SARANATHA AIYANGAR Vs. MUTHIAH MOOPPANAR

JUDGEMENT

(1.) A preliminary objection has been raised by the respondents in this revision petition that this petition cannot be heard now. To understand the nature of the objection the facts have got to be stated. The petitioner filed O.S. No. 236 of 1930 in the District Munsif's Court of Valangiman I for a declaration that the defendants are not entitled to the office of Adyapakam in the shrine of Sri Saranadaperumal in the Tanjore District and other reliefs. Pending the disposal of the suit the plaintiff applied for a temporary injunction restraining the defendants from interfering with his exercise of this office and enjoyment of the honours and emoluments attached to it and similar other reliefs. The District Munsif granted the injunction. There was an appeal to the District Court of West Tanjore. The learned District Judge reversed the order of the District Munsif and dismissed the application for injunction. Against the order of the District Judge the present revision petition was filed on the 26 October, 1932. Some time after the revision petition was admitted, the suit was called on for hearing and as both parties were not present it was dismissed for default but soon after it was restored to file and the suit is now pending. It is now contended that the effect of the dismissal of the suit for default was to dismiss not only the suit itself but all other interlocutory applications filed on behalf of the plaintiff and on which orders might have been passed in his favour by the District Munsif and also to put an end to all interlocutory matters connected with the suit and pending at the time of the dismissal either in the first Court or in higher Courts, and when the suit was again restored only the suit is restored but not the interlocutory matters. Reliance is placed for this contention on Balaraju Chettiar V/s. Masilamony Pillai (1929) I.L.R. 53 Mad. 334 at 346 : 58 M.L.J. 675 (F.B.). That judgment is a Full Bench judgment which binds me. In that case it was held that if a suit was tried and dismissed an attachment before judgment came to an end with the dismissal though the Court did not pass an order withdrawing it and if on appeal the suit was decreed there was no attachment order which the decree-holder could avail himself of. Not only does this judgment bind me, but if I may respectfully say so I entirely agree with it. But it seems to me that that case does not govern the present case. At page 346 Pakenham Walsh, J. observed: As stated above, the reference before us does not deal with a suit dismissed for default and restored to file but with one where the decree dismissing the suit is reversed on appeal.

(2.) It was argued before the Full Bench that in the case of a suit dismissed for default and restored in the course of the same day it would work hardship to hold that the attachment : before judgment ceased to have force. As to this argument the learned Judge observed: It is difficult to see how that can be a hardship which the law commands.

(3.) I agree with this observation. The case should be decided, not with reference to considerations of hardship but with reference to what the law is. If it is the law that the restoration of a suit does not restore the interlocutory orders the consideration of hardship is irrelevant. Another case relied on by the learned advocate for the respondents is the decision of Page, C.J. and Mya Bu, J. in Pindi V/s. U Thaw Ma (1931) I.L.R. 9 Rang. 472. In that case the learned Chief Justice observed with reference to the decision of Phillips and Devadoss, JJ. in Namagiri Ammal V/s. Muthu Velappa Goundan (1928) 56 M.L.J. 70, which must now be regarded as overruled by the decision of the Full Bench in Balaraju Chettiar v. Masilamony Pillai (1929) I.L.R. 53 Mad. 334 : 58 M.L.J. 675 (F.B.) that "it is no answer to the legal right that it may, in certain circumstances, if enforced, work hardship. Hard cases make bad law." Here again if I may respectfully say so I agree with the learned fudge's observation. The learned Judge then proceeded to say: If the suit on being dismissed for default came to an end all interim and ancillary orders in the proceedings must fall with it.