Madras High Court
A.L.Mathialagan vs V.Balasundaram on 18 February, 2014
Author: P.Devadass
Bench: N.Paul Vasanthakumar, P.Devadass
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18-02-2014 CORAM THE HONOURABLE MR. JUSTICE N.PAUL VASANTHAKUMAR AND THE HONOURABLE MRS. JUSTICE P.DEVADASS O.S.A.No.49 of 2014 and M.P.No.1 of 2014 A.L.Mathialagan ... Appellant Vs 1.V.Balasundaram 2.M.Hemalatha ... Respondents Prayer: This Original Side Appeal is preferred under Rule XXXVI Rule 9 of the O.S.Rules read with Clause 15 of the Letters Patent against the order dated 07.2.2014 in A.No.810 of 2010 in A.No.1867 of 2013 in C.S.No.313 of 2013. For Appellant : Mr.V.M.Venkatramana ***** J U D G M E N T
(Judgment of the Court was made by P.DEVADASS, J.) As the matter lies in a narrow compass, namely, question as to granting of leave to sue, we have decided to dispose of this Appeal, at the admission stage itself.
2. The 2nd Defendant in C.S.No.313 of 2013, aggrieved by the dismissal of his Application No.810 of 2014 filed in C.S.No.313 of 2013 to revoke the leave granted in A.No.1867 of 2013 to institute the suit, has directed this Original Side Appeal.
3. On the basis of promissory notes, the 1st Respondent instituted the suit in C.S.No.313 of 2013 as against the Appellant (2nd Defendant) as well his wife (1st Defendant). The suit is for recovery of money, based on certain promissory notes. Since the Defendants were residing in Karaikudi in Sivagangai District, leave has been sought for in A.No.1867 of 2013. The learned Single Judge granted the leave. Out of the spouses, the husband (2nd Defendant) alone filed A.No.810 of 2014 to revoke the leave. The learned Single Judge repealling the contentions raised, dismissed his said application.
4. Aggrieved, the 2nd Defendant is before us.
5. According to the learned counsel for the Appellant, there is no averment in the plaint that the suit promissory notes were executed at Chennai. Further, the plaint pleadings would show that all along the Plaintiff is residing in U.A.E. Thus, the promissory notes could not have been executed at Chennai. The plaint pleadings as such are not enough to grant the leave. Since the Appellant is residing at a far off place in Karaikudi in Sivagangai District, he will be greatly prejudiced in coming to Chennai to face this litigation. The learned counsel would submit that the application to revoke the leave was dismissed by the learned Single Judge in limini, without affording him sufficient opportunity. The learned counsel for the Appellant would cite S.Nagaraj v. S.Govindaswamy and another [(1983) 96 Law Weekly 498 (DB)] and submit that in the said case, the Court revoked the leave, taking note of the fact that a single word Madras mentioned in the cause of action para is quite insufficient to grant the leave sought for.
6. We have anxiously considered the submissions of the learned counsel for the Appellant, perused the plaint and the suit documents, other materials on record and the decision cited.
7. It is a simple suit for recovery of money, based on promissory notes. Since the Defendants, who are spouses are residing in Karaikudi in Sivagangai District, leave has been sought for and it was granted. A.No.810 of 2014 has been filed by the Appellant to revoke it.
8. It is basic that the suit itself should not be decided in an application of this sort. Matters which are to be tried to be appreciated at the time of trial on adducing evidence.
9. Sofar as grant of leave is concerned, the basis is plaint pleadings. It is important to see whether the cause of action arose within the ordinary original civil jurisdiction of this Court. A plaint does not end with the prayer paragraph alone. The suit documents more particularly, the base documents also form part of the plaint pleadings.
10. In this case, in paragraph (10) of the plaint, it is mentioned that the suit promissory notes were executed and the amounts were paid at Chennai. In paragraph (12) of the plaint, it has been mentioned that the suit documents i.e. to say the basic documents viz., promissory notes were filed along with the plaint. The suit documents cannot be read in isolation from the plaint pleadings. They form part of the plaint pleadings. In paragraph (4) of the plaint, there are pleadings as to the execution of the promissory notes and the details of the promissory notes are also given. It is mentioned in the promissory notes that the witnesses, who have attested the execution of the promissory notes are residing at Chennai.
11. The arguments that in as much as the Plaintiff is in U.A.E., it could not have been possible for the Appellant to execute the promissory notes at Chennai. It is not that the Plaintiff had settled once for all in U.A.E., forgetting Tamil Nadu. That apart, it is also a matter of evidence to be adduced and to be appreciated as to whether the promissory notes as stated could not have been executed at all at Chennai. Thus, on facts, the decision cited is distinguishable.
12. Thus, the learned Single Judge, on being satisfied with the prima facie view, granted the leave to sue and thus rightly rejected the Appellant's application to revoke the leave.
13. In view of the foregoings, this Original Side Appeal fails and it is dismissed. The impugned order is confirmed. However, in the circumstances, no costs. M.P.No.1 of 2014 is closed.
(N.P.V.,J.) (P.D.S.,J.)
18.02.2014
Index : Yes/No
Internet: Yes/No
bbr
To
The Sub Assistant Registrar (O.S.)
High Court, Madras.
N.PAUL VASANTHAKUMAR,J
and
P.DEVADASS,J
bbr
Judgment
in
O.S.A.No.49 of 2014
18.02.2014