Authored By : Macpherson, T. Ameer Ali

Macpherson and T. Ameer Ali, JJ.

1. The question raised in this appeal is whether the suitcould be instituted (sic) notice, or rather before the expiry of the period ofnotice, prescribed by Section 424 of the Code of Civil Procedure. The case asset out in the plaint, is that the defendant who was the District Magistrate ofRajshahye committed the plaintiff to the Sessions on charges under Sections 386and 109 of the Indian Penal Code, and that the plaintiff was, under an order ofthe Magistrate, enlarged on bail. The trial at the Sessions Court did not takeplace on the date fixed, but was postponed on the application of the plaintiff.Subsequent to the postponement, the plaintiff says that, while he was inCalcutta, the defendant caused him to be arrested under a warrant and had himtaken to Rajshahye where he was again enlarged on furnishing fresh security. Hecharges that this act was illegal and malicious. Then the plaint proceeds tostate that, subsequent to the commitment of the plaintiff, the defendant,together with others, trespassed into the plaintiffs house at Nattore withouthis knowledge and consent and against the protest of his servants. On accountof these two illegal acts, the plaintiff prays that a sum of Rs. 25,000 may beawarded to him as damages. It is set out in the plaint that, although no noticewas necessary under Section 424, a notice had been given.

2. The defendant admitted that a notice was given, butcontended that the suit was not maintainable, as it had been brought before theexpiry of the prescribed period, and there is no doubt that this was so. Thesubordinate Judge has thrown out the case on that ground, and the plaintiff nowappeal contending that, under the circumstances stated in the plaint, a noticewas not necessary, and that even if it was, the Subordinate Judge had noauthority to dismiss the suit, Section 424 being merely one of procedure. Wethink there cannot be the slightest doubt that, under the circumstances statedin the plaint, the first act of which the plaintiff complains, viz., his arrestunder the warrant, was an act purporting to have been done by the defendant inhis official capacity. The defendant was admittedly the Magistrate of theDistrict. In that capacity he had committed the plaintiff to trial, and in thatcapacity he thought it necessary to have the plaintiff arrested in order thatfresh security might be given. We are not concerned with the question whetherthat was a legal or an illegal act, suffice it to say that it is an act, which,in our opinion, is clearly of the kind contemplated by Section 424. The learnedpleader for the appellant contends that as the act is said to have been donemaliciously, Section 424 does not apply, and that that section only applies toacts done inadvertently, and as authority he cites the case of Shahunshah Begumv. Fergusson I.L.R. 7 Cal. 499. There certainly are some remarks of Mr. JusticeCunningham which would lend support to this contention, but that was a case ofa very different description from this, and we think the remarks made must betaken in connection with the facts of that particular case, and not as ofgeneral application. There the Official Trustee was sued by the plaintiff whoclaimed a certain interest in a trust property which she had failed to get, andin the suit brought by the plaintiff against the Official Trustee, it was heldthat no notice was necessary. This is a case of a wholly different character,and we are not aware of any instance, certainly no such case has been cited tous, in which it has been held that the section does not apply to the case of apublic officer charged with a tortious act done by him in his officialcapacity. The section does not seem to us to warrant the drawing of anydistinction between acts of this kind done inadvertently or otherwise.

3. Then it is said that the Subordinate Judge had noauthority to dismiss the suit. But if the law says that "no suit shall beinstituted," we fa(sic) see how it is to be tried or what other coursethan dismissing the suit (sic) have been adopted.

4. Then as regards the second act in respect of whichdamages are claimed viz., trespass into the plaintiffs house, it may be aquestion whether, on the allegations in the plaint, that act was one done bythe Magistrate in his official capacity. But we think it is unnecessary to gointo that question. Assuming that as regards it, a notice was not necessary,the suit was not one which in respect of the first act charged could beinstituted. The two acts are mixed up together in the plaint, and one lump sumis charged as damages for both. It may be that we could allow the plaint to beamended by striking out of it the cause of action and damages claimed inrespect of the arrest so as to convert the suit into one for damages withreference to the trespass only. Even in that case the question would have to betried whether the defendant in committing the act of alleged trespass was orwas not acting in his official capacity, and evidence on that point would haveto be taken. We do not think that this is a case in which we ought now to allowthe plaint to be amended. The plaintiff persisted throughout that the suit, asframes was maintainable, and permission to amend the plaint was never asked forin the lower Court. We therefore dismiss the appeal with costs.

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Jogendra Nath Roy Bahadurvs. J.C. Price (06.04.1897 -CALHC)