Madras High Court
Martin Selvam vs Mahalingam on 10 February, 2025
Author: S.S. Sundar
Bench: S.S. Sundar
S.A.No.752 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.02.2025
CORAM:
THE HONOURABLE MR.JUSTICE S.S. SUNDAR
S.A.No.752 of 2008
and M.P.No.1 of 2008
Martin Selvam,
Represented by Selvapuram Village Mirasdars and Pattadars.
... Appellant
Vs.
1. Mahalingam
2. Sundaram
3. Jayaraj
4. Kaliaperumal
5. Shanmugam ... Respondents
PRAYER: The Second Appeal filed under Section 100 of the Civil Procedure
Code against the judgment and decree dated 21.04.2006 in A.S.No.118 of 2005
on the file of the Subordinate Judge, Thiruvarur, concurring the judgment and
decree dated 17.08.2005 made in O.S.No.94 of 1997 on the file of the District
Munsif-cum-Judicial Magistrate, Nanilam.
https://www.mhc.tn.gov.in/judis
S.A.No.752 of 2008
For Appellant : Mr.V.Anil Kumar
For Respondent : Mr.M.Thamizhavel
Nos.1 to 4
Respondent No.5 - Dismissed as abated
vide order dated 15.07.2021.
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JUDGMENT
This Second Appeal has been filed against the judgment and decree
dated 21.04.2006 in A.S.No.118 of 2005 on the file of the Subordinate Judge,
Thiruvarur, concurring the judgment and decree dated 17.08.2005 made in
O.S.No.94 of 1997 on the file of the District Munsif-cum-Judicial Magistrate,
Nannilam.
2. The 2nd plaintiff in O.S.No.94 of 1997 on the file of the District
Munsif-cum-Judicial Magistrate, Nannilam, is the appellant in this Second
Appeal. The appellant along with two others filed the suit in O.S.No.94 of 1997
for declaring that the plaintiffs are entitled to fishing right in the two tanks
known as Thamarai Kulam and Madha Kulam. The suit was also filed for
consequential relief restraining the defendants or his relatives from interfering
with the peaceful enjoyment of the fishing right by the plaintiffs.
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3. It is pertinent to mention that the plaintiffs filed the suit in a
representative capacity as if the suit has been filed on behalf of the plaintiffs as
well as the Village Mirasdars and Pattadars. The defendants also were shown in
a representative capacity representing the villagers of Selvapuram. In the
written statement, it is contended that the plaintiffs are not the representatives of
Mirasdars and Pattadars and that the defendants are not the representatives of
Villagers.
4. This Court has read the judgments of the Courts below in the suit
and in A.S.No.118 of 2005. The suit was dismissed by the trial Court after
taking note of the facts that the suit along with applications under Order I Rule 8
of C.P.C. seeking permission to file a suit in a representative capacity, was
dismissed by order dated 11.06.1998. Similarly, an application is filed seeking
permission to show the defendants in a representative capacity to confirm that
the defendants were also impleaded not only for themselves but also to
represent the villagers of Selvapuram Village. Both applications were dismissed
on the same day. Later, the suit itself was dismissed for non-
prosecution. The 2nd plaintiff/appellant has not taken any steps to restore the
applications filed under Order I Rule 8 of C.P.C. However, it was contended by
the appellant that the suit was dismissed for non-prosecution and that on the
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restoration of suit, both the applications filed under Order I Rule 8 of C.P.C.
should get restored.
5. The learned counsel for the appellant admits that the applications
filed under Order I Rule 8 of C.P.C. were also dismissed for non-prosecution.
Now, a strange argument is advanced by the learned counsel for the appellant
relying upon the judgment of the High Court of Andhra Pradesh in the case of
Nondipati Rani Reddy and Others Vs. Nandipadi Padma Reddy and Others
reported in A.I.R. 1978 Andhra Pradesh 30, wherein it is held as follows:-
"Which the suit is restored the interlocutory orders and
their operation during the period of interregnum are revived.
Once the order of dismissed is act aside, the plaintiff must
be restored to the position in which the was situated when the Court
dismissed the suit for default.
Therefore, it follows that the interlocutory orders, which
had been passed before the order of dismissal, would also be revived
along with the suit when the order of dismissal has been act aside and
the suit has been restored."
The above-judgment was interpreted by the appellant's counterpart before the
lower Court stating that the applications filed under Order I Rule 8 of C.P.C.
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will revive once the suit itself is restored. The learned Judge rightly held that the
applications filed under Order I Rule 8 of C.P.C have been dismissed. When the
dismissed applications were not taken on record after restoration and the
appellant has not challenged the order even in this proceedings, the plaintiffs,
who have been denied permission to file the suit in a representative capacity
cannot get any relief. In other words, since the relief is prayed by few people in
a representative capacity and the plaintiff never claimed exclusive right on
dismissal of the applications, he loses his right to prosecute the suit as the cause
of action does not survive. In the said circumstance, this Court is unable to
entertain the appeal on merits.
6. The questions of law raised by the appellant in this Second Appeal
are as follows:-
"(i) Whether the Trial Court and the Appellate Court
erred in deciding on the issue that the suit is on representative
capacity, after having allowed the same question of law in
I.A.No.314 of 1997 filed under Order I Rule 8? and
(ii) Whether the plaintiff is entitled for declaration as
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prayed for."
The questions of law framed by the appellant in this appeal are inappropriate.
They give a clear indication that the focus of the 2nd plaintiff/appellant is not a
relief on the basis of cause of action alleged in the plaint.
7. The learned counsel appearing for the appellant submitted that the
substantial question of law formulated by this Court for determination in the
Second Appeal is "the suit was dismissed for default and thereafter restored to
file. Whether the Courts below are justified in coming to the conclusion that
the appellant should have in addition to restoring the suit, should have also
filed two separate Applications to restore I.A.Nos.313 and 314 of 1997, and
that the appellant cannot maintain the suit without restoring I.A.Nos.313 and
314 of 1997?
8. On the admitted facts, the conclusion of the learned Judge that the
appellant cannot the maintain the suit without restoration of I.A.Nos.313 and
314 of 1997 is correct. In none of the grounds, the appellant would pray for time
at least to file an application for restoration of I.A.Nos.313 and 314 of 1997.
The appellant has not even questioned the order in I.A.Nos.313 and 314 of
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1997. It is to be seen that even though the appellant has not filed an appeal or
revision as against the order dismissing these two applications. it is open to him
to canvass the correctness of the order if the order goes to the root of the matter.
In the present case, in the absence of any challenge to the order, this Court is
unable to conceive of the appellant thinking of filing an application for
restoration of I.A.Nos.313 and 314 of 1997. The suit tank belong to Mirasdars
and Pattadars of Selvapuram Village. It is still open to the Mirasdars or
Pattadars of the village to file another suit in a representative capacity.
Therefore, the substantial questions of law framed by this Court are answered
against the appellant.
9. Further, it is also brought to the notice of this Court that out of
three persons, who represented the larger body and who filed the plaint
representing the larger body, only one person has filed the First Appeal
challenging the judgment and decree of the trial Court. The learned counsel
appearing for the appellant now stated that the other two have not joined with
the 2nd plaintiff/appellant and therefore, the appeal was filed by one individual.
The Second Appeal is also filed by one of the three persons, who jointly filed
the plaint before the trial Court. In such capacity, it is also noticed that there is
no chance for seeking restoration of the applications filed under Order I Rule 8
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of C.P.C, as some of the people, who originally joined with the plaintiff, have
not come forward to prosecute the appeal. It is stated that other two persons are
no more and did not join with the 2nd plaintiff/appellant.
10. Hence, there is no merit in the Second Appeal and accordingly, it
is dismissed. There shall be no order as to costs. Consequently, connected
miscellaneous petition is closed.
10.02.2025
asi
To
1.The Subordinate Judge, Thiruvarur.
2.The District Munsif-cum-Judicial Magistrate, Nannilam.
Nagapattinam District.
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S.S. SUNDAR, J.
asi
10.02.2025
https://www.mhc.tn.gov.in/judis
