K S PADMAN PILLAI Vs. S BRINDA SUBRAMONIAN

JUDGEMENT

(1.) THE application out of which this revision petition arises seems to me a flagrant instance of abuse of the process of the court. It was made, under 0. 39 R. 7 of the Code, in a suit for money, R s. 20,500/-, being the balance of the price due under a contract of sale, between the plaintiff and the defendant, of a business belonging to the plaintiff known as "travels India". THE principal assets covered by the contract were certain goods, two motor cars and some furniture, of which possession was made over to the defendant. THEre was not a single averment in the plaint suggesting the least cause of action for any relief against the goods, or suggesting that any question relating to them may arise in the suit - it was not said, for example, that property in the goods had not passed, the contract not amounting to a sale but being only an agreement to sell - in fact both the plaint and the application under O. 39 R. 7 read as if the plaintiff was, but had ceased to be, the owner of the goods - or that the plaintiff had a charge on the goods - so that the conditions required for the assumption of jurisdiction under 0. 39 R. 7 of the Code were altogether wanting. But, obviously with a view to make it appear as if the goods were subject matter of the suit so as to attract 0. 39 r. 7, an alternative prayer was made to the real prayer for the recovery of the money and that prayer was for a decree "directing the defendant to hand over the above said taxi fleet concern, 'travels India' Cochin-2, along with the two cars together with a damage of R s. 10,000". This as I have already said, is not a relief which springs from any of the averments made in the plaint and I can only regard the prayer as designedly made for the purpose of misleading the court into thinking that the goods in question were subject matter of the suit whereas, in truth, they were not, the plaint disclosing no cause of action and deserving no more than summary rejection so far as the prayer for the recovery of the goods was concerned. It is just as if the plaintiff had sued for money due on a promissory note and had added an alternative prayer for possession of the defendant's motor car.

(2.) THE plaintiff's application stated that the plaintiff reliably understood that the defendant was trying to leave the State with the two vehicles and that he was a person who was deeply immersed in debt. Also that the defendant had already removed some valuable parts of the vehicles But there was no request that the notice required by R. 8 of 0. 39 be dispensed with. However, the lower court, while saying that it would have been desirable to issue notice to the defendant under R. 8, dispensed with such notice on the ground that the vehicles still belonged to the. plaintiff something, as we have seen not borne out by the averments either in the plaint or in the application and that "the issue of previous notice to the defendant may actively prejudice the interests of the plaintiff". It then proceeded to appoint what it called a receiver for taking custody of the goods in question and producing them in court, and it is against this order that the defendant has come up in revision.

(3.) IN the result, I allow the petition and dismiss the application, I. A. No. 740/1965 with costs both here and in the court below. (Advocate's fee Rs. 50 in each court ). This of course means that the seized goods will be handed back to the defendant forthwith. A copy of this order will be sent to the lower court without delay. Allowed.