State of Kerala v. Alam Tapioca Pulvarisors — 1990 DIGILAW 391 (KER)

Judgment :- Plaintiff, State of Kerala, is the appellant in all these appeals. As.nos. 290, 294,295 and 297 of 1981 respectively arise out of O.S.No. 67,64,66 and 65 of 1976 on the file of the 1st Additional Sub Court, Kozhikode. As common question arises in all the above suits, they were tried jointly by the court below. The pleadings and reliefs sought for in all the suits are of the same pattern and therefore it is sufficient to refer to the pleadings and reliefs in one suit to understand the respective contentions of the parties and the reliefs claimed in all the suits and to avoid unnecessary repetitions of the contentions and reliefs in each suit. 2. In O.S.No.64 of 1976, plaintiff sought a decree canceling the judgment and decree in O.P.No. 534 of 1970 on the file of this Court, which was confirmed by the Supreme Court in so far as it relates to the refund of the amount, paid in excess. The material averments in the plaint in that suit are as follows: 1st defendant is a firm dealing in tapioca. Government by virtue of the powers conferred upon it under Clause 3(e)(iii) of the Essential Commodities Act, passed G.O. (MS) No.18/66/Food dated 15-4-1966 levying an administrative surcharge for the export of varying quantities of tapioca at the prescribed rates. 1st defendant exported tapioca in the years 1966 to 1970 and paid to Government, an amount of Rs.26, 332.50 as administrative surcharge on different dates. In 1970, 1st defendant filed O.P.No. 534 of 1970 before this Court seeking to quash the order levying administrative surcharge and to direct refund of the amount paid by them. In that petition, 1st defendant willfully and wrongly stated that the amount paid by them to Government by way of administrative surcharge was to the tune of Rs.1 lakh. The amount was not specified. This Court disposed of the original petition on 27-9-1971 quashing the levy and directing refund of amounts claimed by the petitioners therein. In the decretal order, the amount claimed by the petitioners was shown as Rs.1 lakh. The State filed an appeal before the Supreme Court, challenging the order passed by this Court, which was dismissed. This Court disposed of the original petition on 27-9-1971 quashing the levy and directing refund of amounts claimed by the petitioners therein. In the decretal order, the amount claimed by the petitioners was shown as Rs.1 lakh. The State filed an appeal before the Supreme Court, challenging the order passed by this Court, which was dismissed. While the appeal was pending, 1st defendant initiated contempt of court proceedings before this Court against the officers concerned for having failed to obey the directions for refund of the amount shown in the order. Under pressure of such coercive steps, the plaintiff deposited the amount shown in the above decretal order, viz. Rupees One Lakh bonafide believing that the same was the correct amount without verifying the correctness of the amount claimed. 1st defendant withdrew the same on 1-12-1972 hurriedly without allowing the plaintiff to go through the order passed by the Supreme Court, which was subsequently found to contain a direction that the amount should be withdrawn only on furnishing security. The main prayer in the Original Petition was to quash G.O.(MS) No. 18/66/Food dated 15-4-1966 and the prayer for refund of amounts paid by the petitioner was only consequential as is evident from the omission to specify the amounts paid and the general statement that the amount was to the tune of Rupees One Lakh. Because of this fact, plaintiff contested only the main prayer and bonafide believing that the consequential prayer for refund will be subjected to a further enquiry in case the main prayer was allowed, omitted to contest the correctness of the amount claimed to be refunded and consequently did not make any submission regarding that aspect in the counter statement filed in that behalf. It was under these circumstances that this Court allowed the main prayer quashing the order and directing refund of Rupees One Lakh contrary to the bonafide belief of the plaintiff. The statement of the 1st defendant in the Original Petition that they had paid an amount to the tune of Rupees One Lakh as surcharge is false. The actual amount paid was only Rs.26, 332.50 and the above statement by the 1st defendant was false to their full knowledge and belief, and was a fraud played on the court and on the State with a view to making an illegal gain by obtaining a decree by misleading the court. The actual amount paid was only Rs.26, 332.50 and the above statement by the 1st defendant was false to their full knowledge and belief, and was a fraud played on the court and on the State with a view to making an illegal gain by obtaining a decree by misleading the court. Plaintiff came to know about the deception played by them in the said proceedings only on 12-10-1972. The plaintiff was compelled to deposit a sum of Rs. One Lakh and the amount was illegally and unauthorized withdrawn by the defendants. Therefore, the order of this Court for refund of excess amount of Rs. 73, 667.50 is vitiated by fraud and misrepresentation and is not valid and that the plaintiff is entitled to the reliefs claimed in the suit. 3. Defendants in their written statement contended that the suit was not maintainable, that the relief ought to have been claimed in appropriate proceedings before this Court, that the lower court had no jurisdiction to interfere with an order passed by this Court in proceedings under Article 226 of the Constitution which merged in the order of the Supreme Court and that the plaintiff had no right under any provisions of law to move the court below to cancel the order of the High Court as confirmed by and merged in the order of the Supreme Court. On the basis of these averments, defendants contended that the suit was liable to be dismissed. 4. The court below found that there is no fraud or deception played by the defendants in getting a decree for refund of the amounts and that the total remittance alleged in the plaint cannot be accepted as correct and in that view of the matter, the suits were dismissed. 