{"id":27575,"date":"2003-09-11T00:00:00","date_gmt":"2003-09-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/duraikannu-vs-malayammal-on-11-september-2003"},"modified":"2016-10-30T18:18:14","modified_gmt":"2016-10-30T12:48:14","slug":"duraikannu-vs-malayammal-on-11-september-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/duraikannu-vs-malayammal-on-11-september-2003","title":{"rendered":"Duraikannu vs Malayammal on 11 September, 2003"},"content":{"rendered":"
Madras High Court<\/div>\n
Duraikannu vs Malayammal on 11 September, 2003<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 11\/09\/2003\n\nCORAM\n\nTHE HONOURABLE MR. JUSTICE A. KULASEKARAN\n\nC.R.P. (NPD) No. 1250 of 2003\nand\nC.M.P. No. 13716 of 2003\n\n1. Duraikannu\n2. Meenakshi Ammal\n3. Sellammal\n4. Seeniammal                                           ... Petitioners\n\n-Vs-\n\nMalayammal                                             ... Respondent\n\n\n        Revision under Section 115 of C.P.C. against the Order dated 18-03-2\n003 made in I.A. No. 8 of 2002 in A.S. No. 275 of 2002 on the file\nof the Additional District Court at Namakkal.\n\n!For Petitioners        :       Mr. Valliappan\n                 for M\/s. Sarvabhauman Associates\n\n\n^For Respondent  :      ---\n\n:ORDER\n<\/pre>\n
        The Plaintiffs 2 to 5 in the suit are the  petitioners  herein.    The
\nPlaintiffs have filed  the  suit  O.S.  No.  728 of 1987 before the Additional
\nDistrict Munsif, Namakkal for declaration and injunction.   Before  the  trial
\ncourt,  both  the  plaintiffs  and  defendant have let in oral and documentary
\nevidence.  After considering the same, the trial  court  dismissed  the  suit.
\nAggrieved  by  the  judgment  and  decree  passed  by  the  trial  court,  the
\npetitioners herein have preferred A.S.  No.  275 of 2002.  Pending appeal, the
\npetitioners have filed I.A.  No.  8 of 20 02 under Order 23  Rule  1  (3)  CPC
\nseeking  permission  of  the Court to withdraw the suit with liberty to file a
\nfresh suit on the same cause of action.  After affording opportunity  to  both
\nsides,   the  first  Appellate  Court  dismissed  the  application,  which  is
\nchallenged in this revision.\n<\/p>\n
        2.      Mr.  Valliappan, learned counsel appearing for the petitioners
\nsubmitted that the first Appellate Court erred in dismissing  the  application
\nfiled  under  Order  23  Rule  1  (3)  CPC  without  following  the principles
\nenunciated therein; that the Court below failed to note  that  the  respondent
\nherein claims title from one Pachaiyammal, wife of Marudhamuthu Udayar and the
\npetitioners herein claim title from Pachaiyammal, Wife of Subbaraya Udayar and
\nthe  identity  in  the  names of Predecessors in title of both parties was not
\nclarified properly in the suit; that because of the technical omission  stands
\nin  the  way  of  proper appreciation of points in issue, the petitioners were
\nconstrained to file the petition under Order 23 Rule 1 (3) CPC to withdraw the
\nsuit with the view to avoid formal defect and for making proper submission and
\nprayed for setting aside the order passed by the first Appellate Court.\n<\/p>\n
        3.      The learned counsel appearing for the  petitioners  relied  on
\nthe decision of this Court reported in (Esanya Madalayam Religions Institution
\nowned by  Koviloor  Muthuramalingam  Gnana  Desigar  Madalayam,  rep.   by its
\nMadathipathi Sri-la-Sri Nachiappa Gnanadesiga  Samigal  Vs.    Thiruvannamalai
\nSevasramam Educational Trust, rep.  by its Secretary Dr.  B.  Subbarayan) 1999
\nMLJ Volume 2 Page No.360.\n<\/p>\n
        In this case, the plaintiff has filed two suits against the defendants
\nfor permanent  injunction,  when  the  defendants  are  in  possession.    The
\nPlaintiff intended to file a comprehensive suit after withdrawing the  earlier
\nsuits.   This Court held that though in the absence of formal defect, if there
\nis sufficient grounds or cause to withdraw the  suit,  hence  leave  could  be
\ngranted by the Court.\n<\/p>\n
        4.      This revision  lies  in a narrow campus.  The petitioners have
\nfiled the application under Order 23 Rule 1 (3) CPC seeking permission of  the
\nCourt to withdraw the suit and to file a fresh suit for the very same cause of
\naction.  Order 23 Rule 1 (3) CPC runs as follows:-\n<\/p>\n
        “1.     Withdrawal of suit or abandonment of part of claim <\/p>\n
        (3)     Where the Court is satisfied-<\/p><\/blockquote>\n
        (a)     that a suit must fail by reason of some formal defect, or\n<\/p>\n
        (b)     that  there  are sufficient grounds for allowing the plaintiff
\nto institute a fresh suit for the subject matter of a suit or part of a claim,
\nit may, on such terms, as it thinks fit, grant  the  plaintiff  permission  to
\nwithdraw  from such suit or such part of the claim with liberty to institute a
\nfresh suit in respect of the subject matter of such suit or such part  of  the
\nclaim.”\n<\/p>\n
        5.      Under Clause (b) of Order 23 Rule 1 (3), suit can be withdrawn
\nwith a  liberty  to  sue  afresh  on  sufficient  grounds.    The expression ”
\nsufficient grounds” must be read ‘ejusdem  generis’  with  clause  (a)  and  a
\nground to be sufficient ground must be similar or alike to the cause mentioned
\nin Order 23 Rule 1 (3) (a).\n<\/p>\n
        6.      No  doubt,  a  Court  of  appeal has power in a proper case to
\ngrant permission to withdraw a  suit  with  liberty  to  file  a  fresh  suit,
\nhowever, such  power should be used very cautiously by a Court of appeal.  The
\nPlaintiff\/appellant is not entitled, as a matter of right to withdraw his suit
\nand he will not be permitted to do  so  if  the  effect  of  allowing  him  to
\nwithdraw  it  would  be  to  deprive the defendant of the benefit of the lower
\ncourt’s adjudication in his favour.\n<\/p>\n
        7.      The granting of the permission to  withdraw  with  liberty  to
\nbring a fresh suit removes the bar of resjudicata which would otherwise apply,
\nif a  fresh  suit  on  the  same  cause  of  action  is  brought.   Clause (3)
\ncontemplates the circumstance in which the permission could be granted by  the
\nCourt  on  its  satisfaction  namely  (i) a suit must fail by reason of formal
\ndefect and (ii) there are sufficient grounds for  allowing  the  plaintiff  to
\ninstitute a fresh suit for the subject matter of a suit or part of a claim.\n<\/p>\n
        8.      Formal  defect  means a defect of form, which is prescribed by
\nRules or Procedure.  A defect which goes to the root of the plaintiff’s  claim
\nis not  a  formal  defect.    The  formal  defect  may  be  omission to obtain
\npermission of Court to file the  suit,  misjoinder  of  parties  or  cause  of
\naction,  failure  to  disclose  cause  of  action  for  the  Plaint, erroneous
\nvaluation of the subject matter of the suit and institution of  a  suit  in  a
\nCourt which has no jurisdiction to entertain it.\n<\/p>\n
        9.      The other sufficient ground is that the defect must not be due
\nto  plaintiff’s  own  fault,  hence  the  expression ‘other sufficient ground’
\nshould be construed ‘ejusdem generis’ with formal defect.  The failure of  the
\nplaintiff  to prove his own case is no ground for allowing him to withdraw his
\nsuit with liberty of suing again for the same subject matter.\n<\/p>\n
        10.     The object of the Rule is not to enable a plaintiff, after  he
\nfailed  to  conduct  his  suit  with  proper  care and diligence and after his
\nwitnesses failed to support his case, to obtain an opportunity  of  commencing
\nthe  trial  afresh in order to avoid the result of his previous bad conduct of
\nthe case so as to prejudice the opposite party.\n<\/p>\n
        11.     The  sufficient  grounds  are  like  the  evidence  being  not
\navailable  for  no  fault of the plaintiff, the suit being pre-matured and the
\ncause of action accruing pending the suit, the plaintiff has failed to put  in
\nevidence an important document and where the plaintiff had been mislead by the
\nabsence of a specific denial by the defendant.\n<\/p>\n
        12.     After satisfaction,  the  Court  may  grant  permission.   The
\nmatter of granting permission under this Rule is within the discretion of  the
\nCourt.   The  Court,  when  granting  permission under this Rule must give its
\nreason for granting such permission, although in the case of refusal there  is
\nno such obligation.\n<\/p>\n
        13.     In  this  case,  the  petitioners herein wants to withdraw the
\nsuit on the ground that the respondent claims her title under a sale deed said
\nto have been executed by one Pachiammal, wife of Marimuthu Udayar, who  is  no
\nmore  and  the  petitioners  herein  claim their title and possession from one
\nPachiammal, wife of Subbaraya Udayar  and  that  the  identity  of  the  names
\nbetween  two  different  person  was not clarified properly in the suit by the
\nlower court, hence they want to withdraw the suit as this  technical  omission
\nstands in  the  way  of enquiry of the appeal.  The appellate Court found that
\nboth parties trace  their  title  and  possession  of  the  suit  property  by
\nproducing so many documents, adducing oral evidence before the trial court and
\non the basis of the evidence by which the trial court decided the right of the
\nparties  and  if  the  petition  is  allowed as prayed for, it will affect the
\nvested right of the respondent herein and ultimately dismissed the application
\nto withdraw the suit.\n<\/p>\n
        14.     The respondent relied on the decision  of  the  Supreme  Court
\nreported in  (Rathinavel  Chettiar  Vs.    Sivaraman)  1999 II CTC Page No.593
\nbefore the lower Appellate Court wherein it was held that withdrawal  of  suit
\nat  appellate  stage  having  effect  of  destroying  or nullifying the decree
\naffecting the rights of the parties vested under the decree cannot be  allowed
\nas  a  matter  of course and such withdrawal can be allowed only when a strong
\ncase is made out.  The said decision of the Honourable Supreme  Court,  relied
\non  by  the respondent before the lower Appellate Court is squarely applicable
\nto the facts and circumstance of the case.\n<\/p>\n
        15.     As mentioned supra, the Rule is not to enable  the  Plaintiffs
\nafter  they fail to conduct the suit with proper care and diligence, hence the
\nlower appellate Court is right in dismissing the application to  withdraw  the
\nsuit.   The  decision  relied  on  by  the  counsel  for the petitioner is not
\napplicable to the facts and circumstance of the  case  on  hand.    Therefore,
\ninterference of this Court is unwarranted.\n<\/p>\n
        16.     With  the  result,  the revision fails, liable to be dismissed
\nand accordingly dismissed.  No costs.  Connected CMP is closed.  What are  all
\nstated above need not be taken into account by the appellate Court at the time
\nof deciding the appeal on merits.\n<\/p>\n
        17.     The  learned  counsel  appearing for the petitioner prays this
\nCourt to observe the right of the petitioners herein to approach the appellate
\nCourt for adducing additional evidence.    Such  an  observation  may  not  be
\nrequired.   In case such a petition is filed, it is for the appellate Court to
\ndecide the same on its own merits and in accordance with law.\n<\/p>\n
rsh<\/p>\n
Index :  Yes
\nInternet :  Yes<\/p>\n
To
\nThe Additional District Judge
\nAdditional District Court<\/p>\n
?IN  THE  HIGH  COURT OF  JUDICTURE  AT  MADRAS<\/p>\n
%Dated: 16\/09\/2003<\/p>\n
*Coram<\/p>\n
The Honourable Mr. Justice V.S. SIRPURKAR
\nand
\nThe Honourable Mr. Justice P.D. DINAKARAN<\/p>\n
+W.P. No.21071  of 2003
\nand W.P.Nos. 21072 to 21075 OF 2003<\/p>\n
#S. Mohammed Ali                        …..                Petitioner<\/p>\n
-Vs-\n<\/p>\n
$1.  The State of Tamil Nadu
\n    rep. by Secretary to Government
\n    Public (SC) Department
\n    Fort St. George
\n    Chennai 600 009<\/p>\n
2.  The Commissioner of Customs
\n    Airport, Chennai 600 027<\/p>\n
3.  Union of India, rep. by its
\n    Secretary, Ministry of Finance
\n    Department of Revenue
\n    New Delhi                   …..                 Respondents<\/p>\n
Petitions  under  Art.226  of the Constitution of India, praying for a Writ of
\nCertiorarified Mandamus as stated in the petitions<\/p>\n
!For Petitioner         ::  Mr.  K.  Subramaniam, S.C.\n<\/p>\n
                                for Mohammed Shafi<\/p>\n
^For Respondents ::  Mr.  I.Subramaniam,
\n                Public Prosecutor\/S.C.\n<\/p>\n
                assisted by
\n                Mr.  A.  Navaneethakrishnan
\n                Addl.  Public Prosecutor<\/p>\n
:ORDER<\/p>\n
V.S.  SIRPURKAR, J.\n<\/p>\n
                All  the above-mentioned five writ petitions shall be disposed
\nof by this common judgment.\n<\/p>\n
                2.  Petitioner herein seeks to quash the orders passed by  the
\nrespondents   dated   25-4-2003   and   15-2-2001  whereby  the  pre-detention
\nrepresentations of the petitioner were rejected.   By  the  first  order,  the
\npetitioners  representation  dated  17-6-2002  was  dealt  with while, by the
\nsecond mentioned order, the subsequent four  representations  dated  7-7-2002,
\n9-8-2002, 25-9-2002  and  22-10-2002  were disposed of.  These representations
\nwere made by the petitioner praying  therein  that  a  detention  order  dated
\n15-2-2001  passed under the Conservation of Foreign Exchange and Prevention of
\nSmuggling Activities Act, 1974 (in short COFEPOSA) should  not  be  executed
\nand should  be  cancelled.    Following  facts  will highlight the controversy
\ninvolved in these unusual writ petitions.\n<\/p>\n
                3.  Petitioner, who claims to be a lawyer, holds a licence  as
\nan  accredited  overseas  recruiting  agent,  which  licence is granted by the
\nMinistry of Labour, Government of India.  Petitioner  has  been  holding  this
\nlicence right  from  1984.   He was intercepted at Anna International Airport,
\nChennai on 10-12-2000, when he was on his way to Malaysia.  He claimed that he
\nwas going there in pursuance of  his  business  and  that  on  11th  and  12th
\nDecember, he had sent sixty workers to Malaysia for the purpose of employment.
\nHe  claimed that he was carrying the amount of those sixty persons and thus he
\nwas carrying with him US$1 1700 in the denominations of  US$100s,  US$50s  and
\nUS$20s.   This  amount  was obviously not declared by him and he was therefore
\narrested by the officials of the Enforcement Wing.  He was also  charged  with
\nan  offence  under  Sec.135-1A of the Customs Act and was put behind the bars.
\nHe claims that on this basis, an order for his detention  came  to  be  passed
\nunder COFEPOSA.\n<\/p>\n
        3.1.   He  did  not wait for being served with the order of detention,
\nwhich was tried to be served upon him and  approached  this  Court  vide  W.P.
\nNo.3212 of  2001  on  16-2-2001.    An  interim order of status quo came to be
\npassed in the said writ petition on 20th April 2001.  Needless to mention that
\nin the meantime, the respondents could not nab  him.    Ultimately,  the  writ
\npetition  came  to  be  decided  on  5-6-200  2, whereby the writ petition was
\ndismissed relying on the reported decision of the Supreme Court in  Government
\nof India v.   Alka  Subash  Gadia  (1992  Supp.  (1) 496).  The Division Bench
\n(Jagadeesan and Murugesan, JJ.) gave a categorical finding  therein  that  the
\npetitioners  case  did  not  fall under any of the eventualities contemplated
\nunder the decision of Alka Subash Gadia, cited supra, so as to enable  him  to
\nmove  a  writ  petition  even before the order of detention was served against
\nhim.  The Division Bench also took notice  of  the  latter  decisions  of  the
\nSupreme Court  in  SAYED TAHER BAWAMIYA v.  JOINT SECRETARY<\/a> (2000 [8] SCC 630)
\nand UNION OF INDIA v.  MUNEESH SUNEJA<\/a> (2001  [3]  SCC  92)  and  came  to  the
\nconclusion that  the  writ  petition  was liable to be dismissed.  It was also
\nobserved by the Bench, relying on UNION OF INDIA v.  PARASMAL  RAMPURIA<\/a>  (1998
\n[8]  SCC  402)  that the petitioner was bound to surrender before the petition
\ncould be entertained.\n<\/p>\n
        3.2.  However, in the last paragraph of  the  judgment,  the  Division
\nBench  observed  that  it  was open to the petitioner to make a representation
\nafter the receipt of the order of the High Court to  the  concerned  authority
\nand  that  such  representation  was  bound to be considered as to whether the
\norder of detention had to be implemented in view  of  the  lapse  of  time  by
\ntaking  into  consideration  the  subsequent conduct of the petitioner coupled
\nwith his explanation offered for possession of  foreign  and  Indian  currency
\nwhile he  was  bound to leave India.  This judgment was delivered on 5-6-2002.
\nHowever, the petitioner was not arrested.  The petitioner,  accordingly,  made
\nthe first   representation   on   17-6-2002.      He   also  made  four  other
\nrepresentations on 7 -7-2002, 9-8-2002, 25-9-2002 and 22-10-2002.\n<\/p>\n
        3.3.  These five representations were considered and rejected  by  the
\norder dated  27-11-1002.   However, the said order of rejection was challenged
\nin W.P.  No.44378 of 2002 on the ground that the order of rejection was not  a
\nspeaking order.    The  Division  Bench of this Court again passed an order on
\n30-1-2003, directing the respondents  to  consider  the  first  representation
\nalone  on  the  ground  that they had directed the petitioner to file only one
\nrepresentation.  Accordingly, on 25-4-2003,  the  first  representation  dated
\n17-6-2002 was rejected.\n<\/p>\n
        3.4.   Before  this,  the Government had challenged the first order of
\nthe Division Bench by way of a Special Leave Petition but, that was  dismissed
\nin limine.   After the rejection of the representation, the petitioner filed a
\nwrit petition under Art.32  of  the  Constitution,  which  was  registered  as
\nW.P.(Crl.) No.90 of 2003.  This was disposed of by order dated 23-6-2003.  The
\npetitioner also  filed  S.L.P.    No.2219 of 2003 against the decision of this
\nCourt dated 30-1-2003 wherein, this Court had  directed  to  decide  only  the
\nfirst   representation   of  the  petitioner,  ignoring  the  subsequent  four
\nrepresentations made by him.  This Special Leave Petition and W.P.   No.90  of
\n2003 came  to be disposed of on 23-6-2003.  The Supreme Court therein observed
\nthat the part of the High Courts  order  directing  the  respondents  not  to
\nconsider  the  petitioners  subsequent  four  representations  could  not  be
\nsustained.  The Court directed the first respondent to  dispose  of  the  said
\nfour  representations  also  and  further directed that the order of detention
\nshould not be executed till the disposal of  the  four  representations.    As
\nregards the writ petition filed by the petitioner, i.e.  W.P.  (Crl.) No.90 of
\n2003,  the  Supreme  Court  directed  the petitioner to withdraw the said writ
\npetition with liberty to move the High Court  in  the  event  of  an  occasion
\narising for that purpose.\n<\/p>\n
        3.5.   On  17-7-2003,  the  respondents  passed  separate  orders  and
\nrejected the petitioners four subsequent representations.  Now the petitioner
\nhas come up by way of the present writ petitions challenging those  orders  by
\nwhich, the respondents have rejected the representations.  In the present writ
\npetitions,  the petitioner has claimed a Writ of Certiorarified Mandamus for
\nquashing the orders of rejection  and  for  forbearing  the  respondents  from
\nexecuting the order of detention dated 15-2-2001 passed by the respondents.\n<\/p>\n
                4.  Learned senior counsel, Shri K.  Subramaniam, appearing on
\nbehalf  of  the  petitioner,  contended  before  us that all these orders were
\nliable to be quashed and the respondents were bound to  cancel  the  detention
\norder  passed owing to the towering delay in execution of the detention order.
\nLearned counsel contended that the live-link between the  incident,  on  which
\nthe  detention  was  based,  and  the  necessity  to detain the petitioner was
\nalready snapped because of this towering delay and that the  respondents  were
\nin error in not realising this.\n<\/p>\n
                5.   Learned counsel also fell back on the first order of this
\nCourt wherein, the writ petition of the petitioner was dismissed and canvassed
\nthat this Court had specifically directed  to  taken  into  consideration  the
\nsubsequent  conduct  of  the petitioner before considering the representations
\nmade by him and that the orders were silent about the said subsequent conduct.
\nLearned counsel pointed out that there was  nothing  done  by  the  petitioner
\ncontrary to  law so as to attract the provisions of the COFEPOSA.  It was also
\ntried to be urged that there was total apathy on the part of  the  authorities
\nto  nab  the  petitioner  though  the petitioner was not protected by the stay
\norder either from this Court or from the Apex Court and, there was  absolutely
\nno explanation  regarding  the same.  This itself suggested that there was, in
\nreality, no necessity by the Department to clamp the detention  order  against
\nthe petitioner.   It was also tried to be suggested that there was no material
\nfurnished for the subjective satisfaction of the concerned authority regarding
\nthe necessity of executing the order.  Learned counsel  also  urged  that  the
\ndetention was based on solitary incident and as such could not be justified in
\nlaw  and  that  the  authorities  had  failed  to  consider  this aspect while
\ndisposing of the representations.\n<\/p>\n
                6.  As against  this,  leanred  Additional  Public  Prosecutor
\nagain  reiterated  the  decisions  of Alka Subash Gadia, Sayed Taher Bawamiya,
\nMuneesh Sunerja and Parasmal Rampuria, cited supra.  It was pointed out by the
\nlearned Public Prosecutor that the writ petitions now could not be entertained
\nquestioning  the  correctness  or  otherwise  of  the  reasons  given  by  the
\nrespondents to  reject the representations.  It was pointed out by the learned
\nPublic Prosecutor that what was actually being done by the petitioner  was  to
\nchallenge  the  detention  order itself as if the detention order was not only
\npassed but served also.  Learned Public Prosecutor based his arguments  mainly
\non  the  theory that what was contemplated under Art.22(5) of the Constitution
\nwas a  representation, which was of post-detention nature, and that  there
\nwas no scope to make the representation even before the order of detention was
\npassed or  as  the  case  may  be  served  upon  the  detenu.   Learned Public
\nProsecutor urges that the representations made by  the  detenu  could  not  be
\ntreated  on  par  with  the representation contemplated under Art.22(5) of the
\nConstitution complaining against the detention.    According  to  the  learned
\nPublic  Prosecutor,  a  writ  petition  was  permissible only to the extent as
\nstated  in  the  above-mentioned  four  Supreme  Court  judgments   and   more
\nparticularly  Alka  Subash Gadia case, which law was fossilised by the Supreme
\nCourt in Muneesh Suneja case, cited supra.  Learned counsel pointed  out  that
\nthereafter there was no change in the law at all.\n<\/p>\n
                7.   On  this  backdrop,  it  has to be seen as to whether the
\npetitioner can successfully challenge the impugned orders dated 25-4-2003  and
\n17-7-2003.    All   these  orders  were  separately  passed,  considering  the
\npetitioners representations individually.  A cursory glance at the individual
\norders passed by the respondents, rejecting the representations, suggests that
\nnot only have the authorities considered these representations in detail  but,
\nhave  given equally detailed reasons for arriving at the conclusions that they
\ndid.  The orders are in the nature of parawise remarks and it is  pointed  out
\nin  all  the  orders  that  it was the petitioner who was to be blamed for not
\nbeing nabbed in time.  When we take into consideration the first  order  dated
\n17-7-2003  in  respect  of  the  second  representation  dated  7-7-2002,  the
\nauthorities have explained as to why the order could not be  executed  against
\nthe petitioner.    They  have  also  categorically  denied  the  claim  of the
\npetitioner to revoke the detention.  There can be no doubt that the petitioner
\nhad a right under Sec.11 of COFEPOSA.  However, in view  of  the  language  of
\nSec.11  that a detention order could at any time be revoked or modified, there
\ndoes not appear to be any scope to hold that the pre-detention representations
\nwere not possible to be made at all.  Perhaps,  bearing  this  in  mind,  this
\nCourt  in  its  first  judgment had held that if it was felt, the detenu could
\nmake the representations and that  those  representations  were  bound  to  be
\nconsidered by the detaining authority.\n<\/p>\n
                8.    During   the  whole  debate,  learned  counsel  for  the
\npetitioner did not assail the orders on their merits questioning  the  reasons
\ngiven to reject the representations.  The main thrust of the argument was that
\nfirstly  the  order, if made, was illegal and that the fact that the order was
\npassed in 2001 and was not served for more than three years was sufficient for
\nthe authorities to revoke the said order or rather to  put  it  straight,  the
\nauthorities  were  bound  to  revoke  the said order, considering the towering
\ndelay.  We have to, therefore,  consider  mainly  as  to  whether  it  is  now
\npossible to question those reasons by way of a writ petition and what would be
\nthe  scope of the writ petition and whether it would be permissible to examine
\nthe reasons and to hold on  that  basis  that  the  detention  order  was  not
\njustified or that the said detention order should be revoked.\n<\/p>\n
                9.   There  is  a  common  thread  in  all the orders that the
\ndetention order against the petitioner could not be executed for two  reasons,
\nviz.  firstly, due to petitioners concealment and secondly, the orders passed
\nby  this  Court and the Supreme Court wherein there was a clear-cut injunction
\nagainst the respondents to execute the detention order.  We are of  the  clear
\nopinion  that the scope to consider such a petition would be extremely limited
\nand that this Court would not  and  could  not  go  into  the  correctness  or
\notherwise of  the  reasons.  In our considered opinion, this Court will desist
\nfrom going into the  merits of the reasons, atleast at this stage, when  the
\ndetention  order  is not even served on the detenu and when the detenu has not
\nsurrendered and when the liberty of the detenu has not been jeopardised.\n<\/p>\n
                10.  In K.M.  ABDULLA KUNHI AND ABDUL  KHADER  v.    UNION  OF
\nINDIA  (  AIR  1991  SC  574),  the Apex Court considered the necessity of the
\nreasons rejecting the representation.  In paragraph 19 of the  said  judgment,
\nthe Apex Court observed as follows:\n<\/p>\n
This has been explained in Hardhan Saha case, AIR 1974 SC  2154,  where  Ray,
\nC.J.   speaking  for the Constitution Bench observed that the consideration of
\nthe representation  by  the  Government  is  only  to  ascertain  whether  the
\ndetention order is in conformity with the power under the law.  There need not
\nbe a  speaking  order  in  disposing  such  representation.   There is also no
\nfailure of justice by the order not being a  speaking  order.    All  that  is
\nnecessary  is  that  there  should  be  real  and  proper consideration by the
\nGovernment.\n<\/p>\n
Going  strictly  by these observations, when we see the impugned orders, it is
\nobvious that the impugned orders are not only reasoned but, a meticulous  care
\nhas  been  taken  to  meet each and every point raised in the representations.
\nThere has thus been an active consideration of the representations  sent  by
\nthe petitioner in all the cases.  It will not be for this Court to judge as to
\nwhether  the  authorities  could  still  serve the order of detention which is
\nalready passed earlier.  A glance at the  impugned  order  suggests  that  the
\nconcerned  authority  has  blamed the petitioner for evading the order and has
\nreiterated the need to serve the order and thereby  reiterating  the  need  to
\ndetain the  petitioner.    Once  there  is  an  active  consideration of the
\nrepresentations, that should be the end of the matter because, it will not  be
\nfor  this  court  then to go and find out whether those reasons are sufficient
\nfor the detaining authority to hold that the detention is still necessary.  In
\nour opinion, that stage has not arrived yet at all.\n<\/p>\n
                11.  In the reported decision in UNION OF INDIA AND OTHERS  v.
\nPARASMAL RAMPURIA<\/a>  (1998  8 SCC 402), the situation was somewhat alike.  There
\nalso even before the detention order could be served, a writ petition came  to
\nbe filed  before  the  High  Court.   Initially, an injunction restraining the
\nservice of the order came to  be  passed  by  the  learned  single  Judge  and
\nthereafter by  the  Division  Bench.  Aggrieved by the interim order passed by
\nthe Division Bench, the detaining authority challenged  the  same  before  the
\nApex Court.  The Apex Court observed as follows:\n<\/p>\n
When the  writ petition was filed, the respondent had not surrendered.  Under
\nthese circumstances, the proper order which was required to be passed  was  to
\ncall  upon  the  respondent first to surrender pursuant to the detention order
\nand then to have all his  grievances  examined  on  merits  after  he  had  an
\nopportunity  to  study the grounds of detention and to make his representation
\nagainst the said grounds as required by Article 22(5) of the  Constitution  of
\nIndia.
\nThe  Apex  Court  ultimately vacated the interim orders passed by the Division
\nBench which were continued throughout for the period of two years and directed
\nthe prospective detenu to surrender and observed that after  surrendering,  it
\nwould  be  open  to him to amend the writ petition and to take all permissible
\nlegal grounds to challenge the detention order.  The Apex Court went on to set
\naside all the extension orders by which the interim relief was extended.\n<\/p>\n
                12.  This only goes on to suggest the  approach  of  the  Apex
\nCourt  in  these  matters,  which approach had already been settled in Muneesh
\nSunerja case, cited supra where the Apex Court had the occasion to examine the
\nlaw laid down in Alka Subash Gadia case as also  Sayed  Taher  Bawamiya  case.
\nThis  was  also a case where a writ petition was filed even when the detention
\norder was not served.  The Apex Court reiterated the five principles laid down
\nin Alka Subash Gadia case, cited supra and held that the writ petition was not
\nto be treated as a writ for Habeas Corpus but like  any  other  ordinary  writ
\npetition.  The Apex Court further observed:\n<\/p>\n
This  Court  has  been  categorical that in the matters of predetention cases
\ninterference of court is not called for except in the  circumstances  setforth
\nby us  earlier.  If this aspect is borne in mind, the High Court of Punjab and
\nHaryana could not have quashed the order of detention either on the ground  of
\ndelay in  passing  the impugned order delay in executing the said order.  That
\nmere delay either in passing the order of detention or  executing  thereof  is
\nnot fatal except where the same stands unexplained.<\/p>\n
                13.  The situation is absolutely identical here.  For whatever
\nreasons,  there  has  undoubtedly been a delay in serving the detention order.
\nThe impugned  orders  do  suggest  that  those  reasons  have  not  only  been
\nreiterated but  justified  by  the  authorities  also.  Explanations have been
\ngiven in those orders themselves as to why the  detention  order  was  not  or
\ncould not  be  served against the detenu.  As observed in the law laid down by
\nthe Apex Court, it would not be for this Court to quash the  detention  order,
\nwhich  is  already  passed  but  could  not be served on the petitioner on the
\nground that there has been delay in serving that order on the detenu.  We have
\nalready pointed out that  that  has  been  practically  the  mainstay  of  the
\nargument of Mr.    K.  Subramaniam, who very forcibly suggested that the delay
\nin executing the orders became fatal.  He relied on the reported  decision  of
\nthe Division Bench of this Court, to which one of us (V.S.  Sirpurkar, J.) was
\na party,  in RAJESWARI v.  JOINT SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF
\nFINANCE, NEW DELHI AND ANOTHER<\/a> (2000 (III) CTC 97).  That was a case where the
\ndetention order was passed after five and a half months and it was based on  a
\nsingle incident  of  seizure of gold bars.  It was found by the Division Bench
\nthat since no effort was taken by the investigating agency  in  the  meantime,
\nthe  detention  order  suffered from illegality and that the life-line between
\nthe incident and the detention order was snapped.  Learned  counsel  tried  to
\nurge  before  us  that  in  this case also, since the detention order has been
\npassed three years back but has not been served on the detenu, there would  be
\nno point in  now  allowing  the said order to be served.  We do not agree.  We
\nhave already given our reasons as to why such a plea could not  be  raised  at
\nthis stage in the light of the observations made in Parasmal Rampuria case and
\nMuneesh Suneja case, cited supra.\n<\/p>\n
                14.   Heavy  reliance was placed by the learned counsel on the
\nunreported decision of the Division Bench of this Court in W.P.  No.5737 of  1
\n990, which was delivered on 17-2-1992, where the learned Judges considered the
\nquestion of  delay  in  executing  the  order  of  detention.  We have already
\npointed out that much water under the bridge has flown after this decision and
\nwe find ourselves unable to agree with this decision on  account  of  the  law
\nsettled down  in Muneesh Suneja case, cited supra.  The Division Bench of this
\nCourt had quashed the detention order by a Writ of Mandamus.  We have  already
\ndiscussed  as  to  how on the mere question of delay, it would be possible for
\nthe High Court to quash the detention order.  We are also unable to follow  as
\nto how for quashing an order of detention, which was yet not served, a Writ of
\nMandamus could  be  issued.  But, there will be no question of considering all
\nthat in view of the subsequent decisions of the Apex Court.\n<\/p>\n
                15.  Learned counsel also relied on the reported  decision  in
\nSUNIL FULCHAND  SHAH v.  UNION OF INDIA (JT<\/a> 2000 [2] SC 230) and relied on the
\nfollowing observations in paragraph 18:\n<\/p>\n
The question whether or not the detenu should be made to surrender to undergo
\nthe remaining period of detention would depend upon a variety of  factors  and
\nin  particular on the question of lapse of time between the date of detention,
\nthe order of the High Court and the order of this  Court,  setting  aside  the
\norder of  the  High  Court.    A  detenu  need not be sent back to undergo the
\nremaining period of detention after a long lapse of time when even the maximum
\nprescribed period intended in the order of detention has expired, unless there
\nstill exists a proximate  temporal  nexus  between  the  period  of  detention
\nprescribed  when  the detenu was required to be detained and the date when the
\ndetenu is required to be detained pursuant to  the  appellate  order  and  the
\nState  is  able  to  satisfy the court about the desirability of  further or
\ncontinued detention.
\nIn our opinion, these observations  have  been  made  by  the  Apex  Court  in
\nentirely different  situation.    There  the  High  Court had allowed the writ
\npetition filed by the detenu and quashed the detention order.  The Apex  Court
\nhad,  however,  set  aside  the  order  of  the High Court and was, therefore,
\nconsidering as to whether the detenu was liable to be put behind the bars  for
\nthe remainder of the detention period as ordered in the detention order.  Such
\nis not   the   situation   here.    We  have  already  pointed  out  that  the
\njurisdictional constraints, which are spelt out by the earlier decisions,  are
\nrather compulsive for us not to consider any such plea.\n<\/p>\n
                16.   Another  decision  relied upon by the learned counsel is
\nRAJESH GULATI v.  GOVERNMENT OF N.C.T.  OF DELHI  AND  ANOTHER  (JT<\/a>  2002  [6]\n<\/p>\n
331).   This  was a case where the detention was directed though the detenu s
\npassport was retained by the Customs authorities.    A  plea  was,  therefore,
\nraised  that  under  the circumstances, there was no possibility of the detenu
\nengaging himself in any prejudicial activity and as such, the conclusion drawn
\nby the detaining authority was baseless.  The Apex Court in paragraph 15  came
\nto  the  conclusion  that  since none of the instances of the smuggling by the
\nappellant, as stated in the impugned detention order, describe  the  appellant
\nas  having  travelled  without  a  passport  for the purpose of smuggling, the
\nconclusion drawn by the detaining authority was based on no material.  Learned
\ncounsel tried to heavily rely on this judgment and suggest that in the present
\ncase also, there was no question of the petitioners engaging in any smuggling
\nactivity.  In our opinion, this judgment has no relevance with the controversy
\ninvolved in the present case.  We, therefore, reject the contention.\n<\/p>\n
                17.  It was then  tried  to  be  suggested  that  this  was  a
\nsolitary  incident  in  which  the petitioner was involved and, therefore, the
\npetitioner should not be allowed to be detained now.  For  this  purpose,  the
\nreported decision in CHOWDARAPU RAGHUNANDAN v.  STATE OF TAMIL NADU AND OTHERS<\/a>
\n(2002 SCC  (Cri.)  714) was relied upon.  In our opinion, for the reasons that<\/p>\n
we have given, it is futile for us to go into  the  merits  of  the  detention
\norder at  this  stage.    Therefore, this contention of the learned counsel is
\nalso rejected.\n<\/p>\n
                18.  It was tried to be argued that a detention order is not
\npunitive in nature and should not be used as a warrant.  For this  purpose,
\na few  decisions  were  cited  before us.  We have absolutely no difficulty in
\naccepting this.  However, suffice it to say that it is not established in this
\ncase that this detention order has been treated as a punitive order or as  a
\nwarrant.   The  authorities have insisted in their orders that the detention
\norder needs  to  be  served  even  now.    In  their  orders   rejecting   the
\nrepresentations,  the  authorities have again and again reiterated the need to
\nexecute the detention order.  Paragraphs 4 and 5 of the order dated 17-7-2003,
\nin reply to the representation dated 25-9-2002, are sufficient to suggest  the
\napplication of mind on the part of the authorities.\n<\/p>\n
                19.  In short, this is a case where the petitioner, who claims
\nto  be  a lawyer and who also claims to be holding a permit for doing business
\nof arranging manpower  to  work  in  Malaysia  (we  do  not  know  how  is  it
\npermissible  for  a  lawyer to do such business) has successfully thwarted the
\norders, so much so, that the authorities have not been able to  nab  him  even
\nwhen  there  were  no  stay  orders either by this Court or by the Apex Court.
\nTaking the advantage of  the  last  paragraph  of  the  first  Division  Bench
\njudgment,  the  petitioner  fired  representations  after  representations and
\nthereby skirted his arrest.  We  are  not  at  all  happy  with  the  way  the
\nDepartment has  treated  the  whole  affair.   We fail to follow as to why the
\npetitioner who has a permanent address and who claims to be a lawyer could not
\nbe served with the detention order.  In fact,  the  learned  counsel  for  the
\npetitioner  had  reiterated  before  us that the licence of the petitioner has
\nagain been renewed which suggests the  good  behaviour  on  the  part  of  the
\npetitioner after  the detention order was passed.  In our opinion, the renewal
\nof the licence is completely irrelevant in so far as the controversy  in  this
\ncase is  concerned.  We, however, record our utter dissatisfaction for the way
\nthe matter of arrest of the petitioner has been  treated  by  the  department.
\nHowever, we  do  not find any merit in the writ petitions.  The writ petitions
\nare dismissed.\n<\/p>\n
Index:Yes
\nWebsite:Yes
\nJai<\/p>\n
To:\n<\/p>\n
1.  Secretary to Government
\nPublic (SC) Department
\nState of Tamil Nadu
\nFort St.  George
\nChennai 600 009\n<\/p>\n
2.  The Commissioner of Customs
\nAirport, Chennai 600 027\n<\/p>\n
3.  Secretary to Government
\nMinistry of Finance
\nDepartment of Revenue
\nNew Delhi\n<\/p>\n
4.  The Public Prosecutor
\nO\/o Public Prosecutor
\nHigh Court Buildings
\nChennai<\/p>\n
                Learned senior counsel for the petitioner,  after  declaration
\nof  the  judgment,  made  an oral application under Art.134(1)(c) for leave to
\nfile an appeal against the  instant  order  before  the  Supreme  Court  under
\nArt.134A(b) of the Constitution of India on the ground that this case is a fit
\none for  appeal  to the Supreme Court.  Learned counsel also suggests that the
\nquestion falling in here is involving the substantial question of  law  as  to
\nthe interpretation of the Constitution.\n<\/p>\n
                2.   We  have  already  given our reasons as to why we are not
\nagreeing with the contentions raised by the learned counsel.  We  do  not  see
\nany reason to grant the leave.  Leave is rejected.\n<\/p>\n
Jai<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Duraikannu vs Malayammal on 11 September, 2003 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11\/09\/2003 CORAM THE HONOURABLE MR. JUSTICE A. KULASEKARAN C.R.P. (NPD) No. 1250 of 2003 and C.M.P. No. 13716 of 2003 1. Duraikannu 2. Meenakshi Ammal 3. Sellammal 4. Seeniammal … Petitioners -Vs- Malayammal … Respondent Revision […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-27575","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nDuraikannu vs Malayammal on 11 September, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/duraikannu-vs-malayammal-on-11-september-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Duraikannu vs Malayammal on 11 September, 2003 - 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