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Vijayendra Tirthaswami Vs. Sudhindra Tirthaswami and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1895)5MLJ193
AppellantVijayendra Tirthaswami
RespondentSudhindra Tirthaswami and ors.
Cases ReferredK. Ranganayaka Animal v. Venkatachellapati Nayudu I.L.R.
Excerpt:
- - this has been construed to mean that the appellant should show that he, has a good subsisting cause of action capable of enforcement in court......of enforcement in court. chat-tarpal singh v. raja ram i.l.r. (1885) a. 661 i think therefore the subordinate judge was entitled to consider the questions raised before him by the counter-petitioner. the case in k. ranganayaka animal v. venkatachellapati nayudu i.l.r. (1881) m. 323 is not really in conflict with this view. i do not understand that case to lay down that the court is bound by the allegations in the application and the court could hold no enquiry whatsoever as to whether there is any foundation for those allegations or not. such a view would be opposed to the provisions of section 409 which permits the court to take evidence.2. it is next urged that even if the subordinate judge had power to consider the questions of res judicata and limitation, his conclusion against the.....
Judgment:

Subramania Aiyar, J.

1. It is contended for the petitioner that the, Subordinate Judge acted illegally and without jurisdiction in taking evidence and going into the question whether the plaintiff's claim was res judicata and whether it was barred by limitation. I cannot accept this contention : Section 409 Civil Procedure Code permits the court to take evidence and hear the parties for the purpose of determining whether the applicant is or is not subject to any of the prohibitions specified in Section 407. Under the latter Section the application may be refused if the appellant fails to satisfy the court that he has a right to sue. This has been construed to mean that the appellant should show that he, has a good subsisting cause of action capable of enforcement in Court. Chat-tarpal Singh v. Raja Ram I.L.R. (1885) A. 661 I think therefore the Subordinate judge was entitled to consider the questions raised before him by the Counter-petitioner. The case in K. Ranganayaka Animal v. Venkatachellapati Nayudu I.L.R. (1881) M. 323 is not really in conflict with this view. I do not understand that case to lay down that the court is bound by the allegations in the application and the court could hold no enquiry whatsoever as to whether there is any foundation for those allegations or not. Such a view would be opposed to the provisions of Section 409 which permits the court to take evidence.

2. It is next urged that even if the Subordinate Judge had power to consider the questions of res judicata and limitation, his conclusion against the petitioner is unwarranted bythe circumstances of the case. I am unable to take this view. I think that in a case where there is ground for reasonable doubt leave should be granted and not refused. But I consider this is a very clear case and hold that the Subordinate Judge was right in concluding that the claim was res judicata. 1 dismiss the petition with costs


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