BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 11/12/2006 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.322 of 1996 0.2044 Fishermen Co-operative Society, represented by the Special Officer, Kadaiyanallur, Tenkasi Taluk, Tirunelveli District. ... Appellant Defendant Vs Chinnaswamy ... Respondent Plaintiff Prayer Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 06.07.1995 made in A.S.No.64 of 1993 on the file of the Sub Court, Tenkasi, confirming the judgment and decree dated 18.12.1992 made in O.S.No.514 of 1990, on the file of the District Munsif, Tenkasi. !For Appellant ... Mr.S.Ramesh alias Ramaiah ^For Respondent ... Mr.T.S.R.Venkatramana :JUDGMENT
This appeal is directed as against the judgment and decree dated
06.07.1995 passed in A.S.No.64 of 1993 on the file of the Sub Court, Tenkasi,
confirming the judgment and decree dated 18.12.1992 passed in O.S.No.514 of
1990, on the file of the District Munsif, Tenkasi.
2. The parties are referred to hereunder as they were arrayed before the
trial Court.
3. A resume of facts absolutely necessary for the disposal of the second
appeal could be portrayed thus:
The plaintiff, Chinnasamy, filed the suit as against the defendant, Co-
operative Society on the main ground that even though the defendant gave licence
to Chinnasamy on receipt of Rs.5,157.15 from him for fishing in the pond
described in the schedule of the plaint, he was not allowed to do fishing in
view of the fact that one Puduran Padaiyatchi obtained injunction order from the
civil Court restraining the defendant and his men and also Kadaiyanallur
Panchayat Union from any manner interfering with his fishing right in the same
pond, consequent upon the earlier licence given to Puduran Padaiyatchi by the
said Panchayat Union. The plaintiff, Chinnasamy therefore could not enjoy the
fishing right at all, inasmuch as the injunction order of the Court was
operating, as aforesaid relating to the pond. Hence, the suit.
4. The gist and kernel, the warp and woof of the case of the defendant
inter alia would run thus:
Even though, there was an injunction order as aforesaid, the said
Chinnasamy, the plaintiff, who is the relative of the said Puduran Padaiyatchi
was actually exercising his fishing right and that there was no complaint by the
said Chinnasamy to the defendant/Co-operative Society that he was prevented from
exercising such fishing right.
5. The trial Court framed issues and ultimately, after considering the
evidence of P.W.1, the plaintiff, Chinnasamy and Exs.A.1 to A.4 and also the
evidence of D.W.1 to D.W.3 and Ex.B.1 on the side of the defendant, decreed the
suit as prayed for.
6. Being aggrieved by it, the defendant preferred the appeal which was
dismissed by the lower appellate Court, confirming the judgment and decree of
the trial Court.
7. Consequently, the defendant has preferred this second appeal on the
following main grounds among others:
(i) The said Chinnasamy, the plaintiff was not a party to earlier suit in
O.S.No.130 of 1988 on the file of the District Munsif, Tenkasi filed by Puduran
Padaiyatchi and hence, there was no injunction operating as against the said
Chinnasamy relating to exercise the fishing right.
(ii) The trial Court did not appreciate the evidence properly. The trial
Court ought to have held that the plaintiff Chinnasamy exercised his fishing
right.
(iii) The defendant’s Society was not in any way benefitted by the said
transaction.
(iv) Accordingly, the defendant prayed for setting aside the judgment and
decree of both the Courts below and for dismissing the suit.
8. At the time of admission, the following substantial question of law was
framed:
“Whether the Courts below are right in holding that there is some breach
of contract on the part of the appellant?”
The Point:
9. Right at the outset, I may proceed to highlight the fact that in this
second appeal, the finding of fact by both the Courts below cannot be gone into.
Both the Courts below in unison held that the plaintiff Chinnasamy did not enjoy
his fishing right and in such a case, in second appeal, quite as against such
finding of fact, it cannot be held otherwise by this Court.
10. The learned Counsel for the respondent / plaintiff would advance the
argument that the injunction order admittedly was not as against Chinnasamy who
was not a party to the previous proceedings initiated by Puduran Padaiyatchi and
which subsequently ended in dismissal consequent upon the said suit having been
not pressed by the said Puduran Padaiyatchi. Such an argument is untenable for
the reason that the defendant herein, namely the Co-operative Society was very
much a party and injunction order was operating as against the Co-operative
Society. In such a case, Chinnasamy, the plaintiff who was the licencee under
the defendant was bound by it.
11. From the records and arguments what transpired is that initially,
Kadaiyanallur Panchayat Union licensed the fishing right in favour of Puduran
Padaiyatchi after receiving money from him and that was subject to approval by
the Collector. But, the Collector was of the opinion that Kadaiyanallur
Panchayat Union should not have licensed such right in favour of an individual,
but such right should have been licensed only through the Co-operative Society;
accordingly, the defendant Co-operative Society herein, was given with the right
to license the fishing right which was ultimately licensed out in favour of the
plaintiff, Chinnasamy; and that however, Chinnasamy, the plaintiff could not
exercise his right, because of the injunction order obtained by the said Puduran
Padaiyatchi as stated above.
12. The core question arises whether Chinnasamy is entitled to get back
the amount paid by him to the defendant, because he was prevented from enjoying
the fishing right as per the licence. The fact remains that the defendant, Co-
operative Society deposited a sum of Rs.26,040/- in favour of Kadaiyanallur
Panchayat Union as per the order of the Collector relating to sixty five ponds
relating to which, the defendant could license out the fishing right in favour
of its members.
13. Now then, it turned out that the defendant, Co-operative Society
should repay the sum of Rs.4,297.60 which was received from Chinnasamy, the
plaintiff along with the Commission of Rs.859.55, totalling Rs.5157.15. The
defendant was not at all at fault. In such a case, the defendant is entitled to
get reimbursed the amount which it should pay under the judgment and decree of
the Courts below to the plaintiff, from Kadaiyanallur Panchayat Union concerned
or the Government, as the case may be, by taking appropriate proceedings, if
necessary. It is quite obvious that such right of reimbursement of defendant
accrues after making such actual payment to the plaintiff.
14. Since this litigation prolonged till the disposal of the second
appeal, the defendant’s right to make such a claim for reimbursement as
aforesaid, shall not be affected by limitation as the period covered by this
litigation from the time of filing of the Original Suit, up to the end of this
second appeal, shall be excluded in computing such limitation period; whichever
legal mode the defendant considers fit and proper for such reimbursement, it is
at liberty to resort to.
15. The point is answered accordingly.
16. In the result, confirming the judgment and decree of the Courts below,
this appeal is dismissed without costs, subject to the observations made in
favour of the defendant, Co-operative Society, to get reimbursed whatever amount
which it shall have paid under the judgment and decree of both the Courts below
and the period of litigation from the date of filing of the original suit till
the disposal of this second appeal including the time taken for obtaining the
certified copy of this judgment, shall be excluded for computing the limitation
period in initiating such legal proceedings by the defendant Co-operative
Society as against the party or parties concerned .
rsb
To
1. The Subordinate Judge, Tuticorin.
2. The District Munsif, Srivaikuntam.