5. In these appeals, learned Advocate General has challenged the findings of the trial court. Learned advocate-general invited my attention to the following averments in paragraphs 3 and 4 of the plaint: "In the said petition, the 1st defendant willfully and wrongly stated that the amount paid by them to the Government as surcharge was "to the tune of Rs.1, 25,000/-. In these appeals, learned Advocate General has challenged the findings of the trial court. Learned advocate-general invited my attention to the following averments in paragraphs 3 and 4 of the plaint: "In the said petition, the 1st defendant willfully and wrongly stated that the amount paid by them to the Government as surcharge was "to the tune of Rs.1, 25,000/-. The amount was not specified at all." XX XX XX The prayer for the refund of the amounts paid by the petitioner was only consequential as is indicated from the omission to specify the amounts paid and the general statement that the amount paid was only "to the Rupees One Lakh Twenty-five thousand. Because of this fact, the plaintiff contested only the main prayer and bonafide believing that the consequential prayer for refund will be subjected to a further enquiry in case the main prayer was allowed, omitted to contest the correctness of the amount claimed to be refunded and consequently did not make any submission regarding that in the counter statement filed in that behalf. Under the circumstances when the Hon'hle High Court allowed the main prayer quashing the above G.O.MS.No.18/66/Food dated 15-4-1966 the consequential prayer for refund also followed automatically stating that the amount to be refunded is Rs.One lakh twenty five thousand contrary to the bonafide belief of the plaintiff." As submitted by the learned Advocate General in other cases also, the averments on this aspect are of the same pattern. In paragraph 5 of the plaint, it is stated that the statement of the 1st defendant that they had paid an amount to the tune of Rs. one lakh twenty five thousand as surcharge is false, that the actual amount paid by them is only Rs. 48,094.50, that the above false statement by the defendant is false to their full knowledge and belief, that the said statement is a fraud played on the court and on the State, and the opposite party to the case and calculated to defraud Government amounts and thus make illegal gain by obtaining a decree by mis-leading the court. It is also alleged that the petitioners/ defendants suppressed truth, that the amount paid is only Rs. 48,094.50 and misrepresented that the amount paid by them is to the tune of Rs. one lakh twenty thousand and thus managed to obtain a decree as regards that amount. It is also alleged that the petitioners/ defendants suppressed truth, that the amount paid is only Rs. 48,094.50 and misrepresented that the amount paid by them is to the tune of Rs. one lakh twenty thousand and thus managed to obtain a decree as regards that amount. It was further averred in the same paragraph that the plaintiff happened to deposit the amount as claimed by the 1st defendant before this court under circumstances as aforesaid and due to the fraud and deception played by him in the said proceedings and the plaintiff came to know about it only on 12-10-1972. It was averred that due to the fraud and deception played by the defendants on the plaintiff and on the High Court in the writ proceedings aforementioned, plaintiff was compelled to deposit a sum of Rs. 1,25,000/- which was illegally and unauthorized withdrawn by the defendants/and thus the order of the High Court in so for as it relates to the excess of Rs.76, 905.50 is vitiated by fraud and misrepresentation and therefore not valid and binding on the plaintiff and the same is liable to be cancelled. In paragraph 8 of the plaintiff, it is stated that the cause of action for the claim arose on 27-9-1971 when the decree was passed by this Court and on 1-12-1972 when the amount under the decree was withdrawn by the defendants and on 12-10-1972 when the fraud on the part of the defendants was known to the plaintiff and thereafter. Learned Advocate General also invited my attention to paragraph 7 of the written statement filed by the defendants, and pointed out that even here the defendant has not stated the exact amount paid and only averred that the allegation that the 1st defendant had deposited only a sum of Rs. 48,904.40 is not correct, that amounts had been deposited from time to time on different occasions over a period of about 6 years or more and that the plaintiff was at that distance of time only trying to take advantage of the fact that the defendants are not likely to be in a position to produce the old records and substantiate payments completely. Learned Advocate General submitted that the averment in the plaint that the defendants had not stated 'specified amount' has not been denied in the written statement. Learned Advocate General submitted that the averment in the plaint that the defendants had not stated 'specified amount' has not been denied in the written statement. Reference also may be made to paragraph 8 of the written statement, where it is stated that if the administrative surcharge paid by the 1st defendant was only the amount mentioned in the plaint, it is inconceivable that the plaintiff with its elaborate resources for checking every payment made would have conceded as correct the 1st defendant's statement that the amount was "to the tune of Rs. 1,25,000/-." Learned advocate-general however submitted that even in the written statement defendants have not stated any 'specific amounts' and only repeated what they stated in the Original Petition that the amount was to the tune of Rs. 1,25,000A. Learned advocate-general further argued that since the amount claimed was not a specified amount and the amount claimed was not an issue agitated in the original petition, the direction contained in the judgment of this Court in the O.P. for refund of the specified amount would not operate as res judicata. 