NAGANADA AIYAR ALIAS ESWARAPIER Vs. KRISHNAMURTI AIYAR

JUDGEMENT

(1.) This appeal is by the plaintiff in Original Suit No. 61 of 1903 against the judgment of the Subordinate Judge of Kumbakonam dismissing the suit. One of the grounds, on which the learned Judge proceeded was that the present suit was not maintainable by reason of Original Suit No. 7 of 1892, instituted by the plaintiff against one Srinivasa Aiyar, predecessor in title of the present defendants, having been dismissed by the Subordinate Judge of Negapatam on the 1 November, 1892. He holds that the previous suit was disposed of under Secs.157 and 102, Civil Procedure Code of 1882, and the bar arises by reason of Section 103, Civil Procedure Code of 1882. But the learned vakil for the 74 defendant urges that the first suit was decided under Section 158 of the Code, and the present suit is, therefore, barred on the ground of res judicata. The contention on behalf the appellant is that the dismissal of the previous suit was under Section 102, as held by the Court below, but that the causes of action in the two suits were not the same. If the plea in bar either under Section 103, or by reason of res judicata is sustainable, it would be unnecessary to go into the question of limitation, the only other question raised in the appeal.

(2.) The property, to which both the suits relate, consists of certain villages, In the plaint in the suit of 1892 it is alleged that the villages belonged to one Narayanaswami Aiyar, senior paternal uncle of the plaintiff, that he died about twenty-four years ago, and after his death the villages remained in the enjoyment of Narayanaswami's widow, Sallathammal, that, on Sellathammal's death on the 30 August, 1891, the plaintiff became entitled to, and came into possession of, all her properties, including the properties sued for, and that the plaintiff leased the latter properties to several persons in September, 1891. It then goes on to allege that on the strength of some opinion entertained by the revenue authorities, on an enquiry made by them after the said Sellathammal's death, the defendant, who has no claim, for the last one month entered upon the undermentioned properties and has been causing disturbance. Besides, he has been causing disturbance to the plaintiff's enjoyment in several ways by frightening and intimidating the plaintiff's lessees and by instituting criminal complaints, etc., against them," In the sixth paragraph of the plaint it is stated that "whatever might be the nature of the defendant's claim, ho had no right whatever to wrongfully enter upon the property remaining in the plaintiff's possession." And in the seventh paragraph the cause of action is alleged to arise in January, 1895, "when the defendant began to cause obstruction as against the plaintiff's possession." The relief prayed for is "perpetual injunction restraining the defendant from interfering with the property remaining in the plaintiff's possession."

(3.) The defendant in that suit denied the plaintiff's right to, and possession of the land in dispute, contending that the property belonged to one Anapian, the father of Sitammal, that on his death without male issue, it devolved on his widow Parvathammal, and that on Parvathammal's death Sellathammal succeeded to the property. The defendant claimed that on Sellathammal's death he inherited the property as the sister's son of Anapian. The three material issues framed in the case were (a) whether the property belonged to Narayanaswami, the husband of Salla-thammal, (b) whether the succession devolved on the plaintiff after the death of Sellathammal and he has been in possession of the property since her death, and (c) whether the plaintiff was entitled to obtain the injunction solely on the strength of his possession without making out title to the property. The issues were settled on the 2nd April, 1892, and the case was fixed for final hearing on the 26 August, on which date the plaintiff applied for an adjournment on the ground that he had not sufficient time to summon his witnesses, and the hearing was postponed to the 11 October. On the 11 October only two out of the twenty-four witnesses subpoonaed by the plaintiff appeared, but neither the plaintiff nor his pleader appeared on that date. The Court having waited for some time, passed the following order: "Prom the issues above mentioned it will be seen that the plaintiff's claim is completely denied by the defendants. I should therefore dismiss the plaintiff's suit with costs." An application was subsequently made under Section 103 of the Civil Procedure Code of 1882 to set aside the order of dismissal to the same Judge. He held that the dismissal must be considered to have been made under Section 158 of the Code, inasmuch as the case had been adjourned in order to enable the plaintiff to produce his evidence, and he failed to do so, and that therefore the plaintiff had no remedy under Section 103. It is to be noted that the Subordinate Judge does not state that he decided the suit on its merits, which I think he could have done under Section 158. The other course open to him under Section 157 was to dismiss the suit under Section 102 of the Code on the ground that the plaintiff failed to appear. The order dismissing the suit does not mention the section under which it was made. But on reading the order it would appear to have been made under Section 102, read with Section 157, rather than under Sec. 158. The Subordinate Judge who heard the application under Section 103 seemed to think that under the circumstances the suit could have been dealt with only under Section 158; but that is apparently a wrong view of the law. The plaintiff did not appear at the adjourned hearing, and therefore the case fell within the terms of Section 157 [Maharajah of Vizianagram V/s. Lingam Krishna Bhupati ]. I am also inclined to hold, as I have said, that the Subordinate Judge might have dealt with the case under Section 158, if he chose to do so. The view taken in Shrimant Sagajirao V/s. S. Smith (1896) I.L.R. 20 Bom. 738, however, seems to be that, where the plaintiff does not appear, the suit cannot be decided under Section 158, even though time had been granted at his request for the purpose of producing evidence or performing any other act necessary for the further progress of the suit. With great respect to the learned Judges who decided that case I am unable to agree in their construction of Sec. 158