Chennai Court September 1915 Judgments
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Ayya Raghunatha Thathachariar and ors. Vs. Thirumalai Echambadi Thiruv ...
Court: Chennai
Decided on: Sep-24-1915
Reported in: 31Ind.Cas.46
Sadasiva Aiyar, J.1. This is an application for the grant of a certificate that the case is a fit one for appeal to his Majesty in Council from the judgment of this Court in Appeal No. 175 of 1910 See 28 Ind. Cas. 604--Ed.. The application as amended is filed under Section 109, Clause (c), of the Civil Procedure Code read with Order XLV, Rules 2, 3 and 8. I think the more accurate way of describing the application is that it is filed under Order XLV, Rule 2 alone. The ground stated in the application is that though the case does not fulfil the requirements of Section 110, it is otherwise a fit one for appeal to His Majesty in Council and hence comes within the last sentence of Order XLV, Rule 3, Clause 1, the power to appeal being given by Section 109, Clause (c). As was pointed out by my learned brother in the course of the arguments, there is no express section or Order in the Civil Procedure Code directing the Court to issue a certificate when it finds that an applicant under Order ...
Subraya Acharya Vs. Kesava Upadhaya
Court: Chennai
Decided on: Sep-24-1915
Reported in: AIR1916Mad691; 31Ind.Cas.206
Srinivasa Aiyangar, J.1. In this case the petitioner takes the objection that the Small Cause Court had no jurisdiction. The suit was one by a hereditary archaka of a temple to recover from the defendant, the trustee, an amount which was alleged to be due to the plaintiff as the dues of his office, which he says is a hereditary office. The defendant admitted that the plaintiff was entitled to the sum which he sued for, but claimed to make a reduction of Rs. 4 on account of a fine which he said he had imposed on the plaintiff. The lower Court found that this fine was not proved to have been properly imposed on the plaintiff. I am obliged to allow the objection taken here, that the suit was one which a Small Cause Court had no jurisdiction to try. Article 13 of the second Schedule to the Provincial Small Cause Courts Act includes a case of this kind. I, therefore, reverse the decree of the lower Court to the extent of Rs. 4; but inasmuch as this objection was not taken in the first Court...
Keepilacheri Parkum Cheepothi Ammad and ors. Vs. Vannathankandiyil Amb ...
Court: Chennai
Decided on: Sep-24-1915
Reported in: AIR1916Mad473(2); 31Ind.Cas.74
William Ayling, J.1. This second appeal comes before us for orders with reference to Rule 105 of the Appellate Side Rules. The appoints admittedly failed to make the necessary deposit for printing papers as required by the rules within the time allowed: and in our order on Civil Miscellaneous Petition No. 2329 of 1915 we have declined to extend the time. Under the rule, the appeal is, therefore, liable to be dismissed.2. It has, however, been argued that the latter part of the rule itself (Rule 105) is ultra vires. The rule runs thus:The appeal shall be liable to be dismissed for default of prosecution, if any of the papers mentioned in this rule have not been printed owing to the appellant's failure to make the necessary deposit therefor.3. The rule, as it stands, has been in force since 1905 and has frequently been enforced by dismissal of appeals. Even in 1905 it was in no sense a novel provision. A similar penal clause is found in the rules as far back as 1879, though it is omitted...
In Re: Bapu Naidu and ors.
Court: Chennai
Decided on: Sep-24-1915
Reported in: AIR1916Mad732(2); 31Ind.Cas.175
ORDERWilliam Ayling, J.1. The judgment of the Joint Magistrate, while fairly discussing the prosecution story as a whole and giving satisfactory reasons for accepting it, has omitted to consider the case against the individual accused separately. This is very necessary in a rioting case in which 11 accused are implicated, and in which the occurrence is obviously the outcome of previously existing ill-feeling. The Magistrate has, in fact, declined to discuss the alibi evidence on the simple ground that each alibi is spoken to only by a single witness. This is not so. The alibi of 2nd accused is supported by the 2nd and 5th defence witnesses; that of 5th and 6th accused by the 4th and 5th defence witnesses; and that of 11th accused by the 1st, 5th and 6th defence witnesses, as well as 9th prosecution witness. The case of this latter accused calls for special consideration also, as he is admittedly a particular enemy of the 1st prosecution witness, and cross-examination of the latter has ...
Thiruvannamalai Servai and ors. Vs. Varadarajulu Naidu and ors.
Court: Chennai
Decided on: Sep-24-1915
Reported in: 31Ind.Cas.304
Srinivasa Aiyangar, J.1. The lower Court is obviously in error in thinking that the tender made was a proper tender. Admittedly the tender was made after three instalments had fallen due and the amount that was tendered was only the principalsums of the three instalments without the addition of the interest as it should have been. The plaintiffs were entitled to interest on the 31st to 33rd instalments. Owing to the non-payment and non-tender of those instalments, the whole money had become due; and the subsequents instalments, even if they were tendered on the dates fixed in the bond, were not properly tendered. The plaintiffs are entitled to a decree as asked for. I modify the decrees of the lower Court and give a decree in favour of the plaintiffs for the sum sued for in both the suits. The petitioners are entitled to their costs throughout....