6. Learned Advocate General placed considerable reliance on the decision in S. Kaprow & Co. Ltd. v. Macelland & Co. Ltd. (1948 (1) All. E.R.264). In that case, the Plaintiffs, brought an action against the defendants alleging breach of contract by delivering only 3,000 out of 5000 parachutes sold by them to the plaintiffs. Later, they ammended their statement of claim by adding after the claim for damages for, alternatively 7,600 pounds as money had and received by the defendants to the use of the plaintiff. This amendment was subsequently admitted by both parties to have been erroneously phrased, as the plaintiffs intended the claim for money had and received, to be alternative to part only and not to the whole, of the claim for damages. The defendants paid into Court in respect of alternative cause of action 7,600 pounds and the plaintiffs accepted it in satisfaction thereof. The defendants paid into Court in respect of alternative cause of action 7,600 pounds and the plaintiffs accepted it in satisfaction thereof. On realizing that, owing to their mistaken view of the meaning of the statement of claim as amended, they had elected to accept the sum paid into court in satisfaction of a claim which was an alternative to whole of their claim for damages, thus bringing an end to the entire proceedings, plaintiffs at the hearing of summons by defendants to stay the action, sought to restore the original position by repaying the money into court, with a view to amending their statement of claim and proceeding with the remainder of their claim for damages. The master made an order staying the action, but the judge in Chambers, allowing the plaintiffs appeal from master made an order for repayment of money into court with liberty to the defendants to apply to take it out and to plaintiffs to amend their statement of claim. 7. The matter was taken to court in appeal. It was contended on behalf of the defendants that the judge had no jurisdiction to make such an order, since the plaintiffs by taking money out of court, had made an irrevocable election to rely on the alternative ground of claim and the court had no power to allow them to revoke the election. It was held by Court of Appeal that in a proper case and on proper terms, the court may, in its discretion, relieve a party who comes quickly from the effect of his mistake or that of his legal advisors, and that though an election once made cannot be revoked by a party of his own motion, there is no authority for limiting to a case where there has been no election the power of court to grant relief in respect of a mistake to prevent a possible injustice and that the order of the judge was therefore rightly made. 8. I am afraid that the principle laid down in S. Kaprow's case (supra) can hardly be applied to the facts of the present case. In Kaprow's case, under a bonafide mistake it was thought that the alternative claim related to the entire reliefs sought whereas it was really in relation to a part of the claim. Counsel received the money and acknowledged the claim having been satisfied. In Kaprow's case, under a bonafide mistake it was thought that the alternative claim related to the entire reliefs sought whereas it was really in relation to a part of the claim. Counsel received the money and acknowledged the claim having been satisfied. The impression of the counsel was a mistake and it was to set right the mistake the court permitted the plaintiffs counsel to redeposit the amount into court and to amend the plaint in so far as it relates to the election so as to clear the ambiguity. It is not the position in the present case. Further it was in the course of the same proceedings amendment was sought unlike in this case where the relief is sought for cancellation of the decree of the High Court in O.P.No. 869 of 1970 which was merged in the order already passed by the Supreme Court. 9. Exts.A1, AID, A15 and A19 are copies of the petitions in O.P.No. 534 of 1970,0.P. 536 of 1970,0.P. 869 of 1970 and O.P.No. 86 of 1970 respectively. The relevant averment regarding the remittance is contained in paragraph 3 of Exts.A1, A10 and A15 and A19. What is stated in Exts. Al and A10 is as follows: "In all, the petitioners have remitted to the tune of one lakh and odd rupees as administrative surcharge and enhanced administrative charges." In Ext.A19 what is stated is, in all the petitions the petitioners remitted to the tune of Rs.25, 000/- and odd as administrative surcharge. In Ext.A15 it is stated: "In all, petitioners have remitted to the tune of one lakh and 25 thousand and odd rupees as administrative surcharges and enhanced administrative surcharges." In all petitions there is also a prayer for refund of the administrative and additional administrative surcharge levied and collected from the petitioners. Learned Advocate General was quite right in submitting that the expression rupees one lakh and odd or to the tune of Rs.25, 000/-, one lakh and odd does not refer to a definite sum. But the expression 'Rupees One lakh and odd' 'Rs. twenty five thousand and odd' or 'Rupees One lakh twenty five thousand and odd' would necessarily mean something more than the stated amount and the expression "to the tune of" may mean approximately. But the expression 'Rupees One lakh and odd' 'Rs. twenty five thousand and odd' or 'Rupees One lakh twenty five thousand and odd' would necessarily mean something more than the stated amount and the expression "to the tune of" may mean approximately. In Oxford Advanced Learner's Dictionary of Current English the expression "to the tune of is described as a colloquial expression to mean "the amount of (usually with the suggestion that the sum is high or exorbitant). In the counter affidavit filed by the State, the averments contained in paragraph 3 of the petition regarding payment was not disputed. The explanation offered in the pleadings in the suit is that the focus of all parties was on the question of the virus of the administrative surcharge and additional administrative surcharge as the prayer for