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person does any act towards the commission of an offence he shall be
held to have committed an " attempt " within the [183] meaning of this ^ * *^"*
section. That I take to be the real meaning and drift of the section, is A.W.H.
differentiating in a marked manner the definition of " attempt " in the * 1893 ) ?*
Indian Penal Code and the accepted English doctrine.

I agree that this is not a fit case to be sent to the Privy Council.

Application rejected.



15 A. 183=13 A.W.N. (1893) 68.

REVISIONAL CIVIL.
Before Mr. Justice Aikman.



BANNA MAL (Applicant) v. JAMNA DAS AND OTHERS (Opposite parties).*

[6th March, 1893.]

Civil Procedure Code, ss. 244, 336, 622 Insolvency Surety for filing p-.titi^n Revi-
sion.

One B.M. became surety under s. 336 of tbe Code of Civil Procedure on behalf
of one G.R., a judgment-debtor, to the effect that GR., would appeal befora
the Court when called on, and would within one month filo an application to be
declared an insolvent. G R , did so apply, but on the surety's asking the Court
to declare him discharged of his liability the Court refused to do so. Held, (1)
that the surety's liability was discharged by the judgment-debtor applying to be
mada an insolvent, and (2) that the order refusing to discharge him was not
appealable wa therefore open to revision under s. 622 of the Code. Koylash
Chandra Shaha v. Christophoridi (1) referred to.

CF., 58 P.L.R. 1902 ; Appr.. 16 A. 37 ; R., 100 P.R. 1894 ; U.B.R. (18921896). Vol.
II, 269 ; D., 13 M.L -J. 484 (485) ; 8 P.R. 1903 = 31 P.L.R. 1903.]

THE facts of this case sufficiently appear from the judgment of
Aikman, J.

Babu Rajendro Nath Mukerji, for the applicant.
Munshi Bam Prasad, for the opposite party.

JUDGMENT.

AlKMAN, J. This is an application under s. 622 of the Code of
Civil Procedure, asking for revision of an order of the Munsif of
Cawnpur, dated the 4th of June 1892. The following are the circum-
stances of the case. One Gangs* Earn, judgment-debtor, was arrested in
fehe execution of a decree for money. When brought before the Court
under the provisions of s. 336 of the Code of Civil [184] Procedure,
he expressed his intention of applying to be declared an insolvent. The



* Application No ; 53 of 1892 to revise an order of Lala Bauke Bshari Lai, Munsif
of Cawnpur, under s. 622, Civil Prooedura Coda, dateitha 4th June 1893.

,(1)1 50. 174.

835



15 All. 185



INDIAN DECISIONS, NEW SERIES



[Yol.



1893 applicant, Banna Hal, furnished security under the terms of that section

MARCH 6. that the judgment-debtor would appear when called on, and that be would

within a month apply to be declared an insolvent. It is admitted that

REVI- the judgment-debtor did within one month so apply. After the judg-

SIONAL ment-debtor had applied, the surety Banna Mai presented an application

PlVKL ' *" ne Munsif asking that it should be declared that he was discharged

' of his liability under his bond. Looking to the fact that the security

ISA. 183= not only made himself liable that an application under s. 344 would
18 A. W. N, be filed, but also bound himself that the judgment-debtor would appear
(1893) 68. when called on, the Munsif refused to declare the petitioner free of liabi-
lity under this bond. It is this refusal that the surety, Banna Mai,
seeks to have revised. A preliminary objection has been raised by
Mr. Ram Prasad on behalf of the decree-holder to the effect that this
is not a case in which the Court has power to interfere under s. 622 of
the Code of Civil Procedure. The ground of this objection is that by
furnishing the security aforesaid the surety became a party to the suit,
and in support of this argument reference is made to the concluding para-
graph of s. 336 by which the provisions of s. 253 of the Code of Civil Pro-
cedure are made applicable to the realization of a security such as that
given by the applicant in this case. It has been contended that as the
applicant became a party to the suit his remedy with reference to s. 244
was by way of appeal and not by way of an application for revision.
There is much plausibility in this contention, but after full consideration
I am of opinion that it cannot be sustained. The sureties who would be
considered parties to the suit with reference to cl. (c) of s. 244 are, in my
opinion, sureties who have rendered themselves liable for the amount
of the decree, whether during the course of the suit or on an ap-
plication under s. 545 for stay of execution. It has been held by
the Calcutta High Court in Koylash Chandra Shaha v. Cristophoridi (l)
that a surety under bhe provisions of s. 336 of the Code of Civil
Procedure is discharged from liability upon the judgment-debtor's
[185] applying to be declared an insolvent. In the case referred to, it
appears from the terms of the bond at page 172 of the report that the
surety, like the applicant in this case, bound himself to produce the judg-
ment-debtor at any time the Court directed him to do so. The object of
taking security under s. 336 is to insure that the judgment-debtor will do
a certain act, viz., apply to be declared an insolvent. That this is the
meaning of the section appears to me clear from the paragraph which
provides that in the case of a judgment-debtor failing so to apply, the
Court may direct the security to be realized. The Court is given no power
of realizing the security in the event of an application having been present-
ed within the time fixed. The circumstance that in this case the amount
of the security was fixed ati the amount of the decree appears to be merely
accidental. In my opinion a person who renders himself responsible that
the judgment-debtor shall apply to be declared an insolvent is not, by
virtue of that undertaking, a party to the suit within the meaning of
s. 244, Civil Procedure Code. We have to consider now whether the order
of the Munsif refusing to discharge the surety from his liability was one
with which this Court can interfere under s. 622 of the Code of Civil Pro-
cedure. In my opinion it is an order from which no appeal lies, and for the
reasons given above I am clearly of opinion that it was a wrong order. All
liability under the bond determined when an application by the judgment-
CD 15 0. 171.
836



11]



NAIKU KHAN V. GAYANI KUAB



15 .'All. 187



debtor to be declared insolvent was filed, and the Munsif had in my

opinion no jurisdiction thereafter to declare that the security subsisted. MARCH 6,
I allow the application, and setting aside the Munsif's order I declare the

applicant, Banna Mai, discharged from his security. I make no order as BEVI-

to costs. SIONAL

Application allowed. CIVIL



IS A. 186 = 13 A.W.N. (1893) 69.

[186] APPELLATE CIVIL.

Before Mr. Justice Knox and Mr. Justice Burkitt.



13 A. 183 =

13 A.W.N.

(1893) 68.



NAIKU KHAN AND ANOTHER (Defendants) v. GAYANI KUAB (Plaintiff).*

[8th March, 1893.]

Appeal Pleadings ' Case set up in appeal which was not thai set up in the Court of first
instance.

The plaintiff came into Court on the allegation that she was the owner of a
certain house and tht the defendants were her tenants at a certain rent, and she
sought to eject the defendants for non-payment of rent. The Court of first
instance having found her allegations of tenancy to be untrue, she then in appeal
endeavoured to support a plea that the defendants were trespassers, suoh plea
having formed no part of the original case. Held that the plaintiff could not
under the circumstances be heard in support of new plea of which the defend-
ants bad had no notice until the case was in appeal, Lakshmi'-ai v. Hart-bin-

Baoji (1), referred to.

(Overruled, 25 A. 498 (503) (F.B.) = 21 A.W.N. 157 ; Not P., 1 N.L.R. 4 ; R. 24 A.

90 = 21 A.W.N. 188.]

THE facts of this case sufficiently appear from the judgment of
the Court.

Mr Amir-ud-din and Mr. Abdul Majid, for the appellants.
Mr. A. H. S. Reid, for the respondent.

JUDGMENT.

KNOX and BUBKITT, JJ. This is an ejectment suit. The plaintiff-
respondent came into Court alleging (1) that she was the owner of a house
in the town of Sikandarpur occupied by the defendants-appellants, (2) that
she had leased that house at a rent of Bs. 3-0-0 per month to the defend-
ants and (3) that the defendants after paying rent regularly to her for one
year had paid nothing in the 2nd and 3rd years. She therefore sued for
possession of the house and Bs. 72, rent for two years. The defendants
claimed the house as their own property.

Out of the three allegations mentioned above the only one found in
favour of the plaintiff-respondent in the lower appellate Court is that she
was the owner of the house. That finding is attacked on [187] the ground
that there is no evidence on record to support; it, the plaintiff not having
proved the deed on which she founded her title. Into that question we
think it unnecessary to enter here, as there are other grounds on 'which
we are of opinion that the suit must fail.

It will be observed that the cause of action set forth by the plaintiff-
respondent is that she had let the house on rent to the defendants-appel-

* Second Appeal, No. 1148 of 1890, from a decree of Rai Laha Prasad, Subordinate
Judge of Gbazipur, dated the 18th August 1890, reversing a decree of Babu Bhawani
Chandar Chackrabati, Munsif of Basra, dated the 30th April 1890.

(1) 9 B.H.G.B. 16.

837



15 All. 188



INDIAN DECISIONS, NEW SERIES



[Yol.



1893 lants, and that the latter had failed to pay rent after the first year and

MARCH 8. refused to surrender possession. Both the Munsif and the lower appellate

Courts are unanimous in finding that the plaintiff-respondent has proved

APPEL- neither the letting nor the payment of rent during the first year. She

LATE called witnesses to prove both those alleged facts, but both Courts refused

CIVIL. * Si ye anv cr edit to those witnesses and plainly intimated their opinion

that those witnesses had spoken falsely. The result therefore is that the

451.186 = plaintiff-respondent has failed to prove the cause of action on which she

IS A.W.N. sought relief from the Court. Had her allegations as to the letting and

(1893)69, as to payment by defendants been true, the plaintiff would no doubt have

been able to prove those facts by credible witnesses. As she failed to

establish them we must (applying the maxim " de non appareniibus et

non existentibus edem est ratio") ho)d that no such letting and payment

occurred, and that in fact the plaintiff came into Court with a suit founded

on an untrue cause of action. Iti is to be noticed that she did not allege

any alternative cause of action, such as, e.g., that the defendants were

trespassers.

The question then is, can the plaintiff, having failed to establish the
cause of action on which she came into Court, now be permitted to fall
back on her alleged title as owner of the house and claim to have the
defendants ejected as trespassers, she having hitherto always described
them as her tenants ? We think not.

In an almost similar case Lashmibai v. Hari-bin-Raoji (1),
which came before a Full Bench of the Bombay High Court, it was
held unanimously that " the general rule is that a party must be
limited to the case which he puts forward in his plaint. He may
indeed from the commencement of the suit put forward in his suit
[188] an alternative case, and-tben the defendant will have notice that he
has more than one case to meet and will not be taken by surprise. When
plaintiff has not put forward an alternative case be may have leave to
amend. * ' * But as a general rule a plaintiff must abide by his

plaint." And the learned Judges who decided the case add the following
very significant words. " The adoption by Courts of a general principle of
decision other than this would encourage perjury and forgery." Other
cases also are referred to in support of their ruling. In the rule of law so
laid down we fully concur. Applying that rule to the present case, we are
of opinion that the plaintiff who came into Court on an untrue cause of
action and who endeavoured to support that cause of action by the evidence
of witnesses whom the lower Courts disbelieved, cannot now be allowed
to turn round and obtain a decree for the ejectment of the defendants as
trespassers on the strength merely of her alleged proprietary title.

It is not for us to say what the result will be if the plaintiff were to
institute another suit on another cause of action. All we need say is that
this suit, founded on the cause of action set forth in the plaint fails,
cause that cause of action has not been established.

We therefore allow this appeal. We set aside the decision and decree
of the lower appellate Court. We dismiss plaintiff's appeal to that Court,
and, restoring the decree of the Court of first instance, we direct that the
plaintiff-respondent's suit do stand dismissed with costs of all three
Courts.

Appeal allowed.



<1) 9 B.H.C.R. 16.

838



YII]



BALDEO SINGH V. IMDAD ALI



15 All 190



15 A. 189 = 13 A.W.N. (1893) 93.

[189] APPELLATE CIVIL.

Before Mr. Justice Burkitt.



BALDEO SINGH AND ANOTHER (Defendants) v. IMDAD ALI
AND ANOTHER (Plaintiffs}* [8th February, 1893.]

Act XII of 1881, s. 36S'*it in fjectment as against trespassers Previous admission by
flaintiff of defendant's tenancy Estoppel.

The service of a notice of ejectment under s. 36 of Act No XII of 1881 is, as

between the person who causes such notice to be served and the person on whom
it is served, a conclusive admission by the former of the existence bstween them
of the relationship of landlord nd tenant ; and the landlord cannot afterwards
sue in the Civil Court to ejeot the s*me tenant from the same land on the
ground that he is not a teauG but a mere trespasser.

[D.,22 A. 93 (95) ; 27 A. 163 (166) = 1 A.L.J. 503 = A.W.N. (1904) 202.]

IN this case the plaintiffs sued in the Court of the Munsif of Sam-
bhal to recover possession as occupancy tenants of a certain piece of land
by ejectment; of the defendants, whom they alleged to be trespassers.

Prior to this suit the plaintiffs had served the defendants with a
notice of ejectment under the provisions of Act No. XII of 1881 in re-
spect of the land in suit. The defendants had contested that notice of
ejectment, but were at first defeated. Subsequently, however, on appeal
to the Commissioner of Eohiikhand, the ejectment proceedings were
finally decided in favour of the defendants. That decision -was dated the
28th March 1889, being about eleven months before the commecement
of the present suit.

In the present suit the Munsif, holding that the defendants had not
established the position claimed by them as co-cuUivators with the
last occupancy benant of the land in suit, and also tuat the Commis-
sioner's decision was erroneous, gave the plaintiffs the decree which
they claimed.

The defendants then appealed to the Subordinate Judge, who agreed
with the findings of the Munsif and dismissed the appeal.

The defendants then appealed to the High Court.

Mr. /. Simeon, for the appellants.

[190] Mr. Abdul Raoof, for the respondents.

JUDGMENT.

BURKITT, J. In this appeal it is contended for the appellants Baldeo
and Jangi that; the suit is not; cognizable in a Civil Court, and thac it is
cognizable in a Ravenune Court only. That objection is in my opinion
untenable. The plaint alleges that the defendants (now appellants) are
in possession as trepassers of certain fields, and prays that they be ejected
and possession of the land be given to the plaintiffs. A suit so framed
is clearly one which can ba entertained in none but a Civil Court. But
when the defence is looked into it is perfectly clear, on the undisputed facts
set forth in defendants' written statement, that the result of the trial
must be a dismissal of the suit.



1893

'FEB. 8.

APPEL-
LATE
CIVIL.

ISA. 188 =
13 A.W.N.

(1893) 93.



* Second Appeal, No. 170 of 1891, from a decree of Babu Anant Run, Subordi-
nate Judge of Moradabad, dated the 1st December 1890, confirming a decree of Maulvi
Mirzj Kamruddin Ahmad. Munsif! of Sambhal, dated the 4th April 1890.

839



15 All. 191



INDIAN DECISIONS, NEW SERIES



[Yol.



1893 It is shown and not denied that plaintiffs-respondents have treated

FEB. 8. these defendants as tenants and acknowledged that the relationship of

landlord and tenant existed between themselves and the defendants. The

APPEL- plaintiffs first of all had recourse to a Revenue Court for redress. They
LATE caused a notice under s. 36 of Act No. XII of 1881, to be served on the
OlVIL. defendants. Now that notice presupposes the existence of the relationship
of landlord and tenant between the landlord who causes it to issue and the
13 A. 189= person on whom it is served. From the wording of s. 36 it is evident that
13 A.W.N. the notice provided for by it is not a notice which could be served on a
(1893) 93. mere trespasser without title, or squatter on land from which the true
owner desires to dispossess him. *With such a case Eevenue Courts have
no concern. Their functions in the matter of ejectment extend, under
Act No. XII of 1881, only to litigation between persons who admittedly
occupy the respective positions of landlord and tenant. They have no
jurisdiction under that Act to entertain and decide a suit for the dispos-
session of a trespasser. A suit of the latter nature can be heard only by
a Civil Court. The very notice served, on the defendants in this case was
addressed to them as tenants of the land, not as trespassers, and called
on them to apply to the Collector if they desired to contest the landlord's
right to eject them. They accordingly did make an application as
[1913 provided in s. 39 of the Revenue Act. The Commissioner, to whom
the case went in appeal, decided that they were tenants with a right of
occupancy and cancelled the notice. It thus appears that a competent
Revenue Court, the only Court empowered in these Provinces to decide
the status of a tenant, has held that these defendants, appellants, are
tenants with rights of occupancy.

The present suit therefore is practically an appeal from the Commis-
sioner's order, and I notice that in its concluding clause the plaint prays
that the Civil Court will set aside the Commissioner's decision. No Civil
Court has any power to grant such a relief in a matter which the Rent
Act declares to be exclusively within the jurisdiction of a Revenue Oourt.
I am not little surprised to find that both the Munsif and the Subordinate
Judge have ignorantly taken it on themselves to cancel the Commissioner's
order in this matter. Further, it shows that the plaintiffs accepted rent
from the defendants, appellants, thereby further admitting that defendant
were tenants and not trespassers. I confess I do not comprehend what
the learned Subordinate Judge means by saying that plaintiffs accepted
rent " unwillingly, " It is perfectly clear that they accepted payment
from the defendants and that they accepted it as rent. I do not, how-
ever, base my judgment in any way on that matter. I find that the
plaintiffs, by causing a notice under s. 36 of the Rent Act to be served on
the defendants, conclusively admitted that the relationship of landlord
and of tenant existed between themselves and the defendants, and I hold
that the plaintiffs cannot now turn round, and, shifting their ground,
allege that the defendants are not tenants and are trespassers.

In my opinion, therefore, the suit fails and should have been
dismissed. I allow this appeal. I set aside the decisions and decrees of
the lower Courts, and I direct that the suit be dismissed. Costs in all
three Courts will be paid by the plaintiffs, respondents.

Appeal decreed.



840



11] In re PETITION OF GANESHI 15 All. 193

15 A. 192 (F.B.) = 13 A.W.N. (1893) 79. 4393

[192] FULL BENCH. MATCH 10.

Before Sir John Edge, Kt., Chief Justice, Mr. Justice Tyrrell, FULL

Mr. Justice Knox, Mr. Justice Blair, Mr. Justice Burkitt and BENCH.

Mr. Justice Aikman.

IB A. 192

(F.B.) =

IN THE MATTER OF THE PETITION OF GANBSHI. 18 A.W.N.

[lOtih March, 1893.] (1893) 79,

Criminal Procedure Code. s. 555 Act No. I of 1878, s. 9 Jurisdiction of officer in
charge of (he excise and opium administration of a district to try cases uncer the
Opium Act Meaning of the ttrm " personally interested."

A Magistrate in charge of the excise and opium administration of a district is
not " personally interested " in the observance of the provisions of Act No. I of
1878. He is therefore not precluded from exercising jurisdiction in respect of
offences against the abovementioned Act.

[P., 27 A. 33 (37) = A.W.N. (1904) 157 ; R., 22 A. 340 (342) ; 24 M. 238 (240) = 2Weir,
730;U.B.p. 11697 1901), Vol. 1,15*7 (130) ; D. 5 A.L.J. 357 = A.W.N. (1908), 95
= 7Cr.L.J. 36.]

THE facts of this case sufficiently appear from the judgment of
Edge, G.J.

The Public Prosecutor (Mr. A. Strachey) for the Crown.

JUDGMENT.

EDGE, C.J. This is a case which was referred under s. 438 of the
Code of Criminal Procedure, 1882, by the Sessions Judge of Benares for
the order of this Court.

Musammat Ganeshi had applied to the Court of the Sessions Judge
to revise an order of conviction by which she had been convicted under
s. 9 of Act No. I of 1878 of the offence of selling opium without a license.
Against that conviction she had previously appealed and her appeal
had been dismissed by the Sessions Judge. The application for revision,
which was made subsequently bo the order dismissing the appeal, was an
application which the Sessions Judge could not entertain so far as his Court
was concerned. All questions with regard to the legality of the conviction
had been finally determined by his order dismissing the appeal. Properly
speaking, Musammat Ganeshi, if she desired to raise a question as to the
legality of the proceedings against her, should, as her appeal to the
Sessions Judge had been dismissed, have applied to this Court to exercise
its powers of revision. However, the matter is now before us and we have
jurisdiction to deal with the case. Musammat Ganeshi had been convicted
of the offence under s. 9 of Act No I of 1878 by the Joint Magistrate
of Benares, who was the officer [193] who had been placed
in charge of the excise and opium administration of the district
within which the offence is alleged to have been committed. The
Joint Magistrate was not a party to the prosecution. It had been
instituted in his Court by a Sub-Inspector of Police. The only
question which we have to decide is whether s. 555 of the Code of Crimi-
nal Procedure, 1882, precluded the Joint Magistrate from taking cognizance
of the offence and adjudicating upon the charge. The section is as
follows: " No Judge or Magistrate shall, except with the permission



A 711 106



* Criminal Revision No. 735 of 1892.
841



15 All: 194



INDIAN DECISIONS, NEW SEEIES



[Vol.



PULL
BENCH.



ISA. 192

13 A.W.N

(1893) 79.



of the Court to which an appeal lies from his Court, try or commit for
trial any case, to or in which he is a party or personally interested,
and no Judge or Magistrate shall hear an appeal from any judgment
or order passed or made by himself. " The explanation contained in
the section is immaterial for the purposes of this case. The Joint Magis-
trate was not a party to the case. The only question we have to consider
is this : was he personally interested in this case before him ? It is
proved that he was the person apparently responsible to Government
for the maintenance and enforcement of the law relating to the cultivation
and keeping and sale of opium. Now the Magistrate of a district would be
the person responsible for the public peace and the enforcement of the law
within bis district. It could not be suggested that, because it would be
the duty of the District Magistrate to see that the law was maintained and
carried into effect in hisdistrict, he would be thereby "personally interested"
within the meaning of s. 555 in the prosecution of an offender for an
offenca within the district against the statute-law relating to the preserva-
tion of the public peace. In my opinion a Magistrate cannot be said to
be "personally interested," within the meaning of s. 555 of the Code of Cri-
minal Procedure merely by reason of its being his duty as an officer under
Government to see the law relating to the sale of opium is enforced and
maintained in the part of the district-of which he has charge. It is difficult
to define what is the meaning of " personally interested. " Probably it is
safer to attempt no definition of these general words. In my opinion they



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 123 of 155)