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Velayuda Pandaram (Died) and ors. Vs. Sundara Balakumaraswami Maniagar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1926Mad829; 95Ind.Cas.968; (1926)51MLJ630
AppellantVelayuda Pandaram (Died) and ors.
RespondentSundara Balakumaraswami Maniagar and ors.
Cases ReferredVenkatanarasimha Appa Rao v. Narasimha Charyalu
Excerpt:
- - 533 of 1908. the subordinate judge held that the claim for interest was wholly untena-ble and unsustainable and had merely been added in order to enable the plaintiff to institute a suit in the court of the subordinate judge instead of that of the district munsiff where it would have been clearly barred as having been decided in o. with regard to the second point which 1 will deal with first, it is said quite rightly that the amount as well as the nature of the suit must be taken into consideration in deciding whether a subsequent suit is barred under section ii, civil procedure code. 344 where it was held by a bench of this court that the plaintiff cannot be allowed to get over the bar of res judi-cata by including in a later suit a clearly untenable claim......only a money decree and the high court held on the construction of ex. b which is ex. f (x) in the present suit, that there was only a personal covenant on the part of the obligee to pay the annuity coupled with the special remedy defined in the document. before the subordinate judge it was argued that the plaintiff was entitled to no interest on the annuity and secondly that his claim for a charge was res judicata by reason of the decision of the suit o.s. no. 533 of 1908. the subordinate judge held that the claim for interest was wholly untena-ble and unsustainable and had merely been added in order to enable the plaintiff to institute a suit in the court of the subordinate judge instead of that of the district munsiff where it would have been clearly barred as having been decided in.....
Judgment:

Odgers, J.

1. This was a suit for the recovery of certain moneys with interest at 12 per cent, per annum being arrears of annuity due for faslis 1318 to 1325. The step-brother of the Zamindar of Vadimitta obtained a decree for a half-share in a suit for partition in the Zilla Court of Tinnevelly in 1846. The Zamindar appealed and pending the appeal a compromise, Ex. B, was effected in 1848, the step-brother under it giving up his claim to a share in the zemindari in consideration of an annuity of Rs. 950 per annum to be made a charge on the rents of 8 villages. The stepbrother died leaving three sons, Kumara Etta, Venkateswara and Dalavoy. In 1863 the two latter instituted a suit for the division of the annuity mak- ing their brother Kumara Etta and the Zamindar defendants. This suit was also compromised and the two plaintiffs became entitled to an annuity of Rs. 280 out of Rs. 950. Dalavoy died and his right passed to Venkateswara by survivorship. On 12th February, 1895 Venkateswara hypothecated his right in Rs. 280 to plaintiff under Ex. A. Plaintiff sued on foot of Ex. A (O.S. No. 157 of 1899, Sattur District Munsif's Court) and got a decree, Ex.D. In execution of the decree he brought the right to the annuity to sale and purchased it himself on the 31st March, 1905. The Vadimitta Estate meantime was the subject of litigation among rival claimants. The Collector of Tinnevelly filed an inter-pleader suit (O.S. No. 63 of 1899) to which all the rival claimants were parties. The suit was referred to arbitration and a compromise, Ex. E followed and the 9th defendant in that suit who is the lineal descendant of Kumara Etta, instead of the annuity of Rs. 950, got an one fourth share in the Vadimitra Estate. He is the 1st defendant in this suit. Under Ex. E Rs. 280 which had to be paid by the present 1st defendant out of Rs. 950 was made a charge on the one-fourth share allotted to the 1st de-fencfant instead of a charge on the 8 villages as in Ex. B and the 1st defendant was made liable to pay this sum. On the foot of Ex. D (1) the plaintiff sued in O.S. No. 533 of 1908 in the Sattur District Munsif's Court for the recovery of the annuity due for three years, faslis 1315 to 1317, claiming a charge in respect of it on the 8 villages. He obtained only a money decree and the High Court held on the construction of Ex. B which is Ex. F (x) in the present suit, that there was only a personal covenant on the part of the obligee to pay the annuity coupled with the special remedy defined in the document. Before the Subordinate Judge it was argued that the plaintiff was entitled to no interest on the annuity and secondly that his claim for a charge was res judicata by reason of the decision of the suit O.S. No. 533 of 1908. The Subordinate Judge held that the claim for interest was wholly untena-ble and unsustainable and had merely been added in order to enable the plaintiff to institute a suit in the Court of the Subordinate Judge instead of that of the District Munsiff where it would have been clearly barred as having been decided in O.S. No. 533 of 1908. The District, Judge upheld the point of res judicata and also held that though the compromise Ex.E created a charge for Rs. 280 the plaintiff a party to it was not entitled to enforce the covenant in his favour, against the defendant.-

2. Two points were argued before me in Second Appeal, namely, that the appellant could enforce the charge under Ex. E and secondly that the decision of the Lower Courts as to -res juclioata was wrong. With regard to the second point which 1 will deal with first, it is said quite rightly that the amount as well as the nature of the suit must be taken into consideration in deciding whether a subsequent suit is barred under Section II, Civil Procedure Code. The authorities quoted for the appellant are all cases where the subsequent suit in the higher Court was bona fide admissible. By that 1 mean that the claim of the plaintiff had not been wilfully inflated simply in order to give jurisdiction to the superior Court. Here, interest was disallowed in all the Courts below and in the High Court in second appeal was dismissed. It does not appear in so many words from the judgment that the question of interest was argued but it was taken in the grounds of appeal and 1 must take it that the whole of the plaintiff's claim which included interest as set out in the plaint was found against. The judgment of the High Court in second appeal was delivered on the 15th December, 1915. The plaint in the present suit was presented on 8th April, 1916. It seems to me therefore that the plaintiff must have known that his claim for interest was wholly unsustainable as found by the Lower Courts and that the learned District Judge was right in saying that the plaintiff cannot escape the bar of res judicata by merely waiting lor 7 years in order to increase his claim to an amount of Rs. 3,000. This point is sufficient to dispose of the second appeal as if interest is disallowed there is no doubt that the present claim is concluded by the judgment in O.S. No.533 of 1908. Reference may be made to the case reported in Venkatanarasimha Appa Rao v. Narasimha Charyalu (1925) 50 M.L.J. 344 where it was held by a Bench of this Court that the plaintiff cannot be allowed to get over the bar of res judi-cata by including in a later suit a clearly untenable claim. The subject-matter of this suit is the same as in the former, namely, the recovery of the annuity of Rs. 280 and interest. It does not, in my opinion, make any difference that the suit in the High Court decided on Ex. F (1) and the present suit is brought in respect of Ex. E. The decision of the learned District Judge was right and the second appeal must be dismissed with costs of nth and 10th respondents, two sets.


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