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  • Article 13 of the second Schedule, Provincial Small Cause Courts Act).3.
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  • Article 13 of the second Schedule, Provincial Small Cause Courts Act).3.
Smart Summary

Factual and Procedural Background

This opinion addresses a second appeal concerning a suit originally framed as a Small Cause matter. The plaintiff claimed dues accruing by reason of his hereditary office as purveyor of ghee for a fixed annual allowance related to a temple, rather than a claim based on the value of goods received. The defendant was described as the Cochin Sircar represented by the Dewan of Cochin. Objections were raised regarding the maintainability of the suit and whether permission was required under Section 86 of the Code of Civil Procedure (CPC) to file the suit.

Legal Issues Presented

  1. Whether the second appeal lies in a suit of Small Cause nature given the cause of action relates to hereditary dues rather than goods.
  2. Whether permission under Section 86 of the CPC is required to file the suit against the defendant described as the Dewan of Cochin representing the Cochin Sircar.
  3. Whether the suit can be maintained against the temple trust as an aggregate corporation and the legal status of trustees sued individually.
  4. Whether suing the Cochin Sircar represented by the Dewan is tantamount to suing the Raja, which is prohibited under Section 86 of the CPC.

Arguments of the Parties

Appellant's Arguments

  • The suit as framed does not require permission under Section 86 of the CPC because it is not for personal relief against the Raja or his State.
  • The first defendant is the Dewan of Cochin, not the Raja, and thus the suit is not barred.
  • The suit is against the temple trust, an aggregate corporation, and individual trustees do not have separate legal existence.

Respondent's Arguments

The opinion does not contain a detailed account of the respondents' legal arguments beyond the objections raised and reliance on precedent.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Kuthaldath Narayan Mootha v. Cochin Sircar Clarification that suits described as against the Dewan representing the Cochin Sircar do not require separate permission under Section 86 CPC if not against the Raja personally. The court agreed with the earlier decision that the suit could lie without permission and that the court has power to order appearance or costs under Order 5, Rule 3 CPC.
Gilmore v. State of Travancore Section 87 CPC equates suing the representative (Dewan) to suing the Raja, which is prohibited under Section 86 CPC. The court held that suing the Cochin Sircar represented by the Dewan is tantamount to suing the Raja, therefore permission under Section 86 CPC is required and the suit is barred.

Court's Reasoning and Analysis

The court first examined the nature of the suit and cause of action, distinguishing it from a mere Small Cause suit based on goods value. It noted the plaintiff’s claim related to hereditary dues and not goods, which brought the suit outside the typical Small Cause jurisdiction. The court then analyzed the applicability of Section 86 CPC, which bars suits against the Raja or his State without permission. It considered whether the suit against the Dewan, as representative of the Cochin Sircar, was effectively a suit against the Raja. Citing precedent, the court observed that Section 87 CPC equates suing the representative to suing the Raja, thus invoking the prohibition under Section 86. The court also addressed the plaintiff’s arguments that the suit was not against the Raja personally and that the temple trust was an aggregate corporation, finding these points either addressed by precedent or irrelevant to the suit’s maintainability. Ultimately, the court found the appeal unsustainable on the merits, dismissing it with costs.

Holding and Implications

The second appeal is dismissed with costs.

The direct effect of this decision is the dismissal of the plaintiff’s appeal and confirmation that suits effectively against the Raja or his State require prior permission under Section 86 CPC. No new precedent was set; the court reaffirmed established principles regarding jurisdiction and representative defendants under the CPC.

    Kuttiyali Vadakkedath Kunhan Moothad v. M.B. Ry. A.B. Banerji Avergal

    Spencer, J.:— An objection has been taken that this second appeal will not lie, as the suit is of a Small Cause nature.

    2. It is, however, clear from the plaint that the cause of action was not the value of the goods received by the temple, but the dues accruing to the plaintiff by reason of his hereditary office as purveyor of ghee for a fixed annual allowance (see Article 13 of the second Schedule, Provincial Small Cause Courts Act).

    3. Mr. Menon has raised three points, viz., that the suit as framed will lie without permission being obtained under Section 86 of the CPC.

    1. Because the suit is not to obtain any personal relief against the Raja of Cochin or against his State.

    2. Because the first defendant is really the Dewan of the Cochin State and not the Raja

    3. Because the suit is against the temple trust, which is an aggregate Corporation and because any one of the trustees has, he argues, no separate and independent existence.

    4. The first point was considered and decided by Tyabji, J., in Kuthaldath Narayan Mootha v. Cochin Sircar(1), in which the defendant was described in a similar manner to the description in this suit viz., the Cochin Sircar represented by the Dewan of Cochin.

    5. I agree with what the learned Judge observed on this point, and I would add that this section makes no distinction between cases in which personal relief is asked for and others. In every suit whether a particular defendant is a pro forma defendant or a principal party, the Court must be taken to have the power to order his appearance in person under O. 5, R. 3, or to direct him to pay costs and otherwise subject him to the jurisdiction of the Court by making him obey its directions.

    6. The second point has not been raised either in the lower Appellate Court or in the second appeal memorandum and having regard to paragraph 2 of the plaint and to paragraph 1 of the District Munsif's judgment, it is clear that the plaintiff's case till now has been that the trusteeship was vested in the Raja rather than in his Dewan and that in mentioning the Dewan and describing him as representative of the Cochin Sircar, the plaintiff was merely complying with the provisions of Section 87 of the CPC.

    7. The third point does not arise in this suit, which is ostensibly against the trustees for what they have done or rather left undone.

    8. The second appeal fails and is dismissed with costs.

    Coutts Trotter, J.:— I am of the same opinion. When the pleadings are properly translated, it is apparent that the Cochin Sircar is the first defendant, and a reference to Section 87 of the CPC shows that this is tantamount to suing the Raja which is forbidden by S. 86, see Gilmore v. State of Travancore(2).

    9. The suggestion that S. 86 does not apply where the Prince or Ruler is sued only in a representative character as a trustee is to my mind unarguable.

    10. I express no opinion as to whether the objection to the jurisdiction is or is not good, as, in my opinion, the appeal fails on the merits in any event.

    S.N/R.K

    11. Appeal dismissed.

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    Comments

    Kuttiyali Vadakkedath Kunhan Moothad v. M.B. Ry. A.B. Banerji Avergal
    (Jul 23, 1915)