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Cherukuri Nagamma and anr. Vs. Cherukoori Lakshminarasu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1928Mad1085
AppellantCherukuri Nagamma and anr.
RespondentCherukoori Lakshminarasu and ors.
Cases Referred and B. Pentadee v. T. Rajamma
Excerpt:
- .....munsif of ongole giving leave to the plaintiffs to withdraw the suit with permission to bring a fresh suit. the contention of mr. raghava rao for the petitioners is that the order of the district munsif was without jurisdiction as none of the grounds mentioned in order 23, rule 1 were present in the case. the facts of the case are: the plaintiff brought a suit for declaration that they were reversioners to one venkatappayya and that a will said to have been executed by him was not executed by him in favour of the defendants. defendant 1, the mother of venkatappayya, set up a will and contended that the property was devised to her and defendant 2 absolutely. daring the course of the suit both the parties agreed that the matters in dispute should be referred to arbitration, and the.....
Judgment:

Devadoss, J.

1. This is an application to revise the order of the District Munsif of Ongole giving leave to the plaintiffs to withdraw the suit with permission to bring a fresh suit. The contention of Mr. Raghava Rao for the petitioners is that the order of the District Munsif was without jurisdiction as none of the grounds mentioned in Order 23, Rule 1 were present in the case. The facts of the case are: The plaintiff brought a suit for declaration that they were reversioners to one Venkatappayya and that a will said to have been executed by him was not executed by him in favour of the defendants. Defendant 1, the mother of Venkatappayya, set up a will and contended that the property was devised to her and defendant 2 absolutely. Daring the course of the suit both the parties agreed that the matters in dispute should be referred to arbitration, and the District Munsif acceded to the request of the parties and sent the case to an arbitrator for passing an award. The arbitrator made an award by which the plaintiffs were to get a small portion of the property and the rest of the property was to be enjoyed by defendant 1 absolutely. When the award came up before the District Munsif the defendants objected to the validity of the award on the ground that the award was much wider than the submission and that in the submission there was no reference to the division of the property. The District Munsif held that the award was much wider than the scope of the suit and that he could not pass a decree for the division of the property in a suit which was only for a declaration. He therefore refused to pass a decree in terms of the award, and on an application by the plaintiffs he allowed the suit to be withdrawn with permission to bring a fresh suit on the basis of the award. It is this order that is now challenged in this civil revision petition. Under Order 23, Rule 1,

where the Court is satisfied that a suit must fail by reason of some formal defect, or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit, or part of a claim, it may on such terms, as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim, with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim.

2. The contention of Mr. Raghava Rao is that the suit, as brought, could not fail by reason of a formal defect, and there were no other grounds of like nature to justify the order of the lower Court. Other sufficient grounds must be grounds of a like nature as those mentioned in Rule 1 (2) (a). In Aiya Goundan v. Gopanna Manradiyar : (1914)27MLJ480 a Bench of this Court held that

the sufficient grounds referred to in Order 23, Rule 1 (2) (b) must be ejusdem generis with the defect referred to in Rule 1 (2) (a) with reference to the usual interpretation of these words elsewhere in the Code.

3. It cannot be disputed that the sufficient ground must be of the nature indicated in Clause 1 (2) (a). The question is whether the ground assigned for giving leave in this case is one of the grounds which can be brought under Rule 1 (2) (b), The contention of Mr. Somayya for the respondents is that, by reason of the award, they could not carry on the present suit, but could only file a suit on the basis of the award for the relief granted to them under the award. No doubt, if the award was a bar to the present suit, his contention would prevail, but I am not prepared to hold that the award is a bar to the present suit as it is framed. No doubt the award may give him a fresh cause of action about which I express no opinion as the matter is sub judice, but I cannot see how the fact that there is an illegal award which could not be embodied in a decree in a pending suit, could be pleaded in bar of the suit in which the award is given, which by reason of its illegality cannot put an end to the suit by being made a decree of Court.

4. Mr. Somayya very properly relies upon a decision of Krishnan and Ramesam, JJ., in Appeal No. 271 of 1920. In that case the mother-in-law brought a suit for maintenance against the daughter-in-law. During the pendency of the suit, the daughter-in-law died and the mother-in-law became heir to the son. After the daughter-in-law's death, she could not continue the suit as she succeeded to the estate of the son which was represented by the daughter-in-law during her lifetime. The learned Judges allowed the suit to be withdrawn with liberty to bring a fresh suit for possession of the property on the ground that the mother-in-law succeeded to the estate of the son. That case is distinguishable from the facts of the present case. In that case, the mother-in-law could not continue the suit by reason of the daughter-in-law's death, for the mother-in-law succeeded, though not to the daughter-in-law, but to the interest of the son which the daughter-in-law represented in the suit. In other words she became the legal representative though not of the daughter in-law but of the son of whose estate the daughter-in-law was in possession. That was a case in which the suit could not be continued as brought, and the learned Judges gave leave to bring a fresh suit. That is one instance of a case which would coma under Clause 1 (2) (b) of Order 23, Rule 1. But this is not a case of that nature. As I said above, it cannot be said that the plaintiffs could not continue the suit by reason of the award. If the award would be a bar to the suit then the proper course would be to allow the plaintiffs to withdraw the suit with liberty to bring a fresh suit.

5. It is unnecessary, in the view I have taken, to consider the decisions in S. Naimathulla v. Abdul Razack : AIR1925Mad1268 , Paltikanii Chettiar v. Krishna Ayyar A.I.R. 1920 Mad 663, and B. Pentadee v. T. Rajamma [1911] 1 M.W.N. 105. I may remark that in those cases there was no formal defect, but leave was granted on grounds which could not possibly come within Rule 1 (2), Order 23, I therefore set aside the order of the District Munsif and direct him to restore the sail; to file and dispose of it according to law.

6. Costs of this petition will abide the result.


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