Madras High Court
M/S.Narayanasamy Theatre vs / on 25 October, 2024
Author: S.Srimathy
Bench: S.Srimathy
S.A.(MD).Nos.395 of 2009
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 25.10.2024
CORAM:
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
S.A.(MD).No.395 of 2009
1. M/s.Narayanasamy Theatre, Kovilpatti,
(Now Satyabama Theatre)
Through its Proprietor,
P.S.A.Rajaguru,
Main Road, Kovilpatti.
2. M/s.Narayanasamy Theatre, Kovilpatti,
(Now Satyabama Theatre)
Through its Proprietor,
P.S.A.Rajaguru,
Main Road, Kovilpatti.
Tuticorin District. ... Appellants
/Vs./
M/s.Lakshmi Theatre,
Main Road,
Kovilpatti,
Through its Partners,
G.Sankaranarayanasamy (Died)
1.Rengalakshmi
2.Selvanarayanan ...Respondents
(Partners of Lakshmi Theatre substituted in the place of the deceased sole
respondent, vide Court order, dated 28.08.2024, made in CMP(MD)No.9393 of
2024 in S.A.(MD)No.395 of 2009)
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S.A.(MD).Nos.395 of 2009
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code,
against the Judgment and Decree dated 23.01.2009 passed in A.S.No.36 of 2008
on the file of Learned Subordinate Judge, Kovilpatti reversing the Judgment and
Decree dated 05.09.2008 passed in O.S.No.73 of 2005 on the file of Learned
District Munsif, Kovilpatti.
For Appellant : Mr.C.Kasirajan
For Respondent : Mr.S.Vellaichamy
*****
JUDGMENT
The second appeal is preferred by the defendants in the suit against the
Judgment and Decree dated 23.01.2009 passed in A.S.No.36 of 2008 on the file of
Learned Subordinate Judge, Kovilpatti reversing the Judgment and Decree dated
05.09.2008 passed in O.S.No.73 of 2005 on the file of Learned District Munsif,
Kovilpatti.
2. The plaintiff in the suit is the deceased respondent herein and the
defendants in the suit are the appellants herein. For the sake of convenience, the
parties are referred as plaintiffs and defendants as per the ranking in the suit.
3. The suit is filed for the damages of Rs.50,000/- incurred by plaintiff,
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since the defendants restrained from screening the film. The brief facts of the case
as stated by the plaintiff are that the producer namely Sai Teja Films has produced
a Film namely ‘Maha Prabhu’. The distributor namely Pasumpon Film
Distributors has produced a film namely ‘Aruva Velu’. The Pasumpon Film
Distributors entered into an agreement with Sai Teja Films and got distribution
rights for ‘Maha Prabhu’ film. Since there was allegation against the Pasumpon
Film Distributors that money collected by them from the theatre owners are not
paid to Sai Teja Films, hence the deal dated 26.03.1995 came to be cancelled. This
cancellation of agreement was also accepted by Pasumpon Film Distributors vide
letter dated 17.10.1995.
4. The defendants had entered into an agreement dated 26.03.1994 with
Pasumpon Film Distributors for exhibition of film ‘Maha Prabhu’ in his theatre.
On 20.12.1995, in a meeting held at Nagerkoil, the Pasumpon Film Distributors
and the defendant agreed that instead of ‘Maha Prabhu’ exhibiting right for
another film like ‘Aruva Velu’ would be given to the defendant by adjusting his
payment of Rs.1,25,000/- meant for ‘Maha Prabhu’. The above said fact was
confirmed by the letter dated 08.12.1995 written by defendant to Pasumpon Film
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Distributors. Subsequently, the distribution right for Maha Prabhu for four
southern districts was obtained by Actor Sarath Kumar. The Plaintiff through
agreement dated 30.01.1996 obtained screening rights from the agent of Sarath
Kumar namely Ganash Theatres, Thirunelveli. As per rights obtained, the plaintiff
planned to screen Maha Prabhu film in his theatre on 02.02.1996, but the same
was prevented by the defendant by obtaining injunction. But the injunction was
vacated on 06.02.1996. Since the plaintiff was prohibited from screening the film
for six days, he sustained loss of Rs.50,000/- Hence the suit is filed for damages.
5. The defendants denied the letter dated 17.10.1995 and also denied the
alleged meeting held on 20.12.1995. Further denied the letter dated 08.12.1995.
The Trial Court after perusing the pleading, evidence and the submission of either
party had dismissed the suit. Aggrieved over the same, plaintiff had preferred
Appeal Suit and the Appellate Court had allowed the suit by relying on the
Exhibits A1 to A3. Aggrieved over the said judgment passed by the Appellate
Court, the defendants had preferred the present second appeal raising the
following substantial questions of law:
“(i) Whether the 1st Appellate Court is right in Decreeing the suit as the
Plaintiff has failed to enter into the witness box and adverse inference
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could be drawn against him as per section 114 of the Indian Evidence Act?
(ii) Whether the 1st Appellate Court is right by acting upon the evidence of
PW1 who is not authorized to represent the case of plaintiff?
(iii) Whether the Judgment and Decree of 1st Appellate Court is sustainable
in law as it has failed to follow the dictum laid down by this Hon’ble Court
in the case reported in 2003 3 CTC 18?
(iv) Whether the 1st Appellate Court is right in decreeing the suit against
both defendants without any finding against the 2nd defendant?
(v) Whether the 1st Appellate Court is right of accepting the evidence of
PW1 as he cannot give evidence regarding the acts done by the partners
representing the plaintiff firm?”
6.The substantial questions of law 1, 2 and 5 raised by the defendants /
appellants herein is that the PW1 has deposed as witness representing the plaintiff,
but the plaintiff has not entered the witness box and he is not authorized to
depose. It is seen that the plaintiff is a partnership firm and none of the partners
appeared to depose. Further, the PW1 is not authorised to represent the plaintiff
firm and he is not the partner of the said firm. When the partners of the plaintiff
firm had not entered into the witness box, especially, the partner who had the
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personal knowledge about the facts and the alleged, then adverse inference ought
to be drawn against the plaintiff as per Section 114 of the Indian Evidence Act.
Therefore, the substantial questions of law 1, 2 and 5 are held in favour of the
defendants / appellants herein.
7. The 4th substantial question of law is the Appellate Court has not
rendered any finding against the 2nd defendant and in such circumstances, relief
cannot be granted to plaintiff against 2nd defendant. It is a settled proposition of
law until a finding is rendered against a person then he cannot be made liable for
any allegations, that too he cannot be made liable to pay damages. When the
Appellate Court had failed to rendered any finding against the 2nd defendant, then
damages cannot be levied against the 2nd defendant. Therefore, the Appellate
Court has erred in granting damages to the plaintiff.
8. The Appellate Court had erred in reversing the judgment rendered by the
Trial Court. In such circumstances, while reversing the judgment of the Trial
Court, the Appellate Court ought to render clear finding against the 2nd defendant,
when it has failed to do so. Therefore, the Judgment of the Appellate Court ought
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to be interfered with. Therefore the 4th substantial question of law is held in favour
of the defendants / Appellants herein.
9. For the reasons stated supra, the second appeal is allowed. The damages
levied against the defendants are set-aside. The Judgment and Decree dated
23.01.2009 passed in A.S.No.36 of 2008 by the Sub Court, Kovilpatti is set aside
and the Judgment and Decree dated 05.09.2008 passed in O.S.No.73 of 2005 by
the District Munsif, Kovilpatti is confirmed. No costs.
25.10.2024
Index : Yes / No
NCC : Yes / No
Tmg
TO:
1. The Subordinate Judge,
Kovilpatti.
2. The District Munsif Court,
Kovilpatti.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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S.SRIMATHY, J.
Tmg
Judgment made in
Dated:
25.10.2024
https://www.mhc.tn.gov.in/judis
