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Judgment
Abdul Rahman, J.—A suit to recover a sum of Rs. 34-14-0 was instituted in the Panchayat Court of Shankaranarayana under the Madras
Village Courts Act against one Gundu alias Narasimha Bhandari. It was dismissed on the 7th April, 1940, as the parties failed to appear before the
Panchayat Court for a number of hearings. After the dismissal the plaintiff brought a suit for the same amount in the Court of the District Munsiff of
Kundapur. But as Gundu had died by that time, the suit was instituted against his minor son Chandrasekhara and his widow Triveni. It was denied
on their behalf that Gundu had any dealings with the plaintiff and it was contended that the suit was barred by limitation. But the District Munsiff
overruled their contentions. A third contention was advanced on behalf of the defendants. It was to the effect that Gundu had died while the suit
was pending before the Panehayat Court and as no application was filed on behalf of the plaintiff under sections, 68 and 69 of the Madras Village
Courts Act (I of 1889) (roughly corresponding to Order 22, Rule 4, C.P.C.), a fresh suit for the same amount was not competent. There was no
evidence on the record as to the date of Gundu''s death. This is admitted by the District Munsiff in his judgment. But an admission seems to have
been made by counsel for the plaintiff during his final arguments that Gundu had died some months before the date of the dismissal of the suit by the
Panchayat Court. Assuming that to be the case, the District Munsiff came to the conclusion that it was incumbent on the plaintiff to have presented
a petition u/s 68 of the Act and inasmuch as no petition was presented to bring Gundu''s legal representatives on the record, a fresh suit by the
plaintiff for the same amount against Gundu''s legal representatives was not maintainable,
Two grounds were urged in reply on behalf of the plaintiff before the District Munsiff. They have been repeated here before me. Firstly it was
contended that it was unnecessary for him. (i.e., the plaintiff) to bring a minor legal representative on the record as no suit could be brought u/s 13
of the Act against a minor in the Panchayat Court. There was and is no force in this contention although the District Munsiff was of the view that
the suit would have had to be returned for presentation to the proper Court after the minor legal representative had been brought on the record.
Section 13 of the Act provides that no suit could be brought against a minor; but it does not say that if a suit were brought against a person who
was not a minor, a minor legal representative could not be brought on the record if that person happened to die after the institution of the suit. The
second contention advanced on his behalf was that as the suit was really dismissed by the Panchayat Court on account of the absence of the
parties, the plaintiff was competent to bring a suit u/s 32 of the Village Courts Act. This was negatived by the District Munsiff. There can be no
doubt that a plaintiff can bring a suit under that section if his suit were dismissed in the absence of parties u/s 30 (1). It was however contended on
behalf of the defendants and that contention prevailed before the District Munsiff, that as Gundu had died before the suit was dismissed, a second
suit would not be competent and it was incumbent on the plaintiff to make an application to the Panchayat Court under Sections 68 and 69 to bring
the defendant''s legal representative on the record. The District Munsiff proceeded on the assumption in. accordance with the admission made by
the plaintiff''s counsel before him that Gundu had died some months before the suit was dismissed. Learned Counsel for the petitioner had alleged
before me that Gundu had died on the 19th February, 1940 and that the period of sixty days mentioned u/s 69 of the Act had not expired on the
date on which the suit was dismissed by the Panchayat Court. It is a pity that the District Munsiff had not recorded the statement of the counsel for
there was no evidence of Gundu''s death on the record. This should have been done. In view of the allegation as to the date of Gundu''s death
made before me I would have been inclined to send the case back for a fresh finding on the point. But as learned Counsel for the respondents
stated before me that his instructions were to the effect that Gundu had died on the 19th February, 1940, I consider it unnecessary to adopt that
course. The position therefore is that on the date on which the Panchayat Court dismissed the suit the period of sixty days within which the
application u/s 69 had to be made had not expired and the suit was dismissed in the absence of the parties. It was contended on behalf of the
defendant that it was not only open to the plaintiff to make an application to the Panchayat Court to bring the legal representatives of the deceased
defendant on the record after the date of the dismissal but that was his only remedy and if he failed to avail himself of the same, a separate suit
would not be maintainable. I am not impressed by that contention. There is nothing in the Act which could support the respondent. In fact the suit
had been dismissed and unless the order of dismissal was set aside, an application by the plaintiff to bring the defendant''s legal representatives on
the record would not lie. But it is argued on behalf of the respondents that the plaintiff should have asked for the order of dismissal of suit to be set
aside. There was nothing in the Act that made it essential for the plaintiff so to do. But even if the plaintiff had applied, where was the guarantee
that the Court would have accepted the application ? Had the Court declined to set the dismissal aside and to restore the suit, what would have
happened? Would a second suit have been competent? If so, why? Why should the maintainability of a second suit be made to depend upon the
Court''s decision to set aside or not to set aside the order of dismissal of the suit? Once a suit is dismissed in the absence of the parties, two
remedies are available to the plaintiff. He can make an application to the same Court to set aside the order of dismissal. If this application is
accepted and the suit restored, he can proceed with the suit. But if this application is rejected, he can bring a fresh suit provided it has not become
barred by limitation. He may however decide not to make an application for setting aside the dismissal and bring a fresh suit straightaway. Learned
Counsel for the respondents contended that as the defendant had admittedly died on the 19th February, 1940 and could not appear in Court after
that date, the dismissal should be regarded as one in the absence of the plaintiff alone. This is not however correct. The suit was dismissed in the
absence of parties. It is immaterial whether the absence was voluntary or involuntary, intentional or forced. Moreover the Court and for a matter of
that the plaintiff according to his evidence did not actually know on or before the 7th April, 1940, that Gundu had died. Why should one therefore
travel beyond the order passed by the Panchayat Court for the purpose of ascertaining the reasons which had led the parties to absent themselves?
But in any case the period of 60 days had not expired when the suit was dismissed and it became impossible then for the plaintiff to make the
application to bring Gundu''s legal representatives on the record, even if he had come to know of Gundu''s death and decided to present an
application for that purpose. I am for the above reasons clearly of opinion that a second suit was. competent when the period of sixty days given in
Section 69 had not expired on the date on which the suit was dismissed. It is unnecessary in this case to decide whether a fresh suit would have
been maintainable even if the period of sixty days had expired on the date on which the suit was dismissed by the Panchayat Court, although as at
present advised and for the reasons that I have given, I am inclined to take the view that a fresh suit would have even then been competent.
Since the other questions had been decided by the District Munsiff in favour of the plaintiff, this revision must be accepted and a decree for the
amount passed with costs in both the Courts in favour of the plaintiff against the defendants. They will be liable to the extent of the assets received
by them from Gundu.