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The Tirumalai Tirupati Devasthanams Committee, Represented by Its Commissioner, Sri A. Jayaram Naidu and ors. Vs. N. Chengama Naidu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1947Mad390; (1947)1MLJ411
AppellantThe Tirumalai Tirupati Devasthanams Committee, Represented by Its Commissioner, Sri A. Jayaram Naidu
RespondentN. Chengama Naidu and ors.
Cases ReferredChidambara Nadar v. Rama Nadar
Excerpt:
- - clearly legislative provisions as to such matters only lay down some of the limitations under which the jurisdiction is allowed to be exercised. the fact that the lands are registered as dry or rainfed clearly shows that they are not entitled to any registered source of water supply. 5. on the question of irreparable injury he found that both parties were well to-do and there was no difficulty about one reimbursing the other for damages......ingeniously, that no relief by way of a temporary injunction can be given by this court in a civil revision petition. he referred to section 107 of the code of civil procedure which provides that an appellate court should have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the code on courts of original jurisdiction in respect of suits instituted therein, and he argued that in exercise of those powers and duties the appellate court may grant a temporary injunction or a relief of that character. under section 115, which deals with the powers of a court of revision it was contended that no such power was vested and that the only order that could be passed under that section was a final order on the revision petition. he then.....
Judgment:
ORDER

Yahya Ali, J.

1. This is a petition by the plaintiffs in O.S. No. 305 of 1945 (District Munsiff's Court, Tirupati) for a temporary injunction restraining the respondents who are the defendants in the suit from interfering in any manner with the free and uninterrupted flow of water from the plaint channel to the petitioners' lands. The suit was filed for a declaration that plaintiffs 2 to 7 are entitled exclusively to the supply of water from the suit channel and for a permanent injunction restraining the defendants from interfering with that supply and from taking away water from that channel in its course towards their lands. An application for a temporary injunction was made in the trial Court and the District Munsiff who had granted an ad interim injunction made that injunction absolute on 14th December, 1946, in I .A. No. 821 of 1945. The defendants in the suit had filed I.A. No. 894 of 1945 to set aside the interim injunction and that petition wad dismissed. Appeals were taken to the District Court, Chittoor, against the orders of the District Munsiff and in C.M.A. Nos. 17 and 18 of 1946, the District Judge practically cancelled the order of injunction although he described his order as an order modifying the District Munsiff's order. What all was done by the appellate Court was to require the defendants to deposit a sum of Rs. 300 in the trial Court as security for damages, should they be eventually unable to prove their case. This is how the learned Judge wound up his order:

I am modifying the lower Court's order only on an interim basis and that too on conditions, and in the interests of equity and the raising of as much crop as possible in these days of scarcity and threatening famine.

The learned District Munsiff, however, has in his reasoned order examined all the essential aspects that were required to be scrutinised in an application of this character. He considered how far there was a prima facie case in favour of the petitioners, he examined the balance of convenience ; and also as to whether either party would suffer irreparable loss or injury. I do not find that any of those material considerations entered into the discussion of the case by the learned District Judge.

2. Before going into the merits of the case I must take note of a preliminary objection that was raised by Mr. Chakrapani Naidu to the maintainability of the petition. He contended, rather ingeniously, that no relief by way of a temporary injunction can be given by this Court in a civil revision petition. He referred to Section 107 of the Code of Civil Procedure which provides that an appellate Court should have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein, and he argued that in exercise of those powers and duties the appellate Court may grant a temporary injunction or a relief of that character. Under Section 115, which deals with the powers of a Court of Revision it was contended that no such power was vested and that the only order that could be passed under that section was a final order on the revision petition. He then referred to Section 141 which enacts that the procedure provided in the Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction and argued that that section has been held by this Court to be inapplicable to such cases. For this position he relied upon two decisions none of which seems to be apt. The first is the decision of Patanjali Sastri, J., sitting singly, in Rama Kurup v. Kunhipathumma : (1942)2MLJ99 . where the learned Judge merely stated that a civil revision petition that was filed in this Court could not be returned as it cannot be presented as a civil revision petition to a District Court and that for that purpose Section 141 of the Code was unavailable. The second case is Sadaya Padayachi v. Chinnosami Naidu : AIR1935Mad609 which only decided that Section 141 does not confer a right of appeal when no such right otherwise has been given, since Section 141 deals only with procedure, whereas the right of appeal is a substantive right which has to be expressly conferred. Cases that are more germane to the question at issue are the two Full Bench decisions of this Court reported as Chappan v. Moidin Kutti : (1898)8MLJ231 and Chidambara Nadar v. Rama Nadar : AIR1937Mad385 Before referring to these cases a passage may be extracted from Story which throws a flood of light on this matter:

The essential criterion of appellate jurisdiction is, that it revises and corrects the proceedings in a cause already instituted and does not create that cause. In reference to judicial tribunals an appellate jurisdiction, therefore, necessarily implies that the subject-matter has been already instituted and acted upon by some other Court, whose judgment or proceedings are to be revised.

Again the learned author says:

An appellate jurisdiction may be exercised in a variety of forms and indeed in any form which the Legislature may choose to prescribe.' (Commentaries on the Constitution of the United States, Section 1761.)

