Present : Mr. Justice Middletbn and Mr. Justice
Wood Renton. July 29,1910

BUYZER v. ECKERT.

C. R., Colombo, 15,522.

Surveyor's license cancelled by District Court on petition of defendant Action in the Court of requests by surveyor against defendant for damages on the ground that defendant had placed false documentary evidence before District Court-Action not maintainable-Jurisdiction of inferior court to set aside decree of superior court on the ground of fraud-Evidence Ordinance, s. 44.

Plaintiff's license to practise as surveyor was cancelled by the District Court on proceedings instituted by the Surveyor-General on the petition of the defendant. Plaintiff subsequently instituted the present action in the Court of Requests, claiming damages against the defendant, on the ground that he had maliciously placed false documentary evidence before the District Court, and claiming also a declaration of the invalidity of the documentary evidence so adduced.

Held, that the action was not maintainable. An action cannot be prosecuted in an inferior court with the direct object of setting aside a decree of a superior court.

THE Surveyor-General, acting on a petition sent to him by the defendant charging the plaintiff-a surveyor-with gross misconduct in the preparation of a survey, instituted proceedings against the plaintiff in D. C, Colombo, 377, Special, for the cancellation of the surveyor's license. For the purpose of proving the inaccuracies of plaintiff's plan the defendant got the land surveyed by two surveyors and had the plans produced in evidence. The plaintiff's license was cancelled by the District Court. He thereupon brought this action in the Court of requests, Colombo, claiming damages against the defendant, on the ground that he maliciously placed false survey plans before the District Court in 377, Special, and claiming also a declaration of the invalidity of the documentary evidence so adduced.

At the trial the following issues, inter alia, were framed:

(1) Can a judgment of the District Court, affirmed in appeal by the Supreme Court, be impeached on the ground of fraud in an action inter partes in this Court, where such judgment is pleaded as res judicata by the party in whose favour it has been given?

(2) Can a plea of fraud be set up in such circumstances?

(3) Does an action for damages lie against the party, relying on the impeached judgment on an allegation that he had maliciously and fraudulently put false and misleading documents, through the acts of others, before the Court?

The learned Commissioner of requests (M. S. Pinto, Esq.) dismissed plaintiff's action, relying on Abdul Azeez Marikar v. Abdul Caffoor 1 and Templeton v. Louries.2 The plaintiff appealed. Wood Renton J., before whom the case was first argued, sent the case for argument before a Bench of two Judges.

Sansoni, for the plaintiff, appellant.-A decree which has been obtained by fraud practised on the Court may be impeached. But the present action is not one to set aside the decree, but for damages against the person who had practised fraud upon the Court and thereby caused the cancellation of the plaintiff's license as a surveyor. The defendant's plea of res judicata may be met by section 44 of the Evidence Ordinance, which enables the plaintiff to lead evidence to prove the fraud.

A court of inferior jurisdiction may treat as a nullity the decree of a court of superior jurisdiction if the decree of such court be impeached on the ground of fraud, and if the inferior court is otherwise competent to deal with the action. All that the appellant asks is that the decree of the District Court be ignored and not taken notice of for the purpose of this action. He does not ask the Court of requests to set aside the decree of the District Court, but only asks the Court of requests to state (if proved) that the District Court was imposed upon and a fraud practised upon i