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Kannusami Pillai and anr. Vs. Jagathambal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1918)35MLJ27
AppellantKannusami Pillai and anr.
RespondentJagathambal
Cases ReferredVenkatarama Aiyar v. The Secretary of State
Excerpt:
.....1(2) of order xxiii says, where the court is satisfied (a) that a suit must fail by reason of some formal defect, or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may. (a) where the generic words follow specific words in the very same clause of a sentence, (b) where the specific words are all of the same genus and not of different genera and (c) where the general object of the act is so clearly expressed and the intention of the statute is patently opposed to giving the wider meaning to the succeeding words, then alone, in my opinion the meaning of the general words ought to be restricted, as coloured by the preceding specific terms. now as regards order 23. rule 1 (old section..........1(2) of order xxiii says, where the court is satisfied (a) that a suit must fail by reason of some formal defect, or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may....grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of a claim. it has been held by a bench of this court in aiya koundan v. jagan mandalathipathiar : (1914)27mlj480 that the sufficient ground mentioned in rule 1(2)(6) of order xxiii, civil procedure code, must be interpreted as being ejusdem generis with the formal defect referred to in rule 1(2)(a). that being so, can it be said.....
Judgment:

Oldfield, J.

1. I am not disposed to reconsider the principle referred to in Aiya Koundan v. Jagan Mandalathipathiar (1911) 27 M.L.J. 480 since as my learned colleague has shown in the judgment, which I had the advantage of reading, if has been accepted by this and other High Courts in cases in the authorised reports; and I do not think it necessary to decide whether the District Munsif has jurisdiction to pass his order. For I am clear that it was not one passed in the exercise of a judicial discretion, since in passing it he gave no weight to the fact that plaintiffs, appellants, gave an under-valuation of one item of the suit property so gross that it can hardly have been honest and that they therefore deserved no consideration. In the circumstances the District Munsif had no right to use his powers to assist them; and on that ground, I concur in dismissing the Letters Patent Appeal with costs.

Sadasiva Aiyar, J.

2. The plaintiffs are the appellants in these Letters Patent Appeals. They brought the suit in the Negapatam District Munsif's Court for possession of several items of property (including a house, item No. 76) alleged to have been inherited by the 2nd plaintiff as the adopted son of one Natesa Pillai whose widow is the defendant. The plaintiffs valued the other items at Rs. 1,917-100 and the house item No. 76 at Rs. 200, thus nuking the total value of the subject-matter of the suit Rs. 2,117-10-0. The defendant contended that item No. 76 was grossly undervalued and that the suit was beyond the jurisdiction of the District Munsif. A commissioner was appointed to value item No. 76 and he valued it at Rs. 6,500, the result being that the total value of the plaint items for purposes of jurisdiction and Court fees was more than Rs. 8,400, Then the plaintiffs put in a petition on the 14th December 1916 for permission to withdraw the suit so far as the house, item No. 76, was concerned, with liberty to bring a fresh suit in respect of the said property on the ground that the plaintiffs had no objection whatever to the defendant, the adoptive mother of the second plaintiff, residing during her life-time in that item, the second plaintiff being bound to provide her with residence. The defendant who denied the second plaintiff's alleged adoption objected to the granting of the petition on the following grounds :

(a) the plaintiff is not legally entitled without paying court-fees thereon to apply for withdrawal with liberty to bring a fresh suit,

(b) the court has no jurisdiction to permit the withdrawal, (c) there is no legal ground for allowing the withdrawal, and (d) the plaintiffs knew that the suit was not within the jurisdiction of the court and they wanted to defraud the Government of a large amount of court-fees. The learned District Munsif granted the plaintiffs' petition, that is, permitted the second plaintiff' to withdraw his claim as regards the plaint item No. 76 with liberty to bring a fresh suit. This order was pissed on the 17th January 1917. There was a connected petition for amendment of the plaint by striking out item No. 76 from the plaint schedule and by making consequent alterations and that petition was also allowed.

3. The defendant thereupon filed two revision petitions under Section 115 Civil Procedure Code against the District Munsif's orders. They came on before Mr. Justice Abdar Rahim and he allowed the petitions by a single judgment. The grounds for decision are thus set out: 'Rule 1(2) of Order XXIII says, where the court is satisfied (a) that a suit must fail by reason of some formal defect, or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may....grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of a claim. It has been held by a bench of this court in Aiya Koundan v. Jagan Mandalathipathiar : (1914)27MLJ480 that the sufficient ground mentioned in Rule 1(2)(6) of Order XXIII, Civil Procedure Code, must be interpreted as being ejusdem generis with the formal defect referred to in Rule 1(2)(a). That being so, can it be said that there was a defect of that character in this suit If it were a mere question of general discretion, I should be prepared to hold that this discretion was rightly exercised by the first court. But I am bound by the ruling of the division bench of this court above referred to. Therefore, unless it could be said that there was a defect in the suit of a character akin to a formal defect, the order of the District Munsif must be held to be unauthorised by law.' This doctrine of ejusdem generis has, in my humble opinion, been pushed too far in some of the English cases. (a) Where the generic words follow specific words in the very same clause of a sentence, (b) where the specific words are all of the same genus and not of different genera and (c) where the general object of the Act is so clearly expressed and the intention of the Statute is patently opposed to giving the wider meaning to the succeeding words, then alone, in my opinion the meaning of the general words ought to be restricted, as coloured by the preceding specific terms. Now as regards Order 23. Rule 1 (Old Section 373), I find that the expression ' formal defect' occurs in Clause (a) of Sub-section (2) in a separate sentence relating to the whole suit failing, whereas the expression ' other sufficient grounds' occurs in Clause (b) which contemplates cases where the suit may not wholly fail but the plaintiff might be put to great inconvenience, if he is not allowed to withdraw, which contemplates again cases where only a part of the claim may fail in that same suit if he is not allowed to withdraw with liberty to bring a fresh suit for that part and where if he is not given such permission, he might be precluded also from bringing 'a separate suit therefor. Further Clause (a) does not mention several things which could be brought under one genus, but it refers to a single class of things as 'formal defect,' while Clause (b) refers to 'other sufficient grounds,' that is, other than ' formal defect.' There is nothing again clearly indicated in the section itself from which we could infer that the legislature intended to allow withdrawal with permission only in the cases where the suit was bad by reason of a formal defect or something analogous to a formal defect. Thus in Queen v. Payne (1886) L.R.C.C. 27 it was held that an Act which made it penal to convey to a prisoner in order to facilitate his escape ' any mask, dress or disguise or any letter or any other article or thing ' did not intend to restrict the meaning of the general terms 'any other article or thing'' by the particular words ' disguise or letter' and that therefore a crow-bar was also included under the expression 'other article or thing.' See also Shillito v. Thompson (1875) 1. Q.B.D. 12 The Queen v. Edmundson (1859) 2 El & El. 77 : 121 E.R. The Queen v. Spratley (1856) 6 E & B 363 : 119 E.R. 900 and Lowther v. Bentinck (1874) L.R. 19 Eq. 166. In the case of Watson v. The Collector of Rajshaye (1869) 13 M.I.A. 160 the first suit in which liberty to bring a fresh suit was given was instituted in 1856 and decided in 1857 even before the enactment of the first Civil Procedure of 1809 (see Section 97 of that Code where the provision as to withdrawal appears). The suit was again not allowed to be with drawn, but it was dismissed for want of sufficient evidence and then the Judge said that his order dismissing the suit was ' not intended to bar the plaintiffs from proceeding again as if the action had not been brought,' The remarks of their Lordships of the Privy Council at page 170 mainly dealt with the procedure of the courts of Equity in England as distinguished from other courts even in England and could have no reference whatever to the powers of Indian Courts under the provisions of the Civil Procedure Codes. I therefore with the greatest respect feel myself unable to agree with the dicta of Mookerjee, J. in Kharda & Co., Ltd. v. Durga Charan Chandra (1909) 11 C.L.J. 45 and Mabulla Sardar v. Rani Hemangini Dasi (1910) 11 C.L.J. 512 that 'other sufficient grounds' mean grounds analogous to a 'formal defect.' Suppose a case like this A sues B on a mortgage bond for sale of B's family house within three years of its execution. It is found that it would rum B's credit and health to have a decree for sale of his dwelling-house passed just then and as the security is good and as A has 9 years more to sue and as he was paid up his costs, he applies at the request of B and of mutual friends to withdraw the suit with liberty to bring a fresh suit 5 years afterwards if the money be not paid up meanwhile. Even such an application would have to be refused if the expression '' other sufficient grounds ''is to be restricted to' formal defect' or to something analogous to ' formal defect ''. Again in Lakshminarayana Tantri v. Ramachandra Tantri (1917) 34 M.L.J. 71 . Mr. Justice Abdur Rahim following Lutawan v. Lachya I.L.R. (1918) A. 69 refused to apply the doctrine of ejusdem generis for interpreting the word 'otherwise invalid' in Rule 15(c) of Schedule 2 of the C.P. Code on the ground that the intention of the legislature was to allow an attack on the validity of an award on all other grounds besides those mentioned in the earlier clauses. I think that similar reasons apply to give a wide meaning to the words ' other sufficient grounds' in Order 23 Rule 1, Clause (b). The cases in Kharda and Co. Ltd. v. Durga Charan Chandra (1909) 11 C.L.J. 45 and Mabulla, Sardar v. Rani Hemangini Dasi (1910) 11 C.L.J. 512 and the cases in Burathagunta Pentadee v. Kurlapati Rajamma (1911) 1 M.W.N. 105 Mahipati v. Nattu I.L.R. (1909) B. 722. Hriday v. Akshay (1916) 25 C.L.J. 454. Ramachandra Doss v. Hachunna Fakir (1916) 35 I.C. 843 and Aiya Koundan v. Jagan Mandalathupatthar : (1914)27MLJ480 might have been supported on other grounds and in fact, so far as the cases in this court are concerned namely Buratha-gunta Pentadee v. Kurlapati Rajamma 1 M.W.N. 105 and Aiya Koundan v, Jagan Mandalathupattiar (1911) 27 M.L.J. 180 they were supported on such other grounds principally. Mr. Justice Krishnaswami Aiyar says for instance in Burathagunta Pentadee v. Kurlapati Rajamma 1 M.W.N. 105 ' But even apart from that', that is, the interpretation of the word 'other' in Clause (b) of Order 23 Rule 1, ' the mere inability of the party to prove her case does not appear to me to be a sufficient ground for giving her leave to institute a fresh suit.'' So also Mr. Justice Oldfield says in Aiya Koundan v. Jagan Mandalathupattiar (1911) 27 M.L.J. 180 ' But whether or not this interpretation of the phrase ' sufficient ground' be adopted, we must hold that his discretion was not exercised judicially.' In the present case, even if the other ground must be analogous to a formal defect, I think that objections to a suit on the ground of jurisdiction and insufficient court fees are analogous to formal defects and hence, I think with great respect that the judgment of the learned Judge of this Court against whose decision this Letters Patent appeal has been filed cannot be supported on the ground on which he has decided it. I might state that even where in the same clause of the same sentence in Section 14 of the Limitation Act the words ' other cause ' followed again by the express words ''of a like nature ' were inserted after the words ' defect of jurisdiction '', the courts have given a very liberal interpretation to the words ' other cause ' as including cases where the suit failed for want of a prior notice under Section 80 C.P.C. or where it was brought without proper leave of the court or without production of the Collector's certificate required by Section 6 of the Pensions Act. I think, however, that the judgment of the learned Judge can be supported on the ground that the District Munsif acted with very material irregularity in allowing the petition under Order 23, Rule 1 in this case. It seems to me to be very difficult to hold that a house found by the Commissioner to be worth Rs. 6,500 could have been valued at Rs. 200 by the plaintiffs with any shadow of good faith on their part. Order 23 Rule 1 gives full discretion to the court, but of course such a discretion should be judicially exercised. I do not think that the discretion was at all properly or rightly exercised in this case. I think that there was very material irregularity committed by the lower court in the exercise of its jurisdiction (assuming that it had jurisdiction) in having allowed the portion of the claim relating to the house, to be withdrawn with liberty to bring a fresh suit as regards that portion.

4. Lastly, I have, after anxious consideration, arrived at the opinion that the court of First instance had no jurisdiction to pass any other judicial order in the suit after it had once arrived at the conclusion that the suit as brought was beyond its jurisdiction, except to return it for presentation to the proper court. Section 57 of the former Civil Procedure Code provided that the plaint should be returned to be presented to the proper court in cases (a), (b) and (c), all involving questions of jurisdiction. But the section did not expressly state at what stage of the suit it was obligatory on the court to return the plaint. As this section appeared before Section 64 which begins by saying, 'when the plaint has been registered,' it may be plausibly argued that under the old Code the return of the plaint directed in Section 57 related to the period before the registry of the plaint. The present Order 7, Rule 10, imperatively says that the plaint shall, at any stage of the suit, be returned to be presented to the court in which the suit should be instituted. I think it is clear that the legislature intended that as soon as the court arrived at the conclusion at any stage of the case that the suit should have been instituted in some other court, the plaint should at once be returned to be presented to the proper court. It also stands to reason and principle that a court which has no jurisdiction over a suit cannot pass any valid orders in such a suit except orders which the Statute expressly empowers it to pass, such as the order returning the plaint to be presented to the proper court which it is specially empowered to pass by Order 7, Rule 10 and orders as to costs incurred before it, as to which also there is a special provision in Section 35. The last sentence of Section 35 is very significant in this connection. It is as follows : ' The fact that the court has no jurisdiction to try the suit shall be no bar to the exercise of such powers,'' that is, powers to determine by whom or out of what property and to what extent, costs are to be paid. The clear implication therefore, is that in the absence of such express statutory provision the court which has no jurisdiction over the suit would have under the general principles of jurisprudence no power to award costs incurred before it in respect of such proceedings. The case in Venkatarama Aiyar v. The Secretary of State for India I.L.R. (1909) M. 362 relied on by the respondent has no relevancy on the question now under consideration, In that case, the plaint had been rightly returned by the District Munsif as soon as it was found that it was beyond his jurisdiction and the District Munsif did not again take cognizance of the suit till the plaintiff struck out some of the properties from the plaint and properly amended the valuation so as to bring it within the cognizance of the District Munsif's court. The fact that the plaintiff put in an unnecessary petition stating that he relinquished his claim to the properties' which he had struck out was rightly held to be no bar to the District Munsif's accepting the amended plaint which was confined to properties, whose value was within the District Munsif's jurisdiction.

5. In the result, I would dismiss the Letters Patent Appeals with costs.


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