I may point out that revisional jurisdiction is in its essence and substance a variety or form of appellate jurisdiction which the Legislature has chosen to prescribe. This matter was gone into at length in the former of the two Madras Full Bench cases cited above, which was decided by six learned Judges of this Court. Subramania Aiyar, J., observed in that case at page 81 referring to the appellate jurisdiction:

Such jurisdiction may be exercisable only in certain specified classes of cases. Its exercise may be claimable by a party as a matter of right or only subject to his obtaining the leave of the Court which passed the decision to be appealed against. Again, the power to review or revise may be confined to points of law or may extend to matters of fact also. Clearly legislative provisions as to such matters only lay down some of the limitations under which the jurisdiction is allowed to be exercised. Nor are the conditions, prescribed by Section 622 for the exercise of the power of revision conferred by it, different in essence from the kind of limitations just above referred to and more commonly imposed by Legislatures on the exercise of appellate functions. But none of such limitations however much it may circumscribe the exercise of the power, touches, as already remarked, the intrinsic quality of the power itself. Now, as Section 622 in question gives in terms to this Court the power to revise decisions of Courts subordinate to it, it follows that the essential criterion of appellate jurisdiction, enunciated in the above quotation (from Story) is present in the case of proceedings held by this Court under that section and that the power exercised in such proceedings is therefore a part of the Court's appellate jurisdiction. It may not be out of place to add that to take the word ' appellate' in the sense explained above, is not opposed even to ordinary usage.

3. This view was again reiterated by another Bench of three learned Judges of this Court in the second of the cases cited above, Chidambara Nadar v. Rama Nadar : AIR1937Mad385 . The question there was one of limitation but incidentally the point arose whether a remedy by way of revision does not differ in essence from a right of appeal; and it was held that it does not as has often been declared by the Judicial Committee (page 625). In Rajah of Ramnad v. Kamid Rowther their Lordships of the Judicial Committee referring to a civil revision petition, thus observed:

From this judgment an appeal in the form appropriate to such a case from the Munsiff's Court, i.e., a civil revision petition, was preferred to the High Court of Madras.

(See also Baijnath Sahai v. Ramgut Singh) . In Nagendranath De v. Sureshchandra De the question as to what amounted to an appeal under Art. 182 (2) of the Limitation Act arose, and the language of their Lordships, in view of the present question raised, though it does not directly bear upon it, is both suggestive and significant. After setting out the facts of Nagendranath De's case the learned Judges observed thus in Chidambara Nadar v. Rama Nadar : AIR1937Mad385 as to the effect of the judgment of their Lordships of the Privy Council referred to above :

Their Lordships held that any application by a party to an appellate Court to set aside or revise a decree or order of a Court subordinate thereto is an' appeal' within the meaning of that provision [Article 182(2)]...and it is with the words used by their Lordships in this connection that we are here concerned. 'There is no definition of' appeal' in the Civil Procedure Code,' they observe but their Lordships, have no. doubt, that any application by a party to an appellate Court, asking.' it to set aside ..or revise a decision of a subordinate Court, is an appeal within the ordinary acceptation of that term and that it is no less an appeal because it is irregular or incompetent.' True, much importance cannot be attached to the word 'revise' in this passage, as their Lordships were not adverting to what is technically known as a revision petition ; but the view, that there is nonessential difference between a remedy by way of appeal and by way of revision, is considerably reinforced by the passage in question and its value becomes all the greater when we bear in mind that their Lordships made these observations in construing the very provision with which we are now concerned.

After the weighty pronouncement of the Judicial Committee in the three cases cited above arid the Full Bench decisions of this Court it. is too late in the day to question the authority of this Court to entertain applications of this kind in a civil revision petition. Learned Counsel for the petitioner invoked the aid of Section 151 of the Code of Civil Procedure and contended that to meet the ends of justice this Court in exercise of its revisional jurisdiction can grant such relief since there is no other express provision made in that behalf. There is considerable force in this contention but I would prefer to base my conclusion on the broader footing that revisional jurisdiction is a variety or form of appellate jurisdiction and that as such this Court has authority to issue a temporary injunction on its revisional side. The objection must, therefore, be overruled.

4. Coming to the merits of the case, I have already indicated that the order of the learned District Munsiff is sound and that he has considered the matter in a proper judicial bearing, while the order of the District Judge has proceeded, at least partly, upon extra-judicial considerations. The fact so far as this matter is con- , cerned, are fairly simple. The channel A.B. according to the Commissioner's plan, takes off at A from the river Aruna and at it enters the lands belonging to plaintiffs 2 to 7 and irrigates a very large expanse of two thousand kuntahs (6 kuntahs : one acre) of registered wet land belonging to them. It is supplemented by another source coming from a place marked D in the same plan which is called the Kasam. The plaintiffs claim an exclusive right to both these sources of supply. The defendants own about 100 kuntahs south of the channel A.B. and their lands are registered as dry or as Manavari which means rainfed. The fact that the lands are registered as dry or rainfed clearly shows that they are not entitled to any registered source of water supply. There are a number of wells and such cultivation as was going on, it is urged by the plaintiffs, was from water from those wells. The learned District Munsiff has taken into account in granting the temporary injunction a number of documents, including the Jamabandi Chitta accounts for faslis 1279, 1302, ,1311 and 1313. He has also examined the adangal accounts and pattas of Aranyam Khandriga and from a scrutiny of the documentary evidence in the case he has come to the conclusion that prima facie this is a fit matter in which a temporary injunction should be granted in favour of the plaintiffs as prayed for.

5. On the question of irreparable injury he found that both parties were well to-do and there was no difficulty about one reimbursing the other for damages.

6. Again with regard to the balance of convenience he was of the opinion that the balance was entirely on the side of the plaintiffs. I am in entire agreement with these findings. No doubt some claim is being made by the defendants but it will be open to them to establish their claim in the suit and if they succeed they will necessarily get damages for the loss of profits during this period.

7. I would therefore allow the petition with costs, and grant the temporary injunction in terms prayed for to enure until the disposal of the civil revision petition.


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