The Oudh cases. Containing cases decided by the Court of the judicial commissioner of Oudh .. online

present the limihition should run from the date of the Revenue
Court's order cancelling notice.

I would therefore allow the appeal and setting aside the
decree of both the Courts below remand the case to the Court
of first instance, through the Court of first appeal, under s. 562,
Civil Procedure Code for disposal on its merits. A certificate
for refund of the court-fee on memorandum of appeal to this
C'Ourt will be given to the appellant and the Subordinate
Judge should grant a similar certificate in respect of the
memorandum in his Court. The other costs in both Courts
will follow the result of the case.

RusTOMJKK, A. J. C. — I agree entirely in the order proposed.
The * right to sue' must be held to accrue to a party from the
time tlic Revenue Court drcidos the matter to which he is a
party advers<»ly to him.



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Vol. Vn.l THE OUDH CASES. 191

CRIMINAL APPEAL, No. 157 OF 1904.*



Before Mr. Wells and Mr, Bxistoinjee.



Chedan v. King-Emperor. 1904

^ _^ June 6.

Statement of accused^ recording of before evidence for
prosecution — Accused^ examination of in the nature of cross-
examination — Code of Criminal Procedure^ ss» 164 and 364,

To recofli the Btaf^^m<^nt of an accused iperson under s.;I64, Criminal PrO'
rodnre Code, betore any sort of evidence lot prosccotlon has been taken is
contrary to law.

It is opposed to the^principles of English justice to commence proceedings
by subjecting an accused person, who has not offered to make a confession, to
a searching cross-examination; and in examining an accused under s. 364,
rtiminal Procedure Code, it would not be fair to put him such a question as
•• If you did not commit the murder who did?"



For Appellant — No one.

For Crown — The Government Pleader.

Wells, 0. J. C, and Rdstomjbb, A. J. C. — * * * *Froni
an inspection of the Magistrate's record it would appear that he
recorded the statement of the accused under 8.164, Criminal
Procedure Code, before any sort of evidence, for prosecution
had been taken in the case. This procedure seems to us to be
quite contrary to law and should not be adopted in future.
The same view of the law was taken in the case of Queen
Empress v Viran and others (1) more specially with reference
to the remarks made on page 228 in the paragraph beginning
*'0n the 5th June when the prisoners" etc. etc. This ruling
was looked on with approval by Maclean, C. J. and Banerji J.,
in Queen Empress v. Bhairab Clmnder Chuherbutty (2).



* Against the order of B. Lindsay Es(1m Sessions J udi,% Sitapui- dated 12lh
May 1901.

(1) 1. L. i;. y. Mad., 224 (2) \1 C. W. N. 702.



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Chedan



192 THE OUDH CASES. [Vol. VII.

It is opposed to the principles o£ English justice to
King- commence proceedings by subjecting an accused person, who
has not offered to make a confession, to a searching cross-
examination, as was done in this case, and even in examining an
accused under s. 364, Criminal Procedure Code, it would not
be fair to put him such a question as '^If you did not commit
these murders who did?"



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V^OL. VII.] THE OUDH CASES. 193

MISCELLANEOUS APPEAL, No. 21 ot 1904.*



Before Mr, Rustomjee and Mr. Chamier,



Abdul Wahid Khan (Defendant) y v. Sadiq Ali Khan 1904
and others (Plaintiffs). ^^^ 31.



Plaintiffs addition of after commencement of suit — Bond
fide mistake^ institution of suit through — Code of Civil Procedure^
section 27,



The original plaintiffs claimed title to the property in suit under a tarn-
liknama executed in their favour by their father, B. The defendant denied
that the plaintiffs had any title to the property in suit; he did not plead that
the tamUknamn did not coyer the property in soit and did not at any time
ask for an issne as to the effect of the tamlihntma. In the course of the
arguments the defendant contended that the plaintiffs had acquired no title to
the property in suit from their father, firstly, because the property in suit was
not included in the Umlihnama^ and secondly, because possession had not
passed upon the execution of that document. Ji then presented a petition that
be might be added as a plaintiff, and his sons made the same request.