refund of the amount was only consequential, and therefore the plaintiff contested only the main prayer bonafide believing that the consequential prayer for refund would be subject to a further enquiry in case the main prayer was allowed. It was also averred in paragraph 5 of the plaint that the averments contained in the original petition were false and the amount paid was really much less than the amount mentioned in paragraph 3 of the petitions. It was averred that the above statement in the original petitions was false to the knowledge and belief of the petitioners and was a fraud played on the court and on the State and was calculated to defraud Government and to make illegal gain by obtaining a decree by misleading the court and that the petitioners have suppressed the truth. It was averred that the above statement in the original petitions was false to the knowledge and belief of the petitioners and was a fraud played on the court and on the State and was calculated to defraud Government and to make illegal gain by obtaining a decree by misleading the court and that the petitioners have suppressed the truth. It was also averred that the plaintiff happened to deposit the amount as claimed by the 1st defendant before the High Court under the circumstances aforesaid and due to the fraud and deception played by them in the said proceedings, that the plaintiff came to know about it only on 12-10-1972, that due to fraud and deception played by the defendants on the plaintiff and on this court in writ proceedings aforesaid, the plaintiff was compelled to deposit a sum of Rupees One Lakh which was illegally and unauthorized withdrawn by the defendants, that the order of this Court in so far as it related to excess amount ordered to be refunded was vitiated by fraud and misrepresentation and therefore not valid and binding and that the same was liable to be cancelled. The judgment of this Court was marked in the suit as Ext.A2 and it is reported in 1971 KLT 910. Paragraphs 26 and 27 of the judgment deals with refund of the amounts paid by the petitioners. It reads as follows: "In O.P.NO.4329 of 1969 although the petitioner stated that the details of the amount paid as administrative surcharge would be given by him later he has not so far done so. InO.P.Nos. 240,241 and 435 of 1970 the petitioners have expressly stated that they would claim refund in separate proceedings. In O.P.No. 4982 of 1970 the petitioners do not allege that they have paid any amount as administrative surcharge. They only challenged the validity of the levy. In the remaining Original Petitions refunds have been claimed by the petitioners. Details of the amount claimed are as given below: O.P.NO.534 of 1970 536 of 1970 866 of 1970 869 of 1970 ;[ Rs. 1 lakh Rs. 1 lakh Rs. 25,000/ Rs. 1,25,000/-;[ 27. The fact that they are the amounts paid by the petitioners in these Original Petitions towards this levy is not disputed in the counter affidavit filed on behalf of the State. 1 lakh Rs. 1 lakh Rs. 25,000/ Rs. 1,25,000/-;[ 27. The fact that they are the amounts paid by the petitioners in these Original Petitions towards this levy is not disputed in the counter affidavit filed on behalf of the State. The petitioners are entitled to refund of those amounts." In paragraph 28 the court made a direction for refund of the above amounts to the respective petitioners in the above writ petitions. 10. In the light of the above observations, can it be said that this Court has not applied its mind in respect of the amounts to be refunded?. It is clear from paragraph 26 of the judgment that this Court adverted to the claim of the respective petitioners for refund and ultimately took the view that in O.P.No. 534 of 1970 and 536 of 1970 the claim was for refund of one lakh rupees and in O.P.No. 866 of 1970 the claim was for refund of Rs.25, 000/- and in O.P.No. 869 of 1970 the claim was for refund of Rs.1, 25,000/-. The question whether in view of the expression "to the tune of or "and odd" used in the petitions, the Court was justified in making a direction for refund of the amounts shown in paragraph 26 of the judgment without" ascertaining the definite sum paid by the petitioners is not a matter for consideration in the suit. Neither the lower court nor this Court can sit in judgment over the correctness of the understanding of this Court in regard to the exact amount of claim for refund. On a plain reading of the observations contained in paragraph 26 of Ext.A2 one can only gather the impression that this Court took the amounts ordered to be refunded as the amounts remitted and claimed by the petitioners. Though there was a prayer in the above Original Petitions for refund of the amount claimed to have been remitted, the correctness of the amount was not disputed. In view of the prayer for refund the exact amount to be refunded was certainly an issue arising in the O.Ps. Therefore it is difficult to accept the contention of the learned Advocate General that there was no application of mind and that the issue relating to the exact amount of refund did not arise in the case. In view of the prayer for refund the exact amount to be refunded was certainly an issue arising in the O.Ps. Therefore it is difficult to accept the contention of the learned Advocate General that there was no application of mind and that the issue relating to the exact amount of refund did not arise in the case. The Court observed that in certain cases no amount was claimed as remitted and in some other cases, the petitioners had specifically averred that they would make their claim in separate proceedings. It is only in cases where relief is claimed for refund of the amount, the question was considered and a decision was rendered. In the circumstances I am unable to agree with the contention of the learned Advocate General that the issue of refund did not really arise in the Original Petitions or that there is no actual determination of the amounts. 