Revur Subba Row Vs. Papi Reddy

Revur Subba Row vs Papi Reddy

Type Court Judgment Court Chennai Decided Apr 15, 1898

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Citation: sooperkanoon.com/775295
Court: Chennai
Decided On: Apr 15, 1898
Subject: Family

Case Summary

AI-generated summary - not the official court judgment text.

- Section 16 (1) (c) :[Tarun Chatterjee & Aftab Alam,JJ] Ready and willing to perform-Concurrent findings of fact on consideration of evidence on record that appellants-buyers were not ready and willing to perform terms and conditions of agreement for sale - Buyers failing to pay balance consideration before agitati...

Key legal issue: Family

Parties & Advocates

Appellant / Petitioner

Revur Subba Row

Respondent

Papi Reddy

Legal References

Cases Referred: Khursedji v. Pestonji
Reported In: (1898)8MLJ149

Excerpt

- section 16 (1) (c) :[tarun chatterjee & aftab alam,jj] ready and willing to perform-concurrent findings of fact on consideration of evidence on record that appellants-buyers were not ready and willing to perform terms and conditions of agreement for sale - buyers failing to pay balance consideration before agitating matter before supreme court held, concurrent finding cannot be interfered with. section 20: [tarun chatterjee & aftab alam,jj] whether time is the essence of contract held, many instance in contract which repeatedly showed that time was to be of essence of contract were specifically mentioned. clear condition in contract that purchasers would have to definitely deposit balance amount by date stipulated in contract for sale show that time was essence of contract. - both the courts below gave a decision against the present appellants on the merits as well as on the technical question of jurisdiction......to suits for a declaratory decree properly so called, and not to a suit in which the declaration is merely introductory, as in this case, to the real relief sought for, khursedji v. pestonji, i.l.r. 12 b. 578. we are of opinion that the suit is one of a small cause nature, and being for a sum less than rs. 500, no second appeal lies.2. we therefore, dismiss this second appeal with costs.3. we are, however, asked by the 1st defendant in c.r.p., 2 of 1897, to interfere under section 622, c.p.c., on the ground that the suit being one of a small cause nature ought not to have been tried by the district munsif on the original side, but by the district judge on the small cause side. as to this we observe that neither party took the action which ho might have taken under section 646-b. of the civil procedure code to have it authoritatively decided before trial which was the court with jurisdiction to try the suit. both the courts below gave a decision against the present appellants on the merits as well as on the technical question of jurisdiction. the only effect of our now interfering under section 622, would be to require the district judge as a small cause court to try again the matter which ho has already tried as an appellate court. to do this would, we think, under all circumstances be a perverse and mischievous exorcise of the discretion vested in us under section 622.4. we, therefore, decline to interfere and we dismiss the petition with costs.

Full Judgment

1. Both the Courts below have lost sight of the fact alleged by the plaintiff in his plaint and not denied or made the subject of an issue by the defendants and which we must, therefore, take to have been admitted, viz., that the debt was contracted by the 1st defendant as managing member for a purpose binding on the family. In this view the principle underlying the decision in Srinivasa v. Sivakolundu I.L.R. 12 M. 849 has no application; nor is the suit excluded from the Small Cause Jurisdiction by Clause 19 of Schedule II of the Small Cause Courts Act, since that clause applies only to suits for a declaratory decree properly so called, and not to a suit in which the declaration is merely introductory, as in this case, to the real relief sought for, Khursedji v. Pestonji, I.L.R. 12 B. 578. We are of opinion that the suit is one of a small cause nature, and being for a sum less than Rs. 500, no second appeal lies.

2. We therefore, dismiss this second appeal with costs.

3. We are, however, asked by the 1st defendant in C.R.P., 2 of 1897, to interfere under Section 622, C.P.C., on the ground that the suit being one of a small cause nature ought not to have been tried by the District Munsif on the Original Side, but by the District Judge on the Small Cause Side. As to this we observe that neither party took the action which ho might have taken under Section 646-B. of the Civil Procedure Code to have it authoritatively decided before trial which was the Court with jurisdiction to try the suit. Both the Courts below gave a decision against the present appellants on the merits as well as on the technical question of jurisdiction. The only effect of our now interfering under Section 622, would be to require the District Judge as a Small Cause Court to try again the matter which ho has already tried as an appellate Court. To do this would, we think, under all circumstances be a perverse and mischievous exorcise of the discretion vested in us under Section 622.

4. We, therefore, decline to interfere and we dismiss the petition with costs.

Same Parties Revur Subba Row vs Papi Reddy Same Subject Family

Family