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Manapragada Swarnapathi Vs. Krovvidi Suryaprakasa Rao - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1934Mad293; 148Ind.Cas.765
AppellantManapragada Swarnapathi
RespondentKrovvidi Suryaprakasa Rao
Cases ReferredHanendra Nath Roy v. Upendra
Excerpt:
madras proprietary village services act (ii of 1811) - selection of karnam by receiver of estate--collector appointing another--suit for declaration that 'ptaintiff has been validly appointed karnam--government, whether necessary party--declaration--discretion of court--specific relief act (i of 1877), section 42. - - the act which is complained of is that of the collector, and yet the government has not been made a party. 270 adverted to above, has been relied on by the appellant's learned counsellor another purpose, but it is clearly distinguishable. in the present case, as a matter of equity and justice the sub-collector thought that the defendant had a better claim......to which i have referred, by benson and bhashyam ayyangar, jj., that the collector is a neces-say party. that decision has remained unquestioned, and sitting as a single judge, by that 1 am bound. the principle recognised there applies, in my opinion, to the case in hand. robert fischer v. secretary of state for india in council 22 m. 270 adverted to above, has been relied on by the appellant's learned counsellor another purpose, but it is clearly distinguishable. there it mast be noted the government was in fact impleaded and as the court's decision in a suit, to which the government was a party, would, it may be assumed, be respected by its officers, it was held that the asking of a specific relief was unnecessary, their lordships point out that in the event of what might be.....
Judgment:

Venkatasubba Rao, J.

1. To this suit neither the proprietor nor the Government has been impleaded as a defendant. Though in form the suit professes to be also for the recovery of the office, the relief that is really pressed, is that relating to the declaration. The plaintiff asserts that his selection under Section 15(1) of Madras Act II of 1894, by the Receiver of the estate, amounted to a valid appointment of himself as karnam and that, the Collector's action in appointing the defendant was wrongful. The learned Subordinate Judge dismissed the suit, holding that the proper parties were not impleaded. The act which is complained of is that of the Collector, and yet the Government has not been made a party. Although the Collector's view was that the Receiver could not be treated as 'proprietor' within the meaning of Section 115, still the Sub-Collector, while exercising his powers under Clause 3 of that section, actually adopted, and gave effect to, the Receiver's recommendations, except in the case of the single appointment to which this suit relates. The Sub-Collector felt that the plaintiff's father so manocuvred as to get all the offices held by the members of his own family, and it was on that ground that he refused to abide by the Receiver's recommendation. The question that would arise in these circumstances is: Can a declaration be granted in the absence on the record of the Government? The defendant's position is that of ,a mere servant and the authority, whom the decree should seek to bind, is the Government and not the defendant. On a decree being passed, the defendant is not bound to vacate his office; nor can the plaintiff, without the Government's concurrence perform the duties of his office. It is stated that it is the Government that pay is the salary; the power of dismissal is under Section 16 vested in it. In Kalabariga Sivamma v. Ravikanty Venkataramana Moorthy 4 Ind. Cas. 169 : 19 M.L.J. 331 it has been held that

the prayer for a declaration that the plaintiff is entitled to revenue registry, is one which is wholly inadmissible in a suit to which the Collector is not a party.

Act 1 of 1876 makes a distinction between separate registration and apportionment of the assessment. As pointed out by the Judicial Committee:

As regards the apportionment of the assessment, an appeal limited in time does not lie to the Board of Revenue.- Section 7....The apportionment.' of the assessment is a matter which concerns the Government. It may affect the security of the revenue Separate registration is a matter of private right with which the Government has no business to interfere: Robert Fischer v. Secretary of State for India in Council 22 M. 270.

2. It is thus in regard to matters relating to separate registration alone, that the Civil Courts have jurisdiction. In respect of separate registration, the Government has no immediate interest in the question: still it has been held in the decision to which I have referred, by Benson and Bhashyam Ayyangar, JJ., that the Collector is a neces-say party. That decision has remained unquestioned, and sitting as a single Judge, by that 1 am bound. The principle recognised there applies, in my opinion, to the case in hand. Robert Fischer v. Secretary of State for India in Council 22 M. 270 adverted to above, has been relied on by the appellant's learned Counsellor another purpose, but it is clearly distinguishable. There it mast be noted the Government was in fact impleaded and as the Court's decision in a suit, to which the Government was a party, would, it may be assumed, be respected by its officers, it was held that the asking of a specific relief was unnecessary, Their Lordships point out that in the event of what might be considered improbable happening, the arm of the law was long enough and a further direction might be sought. The observations proceed upon the footing that the Government was before the Court having been impleaded as a party. Then, as regards the view of Cumaraswami Sastri, J., in S.A. No. 1379 of 1926, I am, with the greatest respect, unable to agree with it. The learned Judge observes that the action of any subordinate Government official who refuses to give effect to a declaration of the Court, may be conected by his superior officers. The question is not, whether the Government may choose to respect the Court's decision, but what is the remedy if it fails to do so? In the present case, as a matter of equity and justice the Sub-Collector thought that the defendant had a better claim. Supposing the Government persists in taking that view, is the Court to stultify itself by making an order which it cannot enforce? Hanendra Nath Roy v. Upendra JMarain Roy and Secretary of State for India 32 Ind. Cas. 437 : 43 C. 743 : 22 C.L.J. 419 : 20 C.W.N. 446 is not applicable. There the Government was made a party but the facts of that case illustrate an important distinction. What happened there was, that the Court was invited to declare a right and even after its declaration, the appointment was subject to the Government's approval. Supposing in that case the Government had not been made a party, without the Court's order being disregarded, the Government could still withhold its consent. Here the facts are entirely different. According to the appellant's contention, the Government has no option, it is bound to recognise the plaintiff's appointment. In such a case the Court will, as 1 conceive the matter, refuse to pass a decree which the Government may in its discretion either give (sic) or disregard. Moreover, under Section 2 of 'the Specific Relief Act, the passing of a declaratory decree is discretionary with the Court and whether the Government is a necessary party or not, it is certainly a proper party. Having regard to the circumstances to which I have adverted, the Court will exercise a sound and proper discretion by refusing to pass a decree in the absence of the Government.

3. In the result, the second appeal fails and is dismissed with costs.


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