Skip to content


Alagappa Chetty Vs. Annamalai Chetty and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in35Ind.Cas.74
AppellantAlagappa Chetty
RespondentAnnamalai Chetty and ors.
Cases Referred and Cameron v. Eraser
Excerpt:
civil procedure code (act v of 1908), sections 20(b), 105, 115 - leave to sue, order refusing grant of--reversal of order on appeal against order returning plaint--appellate court, jurisdiction, of--suit for accounts against partners individually--leave to sue, grant of, when some of the partners resident outside jurisdiction of court where suit instituted--cause of action--suit, institution of, in wrong court--jurisdiction--high court--revision. - - anantha krishna aiyar drew my attention to another circumstance upon which i do hot think he is as strong as on the other points......re-transferred to his name. the present suit is brought by the plaintiff in the, paramakudi district munsif's court impeaching the settlement of account at rangoon and claiming a certain sum of money from the defendant firm. at the time of the suit, the 1st defendant was undoubtedly residing within the jurisdiction of the district munsif of paramakudi. it is equally clear that the other two partners of the firm have been residing in rangoon all through. in these circumstances, an application was made by the plaintiff asking the court under section 20, clause (b), of the code of civil procedure for leave to institute the suit against air the defendants in the paramakudi court. by a separate order, the district munsif refused to grant leave, and on the same day passed an order.....
Judgment:

Seshagiri Aiyar, J.

1. Mr. Anantha, Krishna Aiyar, the learned Vakil for the petitioner, has. raised in this case some interesting1 questions of law, on which, though I do not agree with him, I am free to admit, there is a great deal to be said. The facts of the case are these. The plaintiff borrowed a large sum of money, from a. firm of Nattukottai Chetties in, Rangoon and, as security for the loan, deposited with the firm the mortgage securities obtained by him from third parties. Some time after the loan, the plaintiff settled accounts with the firm and. paid a certain sum of money in full discharge of the amount due and got the securities re-transferred to his name. The present suit is brought by the plaintiff in the, Paramakudi District Munsif's Court impeaching the settlement of account at Rangoon and claiming a certain sum of money from the defendant firm. At the time of the suit, the 1st defendant was undoubtedly residing within the jurisdiction of the District Munsif of Paramakudi. It is equally clear that the other two partners of the firm have been residing in Rangoon all through. In these circumstances, an application was made by the plaintiff asking the Court under Section 20, Clause (b), of the Code of Civil Procedure for leave to institute the suit against air the defendants in the Paramakudi Court. By a separate order, the District Munsif refused to grant leave, and on the same day passed an order returning the plaint to the plaintiff for presentation to the Court at Rangoon. This order returning the plaint embodies the separate order on the application for leave. Against this order returning the plaint, an appeal was preferred to the District Court. No appeal was preferred against the order refusing leave, and none could have been preferred as the Civil Procedure Code does not provide for such an appeal. In appeal, the District Judge reversed the order of the District Munsif, and at the same time granted leave, to the plaintiff under Section 20(6) of the Civil Procedure Code. Mr. Anantha Krishna Aiyar's objection to that order is that it is not competent for the District Judge to grant leave under Section 20(6), because the defendants, although three in number, constitute but one defendant and that Section 20(6) contemplates the grant of such leave only in cases where one of the defendants is within the jurisdiction of the Court in which the suit is sought to be instituted and the others are outside such jurisdiction. I am somewhat impressed by this argument because, although three persons are mentioned as defendants, still, on looking into the plaint, it strikes me that the real object of the suit is to obtain a decree against the firm of which the three defendants are the partners. Nonetheless, the order of the District Judge is strictly within Section 20, Clause (6). If plaintiff had sued the partnership as a single defendant, though it was composed of three partners, then the contention of Mr. Anantha Krishna Aiyar would be unanswerable. But the plaintiff by impleading the defendants as separate individuals and separate parties has avoided that difficulty. In these circumstances, I am unable to accede to the argument of Mr. Anantha Krishna Aiyar upon this point.

2. The further argument of the learned Vakil is that as no appeal lay against the order refusing to grant leave, it is not open to the District Judge, in reversing the order of the District Munsif returning the plaint for presentation to the proper Court, to grant leave under Section 20(6). Here again there is no authority one way or the other. I am inclined to think that the principle of Section 105, Civil Procedure Code, would apply not only to decrees and interlocutory orders, but also to orders and interlocutory orders which lead up to the final order. The principles enunciated in Jones v. Gough (1865) 3 Moore P.C. 1 : 11 Jur. (N.S.) 251 : 12 L.T. 31 : 13 W.R. 509 : 16 E.R. 1 : 146 R.R. 1 and Cameron v. Eraser (1842) 4 Moore P.C. 1 : 13 E.R. 200 to which Mr. Rajah Aiyar on behalf of the respondent drew my attention, support this view. I am, therefore, of opinion that it was competent to the District Judge to consider the order refusing to grant leave preliminary to the reversal of the order of the District Munsif.

3. Mr. Anantha Krishna Aiyar drew my attention to another circumstance upon which I do hot think he is as strong as on the other points. The District Judge, no doubt, makes the statement that the defendants who did not reside within the District Munsif's jurisdiction raised no objection to the institution of the suit in the Paramakudi Court. I think he is right in the statement he makes, because there is only one written statement filed by the 1st defendant and in that statement he says that the other defendants have not acquiesced in the institution of the suit. But that is not a statement: made by the other defendants. Consequently, the District Judge is right in saying that the other defendants have not objected to the institution of the suit in the Court of the Paramakudi District Munsif. Although I have expressed my views fully on the questions of law raised in the case, I entirely agree with Mr. Anantha Krishna Aiyar that this suit ought not to be allowed to be tried in the Madura District because the settlement was come to in, Rangoon, the parties, namely two of the defendants and the plaintiff, and his witnesses are at Rangoon, the dealings were in Rangoon and the securities were all in Rangoon. In these circumstances, the proper Court in which the litigation should be carried on is the Ranoodn Court and not the Paramakudi Munsif's Court. There is, however, this circumstance against Mr. Anantha Krishna Aiyar, namely, this is not a case in which I can interfere under Section 115 of the Civil Procedure Code, for I cannot say that the District Judge has exceeded his jurisdiction in dealing with this ease.

4. I, therefore, dismiss the petition under the circumstances, but I make no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //