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Madras High Court
E.N. Venkoba Row vs Thuniya Nataraja Chetty And Ors. on 16 September, 1909
Equivalent citations: 3 Ind Cas 829
Bench: R Benson, S Nair


JUDGMENT

1. The allegations in the plaint do not show that the plaintiff has no right to sue. But on evidence taken in the enquiry held under Section 409, the Subordinate Judge has held that the suit is barred by limitation. He was wrong in doing so Vide Full Bench decision in Rathnam Pillai v. Pappa Pillai 13 M.L.J. 295 where it is heldthat the evidence taken under that section must be confined to the question of pauperism. The case in Vijendra Tirtlia Swami v. Sudhindra Tirtha Swami 19 M. 197 relied on by the learned Judge has been overruled by this Fall Bench decision in Rathnan Pillai v. Pappa Pillai 13 M.L.J. 295 which he has not referred to in his judgment, and the case in Karnrcikh v. Sunder Nath 20 A. 299 if opposed to the Full Bench decision, cannot be followed. We see no waiver, even assuming that such waiver would give jurisdiction to the Court to decide the question. The Subordinate Judge has not decided the question whether the plaintiff is a pauper.

2. We must, therefore, reverse the orders, and remit the case to the Subordinate Judge to deal with it in accordance with law. Costs to abide the result.


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