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R.V. Gopalan Vs. Nill - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1970)1MLJ159
AppellantR.V. Gopalan
RespondentNill
Excerpt:
.....and the consequential decree ;the error seems to be a purely due to failure to grasp the fundamental postulates of the..........come up in revisional jurisdiction before this court. o. s. no. 400 of 1966 on the file of the learned district munsif, tiruchirapalli, was instituted by a plaintiff, on whose behalf sri baluswami has here submitted arguments before me, for a declaration that he (the plaintiff) belonged to the tuluva vellala community. in the affidavit, the plaintiff states that the said declaration was needed, to be produced before the public service commission with regard to the consideration of his claim for appointments. there was no defendant shown upon the record, and what the learned district munsif did, after having taken up the suit for trial, was to call for objections by a kind of proclamation, viz.. beat of tom-tom in the town. no one appeared in response to this proclamation, and, that.....
Judgment:
ORDER

M. Anantanarayanan, C.J.

1. This revision proceeding arises under very singular circumstances, perhaps without any parallel in the cases that have come up in revisional jurisdiction before this Court. O. S. No. 400 of 1966 on the file of the learned District Munsif, Tiruchirapalli, was instituted by a plaintiff, on whose behalf Sri Baluswami has here submitted arguments before me, for a declaration that he (the plaintiff) belonged to the Tuluva Vellala community. In the affidavit, the plaintiff states that the said declaration was needed, to be produced before the public service Commission with regard to the consideration of his claim for appointments. There was no defendant shown upon the record, and what the learned District Munsif did, after having taken up the suit for trial, was to call for objections by a kind of proclamation, viz.. beat of tom-tom in the town. No one appeared in response to this proclamation, and, that suit was decreed, after examining the plaintiff, on 13th April, 1966. The declaration granted in the suit is a bare one to the effect that the plaintiff belonged to and was a member of a backward community, viz., Tuluva Vellala community, entitled to the rights and privileges recognised in favour of that community, as a backward class.

2. It appears from the record that this matter has been taken up suo motu by this Court, after receiving a report from the learned District Judge under Section 115 Civil Procedure Code.

3. Sri Baluswami raised an interesting argument, at the threshold, that such a revision proceeding may be without jurisdiction. He fully conceded the power of this Court to act suo motu in revisional jurisdiction. The reason alleged by him was that Section 115, Civil Procedure Code, itself makes the point explicit that the case should be one decided by some Court subordinate to this Court, ' and in which no appeal lies thereto. It is alleged that this was an ordinary decree in a civil suit. A regular appeal is provided for by the procedure law, which fact, would bar re-visional jurisdiction.

4. I have carefully considered this preliminary objection and I find it to be unsubstantial. Certainly, the point would have force and weight, if there had been a decree in the suit based on a lis, viz., controversy between two parties, when there is no lis and there is only one party (here the plaintiff) who succeeded in obtaining the decree that he prayed for, it is indisputable that there could be no appeal, since the successful party cannot appeal, and there is no other party who has suffered a decree. Hence, I find that the exercise of re visional jurisdiction is justified and within the law, on the peculiar and exceptional facts of this case.

5. The next point is, how such an extraordinary procedure came to be followed and how such a decree was passed. It is seen from the report of the learned District Judge, that some senior Counsel did appear for the plaintiff, that the difficulty with regard to the absence of a defendant was felt, and that some authority was cited which persuaded the District Munsif to adopt this extraordinary course. As the learned Government Pleader has submitted, appearing as amicus curiae, there are no authorities upon a point of this kind. But there is indeed, a reference in Halsbury's Laws of England, 3rd Edn. Section 1610, page 747, with regard to merely declaratory judgments, which can be given ' whether there be a cause of action or not.' and though there is no consequential relief. But this passage has no application to the present situation. The real point here is not that the decree is only for a bare declaration without a consequential relief, such a decree would be perfectly valid, if no ancillary relief was needed for the adjudication of the claim. But, every decree, presupposes a lis, or a matter in controversy between two parties. There can be no Us when there is only a plaintiff without a defendant. Further, in the present case, it is perfectly obvious that there could have been a defendant viz., the Director of Public Instruction, who according to the plaintiff, was responsible for a wrong entry or erroneous omission, which deprived the plaintiff of the protection afforded by his membership of a backward community. Since the plaintiff did not institute a Us, in the proper sense and there was no defendant on record, the decree is a nullity. It has accordingly to be set aside as such.

6. But, in the interests of justice, I equally direct that the plaint itself be remitted back to the trial Court, and that the plaintiff be now called upon to amend the plaint, by impleading a defendant or defendants, whether the Director of public Instruction or some other authority of the State. If, after the opportunity is given, for this purpose the plaintiff does not choose to do so, the suit has to be dismissed or struck off as not maintainable in law. I must here make it clear that I am carefully refraining from any observation whatever, about the present status of the plaintiff as an Officer of the State service, since Baluswami represents that the plaintiff was ultimately appointed by the Madras Public Service Commission. Also I have no reason to think that there was any lack of bona fide on the part of any one concerned in this suit and the consequential decree ; the error seems to be a purely due to failure to grasp the fundamental postulates of the situation. The revision is allowed accordingly. No order as to costs.


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