ayyar J., in a Madras case.1
"The passion for litigation, wherever it exists in this country, is likely to turn into almost incurable mania and the doctrine of res judicata would become practically useless if Lakshmi Charan Shaba v. Nur Ali, 1911 ILR 38 Cal 430, is followed in Indian Courts."
1. Kadirvelu Nainar v. Kuppuswami Naickar, 1919 Mad 1044 (1046).
16.82. Need for discussion.-
It should be noted, however, that the matter is not so simple, and there is scope for a different view in the matter. In fact, a different view has been taken-though it is in a minority.
16.83. Collateral action of "review".-
A brief historical discussion would be of interest. In equity, there was a collateral action, known as "action of review", by which even a judgment of a superior court could be questioned between the parties and set aside on certain grounds. The action was originally called "review of action concerning judgment".
16.84. As regards judgments of the common law courts, the Chancery courts, before the fusion of law and equity, found an indirect means of rendering a fraudulent judgment useless, namely, by issuing an injunction against the decree-holder, who had obtained the decree by fraud, restraining him from executing it.
16.85. Even after the merger of law and equity, the action of review is, in substance, taken as having survived, although the grounds on which review would be granted have been the subject-matter of some controversy, particularly in relation to the ground of false evidence. In several English cases, the judgments were reviewed and reversed1-2-3 on the specified ground.
1. Prestman v. Thomas, (1884) 9 Pr Divn 70 (210).
2. Scott & Alvarez's Contract (in re:), (1895) 1 Ch 596.
3. Burrs v. Anglo-French Banking Corpn., (1933) 49 Times Law Reports 405.
16.86. As late as 1914, text book writers on Chancery Practice devoted long sections1 to actions for review and actions to set aside a judgment of frau.- though the latter action is merely a species of the former.2
1. See Daniell's Chancery Practice, 8th Edn., 1924, pp. 1328, 1332, cited in Gordon Action: to set aside Judgments, (1961) 77 LQR 358 (360).
2. Gordon Actions to set aside Judgments, (1961) 77 LQR 358 (360).
16.87. Action to set aside judgment on ground of fraud-a species of review.-
It may also be noted that as late as 1946, an action was brought in the High Court to review a judgment on the ground of fraud1 though the action did not succeed on the merits.
1. Everett v. Brown, (1946) 175 Law Times Report 143.
16.88. Halsbury1 states the present law as follows:-
"A judgment, which has been obtained by fraud, either on the court or of one or more of the parties, can be impeached by means of an action which may be brought without leave and is analogous to the former Chancery suit to set aside a decree obtained by fraud.
"An action will lie to rescind a judgment on the ground of the discovery of new evidence which would have had a material effect upon the decision of the court."
1. Halstuffy's, 3rd Edn., Vol. 22, pp. 790, 791.
16.89. Position summed up by D.M. Cordon.-
A learned writer-D.M. Gordon K.C.1-has, after discussion the position, expressed the view that review of judgment by the action of review is permissible where there is new evidence, and states the law as follows:-
"Fraud as a ground for review is no exception to the rule that review can only be based on new evidence. This evidence, whether fraud is alleged or not, must be-
(a) evidence newly discovered since the trial;
(b) evidence that could not have been found by the time of the trial by exercise of reasonable diligence;
(c) evidence so material that its production at the trial would probably have effected the outcome; when the fraud charged consists of perjury;
(d) the evidence must be so strong that it would reasonably be expected to be decisive at a rehearing, and if unanswered must have that result."
Subject to these limitations, he is of the view that perjury could be a ground of attack.
1. D.M. Gordon K.C. Actions to set aside Judgments, (1961) 77 LQR 35 (76).
16.90. No change desirable.-
After some discussion, we have come to the conclusion that change is not desirable.