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1908 Supreme(Mad) 64
IN THE HIGH COURT OF MADRAS
Wallis, J.
Rasu Mudaliar
Versus
Veerasami Pillai and Ors.
Decided On : 16.04.1908
Section 28 of the Code of Civil Procedure does not enable the plaintiff to join a suit against the 1st defendant with a suit for an account against his co-trustee, the 2nd defendant, over which the Small Cause Court has no jurisdiction.
Headnote:
Section 28 - Code of Civil Procedure - The court held that Section 28 of the Code of Civil Procedure does not enable the plaintiff to join a suit against the 1st defendant with a suit for an account against his co-trustee, the 2nd defendant, over which the Small Cause Court has no jurisdiction. The court referred to previous cases to support its decision and set aside the decree of the Subordinate Judge.
Fact of the Case:
The plaintiff sought to join a suit against the 1st defendant with a suit for an account against his co-trustee, the 2nd defendant, over which the Small Cause Court has no jurisdiction. The Subordinate Judge dismissed the suit, leading to the appeal.
Finding of the Court:
The court found that the Subordinate Judge's decision was not in accordance with the latest authority in the Court and set aside the decree, remanding the case for disposal according to law.
Issues: The issue was whether the plaintiff could join a suit against the 1st defendant with a suit for an account against his co-trustee, the 2nd defendant, over which the Small Cause Court has no jurisdiction.
Ratio Decidendi: The court relied on the interpretation of previous cases to determine that the plaintiff could not join the suits, and set aside the Subordinate Judge's decree based on the latest authority in the Court.
Final Decision: The court set aside the decree of the Subordinate Judge and remanded the case for disposal according to law.
Wallis, J.
1. Section 28 of the Code of Civil-Procedure cannot enable the plaintiff to join with his suit against the 1st defendant a suit for an account against his co-trustee, the 2nd defendant, over which the Small Cause Court has no jurisdiction. It is said, however, that the Subordinate Judge should have allowed the plaintiff to proceed with his suit against the 1st defendant. Where one co-trustee joined the other as one of the defendants, and it was not shown that the other trustee had refused to be joined as plaintiff, it was held in Parameswaren v. Shangaran I L.R. (1891) M. 489 that the District Judge was right in dismissing the suit on the ground that the co-trustee was not joined as plaintiff. The case of Savitri Antarjanam v. Raman Namboodiri I.L.R. (1900) M. 269 is to the same effect. On the other hand, the case of Peria Karuppan v. Velayuthan Chetty I.L.R. (1905) M. 303 appears to approve of the case of Pyari Mohan Bose v. Kedar Nath Roy I.L.R. (1900) C. 409 in which it was held immaterial whether the co-trustee is made a defendant or a plaintiff. Following this as the latest authority in this Court, I set aside the decree of the Subordinate Judge and remand the case to him for disposal according to law. Costs will abide the event.