11. The next question that falls for consideration is whether there is a mistake in giving the direction for refund of the amount stated in the judgment and whether that mistake is sufficient reason for canceling the direction made by this Court. At this stage it may be pointed out that Ext.A2 judgment was taken in appeal before the Supreme Court, which resulted in dismissal. Therefore the judgment of this Court merged in the judgment of the Supreme Court. The prayer in these suits is for cancellation of the direction of this Court regarding refund in so far as the amounts which are in excess of the amounts admitted to have been remitted in plaint. No separate suit for cancellation of the judgment would lie except on the ground of fraud. Further the direction made by this Court in the Original Petition has merged in the final judgment passed by the Supreme Court and no relief could be granted without prayer to cancel the judgment of the Supreme Court in which the judgment of this Court has merged. 12. Learned Advocate General heavily relied on the observation of the Kings Bench decision in S. Kaprow's case (supra) in support of the contention that this Court was competent to look into the question whether the defendant had paid the amounts directed to be refunded to the defendants in the writ proceedings. 12. Learned Advocate General heavily relied on the observation of the Kings Bench decision in S. Kaprow's case (supra) in support of the contention that this Court was competent to look into the question whether the defendant had paid the amounts directed to be refunded to the defendants in the writ proceedings. I have already found that the principle contained in the said decision is not applicable to the facts of these cases. 13. Learned Advocate General relied on two decisions of the Supreme Court (1) In State of Uttar Pradesh v. The Civil judge, Nanital and others (AIR 1987 K 16) and Thiruvalanchuli Vaithilingam Filial Charities v. Vijayavalli Achi and Others (1966 (2) KJ. 259) to meet the argument based on res judicata. The former case based on res judicata arose out of proceedings under the U.P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1972. The prescribed authority who had no knowledge of the death of the tenure holder issued a notice addressed to her under the Ceiling Act calling upon her to show cause within the period specified in the notice why the statement prepared by prescribed authority in respect of excess land should not be taken as correct. Before the notice could be served, the heirs of the tenure holder filed objections before the Prescribed Authority to the notice issued which were overruled by the Prescribed Authority. The Prescribed Authority declared that the tenure holder was holding certain land as surplus land. In appeal against the order of the Prescribed Authority the Appellate Authority remanded the case as the tenure holder was dead by the time the notice under the Act was issued to her by the prescribed authority and the order of the Prescribed Authority passed against a dead person could not be allowed to stand. Appellate Authority did not record any other finding on the merits of the case. Subsequently the Prescribed Authority after issuing the notices to the heirs of the tenure holder found that there was no surplus land that could be claimed from the holding in question since none of the heirs of the tenure holder was in possession of the land in excess of the ceiling area. The appeal filed against the order of the Prescribed Authority was dismissed. The appeal filed against the order of the Prescribed Authority was dismissed. State filed a writ petition and took the plea that the person who was alive on the crucial date relevant for determining the surplus land should be treated as the tenure-holder. The Supreme Court held that the plea of State Government could not be said to be barred by the rule of res judicata, as the Appellate Court had not recorded any finding on the merits of the contentions of the parties. The Supreme Court found that the Appellate Authority set aside the order of the Prescribed Authority passed earlier only on the ground that a proceeding which was commenced against a dead person was a nullity and remanded the case to the Prescribed Authority for fresh disposal in accordance with law after issuing notices to the heirs of the tenure-holder. In my view this decision has no application to the facts of this case. There was no decision on merits in the Supreme Court case relied on. In the latter decision cited by the learned Advocate General an adoptive father allotted substantial properties to his adopted son in a deed of partition and retained 100 acres of land for himself and the maintenance of his wife with a vested interest for the adopted son. After the death of the adoptive father, the adopted son filed a suit against the adoptive mother claiming possession of the entire 100 acres. Overruling the defense of the mother that she was entitled to be in possession of the entire 100 acres, the Court held that she was entitled only to 50 acres for her life and the other 50 acres would go to the adopted son. In the judgment of the trial court occurred a stray sentence that the share of the mother after her death would go to her representatives. In connection with the Management and possession of certain trust properties, held by the, adopted son, a suit was filed by the trustees, an installment decree was passed against the adopted son and in execution of the decree that had created a charge on the vested interest of the adopted son in 50 acres held by the mother, the adopted son's vested interest in the fifty acres was sold and purchased by the trust. After the death of the adopted son and mother, in a subsequent suit filed by the trust for the recovery of the 50 acres from the representatives of the adopted son, a plea of res judicata in defense was raised on the basis of the stray sentence of the Court in the prior suit that the 50 acres would go to her representatives. The Court held that the subsequent suit for recovery of possession was not barred by res judicata. The decision would operate as res judicata only if the finding was necessary for the purpose of the case in which it was given. It was held that it was not necessary for the Court to enter a finding that the share of the mother after her death would go to the representatives of the mother in the previous suit. Accordingly, the court held that the stray sentence in the prior judgment would not operate as res judicata. 