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(Srilasri) Subramania Desika Gnanasambandha Pandara Sannadhi Avergal Vs. Rathnasabapathy Thambiran - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported inAIR1928Mad592; 110Ind.Cas.544
Appellant(Srilasri) Subramania Desika Gnanasambandha Pandara Sannadhi Avergal
RespondentRathnasabapathy Thambiran
Excerpt:
- .....from the record that the petitioner did not offer to pay mr. jayaramier a reasonable fee for the present application and to engage him. what happened was that when he came to mr. jayaramier with a draft plaint mr. jayaramier who alleges that fees were due to him already declined to have anything to do with it until the fees were,' paid. thereupon, he went away, engaged another pleader and conducted the proceedings. his own admission shows that he had ample opportunity to engage mr. jayaramier and that he chose not to engage him in those proceedings.4. the main argument of mr t.r. ramachandra ayyar is that the present rule 277 does not cast upon the respondent the duty of offering an engagement to mr. jayaramier and giving an opportunity to accept or reject the engagement. we think that.....
Judgment:

Kumaraswami Sastri, J.

1. This is an application to revise the order of the Subordinate Judge who on the petition of the plaintiff, held that Mr. Jayaramier, vakil for the respondent, should not appear for the defendant in the application by the plaintiff to file a suit as pauper. The pauper suit, leave to file' which was applied for, relates to the Dharmapuram mutt. The late pandarasannadhi was murdered and the present? plaintiff was charged with abetment of the murder. He was acquitted. His case is that he was duly elected as pan-darasannadhi and the defendant in the case has got no rights to that office. In the criminal case, question arose as to what was done on the morning after the murder and the evidence of some witnesses was that on the morning the present plaintiff was elected as the pandarasannadhi and that he performed the' funeral ceremonies. In the criminal proceedings it was not necessary to decide the question of the election of the plaintiff as pandarasannadhi and all that it was necessary to decide was whether he-abetted the murder or not. During the course of those proceedings, the mutt and its moveable properties were taken charge of by the Subordinate Judge and they were in the possession of the defendant, who claimed to be the elected pandarasannadhi. The plaintiff first of all applied to the Religious Endowments Board for the appointment of an interim trustee till the proper pandarasannadhi was elected. Under the Religious Endowments Act, the point for consideration was whether there was a vacancy in the office, whether there were disputes between the parties and whether the Board could interfere by appointing a trustee till the rights of the parties were adjudicated upon.

2. It is not disputed that this petition was prepared by Mr. Jayaramier's junior and was filed after consultation with M. Jayaramier. That petition, however, has not been enquired into and nothing further seems to have been done except the filings of it before the Board. The respondent here who is the plaintiff in the suit proposed to be filed in forma pauperis, claims the right to this office on the ground that he was elected and that the defendant has no right to be in possession or management of the institution. In the enquiry into pauperism, the defendant engaged Mr. Jayaramier and an application was made by the plaintiff to prevent him from appearing. The Subordinate Judge passed the order prayed for on the ground that Mr. Jayaramier had obtained instructions and information which would prejudice the petitioner if he appeared on the opposite side. One important allegation made by the petitioner in his petition, namely, that Mr. Jayaramier prepared the present pauper plaint and took instructions from him has been discredited by the Subordinate Judge We may take it, therefore, that he was not instructed to appear in the application for leave to file the suit in forma pauperis and the only question is whether on the materials before the Subordinate Judge he was right in holding that Mr. Jayaramier ought not to appear simply because he had obtained instructions in the criminal case and in the application to the Religious Endowments Board. On this point there are conflicting statements. Mr. Jayaramier says that he got no information which was likely to prejudice the petitioner and that those proceedings were confined to the actual points that arose for determination and that his appearing would not in any way be a breach of duty on him be the present petitioner. The petitioner says that he did give information to him in connexion with those proceedings which will have a vital bearing upon his present case and may prejudice him if Mr. Jayaramier used that information in the interests of the defendant.

3. In cases of proceedings like the present where it is sought to restrain a vakil from appearing for the opposite side, we think it must be shown that the party who desires to prevent the vakil from appearing should have offered the engagement in the first instance and the vakil should have refused the engagement on insufficient or improper grounds. The mere fact that instructions were obtained in other proceedings which arose out of a right now claimed, in our opinion, gives only a preferential right to the party to engage the vakil and if he is prepared to engage him, we think that the vakil has a duty to appear for him and not to appear on the other side. In the present case it is clear from the record that the petitioner did not offer to pay Mr. Jayaramier a reasonable fee for the present application and to engage him. What happened was that when he came to Mr. Jayaramier with a draft plaint Mr. Jayaramier who alleges that fees were due to him already declined to have anything to do with it until the fees were,' paid. Thereupon, he went away, engaged another pleader and conducted the proceedings. His own admission shows that he had ample opportunity to engage Mr. Jayaramier and that he chose not to engage him in those proceedings.

4. The main argument of Mr T.R. Ramachandra Ayyar is that the present Rule 277 does not cast upon the respondent the duty of offering an engagement to Mr. Jayaramier and giving an opportunity to accept or reject the engagement. We think that if the rule does not cover it we have to fall back upon the general principles. We think that where one party wants to restrain a vakil from appearing, he must show that he has made reasonable attempt to secure his services, as otherwise the result will be that a party who engages a vakil in some collateral proceedings can successfully prevent his appearing without offering an engagement to him. If the petitioner thought that the information which he gave was material to his interests it was his duty to have engaged Mr. Jayaramier. On the materials before us, we do not think that sufficient reason has been shown for preventing Mr. Jayaramier from appearing, especially as the finding of the Judge is that Mr. Jayaramier did not prepare the present plaint or receive instructions from the plaintiff and it appears from the record that the plaintiff, although he had every opportunity of engaging Mr. Jayaramier, did not choose to do so. We think in the circumstances the order cannot be supported.

5. It is argued by Mr. Ramachandra Ayyar that the appellant in this case was not a party and that no civil revision petition is competent. It is difficult to see how it can be said where the Court on an application of a plaintiff refuses to allow the defendant's pleader to appear and conduct his case, he is not the person aggrieved or a party to the proceedings so as to prevent him from filing a petition. He is as much interested in getting his vakil to appear for him as the plaintiff is to prevent his appearance and it cannot be said that if the vakil does not choose to file a revision petition the party will have no remedy. We set aside the order of the Subordinate Judge directing Mr. Jayaramier not to appear for the defendant. Each party will bear his own costs. Mr. Jayaramier undertakes not to appear in the pauper petition.


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