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Eressan Nair Vs. Rao Bahadur Vasava Menon - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in6Ind.Cas.288
AppellantEressan Nair
RespondentRao Bahadur Vasava Menon
Cases ReferredSee Alagappa Chetti v. Vellian Chtti
Excerpt:
amendment of plaint in second appeal - cause of action--setting up a new case--whether allowed. - .....the plaintiff may or may not be entitled to recover jenmabogham from the defendant under a contract evidenced by exhibit c, but as the contract imposes no liability on the defendant to pay the jenmi, the fact that the jenmi has ubtained a decree against the plaintiff for jenmabogham gives the plaintiff no right of action against the defendant, and the plaintiff has not sued on any contract with him to pay the jemabogham to him. we have been asked to allow plaintiff to amend the plaint so as to enable him to claim on his title under the contract evidenced by exhibit c. we are not prepared to allow this at this stage--especially as the effect would be to deprive the defendant of defences which would he open to him if a separate suit--were brought on this alleged cause of action......
Judgment:

1. The oral agreement alleged by the plaintiff has been found to be untrue. We are of opinion that the fact that the plaintiff is liable to the jenmi under the decree obtained by the latter against him gives the plaintiff no cause of action as against the defendant. The plaintiff may or may not be entitled to recover jenmabogham from the defendant under a contract evidenced by Exhibit C, but as the contract imposes no liability on the defendant to pay the jenmi, the fact that the jenmi has ubtained a decree against the plaintiff for jenmabogham gives the plaintiff no right of action against the defendant, and the plaintiff has not sued on any contract with him to pay the jemabogham to him. We have been asked to allow plaintiff to amend the plaint so as to enable him to claim on his title under the contract evidenced by Exhibit C. We are not prepared to allow this at this stage--especially as the effect would be to deprive the defendant of defences which would he open to him if a separate suit--were brought on this alleged cause of action. See Alagappa Chetti v. Vellian Chtti 18 M. K 33.

2. As regards the memorandum of objections the oral grant has been found against. There is no material before us on which the amount (if any) to which the plaintiff is entitled can be determined in this suit. The Subordinate Judge was, therefore, right in refusing, to entertain the claim for Nirvaram.

3. We must allow the appeal, reverse the decrees of the lower Courts and dismiss the surf with costs throughout.

4. The memorandum of objections is also dismissed with costs.


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