NARAYANASWAMY UDAYAN Vs. MANNAR

JUDGEMENT

(1.) The only question that has been argued in this case by the defendant, who is the appellant before me, is whether the present suit is barred under the provisions of Order XXIII. Rule 1(3), Civil Procedure Code. The Court of first instance held it was, while the lower Appellate Court held it was not.

(2.) The circumstances under which the plea of bar under Order XXIII, Rule 1 (3), Civil Procedure Code, was raised are these. The plaintiff's father Sabapathi Udayan died in 1913 when the first plaintiff was a minor. On the allegation that the defendant (the maternal uncle of the plaintiff) was appointed as trustee by the plaintiff's father to manage the suit properties and to render account to the plaintiff on plaintiff's attaining majority, the plaintiff instituted O.S. No. 329 of 1918 on the file of the Ami District Munsif's Court against the defendant to recover possession of the suit properties and for an account of his management of the properties as a trustee of the plaintiff. The defendant denied that he was appointed trustee by the plaintiff's father and also of his liability to account. Before that suit came on for hearing, the plaintiff applied for leave to withdraw the suit and it wan ordered that the suit be withdrawn, and that the parties do bear their own costs. No permission of Court was obtained as contemplated by Order XXIII, Rule 1(3), Civil Procedure Code Subsequently the plaintiff brought O.S. No. 476 of 1923 which gave rise to the present second appeal. This second suit is, as I read the plaint, based on the allegation that the defendant is a trespasser, who took possession of the properties on the death of the plaintiff's father without any right to do so, the plaintiff having been a minor at the time. Paragraph 9 of the plaint alleged that the plaintiff was misled by the representations made by the defendant and hence framed the former suit on the footing that the defendent was a trustee on behalf of the plaintiff, and that it was after the filing of the written statement by the defendant that the plaintiff found out that the defendant had misled him, and that he accordingly withdrew the prior suit and filed the present suit on the footing that the defendant was a trespasser. Paragraph 15 stated that the cause of action arose in November 1913, when the defendant trespassed on the suit properties on the death of the plaintiff's father, and the plaint prayed for delivery of possession of the properties and for payment of mesne profits for the three years prior to the date of the suit. The defendant raised the plea of bar tinder Order XXIII, Rule 1(3), Civil Procedure Code. The question for consideration is whether the present suit is so barred.

(3.) The plaint in the former suit is very material to decide this question, and though it was not filed as an exhibit in the first Court. I am informed by the learned Advocates for the parties that the same was filed and marked as Ex. V by the lower Appellate Court. I find that Ex. V is referred to in para. 8 of the appellate judgment; but it would be better if the lower Appellate Courts would append to their judgments a list of new exhibits filed by parties for the first time in the Appellate Court (see Rule 84 of the Civil Rules of Practice and Circular Order Vol. I, page 99). I think this is generally done, but in the present case the appellate judgment contains no such list, and so there was some difficulty in ascertaining the exact facts relating to Ex 5. But it is clear that the plaint in the prior suit was accepted (and I think rightly) by the lower Appellate Court and marked as Ex. V. Without reference to the plaint in the prior suit it would be difficult to decide questions of bar under Order XXIII, Rule 1(3), satisfactorily. Though Ex, V has not been translated and printed, the same was read out in Court and I have no doubt that it was a suit filed on the basis that the defendant, the maternal uncle of the plaintiff, was shortly before the death of the father of the plaintiff appointed as trustee of the properties (which are said to be the properties of the plaintiffs father). Paragraphs 4,7,8 and 9 of Ex. V, in my opinion, make this position clear. There are the allegations that the defendant is plaintiff's trustee, that all properties were entrusted to the defendant--that the defendant is bound to keep proper accounts, and render accounts to the plaintiff, the plaintiff valued the amount likely to be found due to him as the result of accounting at a particular figure, offering to pay additional Court-fee should the amount decreed exceed, that amount. As I read it, the previous plaint was framed on the footing that the defendant was appointed by the plaintiff's father as trustee of the plaintiff in respect of the properties and that as such the defendant was bound to render accounts to the plaintiff. The present suit is framed on the footing that the defendant had no rights of any sort to the properties and that he unlawfully took possession of the same on the death of the plaintiff's father when the plaintiff was a minor, and that the defendant is a trespasser--pure and simple--and also mesne profits are claimed for three years prior to the suit.