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S. Sundaram Iyer Vs. Swaminatha Pillai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1962)1MLJ420
AppellantS. Sundaram Iyer
RespondentSwaminatha Pillai and ors.
Cases ReferredSuryanarayanamurthi v. Nagachandramowli
Excerpt:
- - clearly an appeal should not be admitted until the judge is satisfied that the decree of the court appealed against is contrary to law or is otherwise erroneous or unjust......was contrary to law or to some usage having the force of law or was otherwise erroneous or unjust, issued notice to the respondent. after the respondent appeared, the subordinate judge considered this question in the presence of the respondent and came to the conclusion that the decree appealed against was. neither contrary to law nor unjust. he also discussed the merits of the case put forward by the appellant and found no substance in them.2. against the order dismissing the appeal, mr. sundaralingam urges two points. the first is that after having issued notice to the respondent under order 41, there was no jurisdiction in the learned subordinate judge to consider the question of the decree being unjust or contrary to law, which he was bound to consider under order 44, rule 1(2),.....
Judgment:
ORDER

Ganapatia Pillai, J.

1. This petition is to revise the order of the Subordinate Judge of Mayuram in O.P. No. 4 of 1959. This original petition was an unfiled appeal at the instance of the first defendant in a suit on a promissory note. A decree had been passed by the District Munsif and the first defendant appealed against that decree in forma pauperis. The Subordinate Judge, without complying with the provisions of Order 44, Rule 1(2), Civil Procedure Code, and satisfying himself that the decree was contrary to law or to some usage having the force of law or was otherwise erroneous or unjust, issued notice to the respondent. After the respondent appeared, the Subordinate Judge considered this question in the presence of the respondent and came to the conclusion that the decree appealed against was. neither contrary to law nor unjust. He also discussed the merits of the case put forward by the appellant and found no substance in them.

2. Against the order dismissing the appeal, Mr. Sundaralingam urges two points. The first is that after having issued notice to the respondent under Order 41, there was no jurisdiction in the learned Subordinate Judge to consider the question of the decree being unjust or contrary to law, which he was bound to consider under Order 44, Rule 1(2), Civil Procedure Code. This question has come up for consideration in Suryanarayanamurthi v. Nagachandramowli : AIR1936Mad842 . There the facts were, an appellate Judge received an application to appeal in forma pauperis and without considering whether or not there was any substance in the appeal, he issued notice to the respondent. After the respondent appeared the learned Judge proceeded to consider whether the decree was contrary to law or unjust, and coming to a conclusion in the negative on that point, he dismissed the appeal. The procedure adopted by the learned Judge was questioned as erroneous, and Horwill, J., in dealing with that point, observed thus:

Here it is known definitely that the District Judge did not consider the question raised by Order 44, Rule 1, and that when he realised he had issued a notice to show cause why the petitioner should-not be allowed to appeal, he rescinded it. I do not see that the District Judge acted wrongly in so doing. Clearly an appeal should not be admitted until the Judge is satisfied that the decree of the Court appealed against is contrary to law or is otherwise erroneous or unjust. He was, therefore, justified in correcting his error.

3. Mr. Sundaralingam, seeing the force of this observation, contended that the very fact of issuing notice to the respondent must be construed as amounting to an irrefutable presumption that the learned Judge had considered the question which he was bound to consider under Order 44, Rule 1(2), and consequently the Judge had no further jurisdiction to correct any error which he must be deemed to have committed by issuing notice without considering the question of the illegality of the decree. I do not see any justification for this view from the language of Order 44, Rule 1(2). It is no doubt true that it is the duty of the Judge to satisfy himself on perusing the decree and the judgment that the decree is illegal or contrary to law before making up his mind to issue notice to the respondent. But, if the learned Judge has committed an error in issuing notice without performing the duty imposed upon him under Order 44, Rule 1(2), I do not find any reason for holding that he had no jurisdiction to correct his own error. Indeed, this principle acted upon by Horwill, J., cannot be taken exception to unless some vested interest or right had been conferred upon the other party by the error committed by the Court. In the absence of any such vested interest accruing to the party, the Court has inherent jurisdiction always to correct its own errors. Mr. Sundaralingam referred to the Bench decision in Somasundaram Chettiar v. Arunachalam Chettiar : AIR1932Mad523 , where a Bench consisting of Ramesam and Madhavan Nair, JJ., had to consider the question of the practice obtaining in this Court with reference to the admission of pauper first appeals. The question there was whether the respondent was bound to be heard or was entitled to be heard by this Court at the stage when the matter was posted for admission. Without laying down any definite rule governing the situation, the learned Judges referred to the practice of this Court and said that though it was not incumbent upon the Court to issue notice to the respondent, equally it was not incumbent upon the Court to hear the respondent before deciding to admit a pauper appeal under Order 44. The decision of the Bench is succinctly laid down in the head-note in the following words:

From the proviso to Rule 1 of Order 44 of the Civil Procedure Code, it is clear that the Code enjoins upon the Court to make up its mind by itself regarding the admission or rejection of the appeal - without any help from outside, that is, without hearing the respondent. It shall peruse the application and the judgment and the decree appealed therefrom and then decide the question. Of course, the Court as a matter of indulgence may, if the respondent is present, allow him to help it in making up its mind, but the respondent cannot at this stage insist that he should be heard.

4. It may be seen from this passage that the point for determination before the Bench was whether by reason of the notice issued to the respondent, he had acquired the right to be heard at that stage before the appeal was admitted. The Bench ruled that he had no such right. I am unable to see how this decision conflicts with the view taken by Horwill, J., in Suryanarayanamurthi v. Nagachandramowli : AIR1936Mad842 . I am in respectful agreement with the view taken by Horwill, J., I find that in this case the Subordinate Judge who heard the objection after notice had been issued to the respondent was the same Subordinate Judge who had issued the notice to the respondent. I can therefore accept his statement that he issued notice without considering the question of the illegality of the decree appealed from. I find no want of jurisdiction in the learned Subordinate Judge in considering this question at the stage at which he did.

5. On the merits Mr. Sundaralingam urged that the learned Subordinate Judge came to a wrong conclusion in concluding that the decree was not contrary to law. The sole point upon which question turns is the presence of Swaminatha, the plaintiff-respondent, at Madras on a particular date. That was the date on which an endorsement of repayment had been made on the promissory note which was effective to save limitation for the suit. To show that Swaminatha could not have been in Madras on that particular date, an attempt was made to send for a register maintained in the Rajah's Choultry at Thanjavur showing that one Swaminatha of Mayuram had stayed in that choultry on that particular date. The trial Judge refused to admit this evidence or send for the necessary papers. I am unable to see that even if these papers had been sent for how they would be conclusive upon the question of the presence of the particular individual at Thanjavur on that day. The mere exclusion of a piece of evidence, which is not by itself conclusive, will not affect the legality of a decision arrived at by a Court. I agree with the learned Subordinate Judge that there are really no merits in the appeal also.

6. The Civil Revision Petition is dismissed. No costs.

7. It is represented that an opportunity should be given to the petitioner to pay court-fee on the appeal memorandum to prosecute it as a non-pauper appeal. I think the request is reasonable and I grant one month's time from the date of receipt of records in the lower Court for payment of court-fee on the appeal memorandum.


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