JUDGMENT

Rupchand, A J C - The plaintiffs have instituted this suit for a declaration that the ex parte decree passed against them by the Presidency Small Cause Court, Calcutta, and transferred to this Court for execution, is void and unenforceable on the ground of fraud. The particulars of fraud set forth in the plaint are contained in para. 5 which is as follows:

That the plaintiffs contain that the decree has been obtained ex parte against the plaintiffs by fraud without due service of the summons and without even offering summons to the plaintiffs, and is therefore liable to beset aside.

2. As pointed out by the Privy Council in Gunga Narain Gupta v. Tiluckram Chowdhry [1895] 15 Cal. 533 the use of general words "fraud" or "collusion" though unobjectionable is quite ineffectual to give a fraudulent colour to the particular statements of facts in the plaint unless the statements taken by themselves are such as to imply that a fraud has actually been committed. It is also an acknowledged rule of pleading that where fraud is charged against the defendant, the plaintiff must set forth distinctly, specifically and accurately the facts which constitute the alleged fraud. If the procedure indicated in Ganqa Narain's case [1895] 15 Cal. 533 of striking out the superfluous words "by fraud" is applied to para. 5 of the plaint, nothing remains except the allegation that the ex parte decree was obtained against the plaintiffs without duo or proper service of the summons being effected on them, or as the plaintiffs have put it, "without even offering the summons" to them, and the plaintiffs were therefore prevented from appearing in the Court at Calcutta and defending the suit.

3. Does this averment, in the first place, amount to fraud? And, in the second place, is if; sufficient in law to found an action to have a solemn decree passed by a competent Court declared void by another Court. I am prepared to assume that the plaintiffs if permitted to lead evidence would be able to place on the record sufficient materials to lead this Court to believe that the summons in question was not tendered to any of the partners or the manager or other authorized agent of the plaintiffs, so as to render the service of the summons good or proper. It appears from the certified copy of the proceedings of the Calcutta High Court that the service of the summons was held proved on the ground that the cover containing the summons by registered post to the address of the plaintiffs was returned by the post office as "refused" by the addressee. I am also prepared to assume that it would be difficult for the defendant to prove that the coyer was tendered by the postman to any authorized representative of the plaintiffs. Mr. Kodumal has not disputed that the description of the plaintiffs as given by the defendant in the heading of the Calcutta suit is correct. They are described as "Messrs. Ghullamally & Sons. Blphinstone Street, Karachi." A letter sent on their address should ordinarily be delivered to them at their place of business. Probably the rules of the Calcutta High Court permitted service of a summons being effected by registered post. That Court had indubitably jurisdiction to decide whether such service was effective or not There is no averment that the defendant induced the Court by false pretexts to effect service by post instead of or in addition to the usual mode of service prescribed under the Code.

4. There is nothing to show that the Court was in any way misled by the defendant in holding the service of summons as good service. If the Court was mistaken in its decision and was not misled by the defendant, there was no fraud practised on the Court.

5. As said in the lea ling case of the Duchess of Kingston [1776] 20 How. St. Tr 355 though it may be shown that a Court was misled, it is not permitted to show that the Court was mistaken. The plaintiffs' case must therefore fail on the first point.

6. The second point is equally fatal to the plaintiffs'