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1916 Supreme(SC) 62
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD BUCKMASTER L.C., VISCOUNT HALDANE, LORD ATKINSON, LORD SHAW OF DUNFERMLINE, AND LORD PARMOOR.
RAM NARAYAN SINGH - Appellant
Versus
ADHINDRA NATH MUKERJI - Respondents
DECIDED ON : July 28, 1916.
Decided On : July 28, 1916.
Solicitor for petitioners: E. Dalgado.
Solicitors for respondent (appellant): Barrow, Rogers & Nevill.
A judgment delivered ex parte and a subsequent Order in Council may be set aside and the appeal restored if the party's failure to appear was caused by the fraud and misrepresentation of a person falsely claiming to be their legal agent.
Headnote:(A) Procedural Law - Recall of Judgment - Order in Council - Ex parte judgment - Fraud by agent - Petition for recall of judgment and Order in Council where a party was misled by a fraudulent agent who misappropriated funds and failed to enter an appearance, resulting in the appeal being heard ex parte - In circumstances where a party is prevented from appearing due to fraud by a person representing themselves as a legal agent, the judgment and subsequent Order in Council may be set aside and the appeal restored.
Facts of the case:
A party to an appeal paid sums of money to an individual who falsely represented himself as an agent for solicitors to conduct the case and enter an appearance. The individual misappropriated the funds and failed to provide instructions or enter an appearance. Consequently, the appeal was heard ex parte and allowed, and an Order in Council was issued. The party only discovered the fraud and the outcome of the appeal after the agent had absconded following prosecution for fraud in another matter.
Findings of Court:
The judgment and Order in Council ought to be set aside and the appeal restored.
Issues: Whether a judgment delivered ex parte and a subsequent Order in Council should be set aside when the failure to appear was caused by the fraud of a person falsely representing themselves as a legal agent.
Ratio Decidendi: The court held that the failure to enter an appearance was due to the fraudulent misappropriation of funds and misrepresentation by an agent, justifying the setting aside of the ex parte judgment to ensure the interests of justice and allow a rehearing.
Result: Judgment and Order in Council set aside and appeal restored.
Legal Category Hierarchy
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practice and procedure
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appellate procedure
- recall of judgment
- ex parte proceedings
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legal representation
- fraud
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appellate procedure
Judgement
Petition for the recall of a judgment of the Judicial Committee and an Order in Council, dated respectively May 12, 1916, and May 23, 1916.
The facts appearing from the petition may be shortly stated as follows On February 11, 1913, the Judicial Committee granted special leave to appeal from a decision of the High Court in Bengal. In June, 1915, the first respondent to the appeal learnt that the record in the appeal had been transmitted by the High Court to the Privy Council Office in London. He thereupon arranged with one B. W., who falsely represented that he was agent for a certain firm of London solicitors practicing in Privy Council appeals from India, that that firm should conduct the respondents case, and that they should enter an appearance and retain counsel. The first respondent on July 8, 1915, paid to B. W. Rs.675 to be
Law. Rep. 44 Ind. App. 87 ( 1916- 1917)
Ram Narayan Singh V. Adhindra Nath Mukerji 220
remitted to London for the purposes of the appeal, and was subsequently informed by him that an appearance had been entered. At a later date B. W. stated that he had forwarded the Rs.675 to London and that further money was required, and the first respondent thereupon paid a further Rs.375 to him. B. W. gave no instructions and misappropriated both sums. No appearance having been entered, the appeal was heard ex parte, and by a judgment delivered on May 12, 1916, was allowed. An Order in Council, dated May 23, 1916, was made in accordance with the judgment. Meanwhile, in April, 1916, B. W. was prosecuted in Calcutta for fraud in connection with another matter and absconded. The first respondent thereupon instructed a vakil in Calcutta, and on June 6, 1916, learnt what had taken place in reference to the appeal.
The respondents in July, 1916, presented the present petition praying that the judgment and Order in Council might be set aside and the appeal restored. In accordance with the usual practice, the Order in Council had been handed to the solicitors for the successful party and had been transmitted by them to the High Court.
1916. July 28. Sir R. Finlay, K.C., and Parikh, for the petitioners. De Gruyther, K.C., and Dube, for the respondent (appellant).
Their Lordships reported humbly advising His Majesty that the judgment and Order in Council of May 23, 1916, ought to be set aside and the appeal restored ; that the respondents (petitioners) ought to pay the costs of and incident to the application, in any event; and that the costs of the rehearing and the costs of the appellant upon the first hearing ought to be dealt with at the rehearing. An Order in Council was made on August 18, 1916, confirming the above report. (As to the circumstances in which the Board will allow a rehearing, see Rajundernarain Rae v. Bijai Govind Sing ( 1836) 1 Moo. P. C. 117, and Venk ata Narasimha Appa Row v. Court of Wards ( 1886) 11 App. Cas. 660. Judgment upon the rehearing was delivered on November 16, 1916. The order of the High Court was set aside, and certain questions were remitted to the trial judge for trial. The respondents were ordered to pay the appellants costs of the first hearing which had been thrown away, and no order was made as to the costs of the rehearing upon which each party was partially successful.)
