Skip to content


N. Arjuna Chetty Vs. S. Mallappan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1980)1MLJ248
AppellantN. Arjuna Chetty
RespondentS. Mallappan and anr.
Cases ReferredR.M.M. Ramanathan Chettiar v. Ramaswami Pillai and Anr.
Excerpt:
- .....on the file of the learned vii assistant judge city civil court, madras, is the petitioner in this civil revision petition. he instituted a suit for the recovery of rs. 5,142 together with further interest on rs. 3,000 at 24 per cent per annum from 23rd august, 1976, to the date of decree and thereafter at 6 per cent per annum and for costs. the suit was laid on the basis of a promissory note dated 2nd july, 1973 executed by the respondents in favour of the petitioner herein under order 37, rule 1 of the code of civil procedure. the respondents herein filed l.a. no. 21760 of 1976 for grant of unconditional leave to defend the suit and the application was dismissed, as having been filed beyond the stipulated time it must also be mentioned that the dismissal of ia. no. 21760 of 1976 has.....
Judgment:

V. Ratnam, J.

1. The plaintiff, in O.S. No. 4499 of 1976, on the file of the learned VII Assistant Judge City Civil Court, Madras, is the petitioner in this civil revision petition. He instituted a suit for the recovery of Rs. 5,142 together with further interest on Rs. 3,000 at 24 per cent per annum from 23rd August, 1976, to the date of decree and thereafter at 6 per cent per annum and for costs. The suit was laid on the basis of a promissory note dated 2nd July, 1973 executed by the respondents in favour of the petitioner herein under Order 37, Rule 1 of the Code of Civil Procedure. The respondents herein filed l.A. No. 21760 of 1976 for grant of unconditional leave to defend the suit and the application was dismissed, as having been filed beyond the stipulated time It must also be mentioned that the dismissal of IA. No. 21760 of 1976 has become final However, the respondents filed IA. No. 21761 of 1976 praying for the dismissal of the suit on the ground that the suit had been instituted by the petitioner herein in contravention of Section 4 of the Tamil Nadu Act XVI of 1976. The learned VII Assistant Judge, City Civil Court, Madras, applied the principles laid down in R.M.M. Ramanathan Chettiar v. Ramaswami Pillai and Anr. : AIR1957Mad780 and allowed I.A. No. 21761 of 1976 thereby dismissing the suit as not maintainable.

2. In this civil revision petition, the learned Counsel for the petitioner raised two contentions. The first is that having regard to the dismissal of I.A No. 21760 of 1976, the respondents are precluded from appearing in the cause and contest the same as per the provisions of Order 37, Rule 2, Civil Procedure Code, and the second is that the dismissal of the suit as having been institued in contravention of Section 4 of the Tamil Nadu Act XVI of 1976 is unsustainable.

3. It is not in dispute that the summary procedure will apply to the present suit which is based on a promissory note. It is also (sic) in dispute that the respondents attempt to obtain leave to defend, but that It proved tile. Under the summary procedure, the defendant shall not appear or defend the suit, unless he obtains leave to defend and in default of his obtaining such leave, the allegation in the plaint should be deemed to have been admitted by the defendant and the plaintiff will be entitled to a decree. In this state of affairs, therefore, on the failure of the respondents to obtain leave to defend, the plaint claim is deemed to have been admitted and it is not open to the respondents to plead that they are persons entitled to the benefits of the Tamil Nadu Act XVI of 1976. The plaint is silent with reference to the entitlement of the respondents to the benefits under the Tamil Nadu Act XVI of 1976 and by reason of the failure of the respondents to obtain leave as stated earlier, the respondents are precluded from setting up any defence including the non-maintainability of the suit in view of Section 4 of the Tamil Nadu Act XVI of 1976. Since it is not open to the respondents to raise such a plea, the Court below is in error when it permitted the respondents-defendants to put forth such a plea and also in having entertained the same. For the reasons stated above, the respondents should not have been permitted at all to raise the plea that the suit is barred under Section 4 of the Tamil Nadu Act XVI of 1976. If this be so, then the dismissal of the suit is incorrect.

In this view, it is unnecessary to consider the other question whether Section 4 of the Tamil Nadu Act XVI of 1976 would bar the maintainability of the suit.

4. The result is that the order of the Court below is set aside and the Civil Revision Petition is allowed and there will be a decree in favour of the petitioner in the suit as prayed for. No costs in the Civil Revision Petition.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //