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1952 DIGILAW 22 (KER)

Thandamma v. Ariya Bhattathiripad

1952-03-05

SANKARAN, SUBRAMONIA.IYER

body1952
Judgment :- 1. These revision petitions arise out of orders passed by the court below, recording a finding on issue 8 which related to the maintainability of the suit in view of Proclamation X of 1119 (Cochin) and another order permitting the plaintiff's application, M. P. 899 of 1951 for withdrawing or abandoning that part of the relief claimed in the plaint relating to renewal fee. The suit was filed by the Jenmi-respondent against the petitioners who were defendants and kanom tenants under the Jenmi. Two causes of action, one for arrears of michavarom and another for renewal fee were joined in the suit which was filed in the year 1950 as O.S. 589 of 1950. It was contended by the defendants inter alia, that the suit was not maintainable on account of Cochin Proclamation, X of 1119 which, according to them prohibited the institution of suits which had any connection with a claim for renewal fee. Issue 8 was framed by the court below on this question. The finding recorded by the court in favour of the maintainability of the suit is challenged before us. 2. Issue 8 was framed by the court below on this question. The finding recorded by the court in favour of the maintainability of the suit is challenged before us. 2. Proclamation X of 1119 reads thus: "STAY OF SUITS AND PROCEEDINGS FOR THE RECOVERY OF RENEWAL FEES IN RESPECT OF CERTAIN KANOMS Whereas the question of amending the provisions of the Cochin Tenancy Act, XV of 1113 is under the consideration of Our Government and whereas it is considered expedient to stay suits and other proceedings for the recovery of renewal fees in respect of certain c I asses of kanoms; We are pleased to commend that, until such date a Our Government may by notification in the Cochin Government Gazette deem fit to withdraw this Proclamation, no suit involving claims for renewal fees shall be instituted nor shall any suit, appeal, second appeal, revision or decree involving such claims be further proceeded with so far as such claims are concerned where - [a] the kanom demise in respect of which renewal fee is claimed is a Ner-kanom and is expressly described as such in the demise; or [b] the interest on the Kanom and Puramkadom amount, if any, is 50 per cent or more of the Kanapattom; or [c] the renewal fee sought to be recovered is for a cycle which commenced on a date prior to the commencement of the Cochin Tenancy Act, XV of 1113, and is in respect of Kanoms which were given fixity for the first time by the said Act." 3. The contention urged on behalf of the petitioners is that as the Proclamation provides that "no suit involving claims for renewal fees shall be instituted" and this suit is one involving a claim for renewal fees, the court had no jurisdiction to entertain it. The provision of the Civil Procedure Code to the effect that a suit is to be instituted by the presentation of a plaint, is relied upon. It is contended that as the word "involve" means "include in the dictionary and there being no ambiguity about that word, no question of interpretation arises and what is to be done is merely to apply the statute literally and hold that the suit cannot be entertained. It is contended that in this view the Preamble to the Proclamation cannot be looked into. 4. It is contended that in this view the Preamble to the Proclamation cannot be looked into. 4. Maxwell on Interpretation of Statutes, 9th edition stated at page 46: "The preamble of a statute [even after repeal] has been said to be a good means of finding out its meaning, and, as it were, a key to the understanding of it; and, as it usually states or professes to state, the general object and intention of the Legislature in passing the enactment, it may legitimately be consulted to solve any ambiguity, or to fix the meaning of words which may have more than one, or to keep the effect of the Act within its real scope, whenever the enacting part is in any of these respects open to doubt." and at page 49: "And generally, although in cases where the meaning of words used in a statute is absolutely clear the Court has no right to go beyond them, when the words are capable of one meaning, and at the same time of a more extended meaning, the Court will look to the object and policy of the Act to see what meaning they ought to have." The enquiry in every case is as to what the Legislature meant to enact. A literal construction will not always lead to a proper ascertainment of the intention of the Legislature. The wording of the Preamble "for the recovery of renewal fees" is seen altered into "involving claims for renewal fees" in the enacting portion. The question is, what this change connotes or is meant to connote. One obvious purpose can be mentioned. Even though a suit may not be for recovery of renewal fees as such, it may be to enforce a relief which arises out of a claim for renewal fee. The question is, what this change connotes or is meant to connote. One obvious purpose can be mentioned. Even though a suit may not be for recovery of renewal fees as such, it may be to enforce a relief which arises out of a claim for renewal fee. For instance, if it is provided that on default of payment of renewal fee, the tenant would be liable to consequences detrimental to him or that the landlord would be entitled to rights in his favour which take the shape of non payment of the renewal fee but of some other character then, though the suit may be for enforcement of that relief which may not be expressly for recovery of renewal fees, as that relief, though of a different shape, involves a claim for renewal fee, even a suit claiming such a relief is sought to be brought within the ambit of the prohibition. Strictly speaking the enforcement of such a relief would also amount to recovery of renewal fees though not avowedly so. Except for enlarging the scope of the suit that is prohibited in the manner above indicated or otherwise for in effect recovering renewal fees, i. e., indirectly, we are unable to see any other intention behind the words "involving claims for renewal fees" contained in the enacting part of the Proclamation. 5. In this case the plaintiff has joined together two causes of action, one for recovery of michavaram and another for recovery of renewal fees. This he is permitted to do under the Code of Civil Procedure, (Order II, Rule 3) which provides for such a joinder of causes of action except in cases where that is prohibited. Rule 6 of that Order provides that: , "Where it appears to the court that any cause of action joined in one suit cannot be conveniently tried or disposed of together, the Court may order separate trials or make such other order as may be expedient." It is clear therefore that even in a case where causes of action are joined by a plaintiff against the same defendant or same set of defendants, it is competent for the Court to direct separate trials of those causes of action, that is to say, to regard what purpots to be one suit as in fact two suits. When different causes of action are joined they have to be valued separately and separate court fee paid as on distinct subjects. In this case, therefore, it is possible to regard what appears to be one suit as really two, each in respect of one cause of action that is sought to be enforced. That part of it which relates to the claim for recovery of michavaram has nothing to do with the claim for renewal fees. One stands independent of the other and the mere fact that a claim for recovery of renewal fees, a suit for which is prohibited by Proclamation X of 1119, is joined in the same action, such joinder will not vitiate that part of the suit which relates to the recovery of michavarom. To construe the Proclamation in the way contended for by the petitioners is to go against the key to the interpretation of the Proclamation afforded by the preamble which distinctly says that what is meant to be enacted is only a provision for stay of suits and other proceedings for the recovery of renewal fees. 6. The question of the proper interpretation to be put upon the expression "suit involving claims for renewal fees" arose in the Cochin High Court in the case reported in XXXVI Cochin 708. The question that arose there related to the last part of the Proclamation: "Nor shall any suit involving such claims be further proceeded with." That was instituted in the year 1117. It included various reliefs, one of which was for renewal fee. As the Proclamation prohibited Courts from further proceeding with suits involving claims for renewal fees and because the suit in question did involve a claim for renewal fee, it was contended that the whole suit should be stayed and that no part of it should be proceeded with. Krishnaswamy Iyengar, learned Chief justice discussed the provisions of Proclamation X of 1119 and reached the conclusion that the suit was not liable to be stayed as a whole but only in respect of that part of it which related to renewal fee. 7. Krishnaswamy Iyengar, learned Chief justice discussed the provisions of Proclamation X of 1119 and reached the conclusion that the suit was not liable to be stayed as a whole but only in respect of that part of it which related to renewal fee. 7. For the reasons mentioned above, we are in respectful agreement with the conclusion reached by the learned Chief Justice in that case and we are of the opinion that the word "involving" has not got the effect of rendering not maintainable a suit comprising a cause of action to enforce which a suit can be maintained. The suit has however to be regarded as confined to that part of it which is maintainable and it is competent for the court to entertain it and try it as thus confined. 8. C. E. P. 544/51 is against the order of the court below permitting the plaintiff to withdraw or abandon that part of the plaint which relates to the claim for recovery of renewal fees. Order XXIII Rule I of the Code of Civil Procedure authorises the court to permit the plaintiff to withdraw or abandon part of his claim. The application made by the plaintiff can be properly construed as one for abandoning that part of the claim relating to renewal fees and so regarded the order passed by the Court below is correct. The contention urged on behalf of the petitioners is that the suit being beyond the jurisdiction of the court to receive it is equally beyond its competence to permit the plaintiff to withdraw or abandon a part of the claim sought to be enforced in it. In the view that we have taken, the court has jurisdiction to accept the plaint and if it has jurisdiction to accept it, it has jurisdiction to permit the plaintiff to withdraw or abandon a part of it. Indeed, it is not contended that if the court has jurisdiction to accept the plaint, it has no jurisdiction to permit the plaintiff to abandon a part of the claim made in it. 9. Both the Civil Revision Petitions should, therefore be dismissed with costs. Dismissed.