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Muthayyan Swaminatha Sastrial and ors. Vs. S. Narayanaswami Sastrial and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1936Mad936
AppellantMuthayyan Swaminatha Sastrial and ors.
RespondentS. Narayanaswami Sastrial and ors.
Cases ReferredAlagappan Chetty v. Annamalai Chetti
Excerpt:
- - on these allegations, they were perfectly entitled to sue for a mere injunction. , refers only to decrees, i think the provisions of that section apply to appeals against orders as well......defendants 1 to 9 from interfering with the plaintiff's possession and enjoyment of the plaint properties. it was alleged that the properties were samudayam properties owned by the mirasdars of the village, that plaintiffs 1 to 4 and defendant 10 were appointed as managers for the properties, that the other plaintiffs were lessees under those managers and that defendants 2 to 9 were interfering with the possession of the plaintiffs. the defendants denied those allegations and contended that plaintiffs 1 to 4 and defendant 10 were not appointed managers in respect of those properties. the learned district munsif, holding that the suit was in effect to have the right of plaintiffs 1 to 4 and defendant 10 as managers in respect of these properties declared, directed the.....
Judgment:
ORDER

Menon, J.

1. This is an application to revise-the order of the Principal Subordinate Judge of Kumbakonam, dated 24th January 1935, in C. M. A. No. 15 of 34, setting aside an order of the District Munsif of Valangiman, returning the plaint in-; O.S. No. 6 of 34 for presentation to the proper Court.

2. The suit was for an injunction restraining defendants 1 to 9 from interfering with the plaintiff's possession and enjoyment of the plaint properties. It was alleged that the properties were Samudayam properties owned by the mirasdars of the village, that plaintiffs 1 to 4 and defendant 10 were appointed as managers for the properties, that the other plaintiffs were lessees under those managers and that defendants 2 to 9 were interfering with the possession of the plaintiffs. The defendants denied those allegations and contended that plaintiffs 1 to 4 and defendant 10 were not appointed managers in respect of those properties. The learned District Munsif, holding that the suit was in effect to have the right of plaintiffs 1 to 4 and defendant 10 as managers in respect of these properties declared, directed the plaintiffs to amend the plaint by adding a prayer for a declaration to that effect and to pay additional court-fee. The plaint was accordingly amended, but no additional court-fee was paid. As the learned District Munsif found that the plaint as amended was beyond his pecuniary jurisdiction, he returned it for presentation to the proper Court. On appeal to the Subordinate Judge that order was, as already observed, reversed, the Subordinate Judge holding that it was not necessary for the plaintiff to add a prayer for declaration and that the suit as originally framed was maintainable. The trial Court was, therefore, directed to re-entertain the suit; hence this petition.

3. On the merits, I have no doubt that the learned Subordinate Judge was right in holding that the suit as originally framed was maintainable. It is true that in establishing their right to have an injunction against the defendants, the plaintiffs will have to prove that plaintiffs 1 to 4 and defendant 10 were properly appointed managers in respect of the properties and that the other plaintiffs are the lessees under them. But it does not follow from this that the plaintiffs are suing for a declaration of the title of plaintiffs 1 to i and defendant 10 as managers. Their allegation is that they are in lawful possession of the properties and that their possession is threatened to be interfered with by the defendants. On these allegations, they were perfectly entitled to sue for a mere injunction. The learned District Munsif was, therefore, wrong in ordering the amendment of the plaint.

4. But Mr. Raja Ayyar contends, firstly, hat as the plaintiff actually got the plaint amended in accordance with the direction of the trial Court, he is precluded from questioning the validity of that order, and secondly, that the earned Subordinate Judge was not entitled to go into the question of the corectness of that order of the trial Court in the appeal before him. I am unable accept either of these contentions. The order of the trial Court directing the plaintiff to amend the plaint was not appealable. All that the plaintiff could have done was to file a petition in this Court to revise that order. It cannot be said that because he did not take that extraordinary step, he is estopped or precluded from questioning the correctness of that order. Further it is seen that he did not fully comply with the directions of the District Munsif, for he did not pay the requisite court-fee, but only got the plaint amended. It is not as if a person, having obtained the benefits conferred by an order and stood by it, subsequently challenges its correctness. There is, therefore, no substance in the first contention.

5. The second contention that the learned Subordinate Judge had no jurisdiction to question the correctness of the order of the trial Court requiring the plaintiff to amend the plaint has also no force. It was only in appeal against the order returning the plaint that the plaintiff could challenge the correctness of it. Though Section 105, Civil P.C., refers only to decrees, I think the provisions of that section apply to appeals against orders as well. This Court has so held at least in one case, vide, Alagappan Chetty v. Annamalai Chetti 1917 4 MLW 411. In these circumstances, there is no substance in. this contention either. The order of the learned Subordinate Judge is correct and there is no reason to interfere with it in revision. The petition is, therefore, dismissed with costs.


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