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Srirangachariar and ors. Vs. Ramasami Ayyangar and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtChennai
Decided On
Judge
Reported in(1895)ILR18Mad189
AppellantSrirangachariar and ors.
RespondentRamasami Ayyangar and ors.
Cases Referred and Khadir Moideen v. Rama Naik I.L.R.
Excerpt:
contract act - act ix of 1872, section 28--consideration in part illegal--stifling a prosecution--limitation act--act xv of 1877, section 22, schedule ii, articles 91, 120--civil procedure code--act xiv of 1882, section 13--res judicata decree in suit of small cause nature--subsequent suit for dedclaration. - - and oven if this illegal consideration is only part of the consideration, it 'renders the whole agreement void, because there is not good and sufficient consideration. section 22 of the limitation act therefore clearly applies to them. but in our opinion, had the name of first plaintiff stood alone throughout, he was entitled to sue to evade his individual responsibility under the agreement because there was a several as well as a joint liability under it......1886, and this suit was brought by the first plaintiff alone on the last day allowed by a three years' limitation. the second and third plaintiffs not having 'joined the first plaintiff in bringing the suit, he made them defendants. it was not until the 25th january 1892 that, by an order of the judge passed under section 32, code of civil procedure, they were made plaintiffs. they were therefore not made co-plaintiffs till more than three years after their cause of action arose, and under section 221 of the limitation act, the suit should be deemed to have been instituted when they were so made parties. the period of limitation for setting aside a document is under article 912 of the second schedule to the limitation act three years from the time the plaintiff knew of it, these.....
Judgment:

1. There can ho no doubt that part of the consideration for the agreement A was the withdrawal of a pending criminal charge of trespass and theft laid against the plaintiffs and others (vide Exhibit B) on the 14th February 1886, that is, two days before the execution of A. The first plaintiff as plaintiff's third witness has sworn that it was so and his evidence stands uncontradicted, not even one of the defendants denying it. It is further proved that the very Magistrate, who would have tried the charge laid if it had been proceeded with, was present taking part in the negotiations that led up to A. There is also no doubt of the law that a consideration that proceeds upon the withdrawal of criminal proceedings that have been instituted is illegal as being opposed to public policy, as it is hold to be the stifling of a prosecution. And oven if this illegal consideration is only part of the consideration, it 'renders the whole agreement void, because there is not good and sufficient consideration. Lound v. Grimwade L.R. 89 Ch. D 605 We therefore confirm the District Judge's finding in this respect. It is next contended for the appellant that the question of the validity of the agreement could not be re-opened, because it was res judicata by reason of the previous decision of the District Court in Appeal Suit No. 269 of 1887 holding it to be valid. That appeal, however, was made in a suit of a small cause nature before the District Munsif of Chidambaram (Original Suit No. 790 of 1886), and the subject-matter thereof was consequently not open to second appeal. It has been hold by the Bombay High Court Govind Bin Lakshmanshet Anjorlekar v. Dhondharav Bin Ganbarav Tambye I.L.R. 15 Bom. 104 that a decision in a suit of that character will not operate as res judicata and that ruling has been more than once followed by this Court, vide Vithilinga Padayachi v. Vithilinga Mudali I.L.R. 15 Mad. 111 and Namadvaya Gurukkal v. Kadir Animal I.L.R. 17 Mad. 168 and we see no reason to depart from it now, and must therefore disallow this contention.

2. We find however that the second and third plaintiffs are not entitled to the declaration setting aside the agreement A, because we find that they did not sue in time for this Relief. The agreement A is dated the 16th February 1886, and this suit was brought by the first plaintiff alone on the last day allowed by a three years' limitation. The second and third plaintiffs not having 'joined the first plaintiff in bringing the suit, he made them defendants. It was not until the 25th January 1892 that, by an order of the Judge passed under Section 32, Code of Civil Procedure, they were made plaintiffs. They were therefore not made co-plaintiffs till more than three years after their cause of action arose, and under Section 221 of the Limitation Act, the suit should be deemed to have been instituted when they were so made parties. The period of limitation for setting aside a document is under Article 912 of the second Schedule to the Limitation Act three years from the time the plaintiff knew of it, These plaintiff's Nos. 2 and 3 knew of it on the 16th February 1886 when they executed it, and therefore their inclusion as plaintiffs in the suit on the 25th January 1892 was made too late. It is contended on their behalf (ii) that being defendants in the suit they were already parties thereto when it was brought, and Section 22 of the Limitation Act is therefore not applicable to their case, and (ii) that the Relief as prayed for was not to set aside the document, but merely to declare it invalid and the article of limitation applicable was Article 1203 of the second Schedule, allowing six years' time as for a suit for which no period of limitation is otherwise provided, under which these plaintiff's would be in time. We cannot accede to either of these views and the cases quoted, Nagathal v. Ponnusami I.L.R. 13 Mad. 44 and Khadir Moideen v. Rama Naik I.L.R. 17 Mad. 12 do not support either contention. As to the first point the second and third plaintiffs were 'added' as such only on the date they were taken from the ranks of the defendants, and it is only then they were so made parties. Section 22 of the Limitation Act therefore clearly applies to them. As to the second point there is no such suit as for a mere declaration to declare an instrument invalid. 42(sic) of the Specific Relief Act shows in what matters mere declaratory suits are admissible. The only suit possible under that Act in regard to an instrument is one under Section 394 to have the document adjudged void and to have it cancelled, and Article 91 of the second schedule to the Limitation Act is the particular article applicable to such a case. The result is that the decree so far as it sets aside the agreement A must be modified by declaring that it is not set aside against plaintiffs Nos. 2 and 3. It is then argued by appellants' vakil that first plaintiff cannot alone sue for that Relief, as the agreement is a joint agreement of all three plaintiffs. If there was any technical defect in this respect, it was cured by the addition of the second and third plaintiffs before the decree was passed. But in our opinion, had the name of first plaintiff stood alone throughout, he was entitled to sue to evade his individual responsibility under the agreement because there was a several as well as a joint liability under it.

3. The appeal is therefore dismissed with cants as against first plaintiff. It is allowed as against second and third plaintiffs to the extent indicated above, and the decree of the lower Court will be modified accordingly.

4. These plaintiffs will bear their own costs.

1

[Section 22: When, after the institution of a suit, a new

Effect substituting or plaintiff or defendant is substituted or added, the suit shall,

adding new plaintiff or as regards him, be deemed to have been instituted when he was

defendant so made a party.

Provided that, when a plaintiff, dies and the suit is continued

by his legal representative, it shall, as regards him, be deemed

Proviso where original to have been instituted when it was instituted by the deceased

plaintiff dies. plaintiff:

Provided also, that, when a defendant dies, and the suit is

Proviso where original continued against his legal representative, it shall, as regards

defendant dies. him, be deemed to have boon instituted when it was instituted

against the deceased defendant.]

2

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[Article 91:

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Description of Suit. Peiod of Time from which period begins to run.

limitation

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To cancel or set aside aninstru- When the facts entitling the plaintiff

ment not otherwise provided for. Three years to have the instrument cancelled or

set aside become known to him.]

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3

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[Article 120:

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Suit for which no period of limi- Six years. When the right to sue accrues.]

tation is provided elsewhere in this

schedule.

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4

[Section 39. Any person against whom a written instrument is void or voidable, who has

reasonable apprehension that such instrument, if left outstand-

When cancellation may ing, may cause him sorious injury, may sue to have it adjudged

be ordered. void or voidable, and the Court may, in its discretion, so

adjudge it and order it to be delivered up and cancelled.

If the instrument has been registered under the Indian Registration Act, the Court

shall also send a copy of its decree to the officer in whose office the instrument has been so

registered, and such officer shall note on the copy of the instrument contained in his books

the fact of its cancellation.]


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