Upon the facts of the case the Court held that the suit was commenced
as it was through a bona fide mistake on the part of the plaintiffs within
the meaning of s, 27 of the Code of Ciyil Procedure.

Held further, that the case came within s. 27 which allows an addition or
substitution of a plaintiff ** at any stage of the case," and that B was rightly
added as a plaintiff.



For Appellant, — M. Mohammad Nasim.

For Rbspondbnt. — Mr. Nabi Ullah and B. Gokul Prasad.

Chamier, a. J. C. — This is an appeal against an order of
the Subordinate Judge of Lacknow adding the respondent
Bakar Ali Ehan as co-plaintiff with his sons Sadik Ali Khan
and Eazim Ali Ehan vrho were the original plaintiffs.

The original plaintiffs claim title to the property in suit
under a tamliknama executed in their favour by their father
on August 3rd 1903, In answer to the ninth paragraph of tho

• Against the order of Pandit Tixbhuwan Natb, Subordinate Judge,
Lucknow, dated 2l6t April 190i.



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194



THE OUDH CASES.



[Vol. VII



Abdol Wahid
Khan,

Sadiq All

Khan and

others.



plaint in which the title is thus stated the defendant merely
denied that the plaintiffs had any title to the property in suit,
he did not plead that the tamliknama did not cover the property
in suit and he did not at the first hearing or at any itinie ask
for an issae as to the effect of the tamliknama. In fact it was
not suggested by any one, and indeed it, does not seem to have
occurred to any one, that the tamliknama did not cover the
property in suit until after the evidence had been taken and
the arguments of the plaintiffs' counsel had been heard.
But when the defendant's counsel was addressing the Court
he contended that the plaintiffs had acquired no title to the
property in suit from their father firstly because the property
in suit was not included in the tamliknama and secondly because
possession had not passed upon the execution of that docu-
ment. Baker Ali then presented a petition praying that he
might be added as a plaintiff and his sons through their
counsel made the same request. The Subordinate Judge made
an order as prayed. He was of opinion with reference to s.
27 of the Code of Civil Procedure that it was doubtful whether
the suit had been instituted in the name of the right person
as plaintiff and that there had been a bond fide mistake.

It was contended in appeal that there are not good
grounds for holding that the suit was commenced through a
bond fide mistake but in my opinion this contentioii should be
rejected.

Bakar Ali considered himself entitled to the property by
virtue of possession acquired under a mortgage from one
Shahara Begam dated March 13th 1895, a decree against her
dated February 9th 1899, a sale-deed of September 13th 1902
and another mortgage-deed of December 9th 1902. It appears
that Bakar Ali was minded to make over property worth more
than a lac of rupees to his two sons including the property now
in suit and with reference to this property what he did was
this; he specified in the schedule to the tamliknama the
decree of February 9th 1899 and the subsequent sale and morfc-
gage-deedd. I understand that the argument put forward by



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Vol. VII.]



THE OUDH CASES.



195



the defendant in the Court below was^'that the tamliknama
operated to transfer to the plaintiffs only the rights actually
and in law conferred upon Bakar Ali by the mortgage of 1895,
the decree of 1899 and the later deeds of 1902, and not any
possessory title acquired byj Bakar Ali in the course of the
execution of decree. Now there can be no doubt that Bakar
Ali intended to make over all the rights that he had in the
property in suit possessory or otherwise, but it is a nice question
whether the language used by him in the tamliknama is sufficient
for the purpose. The question whether actual delivery of possess-
ion was under the circumstances inecessary to the validity of
the gift also admits of argument. If the original plaintiffs
had for a moment supposed that there could be any doubt
whether the tamliknama operated to transfer to them all their
father's rights in the property in suit they would, as they cer-
tainly might, have joined him as a plaintiff under s. 26 of the
Code. I agree with the Subordinate Judge that the suit was
commenced as it was through a bond fide mistake on the part o£
the plaintiffs within the meaning of s. 27 of the Code.

It was contended that s. 27 does not apply at all to a case
like this where possibly the original plaintiffs had no title at
all. Mr. Mohammad Nasim relied upon the cases of Suhhaiyar
V. Kristnait/ar f 1), Bkanu v. Kashinath (2), Syed Abdul Haq
V. Chilam Jilani (3), Sheoraj Kuar v. Hari Kishen (4), Raghu'
bans Koer v. Hashmet Ali (5) and At/scough v. Bullar (6).
The first of these cases is irrelevant as it was decided under the
Code of 1859 which contained no such provision as s. 27 of
the present Code. In the second case the interest of the added
plaintiff was adverse to that of the original plaintiff and there
was no question of a bond fide mistake. The Court relied upon
the Madras case just cited and a Calcutta case decided under s.
32 not under s. 27 in which Pontifex J. would apparently
have acted under s. 27 if the words "at any stage of the suit"



Abdnl WahicT
Kban»

V.

Sadiq AU

Khan and

other?.



(l)I.L. R.. 1 Ma(K, 383
(3) r. L. R. 20 Bom.. C77
(5) 7 O. C. 78.



(2) I. L. R., 20 Bom. r>3
(4) 3 O. C, 347.
(C) 1. L. R,. 41 Ch. Div.



341



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196



THE OUDH CASES.



[Vol. VII.



Abdal Wahid
Eban,

V,

Sadiq AU

Kban and

others.



had then been in the section. In the third case the court
declined to apply s. 27 as there had "been no mistake in the
matter. The fonrth case is distinguishable npon several
gromids; the Court did not find that there had been any mis-
take in commencing the suit, the person proposed to be added
had not signified his consent to be added, and npon the plaint
as drawn that person could not have carried on the suit. I may
point out that the decision of the Allahabad High Court refer-
red to in that case depended upon an Englbh decision in
Bankruptcy in a case to which Order XVI Rule 2 correspond-
ing with s. 27 of our code did not apply. The fifth case is irrele-
vant for as shown in my judgment therein it was not a case
to which section 27 conld 1^ any possibility have been applied.
The sixth and last case is cited on account of the following
passage in the judgment of Lindley, L.J. "In considering Order
" XVI rule 2, we must bear in mind that the mistake which
"is to be redressed by the application of the rule is a mistake
" in one person finding out by some means or other that he
" cannot get the full relief which he seeks without joining
"some other person as co-plaintiff. The whole object to be
"attained by amending and adding a co-plaintiff is to better
" the position of the first plaintiff." In making these remarks
the learned Lord Justice was evidently thinking of the case
before him as one of addition of parties not of substitution of
one plaintiff for another.

Now s. 27 of the Code is almost word for word the same
as rule 2 of Order XVI made under the Judicature Act and I
think that we cannot do better than follow the English decisions
upon that rule [see Ganesh Bux v. Gadadher Bux (1)]. In the
case of The Duke of Buccleuch (2), Jeune J. said, " It was said
that a plaintiff who has a cause of action cannot be substituted

" for one who has none but in the caseof Longy,

" Crossley (3) a plaintiff with a right was clearly substituted for
" a plaintiff with none. Indeed the provisions of Rule 2 making

(1) 8 C. W. N. 521. P. C. (2) L. R. P. D., 1892, p. 201.

(3) L. R. 13 Ch. D., 388



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197



" a bond fide misbiko a condition seem to include and almost
" point to a person whose name was erroneously brought for-
" ward having no right in himself," and in the case o£ Hughes
V. The Pump Home Hotel Company^ Limited (1) the
Master of the Rolls said, ** So long as the doubt as to who should
'' bring the action was bondfide^ there can be no question as
* to the jurisdiction of the Court, and on the facts it is plain
*^ that it was a genuine doubt. The two cases of Duekett v.
*^ Gover and Ayscough v. Bullar are clear authorities on the
'^ point raised before us. In each case the right asserted by
^y the new plaintiff excluded that of the original one. In
** those cases plaintiffs were added, but there can be no difference
'' in principle whether a plaintiff is added or substituted and
** both adding and substituting are specifically mentioned in the
^* rule." In{ the same case Cozens-Hardey, L. J. said, *' It
*^ is said that the rule does not apply when it is shewn that
*^ the plaintiff has no right of action, but there are abundant
'^ authorities to the contrary effect"

Upon these authorities I think that we should hold that the
present case does icome within s. 27 of the Code.

It was contended before us that the addition of Bakar Ali
as plaintiff should not have been allowed at such a late stage
of the case. This is a strange contention in the mouth of (a
defendant who did not properly challenge the title of the
original plaintiffs until the very last moment, but apart from
this I think it is untenable. Section 27 allows an addition or
substitution of a plaintiff '* at any stage of the suit." The
English rule does not contain these words but they appear in
rule 11 of the same Order and substitution was allowed in one
case in what we should call execution proceedings after the case
had been taken up to and decided by the House of Lords [see
The Duke of Buccleuch (2)]. When a plaintiff is added or
substituted the Court may make it a condition that he shall
only be entitled to such relief as he could have claimed if the
action had commenced at the time of his joinder as plaintiff (see



Abdal Wahid
Khan,

SadJqAli

Khan and

others.



(1) L. R. (1902) 2 K. B. D. 485



(2) L. R. P. D. (1892) p. 201



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198



THE OUDH CASES.



[Vol. VII.



Abdul Wahid

Khan,

r.

Sadiq Ali

Khan and

others.



Ayscough v. Bullar) No such condition is necessary in the
present case. The passing of an order under s. 27 is discretion-
ary, and it was urged that is wasi unjust to allow Bakar Ali to
become a plaintifE and so prevent the possibility of the defend-
\ ant succeeding upon the point which he has raised. I can see
no injustice in the order passed by the Court below. I have
no doubt that the defendant would like to have the satisfaction
of defeating the original plaintiffs and meeting Baker Ali in a
second suit but 8. 27 like many other sections of the Code is
designed to prevent useless litigation of such a character.

I would dismiss this appeal, but under the circumstances
without costs. The plaintiffs are asking for an indulgence.

RusTOMJBB, 0. A. J. C. — ^I agree in the order proposed by my
learned colleague. The authorities cited by him and the wording
of ss. 26 and 27 of the Code of Civil Procedure are most clear
upon this point. The former allows all persons to be joined as
plaintiffs in whom the right to any relief claimed is alleged to
exist in the alternative (as is the case here) and as the suit was
clearly {instituted in the names of the sons through a bond fide
mistake, they can under the provisions of 8. 27 of the Code, ask
that their father's name may be added as a co-plaintiff. If this
addition were not allowed the Court would not be able to **effect-
ually and completely adjudicate upon and settle all the questions
involved in the suit." I agree, therefore, in the dismissal of
this appeal without costs.



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Vol. VII.] THE OUDH CASES. 199

EXECUTION OF DECREE APPEAL, No. 8 OF 1904.*



Before Mr. Welh and Mr. Chamier.



Qamar Jahan Bbqam (JudgmenUdehtor) v. Abadi Beqam 1904
and others {Opposite-party). May 25.



Execution of decree agcfinst minor when no guardian
ad litem appointed in the suit — Objection by minor to validity
of decree in execution proceedings — Code of Civil Procedure^
S.244.



The respondent obtained a decree against the appellant who was described
as a minor under the guardianship of one F, The respondent applied for
execution of the decree, and the appellant through her next friend lodged an
objection to the execution upon the ground that no guardian ad litem had
been appointed for her in the suit and therefore: the i decree was not binding
upon her.

Held^ that the appellant' was not entitled in the execution department
to challenge the validity of the decree upon the ground that no guardian
£td litem had been appointed for her in the suit.



For Appellant. — S. Wazir Hasan.
For Respondents. — Mr. NaU-ullah.

Chamier, A. J. C— On March 30th 1895 Abadi Begam
obtained a decree for Bs. 15,000 against several persons includ-
ing the appellant i^ho was described as a minor under the
guardianship of Fatima Begam.

The decree having been executed in part an application was
made on September 6th 1902 for the recovery of the balance
by attachment and sale of Mauzah Ahmamow. The appellant
then through her next friend lodged an objection to the execut-
ion upon the ground that no guardian ad \litem had been
appointed for her in the suit and therefore the decree was not
binding upon her.



* Against the decree of Koer Parmanand, Bai Bahadur, Subordinate
Judge, Lucknow, dated 16th September 1903.



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200



THE OUDfl CASES.



[Vol. VII.



Qamar Jahan



Abadi Begam
and others.



The Subordinate Judge threw out the objection holding
that the validity of the decree could not be attacked in the exe-
cution department and that the appellant was bound to but had
failed to negative the presumption, which was supported by the
judgment. and decree, that a formal order had been passed in
the suit appointing Fatima Begam guardian ad litem for th^
appellant.

In appeal it is contended that the Subordinate Judge was
wrong upon both points.

We were referred to a few cases by counsel on either side
and 1 have examined a large number of others. I see no reason
to alter the opinion which I expressed in Basdeo v. Sheo Adhin
(1) namely that a court executing a decree cannot question its
validity. This view is supported by the decisions in Sudindra v.
Budan (2), Arunachallam v. Murugappa (3), Dhani Ram
V. Luchmeshur (4), Benode Lai v. Brajendra Kumar (5), ChhoU
Narain Singh v. Rameshvoar Koer (6), Batan Ali v. Gauzi
Ali Mir (7) and Chintaman v. CJiintaman (8).

The appellant's pleader relied upon the decision in Adhar
Singh v. Sheo Prasad (9) and MatKura Das v. Lachman Ram
(10) but I find that in those cases the validity of the decree
was not challenged. He also relied upon the decision of their
Lordships of the Privy Council in the well-known case of
Prosunno Coomar v. Kali Das (11) The decision itself in
that case does not help the appellant for in that case the plaint-
ifiEs who were held to be disentitled to maintain the suit did
not challenge the validity of the decree at all. The observations
made by their Lordships in that case regarding the scope of

8. 244 of the Code of Civil Procedure have led the Courts in this
country to apply the section to a much wider range of cases



(1) 1 Ondh CMe8» 49.
(3) I. L. B., 12 Mad., 603.
(5) I. L. B., 89 Cal., 810.
(7)1. L.B.,81Cal., 179.
(9) I. L. B., 2i AU., 209.



(2) I. L. B., 9 Mad., 80.
(4) 1. L. B., 23 CaL, 639.
(6)6CaL,W.N.796.
(8) I. L. B., 22 Bom., 475.
(10) I. L. B., 24 AIL, 239.



(11)I.L.B., 19CaI., ^83.



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Vol. VII.]



THE OUDH CASES



201



than before but those observations do not suggest that a conrt
execnting a decree can go so far as to question its validity and
they have not been so regarded by the Calcutta High Court
[seeAfo^t Lai v. RussichChandra (1)]. The learned pleader
for the appellant referred to the decisbn of this Court in Mis-
cellaneous Appeal No. 43 of 1898, Bisheshar Singh v. Shaubhan
Uossein but there is* nothing in that decision which at all
supports the view which he asked us to take. All that the
Court held in that case was that a judgment-debtor could in
execution prooeedings challenge the validity of an auction-sale
open the ground that the sanction of the Government had not
been obtained. It is perhaps not easy to reconcile the decir
sion in Lakshman Swami v. Rangamma (2) and some of the
observations made in the case of Imdad AU v. Jagan Lai (3)
with the rule that the validity of a decree cannot be challenged
in execution proceedings but neither case can be regarded as
a definite authority in favour of the present appellant

I would hold that the present appellant is not entitled in
the execution department to challenge the validity of the d^ree
apon the ground that no guardian ad litem was appointed for
her in the suit. I consider it unnecessary to express an opinion
upon the other point decided by the Court below. I would
dismiss the appeal with costs*

Wblls, 0. J. C. — I concur.

<1) I. L. B., 26 CaL, 326 (note). (2) 1. L, B., 26 Ma(L» 3L

(3) L L. R., 17 AIL, 473.



Qamar Jahan
Begam

V,

Abadi Begam
andothera.



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THE OUDH CASES. [ Vol. VH.

SECOND CIVIL APPEAL, No. 260 OF 1903.*



Before Mr. Wells and Mr. Rustamjee.



1904. MusAMMAT KtJSUM KoBB (Plaintiff) v. Mukhdoom Khan

June 26. and others (Defendants).



Second appeal in a suit for less than Rs. 500 — CivU PrO"
cedure Code^ s. 686 — Suit for profits of immovable property
belonging to plaintiff and for profits xjorongfully received by
defendant — Act ZZ, 1887^ sch. if, art. 31 — Small Cause Courts
jurisdiction of



The plaintifE stated in her plaint that nnder a foreclosare decree she w»
the proprietress of a 6 annas 2 pics share in a hamlet named Para Eharagman ;
that she sued the defendants for possession of the aforesaid hamlet and a
decree was passed in her favoor sabject to her paying some mortgage-money;
baton appeal a decree was passed in her fayoar whereby she became entitled
to obtain possession of the hamlet without paying any sam of money and thus
the plaintiiTs right to get the above-named hamlet became confirmed; that
the defendants held onlawf al possession of the aforesaid share of the plaintiil,
daring the pendency of the suit and they were benefited by the profits
thereof whidi, in foot, the plaintiil riioald haye got; that the mesne profits
of the share in salt for 8 years— 1306 to 1308— amounted to Bs. 202-5-6 to whidi
the plaintiff was entitled.

The yaloe of the subject-matter of the salt was less than Bs. 600. The
point for decision was whether the second appeal in the salt fell within the
pnrriew of s. 686, Code of Ciyil Procedore.

Heild^ that the salt fell within the latter portion of art. 81, sch. ii, Act IX
of 1887; that the jurisdiction of the Small Oaase Court was barred and that
8. 586 of the Code of the Ciyil Procedure did not apply.



For Appellant. — B. Ram Chandra.

For Rbspondbnts.— S. Wazir Hasan.

RusTOMJBB, 0. A. J. C— This Second Civil Appeal has been

* Against the decree of Pandit Sitla Pershad Bajpai, Offg. Subordioate
Judge, Partabgarh, dated 5th May 1903, modifying the decree of Saiycd Muham-
mad Bakar, Munsif, Partabgarh, dated, 30lh June 1903.



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Vol. VII.]



THE OUDH CASES.



203



Mukbdoom

Khan and

others.



referred to us by our learned colleague as he considered that KummTKl^^r
the appeal raised a question upon which there was a great
conflict of authority and he thought it better that it should be
decided by a Bench of two Judges.

The preliminary point in this appeal has risen through
the provisions of s. 586 which lays down that *^ no second
^* appeal shall lie in any suit of the nature cognizable in Courts
** of Small Causes, when the amount or value of the subject*
*^ matter of the original suit does not exceed five hundred
** rupees."

The question for us to decide is whether the suit brought
by the plaintiff-appellant was one of the nature cognizable
by a Court of Small Causes. It is admitted that the value o£
the subject-matter was less than Rs. 500. In order to arrive
at a correct estimate one must first take into consideration