Skip to content


John J. Fernandez Vs. Sylvester Souza and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1921Mad118; 61Ind.Cas.829
AppellantJohn J. Fernandez
RespondentSylvester Souza and ors.
Cases ReferredAthappa Chetty v. Ramanathan Chetty
Excerpt:
civil procedure code (act v of 1908), order xli, rule 23, order xliii, rule 1(u) - appeal--remand of suit by appellate court--'preliminary point,' meaning of. - - 417. 2. on the merits there can be no doubt that the finding of the subordinate judge, that the agreement alleged by the plaintiff bad been proved, is on a preliminary point, the question for decision on the merits being whether the agreement had been broken by the plaintiff or the defendant. the first defendant in his written statement in paragraph 2 categorically and most clearly denied the existence of any such agreement as alleged by the plaintiff......objection is that there is no appeal against the order in the case remanding the suit to the district munsif for trial of the question whether the default, consisting in non-performance of the agreement, which, as found by the lower appellate court, was in fast arrived at between the plaintiff and the defendant, was due to the default of the plaintiff or the defendant. what is or is not a preliminary point it is not always easy to determine. the only definition that has been attempted, so far as it has been brought to our notice, is that given by muthusami aiyar, j., in ramachandra joshi v. hazi kassim 16 m. 207 , where he says that a preliminary point means some point either collateral to the merits which precluded their determination altogether, or some particular question which,.....
Judgment:

1. The preliminary objection is that there is no appeal against the order in the case remanding the suit to the District Munsif for trial of the question whether the default, consisting in non-performance of the agreement, which, as found by the lower Appellate Court, was in fast arrived at between the plaintiff and the defendant, was due to the default of the plaintiff or the defendant. What is or is not a preliminary point it is not always easy to determine. The only definition that has been attempted, so far as it has been brought to our notice, is that given by Muthusami Aiyar, J., in Ramachandra Joshi v. Hazi Kassim 16 M. 207 , where he says that a preliminary point means some point either collateral to the merits which precluded their determination altogether, or some particular question which, though relating to the merits, precluded their general determination.' It seems to us that this is a fairly accurate definition, which we find has also been adopted in the resent decision in Athappa Chetty v. Ramanathan Chetty 68 Ind. Cas. 417.

2. On the merits there can be no doubt that the finding of the Subordinate Judge, that the agreement alleged by the plaintiff bad been proved, is on a preliminary point, the question for decision on the merits being whether the agreement had been broken by the plaintiff or the defendant. Therefore, an appeal lies in this case. On the merits there can be no doubt that the finding of the Subordinate Judge is wrong, The plaintiff sold the property in dispute to the defendant, and he alleged that the defendant as part of the same transaction agreed to grant a mulgeni or perpetual lease of the property to the plaintiff in consideration of the plaintiff paying a premium of Rs. 200 and a rent of Rs. 106-2-0 which included the assessment for a year. The first defendant in his written statement in paragraph 2 categorically and most clearly denied the existence of any such agreement as alleged by the plaintiff. But in paragraph 5 he stated that, sometime after the sale, he agreed to grant a mulgeni lease of the plaint properties to the plaintiff for a premium of Rs. 200 and a rental of Rs. 120 exclusive of assessment and on condition that the premium was to be paid within two months from that date. Apparently the District Judge takes this as amounting to an admission by the first defendant of the agreement set up by the plaintiff and one which the plaintiff is entitled to enforce. But the agreement stated in paragraph 5 of the defendant's written statement is totally different from that alleged in the plaint.

3. We, therefore, reverse the order of the District Judge and restore that of the Munsif with costs here and in the lower Appellate Court. The District Munsif assessed the Pleader's fee payable to the first defendant at Rs. 50, which is apparently higher than what would be allowed ordinarily. He fixed this amount as the plaintiff's suit was a hopeless one or, as he calls it, a desperate one. So far as one of the reliefs sought by the plaintiff was concerned, namely, the cancellation of the sale, the fixing of Pleader's fee was within the discretion of the Trial Judge, and we are unable to say that the amount fixed by him should be revised.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //