Rodrigues vs Rodrigues

Vidialingam, J.—In this revision, Mr. T.M. Cheriyan, learned counsel for the petitioner, raised two grounds of attack as against the judgment of the learned Principal Munsiff of Quilon in S.C.S. No. 7 of 1962. Unfortunately, nobody appears for the respondent. But any how Mr. T.M. Cheriyan, learned counsel for the petitioner, has quite fairly placed before me all aspects bearing upon the matter. The plaintiff instituted the action for recovery of subscriptions from the defendant on the ground that the defendant was conducting a chitty and that amounts are due to the plaintiff.

The defendant denied having conducted any chitty at all and, therefore, disputed his liability to answer the claim of the plaintiff. Two questions arise for consideration, namely, as to whether the plaintiff was a subscriber to a chitty started by the defendant and the amount, if any due to the plaintiff and secondly, as to whether the chitty being an unregistered chitty the plaintiff can take any action for recovery of the amounts in view of the provision contained particularly in the proviso to sub-section (1) of S. 7 of the Travancore Chitties Act, Act XXVI of 1120.

The learned Munsiff has ultimately come to the conclusion that the defendant was running a chitty and has also come to the conclusion that the plaintiff's claim is true.

Considering the second contention that appears to have been raised, namely, that inasmuch as the chitty is an unregistered one, the plaint claim is not enforceable, the view of the learned Munsiff is that as the amount covered by the chitty is less than Rs. 100/- it is not compulsorily registrable and at the same time the law provides for the defendant foreman obtaining a licence to conduct the chitty. But the mere fact that the defendant in this case has been running the chitty without obtaining such a licence will not stand in the way of the plaintiff claiming the amounts from the defendant. Therefore, on this basis the learned Munsiff has ultimately decreed the claim of the plaintiff.

Mr. T.M. Cheriyan, learned counsel for the defendant-petitioner, quite naturally cannot attack the finding of fact recorded as against his client, namely, that the amounts mentioned in the judgment are due. But the learned counsel raised a contention that even on the findings arrived at by the trial court that this chitty is one, the amount or value of which is less than Rs. 100/- nevertheless the non-taking out of a licence by the defendant will entitle the plaintiff to claim the amount, is quite opposed to the mandatory provisions of the proviso to sub-section (1) of Section 7 of the Travancore Chitties Act, hereinafter to be called the Act. No doubt, Mr. T.M. Cheriyan, learned counsel for the petitioner has referred to a decision of Mr. Justice Rajagopala Ayyangar, as he then was, in Govindaswami v. Kandaswami (A.I.R. 1956 Mad. 136) and another decision of the Patna High Court reported in Ramecklal Singh v. Harihar Singh (A.T.R. 1962 Patna 343).

The object of the enactment seems to be to define, amend and consolidate the law relating to chitties and Part II deals with constitution and registration of chitties. S. 6 (1), no doubt, provides that no chitty shall after the commencement of the Act be conducted unless it is registered in accordance with the provisions of the Act. Sub-section (2) of S. 6 imposes a penalty on any person who contravenes the provisions of sub-section (1), namely, regarding registration.

The material provision on which considerable reliance has placed by the learned counsel for the petitioner is S. 7 and particularly, the proviso to sub-section (1) of S. 7, and it is necessary to extract Section 7 itself.

(1) Notwithstanding anything contained in S. 6, the provisions of this Act shall not apply to a chitty if the chitty amount or the value thereof is less than one hundred rupees. Provided however, that no person shall conduct such a chitty without taking a licence in such manner and subject to such conditions as may be prescribed by our Government.

(2) Whoever conducts a chitty of the class specified in sub-section (1) without taking a licence provided therein or violates any of the conditions of the licence shall be liable to a fine which may extend to fifty rupees.

Section 7(1) noted above is more or less a sort of exception to Section 6 and it provides that the prohibition contained in Section 6 will not apply to a chitty if the chitty amount or the value thereof is less than Rs. 100/-. In this case, the finding of the learned Munsiff is that the value of the chitty is less than Rs. 100/-. Therefore, to this case the provisions of Section 7 will apply and not the prohibition contained in Section 6. The proviso to sub-section (1) of Section 7 no doubt, stated "that no person shall conduct such a chitty, without taking a licence in such manner and subject to such conditions as may prescribed by our Government". Sub-section (2) again provides for the liability in respect of a person who so conducts a chitty of the class specified in sub-section (1) namely, the amount or Value of which is less than Rs. 100/-, in the manner specified therein.

The question now is whether in view of the provisions contained in Section 7 of the Act the plaintiff's action should have been dismissed.

No doubt, I am well aware of the line of cases where the courts have held that claims by persons who are parties to an illegal contract or contracts opposed to public policy cannot be maintained. But the question that arises for consideration is having due regard to the provisions contained in Section 7, is there any prohibition regarding the participation of subscribers in a kuri or chitty, the amount or value of which is less than Rs. 100/- because of the fact, that the foreman, namely a person like the defendant in this case has not taken out a licence. So far as I could see, there is no illegality attached to such association of persons taking part in such a kuri, nor do the provisions of the statute, particularly Section 7 make the contract entered into by a person with such a person illegal or void.

If that is so, the principles laid down in the above decisions do not apply and the decision of the learned Munsiff that the suit is maintainable is perfectly correct. Therefore, the C.R.P. fails and is dismissed. There will be no order as to costs.