14. In the Original Petitions in view of the reliefs claimed, a decision of the amounts remitted was necessary and the Court on application of mind rendered a decision. Therefore in my view, the principle laid down in Thiruvalanchuli Vaithilingam Filial Charities (Supra) is not applicable to the facts of this case and the decision in the original petitions would operate as res judicata. 15. It is well settled law that a decision in writ proceedings will operate, as res judicata in subsequent proceedings and the principles of constructive res judicata will also operate in respect of proceedings under Arts.32 and 226 of the Constitution of India. (See Gulabchand Chhotalal Parikh v. State of Bombay (AIR 1965 K 1153), Forward Construction Co. & others v. Prabath Manual (AIR 1986 K 391), Mis. K.N. OH Industries and Another v. State of M.P. (AIR 1986 K 1929) and State of U.P.v. Nawab Hussain (AIR 1977 K 1680). It is also well settled that S.11 of C.P.C. is not exhaustive of the general doctrine of res judicata and though the rule of res judicata as enacted in S.11 has some technical aspects, the general doctrine is found on considerations of high public policy to achieve two objectives namely, that there must be a finality to litigation and that individuals should not be harassed twice over with the same kind of litigation. Technical aspects of S.11 of C.P.C. as for instance, pecuniary or subject wise competence of the earlier forum to adjudicate the subject-matter or grant reliefs sought in the subsequent litigation would be immaterial when the general doctrine of res judicata is to be invoked. (See Gulam abbas and others v. State of U.P. and others (AIR 1981 K 2198). 16. I shall now deal with the contention based on fraud. As I indicated earlier, fraud has been always recognized as a vitiating factor enabling to avoid judgment. Fraud Vitiates the most solemn proceedings of courts of justice and it avoid all judicial acts. Statutory recognition is given to this principle in S.44 of the Evidence Act. It is equally settled that a judicial decision is conclusive between the parties on the matter decided. In Papavinesom Subrahmoniam v. Daivani Nageramma (AIR 1963 Ker.26), this Court had occasion to consider the nature of the plea and evidence that is required to constitute fraud. Madhava Nair, J. quoted the following passage with approval from the judgment of James Q. In Flower v. Lloyd (1879) 10 Ch. D. 327): - " Assuming all the alleged falsehood and fraud to have been substantiated, is such a suit as the present sustainable? That question would require very grave consideration indeed before it is answered in the affirmative. Where is litigation to and if a judgment obtained in an action fought out adversely between two litigants sui juris and at arm's length could be set aside by afresh action on the ground that perjury had been committed in the first action, or that false answers had been given to the interrogatories, or a misleading production of documents, or of a machine, or of a process had been given? There are hundred of actions tried every year in which the evidence is irreconcilably conflicting, and must be on one side or other willfully and corruptly perjured. In this case, if the plaintiffs had sustained on this appeal the judgment in their favour, the present defendants, in their turn, might bring a fresh action to set that judgment aside on the ground of perjury of the principal witness and subornation of perjury; and so the parties might goon alternatively ad infinitum. In this case, if the plaintiffs had sustained on this appeal the judgment in their favour, the present defendants, in their turn, might bring a fresh action to set that judgment aside on the ground of perjury of the principal witness and subornation of perjury; and so the parties might goon alternatively ad infinitum. There is no distinction in principle between the old Common Law action and the old Chancery suit, and the Court ought to pause long before it establishes a precedent, which would or might make in numberless cases judgments supposed to be final only on the commencement of a new series of action. Perjuries, falsehoods, frauds, when detected, must be punished and punished severally, but in their desire to prevent parties litigant from obtaining any benefit from such foui means the court must not forget the evils which may arise from opening such new sources of litigation, amongst such evils not the least being that it would be certain to multiply indefinitely the case of those very perjuries, falsehoods, and frauds." In Baker v. Wadsworth (1898) 67 LJ.QB 301), it was held that a judgment obtained in a action will not be set aside in a subsequent action brought for that purpose upon mere proof, that the judgment was obtained by perjury. 17. In Kadirvelu Nainar v. Kuppuswami Naikar (ILR 41 Mad. 743), the Madras High Court held: "In India, the considerations mentioned by James Q. in (1879) 10 Ch. D. 327, apply with very great force as it is dangerous to allow a fresh suit to be brought by an unsuccessful litigant to set aside the decree passed against him on the ground that his opponent had imposed on the court by letting in perjured evidence." In L Chinuayya v. K. Ramanna (ILR 38 Mad. 203) = (AIR 1961 Mad. 364), Janki Kuar v. Lachmi Narain (AIR 1915 All. 400) and Maruful Haq v. Surendra Nath Roy (16 Cal. W.N. 1002) also the courts took the view that a suit does not lie to set aside a judgment on the ground that it had been obtained by perjured evidence. 18. In Kunjabehar v. Krishnadhone, (AIR 1940 Cal. 489) also it was held that a domestic judgment cannot be reopened where the only allegation of fraud made by the plaintiff of the later action is that judgment had been given on a false claim. (See also Subbannav. 