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Kowtha Suryanarayana Garu Vs. Yarudala Venkayya and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1923Mad177; 70Ind.Cas.38
AppellantKowtha Suryanarayana Garu
RespondentYarudala Venkayya and ors.
Cases ReferredVenkatarama Aiyar v. Ramasami Aiyar
Excerpt:
.....of the plaintiff at the adjourned hearing, because he was of the opinion that the suits, in any event, should fail, as they were suits for recovery of rents due on the lands prior to their purchase by the plaintiff from the previous.....krishnan, j.1. these are three petitions to revise the order of the additional deputy collector, bezwada, refusing to restore three suits which bad been brought before him for arrears of rent alleged to be due from the defendants to the plaintiff. ex parte decrees had been passed in these suits originally, but they were set aside at the instance of the defendants and the suits were posted again for hearing. on the date of that hearing the plaintiff's vakil, and the plaintiff were absent, and so was the agent of the plaintiff, and the suits were dismissed for default. applications mere made to restore the cults on the ground, that the default, by non-appearance was, accidental and not due to any wilful negligence on the art of the plaintiff. the additional deputy collector, after having.....
Judgment:

Krishnan, J.

1. These are three petitions to revise the order of the Additional Deputy Collector, Bezwada, refusing to restore three suits which bad been brought before him for arrears of rent alleged to be due from the defendants to the plaintiff. Ex parte decrees had been passed in these suits originally, but they were set aside at the instance of the defendants and the suits were posted again for hearing. On the date of that hearing the plaintiff's Vakil, and the plaintiff were absent, and so was the agent of the plaintiff, and the suits were dismissed for default. Applications Mere made to restore the cults on the ground, that the default, by non-appearance was, accidental and not due to any wilful negligence on the art of the plaintiff. The Additional Deputy collector, after having given notice to the other side and having heard the Vakils of other parties, dismissed the applications without considering whether any proper round had been made out or not for the absence of the plaintiff at the adjourned hearing, because he was of the opinion that the suits, in any event, should fail, as they were suits for recovery of rents due on the lands prior to their purchase by the plaintiff from the previous owners. He considered that the case would fall under Section 8 of the Transfer of Property Act. But it is stated before me in this Court that, besides the lands, the right to arrears of rent was also transferred by the sale-deeds to the plaintiff and that would certainly give a right to maintain the suits. In the case cited by the Additional Deputy Collector; Muthu Hengsu v. Netravathi 58 Ind. Cas. 383 there was no question about ah actual transfer of the right to recover rent. That was a case where', apparently, a claim, was made to past mesne profits. That case was considered by one of the Judges who took part in it, Seshagiri Aiyar, J., when sitting with Sadasiva Aiyar, J. in Venkatarama Aiyar v. Ramasami Aiyar 62 Ind. Cas. 305 wherein he makes a statement that, if his decision was to be understood as laying down that even in cases of actual transfer of mesne profits as subsidiary to the enjoyment of the property the right could not be enforced, he was not prepared to stand by it. Here we have not got a case of mesne profits at all but a case of transfer of rents with immoveable property; Section 8 does not apply to such a case at all nor is Section 6, Clause (e) a bar to the maintainability of these suits. The Additional Deputy Collector has gone wrong on this point of law and, therefore, his decision is not supportable.

2. I am of opinion that these petitions fall under Section 115 of the Code of Civil Procedure, because the Additional Deputy Collector has not disposed of the matter as be ought to have done on the question whether there was a proper excuse for the absence of the plaintiff. These petitions, therefore, must be remanded to the Additional Deputy Collector to be taken on his file once again and to be disposed of according to law. Costs in this Court in Civil Revision Petition No. 434 will abide and follow the result. There will be no costs in the other two revision petitions in this Court.


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