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Mahalingam, Minor, by His Mother and Next Friend Vs. C. Natesa Aiyar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in32Ind.Cas.423
AppellantMahalingam, Minor, by His Mother and Next Friend
RespondentC. Natesa Aiyar and ors.
Cases Referred and Punchanun Mullick v. Shib Chunder Mullick
Excerpt:
.....exercise of, by high court on original side--sigh court, interference by--jurisdiction--property situated in different jurisdictions--leave to bring suit for partition refused--separate suits, if maintainable--order refusing leave to amend plaint, if appealable. - - 216, the facts of which were somewhat similar to the present, it is expressly stated in the foot-note that there was an appeal against the decree as well as against the order refusing to amend the written statement, whereas there is no appeal against the decree in the present case. i may say, however, that i am unable to agree with the view that there was no power to give leave in such a case, as it appears to be well settled that where the immoveable property is situated in different jurisdictions a separate.....john wallis, c.j.1. in so far as this is an appeal from the order of the learned judge refusing leave to sue under clause 12 of the letters patent, we are not prepared to interfere with the exercise of the learned judge's discretion. in so far as it can be regarded as an appeal against his further order on the same day refusing leave to amend the plaint by excluding the joint family lands outside the jurisdiction, i am of opinion that such an order is not appealable as a judgment. in tuljaram row v. allagappa chettiar 8 ind. cas. 340 it was held by the full bench that an interlocutory order refusing to frame a particular issue was not a judgment within the meaning of the letters patent, although the effect of the order was to shut out one of the defences relied upon, and that the refusal.....
Judgment:

John Wallis, C.J.

1. In so far as this is an appeal from the order of the learned Judge refusing leave to sue under Clause 12 of the Letters Patent, we are not prepared to interfere with the exercise of the learned Judge's discretion. In so far as it can be regarded as an appeal against his further order on the same day refusing leave to amend the plaint by excluding the joint family lands outside the jurisdiction, I am of opinion that such an order is not appealable as a judgment. In Tuljaram Row v. Allagappa Chettiar 8 Ind. Cas. 340 it was held by the Full Bench that an interlocutory order refusing to frame a particular issue was not a judgment within the meaning of the Letters Patent, although the effect of the order was to shut out one of the defences relied upon, and that the refusal could only be questioned on an appeal from the final decree. That ruling appears to me to govern the present case. In Abdul Karim Sahib v. Badrudeen Sahib 28 M. 216, the facts of which were somewhat similar to the present, it is expressly stated in the foot-note that there was an appeal against the decree as well as against the order refusing to amend the written statement, whereas there is no appeal against the decree in the present case. I may say, however, that I am unable to agree with the view that there was no power to give leave in such a case, as it appears to be well settled that where the immoveable property is situated in different jurisdictions a separate suit lies in each jurisdiction for the partition of the property there situated. Subba Rau v. Rama Rau 3 M.H.C.R. 376, Balaram Bhaskerji v. Ramchandra Bhaskerji 22 B.k 922 and Punchanun Mullick v. Shib Chunder Mullick 14 C.k 835. In the result the appeal fails and must be dismissed with costs.

Seshagiri Aiyar, J.

2. I agree. In my opinion, the application to amend the plaint and the order passed thereon were both incompetent. After the cancellation of the order granting leave to sue, the plaint originally presented became incapable of being proceeded with. As contended for by Mr. Ramaswami Aiyar, the jurisdiction 'to receive, try, and determine suits' in the case of claims to property situated partly within and partly outside the jurisdiction of the High Court is dependent on the leave of the Court. A plaint presented on the granting of a provisional leave loses vitality the moment the leave is withdrawn. It cannot be said that it is valid to some extent and invalid only to the extent of the property outside the jurisdiction of the Court. The party will not be precluded from pursuing his remedies in respect of the properties within the jurisdiction by filing a fresh suit in that behalf. As the order was infructuous and could not affect the rights of the plaintiff to litigate his claim, the plaintiff had no right of appeal against it.

3. I entirely agree with the learned Chief Justice in holding that where properties are in different jurisdictions, the rule that a suit for partition should embrace all the family properties has no application. The enabling section in the Civil Procedure Code has not deprived parties of the right to bring successive suits in respect of properties situated in different jurisdictions. As the plaintiff unnecessarily invoked the aid of the Court, I agree in the order as to cost's against him.


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