18. In Kunjabehar v. Krishnadhone, (AIR 1940 Cal. 489) also it was held that a domestic judgment cannot be reopened where the only allegation of fraud made by the plaintiff of the later action is that judgment had been given on a false claim. (See also Subbannav. Bayamma (AIR 1925 Mad. 640). InRamanathan v. Palaniyappa Vitiates the most solemn proceedings of courts of justice and it avoid all judicial acts. Statutory recognition is given to this principle in S.44 of the Evidence Act. It is equally settled that a judicial decision is conclusive between the parties on the matter decided. In Papavinesom Subrahmoniam v. Daivani Nageramma (AIR 1963 Ker.26), this Court had occasion to consider the nature of the plea and evidence that is required to constitute fraud. Madhavan Nair, J. quoted the following passage with approval from the judgment of James L.J. in Flower v. Lloyd (1879) 10 Ch. D. 327): "Assuming all the alleged falsehood and fraud to have been substantiated, is such a suit as the present sustainable? That question would require very grave consideration indeed before it is answered in the affirmative. Where is litigation to and if a judgment obtained in an action fought out adversely between two litigants sui juris and at arm's length could be set aside by afresh action on the ground that perjury had been committed in the first action, or that false answers had been given to the interrogatories, or a misleading production of documents, or of a machine, or of a process had been given? There are hundred of actions tried every year in which the evidence is irreconcilably conflicting, and must be on one side or other willfully and corruptly perjured. In this case, if the plaintiffs had sustained on this appeal the judgment in their favour, the present defendants, in their turn, might bring a fresh action to set that judgment aside on the ground of perjury of the principal witness and subornation of perjury; and so the parties might goon alternatively ad infinitum. There is no distinction in principle between the old Common Law action and the old Chancery suit, and the Court ought to pause long before it establishes a precedent, which would or might make in numberless cases judgments supposed to be final only on the commencement of a new series of action. There is no distinction in principle between the old Common Law action and the old Chancery suit, and the Court ought to pause long before it establishes a precedent, which would or might make in numberless cases judgments supposed to be final only on the commencement of a new series of action. Perjuries, falsehoods, frauds, when detected, must be punished and punished severally, but in their desire to prevent parties litigant from obtaining any benefit from such foul means the court must not forget the evils which may arise from opening such new sources of litigation, amongst such evils not the least being that it would be certain to multiply indefinitely the case of those very perjuries, falsehoods, and frauds." In Baker v. Wadsworth (1898) 67 LJ.QB 301), it was held that a judgment obtained in a action will not be set aside in a subsequent action brought for that purpose upon mere proof, that the judgment was obtained by perjury. 17. In Kadirvelu Nainar v. Kuppuswami Naikar (ILR 41 Mad. 743), the Madras High Court held: "In India, the considerations mentioned by James Q. in (1879) 10 Ch. D. 327, apply with very great force as it is dangerous to allow a fresh suit to be brought by an unsuccessful litigant to set aside the decree passed against him on the ground that his opponent had imposed on the court by letting in perjured evidence." In L Chinuayya v. K. Ramanna (ILR 38 Mad. 203) = (AIR 1961 Mad. 364), Janki Kuar v. Lachmi Narain (AIR 1915 All. 400) and Maruful Haq v. Surendra Nath Roy (16 Cal. W.N. 1002) also the courts took the view that a suit does not lie to set aside a judgment on the ground that it had been obtained by perjured evidence. 18. la Kunjabehari v. Krishnadhone, (AIR 1940 Cal. 489) also it was held that a domestic judgment cannot be reopened where the only allegation of fraud made by the plaintiff of the later action is that judgment had been given on a false claim. (See also Subbannav. Bayamma (AIR 1925 Mad. 640). In Ramanathan v. Palaniyappa (AIR 1939 Mad. 18. la Kunjabehari v. Krishnadhone, (AIR 1940 Cal. 489) also it was held that a domestic judgment cannot be reopened where the only allegation of fraud made by the plaintiff of the later action is that judgment had been given on a false claim. (See also Subbannav. Bayamma (AIR 1925 Mad. 640). In Ramanathan v. Palaniyappa (AIR 1939 Mad. 146), the Madras High Court held that the fraud which vitiates a decree must be something extrinsic to the proceedings pending before the Court and the making of a false statement knowing it to be false in the written statement cannot be regarded as extrinsic to the proceedings in the Court. The whole of the written statement must be deemed to have been considered by the court before it pronounced its judgment and if for some reason or other the court accepted a certain allegation as true which is subsequently alleged to be false, there is no ground for vacating the decree on the ground of fraud, and the remedy in such a case is either by way of appeal or by way of review. The same view was expressed by another Bench of the Madras High Court in Nageswara v. Ganesa (AIR 1942 Mad. 675). 19. In Weavers Mills Ltd. v. Balkis Ammal and Others (AIR 1969 Mad, 462) also the question was considered and it was held that a suit does not lie to set aside the judgment in a previous suit on the ground that it was obtained by perjured evidence and in order that fraud may be a ground for vacating a judgment, it must be a fraud that is extrinsic or, collateral to everything that has been adjudicated upon but not one that has been or must be deemed to have been dealt with by the court, and suppression of evidence and even negligent conduct in the prior litigation would not be proper grounds for setting aside an earlier order. This is the view taken by the Gujarat High Court in Bai Chanchal v. Ganpatram Jadavji and Others (AIR 1965 Guj.145). A Division Bench of the Gujarat High Court considered the same question and held that mere act of perjury or tendering of forged documents in evidence by one of the parties to a proceeding does not amount to a fraud on court and it does not render the decree obtained in such litigation a nullity. A Division Bench of the Gujarat High Court considered the same question and held that mere act of perjury or tendering of forged documents in evidence by one of the parties to a proceeding does not amount to a fraud on court and it does not render the decree obtained in such litigation a nullity. 