Antoni Juas Prabhu Vs. Ramakrishnayya and ors.
Court: Chennai
Decided on: Sep-24-1915
Reported in: AIR1916Mad957; 31Ind.Cas.263
Sadasiva Aiyar, J.1. I agree that the appeal should be dismissed with plaintiff's costs.2. The Appellate Court has power to reverse and remand for re-trial in a case like the present where a new party is added in appeal. That power is inherent in the Court and has not been taken away by anything in Order XLI, Rule 23 of the Code of Civil Procedure, especially as the prohibitory provision in Section 564 of the old Code of Civil Procedure has not been reproduced in the new Code.Napier, J.3. I have held elsewhere that the power to remand is limited to cases where decisions on preliminary points are set aside by the Appellate Court. This view applies only, however, to cases where the construction of Order XLI, Rules 23, 24, 25 is a deciding factor. In my opinion, where an Appellate Court has added a party, those rules are inapplicable and we have to seek the proper procedure in Section 151, the Code not having made rules applicable to the position. We are not shown any reason why the proce...
A.P.R.S. Chinniah Chetty by Agent, Kalyasundaram Iyer Vs. Tikkani Rama ...
Court: Chennai
Decided on: Sep-24-1915
Reported in: 31Ind.Cas.317
Srinivasa Aiyangar, J.1. This, is a suit on a promissory note executed by defendants Nos. 1 and 2, and the other defendants Nos. 3 and 4 are sought to be made liable on the ground that the debt borrowed by the defendants Nos. 1 and 2 was borrowed for the purposes of the joint family of which all the defendants' are 'members. The lower Court has given a decree against the defendants Nos. 1 and 2 and has declined to give a decree against defendants Nos. 3 and 4, on the ground that as the note was a negotiable note, defendants Nos. 3 and 4 who did not execute it ought not to be made liable. I think the lower Court is wrong in so holding. The Full Bench decision in Krishna Ayyar v. Krishnasami Ayyar 23 M.k 597, really concludes this matter. The mistake that is made is in supposing that persons other than the party who executes the note, are sought to be made liable on the contract itself. The other persons are sought to be made liable on account of the debt which is contracted by the manag...
Muthu Goundan Vs. Anantha Goundan
Court: Chennai
Decided on: Sep-24-1915
Reported in: 31Ind.Cas.528
Sadasiva Aiyar, J.1. The 1st defendant is the appellant. The suit was brought claiming the following reliefs:(1) The establishment of the plaintiff's right of way, marked A-B in the plaint plan, through the land of the defendant on to the plaintiff's land:(2) For an injunction to the defendants to remove the fence which they put up across the path about 10 months before the suit:(3) For the issuing of a permanent injunction against the defendants' obstructing the path.2. The lower Appellate Court (as I read its judgment) came to the following conclusions:(a) The plaintiff and his predecessors-in-title to the dominant tenement, were using the plaint path for much longer than 20 years before the interruption took place in September 1910 by the act of the defendants putting up the fence. (The suit was brought in July 1911 and the evidence of the plaintiff's 2nd witness speaks to the enjoyment for 40 years).(b) Though the 1st defendant objected to the plaintiff using the way in 1907 or 190...
Velayutham Pillai Vs. Subbaroya Pillai and Three ors.
Court: Chennai
Decided on: Sep-23-1915
Reported in: AIR1916Mad139; (1916)ILR39Mad879
Seshagiri Ayyar, J.1. The properties in suit belonged to one Cholla Pillai. He sold the properties to one Palamalai and obtained an agreement to reconvey the properties. After the death of Chella Pillai, the plaintiff as one of the reversioners sued his widow and the purchaser Palamalai in 1885 for a declaration that the property was only subject to a mortgage and that the alleged sale did not pass an absoulte interest to the purchaser. The decree in that suit was that the plaintiff was entitled to redeem the properties after the death of the widow in case she did not redeem the properties herself. After this decree, Palamalai sold the properties in 1893 to the father of the third defendant and put him in possession. The widow died in 1900. On her death, the heirs of her husband were the plaintiff and the third defendant. Plaintiff instituted this suit for redemption. The third defendant pleaded among other things that as he and his father were in possession since 1893 under a sale fro...
Velayutham Pillai Vs. Subbaroya Pillai and ors.
Court: Chennai
Decided on: Sep-23-1915
Reported in: 31Ind.Cas.398
1. The properties in suit belonged to one Chella Pillai. He sold the properties to one Palamalai and obtained an agreement to reconvey the properties. After the death of Chella Pillai, the plaintiff, as one of the reversioners, sued his widow and the, purchaser, Palamalai, in 1885 for a declaration that the property was only subject to a mortgage and that the alleged sale did not pass an absolute interest to the purchaser. The decree in that suit was that the plaintiff was entitled to redeem the properties after the death of the widow in case she did not redeem the properties herself. After this decree, Palamalai sold the properties in 1893 to the father of the 3rd defendant' and put him in possession. The widow died in 1900. On her death, the heirs of her husband were the plaintiff and the 3rd defendant. Plaintiff instituted this suit for redemption. The 3rd defendant pleaded among other things that as he and his father were in possession since 1893 under a sale from a mortgagee, they...
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