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N.K. Govindan Nayar Vs. Kanhirathotikayil Ithaletty - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1926Mad764; (1926)50MLJ493
AppellantN.K. Govindan Nayar
RespondentKanhirathotikayil Ithaletty
Cases ReferredCourt. In Abdulla Koya v. Kallumpurath Kanaran
Excerpt:
.....adduced. what happened was that the learned vakil built up an argument on behalf of petitioner which appeared to me to be well founded, but lacking the coping stone. but i hasten to add that this, in my opinion would not conclude the question, and there as good authority for holding that a judge should not review his judgment merely because a party has found fresh rulings on the matter, because there are further considerations of prime importance. after he has given one party his decree, only the most exceptional circumstances would justify a judge in depriving him of it......know the amount, how can he fix it for jurisdiction? it was argued at the 'previous hearing that damages and improvements were on the same footing, because in section 6(3), madras act 1 of 1900, there is provision for improvements, money accruing due for rent, or otherwise in respect of the tenancy, and this latter phrase included damages. it seemed to me remarkable that if the legislature had intended damages to come within the category, it should not have aid so in terms, and to describe damages as money accruing due in respect of a tenancy is very circuitous. and as i remarked, i was impressed by the circumstance that no ruling which sanctioned such interpretation was produced. it seemed that the question must have arisen and the very absence of rulings was an argument ab silintio.....
Judgment:
ORDER

Jackson, J.

1. The petitioner applies for review of my judgment in Civil Revision Petition No. 30 of 1925.

1. Most of the grounds set forth in his application are clearly unsustainable. There is no error on the face of the judgment and the best proof that my previous judgment Was based on no misapprehension of the argument and vitiated by no omission of material points lies in the fact that at the second hearing no fresh argument and no fresh points have been adduced. What happened was that the learned vakil built up an argument on behalf of petitioner which appeared to me to be well founded, but lacking the coping stone. Appraised of this defect by my judgment, he has searched the Reports and has found what was previously wanting. The first question is, whether in these circumstances this Court should allow a review.

2. As pointed out by the Judicial Committee in Chhaju Ram v. Neki (1922) 43 MLJ 332, Rule 1 of Order 47 must be read as in itself definitive of the limits within which review is permitted and words 'any other sufficient reason'in that rule mean a reason on grounds atleast analogous to those specified immediately previously. If after exercise of due diligence, and no one accuses Mr. Ramakrishna Aiyar of want of diligence in this case, a pleader fails to lay his hand upon certain material rulings which are not to be found in the authorised reports; the situation is certainty analogous to one where new and important matter was not within the knowledge of the party. But I hasten to add that this, in my opinion would not conclude the question, and there as good authority for holding that a Judge should not review his judgment merely because a party has found fresh rulings on the matter, because there are further considerations of prime importance. A Judge cannot ordinarily give and take away in the same proceeding. After he has given one party his decree, only the most exceptional circumstances would justify a Judge in depriving him of it. And merely that a Judge has altered his mind would not, in my opinion, constitute such justifying circumstance. There must, generally speaking, be finality. But it so happens that these considerations do not apply to this particular case. The respondent has opposed the Civil Revision Petition and was fully entitled to do so, since a defendant can make every legal defence, but if is not a question of right between the two parties, being a mere matter of Court-fees. The order sought to be reviewed gave nothing to the respondent, except such advantage as he might hope to reap through his antagonist being heavily taxed. Review therefore involves no deprivation. And there is no question here of the Court altering its mind. I was prepared to accept the petitioner's argument if authority on the culminating point was forthcoming and now that it is produced to find in his favour would not be to go back, but to go forwards, upon the previous argument.

3. Moreover, this is a matter which transcends the interests of the actual parties before me. It governs the procedure in a very common form of suit in Malabar and the effect of a wrong decision will be far reaching.

4. The Court then of itself must consider the validity of its judgment and Vellaya v. Jagannatha ILR (1883) M 307 is authority for holding that in such circumstances, review is justified. Accordingly I allow the petition for review, but only, be it understood with regard to the particular circumstances of this case. In most cases, the predominating principle to be considered is finality.

5. To turn to the merits. It has been held that a mortgagor suing in redemption in Malabar is not bound to value his suit according to the amount he may have to pay for improvements, Zamorin of Calicut v. Narayana ILR (1882) M 284. This ruling is based on the opinion of three out of the five judges forming the Bench, the other two dissenting, which shows how evenly the question is balanced. Now, if it could be shown that damages are in pari materia with improvements, the same reasoning would apply and damages cannot be taken into account in ascertaining the amount for the purposes of jurisdiction. If the, plaintiff does not know the amount, how can he fix it for jurisdiction? It was argued at the 'previous hearing that damages and improvements were on the same footing, because in Section 6(3), Madras Act 1 of 1900, there is provision for improvements, money accruing due for rent, or otherwise in respect of the tenancy, and this latter phrase included damages. It seemed to me remarkable that if the legislature had intended damages to come within the category, it should not have aid so in terms, and to describe damages as money accruing due in respect of a tenancy is very circuitous. And as I remarked, I was impressed by the circumstance that no ruling which sanctioned such interpretation was produced. It seemed that the question must have arisen and the very absence of rulings was an argument ab silintio in favour of respondent's contention that the phrase did not refer to damages. There-lore, I rejected the argument. Now petitioner has produced two rulings of this Court. In Abdulla Koya v. Kallumpurath Kanaran : (1917)33MLJ463 , Spencer, J., finds in terms that the words 'any sum of money accruing due for rent or otherwise in respect of the tenancy' are wide enough to include damages and Sadasiva Aiyar, J., concurs. The latter Judge sitting with Napier, J. found to the same effect in Pumpaliya Vengaliya V. Kunhamina (1914) 25 I.C. 704.

6. I find therefore, that the petitioner is entitled to pay the Court-fee after the amount recoverable, by way of damages, has been ascertained and set off against the amount payable by way of improvements.

7. The petition is allowed and this finding supersedes my former judgment except in respect of costs.


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