20. In Basdevan and Gir v. Shantan and alias Makku Mahto (AIR 1942 All. 302), a Division Bench of the Allahabad High Court also took the same view and held that a decree cannot beset aside merely because it was obtained by perjured evidence because if the contrary were held, it would be necessary to hold new investigations again and again into the same question, and it would be most unsafe to hold that a decree can be set aside on the ground that the defendant did not raise a plea which was open to him, but which he did not raise because he did know all the necessary facts, or on the grounds that the plea set up was false to the knowledge of the plaintiff. 21. In the instant case the plea of fraud Set out in the pleadings is that the defendants who are the petitioners in the Original Petitions had not remitted the entire amounts mentioned by them in the writ petitions and that they had made the statements knowing fully well that the statements were false. In other words, the judgment of the High Court was obtained on the basis of perjured evidence. 22. In the light of the principles enunciated in the decisions referred to above, it cannot be held that the plea set up in these suits constitute a fraud so as to vacate the direction for the refund of the amounts specified in Ext. A2 judgment. It cannot also be said that the fraud alleged in these cases is extrinsic or collateral to the adjudication involved in the judgment, Ext.A2 so as to constitute a fraud vitiating the judgment. After considering the averments and applying its mind, the Division Bench determined the amounts paid by the petitioners and refund was ordered on the basis of its finding regarding the amount remitted. If there are any mistakes in the determination, it is only a matter for review and not a matter for filing a suit to avoid the decision. After considering the averments and applying its mind, the Division Bench determined the amounts paid by the petitioners and refund was ordered on the basis of its finding regarding the amount remitted. If there are any mistakes in the determination, it is only a matter for review and not a matter for filing a suit to avoid the decision. According to the plaintiff, they happened to deposit the amount due to fraud and deception played by the defendants and the Government came to know about the fraud only on 12-10-1972. Ext. A16 is the copy of C.M.P. No. 13437 of 1976 in O.P. No. 869 of 1970, and the affidavit filed by the 1st defendant in O.S. No. 66 of 1976, to direct the State to pay to the petitioner an amount of Rs. 1,25,000/- and this petition is dated 12-10-1972. According to PW.3, the District Treasury Officer, Kozhikode, verified the actual amounts paid when a contempt application was filed and it was then it was realized that the amount remitted was much less than the amount claimed. It is significant to note that the appeal was pending before the Supreme Court on 12-10-1972. Even then, no step was taken to correct the alleged mistake in the judgment relating to the amount that was remitted by the defendants. 24. D.Ws.1 and 2 were examined on behalf of the defendants and they gave evidence that they had instructed their Advocate at Ernakulam about the actual amount remitted towards administrative surcharge and the Advocate exercised his discretion to put the same into rupees one lakh and odd, and they are not remembering the exact figure of the amount after passage of time. The trial court on a consideration of oral and documentary evidence found that no fraud or deception was played by the defendants in getting a decree for refund of those amounts and that the plaintiff has not succeeded in establishing that the defendants had not remitted the amount directed to be refunded to them. In coming to the conclusion, the trial court adverted to the fact that all the records relating to payments have not been produced on behalf of the plaintiff. The explanation offered by P.W.2 for non-production of all the records was that the records were destroyed. There were payments prior to 1968. The District Treasury Officer filed an affidavit stating that the earlier records were destroyed. The explanation offered by P.W.2 for non-production of all the records was that the records were destroyed. There were payments prior to 1968. The District Treasury Officer filed an affidavit stating that the earlier records were destroyed. The District Collector also filed an affidavit on 28-3-1980, stating that the records pertaining to issue of permit fore export of tapioca were not in his possession since they were destroyed. The lower court also referred to Kerala Financial Code Vol. I, Art.338 (a)(v) which provides that the Treasury remittance book should on no account be destroyed. Similarly, Article 338(a)(vi) provides that the list showing details of records ordered to be destroyed should on no account be destroyed. But no steps were taken by the State to bring to the notice of the Supreme Court that the defendants have claimed much larger amounts than what they had actually remitted. 25. In the view that I have taken on the question of maintainability of the suits, it is not necessary for me to go into the question whether defendants had actually remitted the amounts by way of administrative surcharge which were directed to be refunded. The appeals fail and they are accordingly dismissed. In the circumstances of the cases, I direct the parties to suffer their respective costs.