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Saranatha Aiyangar Vs. Muthiah Mooppanar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in147Ind.Cas.1045; (1933)65MLJ844
AppellantSaranatha Aiyangar
RespondentMuthiah Mooppanar and ors.
Cases ReferredSelvarayan Samson v. Amalorpavmadham
Excerpt:
- - hard cases make bad law. 506, where it was held that an attachment obtained before judgment ceased with the dismissal of the suit even though the court failed to pass an order ending the attachment. it may be these things have all to be clearly defined finally in this litigation but it is clear that a total injunction against the defendants exercising the office is not justified......was restored. in that case the facts are such that even if it is held that the restoration of the suit restored the interlocutory orders the order can operate only from the date of the restoration and cannot affect any intermediate alienation between the abatement of the suit (may, 1916) and its restoration in january, 1918. the opposite position is so untenable that one does not feel any difficulty about i that case. but to agree with that case, does not dispose; of the matter before me, and in my humble opinion the question before page, c.j. in a case where there is no question of any intermediate alienations between the dismissal and the restoration the question still remains whether the restoration of the suit does not restore the interlocutory orders or matters as between the.....
Judgment:

Ramesam, J.

1. A preliminary objection has been raised by the respondents in this revision petition that this petition cannot be heard now. To understand the nature of the objection the facts have got to be stated. The petitioner filed O.S. No. 236 of 1930 in the District Munsif's Court of Valangiman I for a declaration that the defendants are not entitled to the office of Adyapakam in the shrine of Sri Saranadaperumal in the Tanjore District and other reliefs. Pending the disposal of the suit the plaintiff applied for a temporary injunction restraining the defendants from interfering with his exercise of this office and enjoyment of the honours and emoluments attached to it and similar other reliefs. The District Munsif granted the injunction. There was an appeal to the District Court of West Tanjore. The learned District Judge reversed the order of the District Munsif and dismissed the application for injunction. Against the order of the District Judge the present revision petition was filed on the 26th October, 1932. Some time after the revision petition was admitted, the suit was called on for hearing and as both parties were not present it was dismissed for default but soon after it was restored to file and the suit is now pending. It is now contended that the effect of the dismissal of the suit for default was to dismiss not only the suit itself but all other interlocutory applications filed on behalf of the plaintiff and on which orders might have been passed in his favour by the District Munsif and also to put an end to all interlocutory matters connected with the suit and pending at the time of the dismissal either in the first Court or in higher Courts, and when the suit was again restored only the suit is restored but not the interlocutory matters. Reliance is placed for this contention on Balaraju Chettiar v. Masilamony Pillai I.L.R. (1929) 53 Mad. 334 : 58 M.L.J. 675. That judgment is a Full Bench judgment which binds me. In that case it was held that if a suit was tried and dismissed an attachment before judgment came to an end with the dismissal though the Court did not pass an order withdrawing it and if on appeal the suit was decreed there was no attachment order which the decree-holder could avail himself of. Not only does this judgment bind me, but if I may respectfully say so I entirely agree with it. But it seems to me that that case does not govern the present case. At page 346 Pakenham Walsh, J. observed:

As stated above, the reference before us does not deal with a suit dismissed for default and restored to file but with one where the decree dismissing the suit is reversed on appeal.

2. It was argued before the Full Bench that in the case of a suit dismissed for default and restored in the course of the same day it would work hardship to hold that the attachment : before judgment ceased to have force. As to this argument the learned Judge observed:

It is difficult to see how that can be a hardship which the law commands.

3. I agree with this observation. The case should be decided, not with reference to considerations of hardship but with reference to what the law is. If it is the law that the restoration of a suit does not restore the interlocutory orders the consideration of hardship is irrelevant. Another case relied on by the learned advocate for the respondents is the decision of Page, C.J. and Mya Bu, J. in Pindi v. U Thaw Ma I.L.R. (1931) 9 Rang. 472. In that case the learned Chief Justice observed with reference to the decision of Phillips and Devadoss, JJ. in Namagiri Ammal v. Muthu Velappa Goundan (1928) 56 M.L.J. 70, which must now be regarded as overruled by the decision of the Full Bench in Balaraju Chettiar v. Masilamony Pillai I.L.R. (1929) 53 Mad. 334 : 58 M.L.J. 675 that 'it is no answer to the legal right that it may, in certain circumstances, if enforced, work hardship. Hard cases make bad law.' Here again if I may respectfully say so I agree with the learned fudge's observation. The learned Judge then proceeded to say:

If the suit on being dismissed for default came to an end all interim and ancillary orders in the proceedings must fall with it.

4. I agree with this observation too. But the question is not whether the ancillary orders fall with the suit but whether when the suit is restored they are also restored. The learned Judge then proceeded to refer to the decision of Mahmood, J. in Ram Chand v. Pitam Mal I.L.R. (1888) 10 All. 506, where it was held that an attachment obtained before judgment ceased with the dismissal of the suit even though the Court failed to pass an order ending the attachment. The other cases also referred to by him except Jyotish Chandra Sen v. Har Chandra Saha (1927) 47 C.L.J. 282 are not cases of dismissal for default. In Jyotish Chandra Sen v. Har Chandra Saha (1927) 47 C.L.J. 282 an attachment before judgment was obtained on 31st August, 1915. An ex parte decree was obtained on the 11th November, 1915, which however became a nullity as the defendant died before that date. In August, 1916, the defendant's heirs sold the property in dispute. On 5th January, 1918, an application was made to set aside the abatement and to restore the suit and it was restored. In that case the facts are such that even if it is held that the restoration of the suit restored the interlocutory orders the order can operate only from the date of the restoration and cannot affect any intermediate alienation between the abatement of the suit (May, 1916) and its restoration in January, 1918. The opposite position is so untenable that one does not feel any difficulty about I that case. But to agree with that case, does not dispose; of the matter before me, and in my humble opinion the question before Page, C.J. In a case where there is no question of any intermediate alienations between the dismissal and the restoration the question still remains whether the restoration of the suit does not restore the interlocutory orders or matters as between the parties to the suit. Such a question it seems to me should be decided with reference to the intention of the officer who passed the order restoring the suit. It is a question of the construction of the order of restoration. If he intended to restore the suit and all the ancillary matters connected with it they are all restored. If he did not so intend to restore all of them they are not restored. If the order makes express reference to these matters, there is no difficulty; but where there is no such express reference it is a question of construction. As a matter of general rule I would say that the intention would be to restore the suit and all incidental matters. It is as if when the suit is dismissed the record of the suit was sent to the record room and when restored the whole bundle was brought back to the Court file with all the matters contained in it. If there is anything expressly appearing against the view that all the interlocutory matters are restored, then one would hold that they are not so restored. In the absence of such a thing I would hold that the suit and all incidental matters are restored to file. That being so, the injunction petition, the order passed on it by the District Munsif, the refusal to grant the injunction by the District Judge and the revision petition to the High Court would all be restored because they are in the nature of pendants to the suit. I would therefore disallow the preliminary objection. This view seems to be in accordance with the observations of myself and Jackson, J. in Selvarayan Samson v. Amalorpavmadham (1927) 55 M.L.J. 262 and consonant with the interests of justice.

5. Now coming to the merits of this revision petition, in the first place it seems to me that the view taken by the District Judge is correct.

6. Though the judgment of the High Court in the former litigation between the present defendants and the trustees of the temple does not bind the present plaintiff because he was not a party to that suit, still the fact remains that the High Court on the evidence before it held that the present defendants were also entitled to the office of Adyapakam and other offices. Certain documents referred to by the learned advocate for the petitioner seem to throw doubt on the defendants' rights but those documents were considered by the High Court and they seem to relate not exactly to the rights to the office but to some other matters. But whatever it may be - and I do not wish to make further observations in favour or against either party - it seems to me that the District Judge is right in thinking that there is some prima facie view in favour of the defendants and the plaintiff has not given other prima facie evidence so as to override it and the record shows that prior to 1901 the right of the defendants as Adyapakas does not seem to have been questioned. It may be necessary when the suit is finally disposed of to place limitation on the defendants in the exercise of that office. It may be that under the guise of the exercise of that office they ought not to interfere in other matters. It may be these things have all to be clearly defined finally in this litigation but it is clear that a total injunction against the defendants exercising the office is not justified. Even if there were any doubt in the matter, I do not think that there is any question of jurisdiction arising or of material irregularity in the case justifying my interference in this Civil Revision Petition.

7. The Civil Revision Petition is dismissed with costs.


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