That the general course of the proceedings in this case has been deplorable will be clear, when it is stated that, although they began in 1914, they still are not within measurable distance of any conclusion. We however are particularly concerned only with the order, which we are asked to revise and which was passed on 30th October, 1922.

The facts shortly are that much earlier in the case the defendants in response to the plaintiffs petition for discovery produced certain accounts and at a later date produced further accounts. Those accounts were before the Court and the suit being for an account of the profits of properties, which had been in the possession of the defendants and their father, they would have been most material in arriving at the amount, to which the plaintiff was entitled. The plaintiff, having inspected the accounts, brought to the notice of the Lower Court, that did not admit their genuineness or completeness. The case standing thus, the Lower Court has held, that as the accounts have been inspected by the plaintiff, the defendants vakil is entitled to insist on their being exhibited in spite of the objection from the other side that they are not genuine and ought not to be exhibited without proof.

The Lower Court justified this with reference to Sect. 163, Indian Evidence Act and, if it meant simply that the defendants were entitled to have the accounts exhibited, subject to proof and that, as they relied on them, they would be bound to prove them, the plaintiff being entitled to adduce counter evidence, we could find no fault. But the plaintiff in the first page of the affidavit of 31st October, 1921, say (and it is not contradicted) that the Lower Court at once called upon him to adduce evidence about the genuineness or otherwise of the said accounts. That was in no way justified by Sect. 163 of the Evidence Act. For Sect. 163 does not in our opinion render proof of the document to be exhibited unnecessary or alter the normal incidence of that burden. We do not think it necessary to decide in these proceedings whether Sect. 163 is applicable to accounts produced under the discovery procedure, or only to accounts produced after the trial has begun. It is sufficient that it includes nothing relating to the burden of proof or the necessity for the proof, prescribed in the other sections of the Act.

We are, of course, unwilling in revision to interfere with an order passed by the Lower Court in a pending trial and we should not do so in the present case, if it were not possible to isolate the point, on which our interference is asked for. Here however we think, that in ruling as it did and deviating from the usual course, in accordance with which the burden of proof was on the defendants, the Lower Court committed a material irregularity, which we should set aside. capacity as trustee, no ad, valorem Court Fee need be paid. This argument receives a certain amount of support from the observations of Spencer, J. in his order of reference to the Full Bench, in Ramamirutha Mudaliar v. Govinda Mudaliar (C.R, P. No. 862 of 1917). With all respect, I am unable to see how the question, as to whether the plaintiff has or has not any beneficial interest in the properties that he sues for, can make any difference, as regards the Court Fee payable by him. A guardian of a minor, for instance, suing on behalf of his ward, for recovery of possession of immoveable property, has no beneficial interest in the property; but I do not think that it can be argued that he need not pay ad valorem Court Fee, under Sect. 7, Cl. (5), when he sues for possession of properties of the ward.

It seems to me, that in determining the amount of Court Fee, payable in these cases, the sole question to be considered is what is the subject-matter of the suit. As already pointed out, in a case like the present one, the plaintiff is bound to ask for possession and the plaintiff here has, as a matter of fact, prayed for possession of the trust properties. So far as this relief is concerned, the suit, in my opinion, falls under Sect. 7, Cl. (5) of the Court Fees Act and the appellant should pay Court Fee under that section. As, in my view, the case comes under Sect. 7, Cl. (5), it follows that Art. 17 (b) is inapplicable. I give six weeks time, for the appellant to pay the necessary Court Fee.

S.E. No. 13674 of 1923, S. R. No. 12052 of 1923, S.E, No. 13423 of 1923.

The same question arises in these Stamp References, which deal with the other Appeals, filed against the Lower Courts Judgment. The Order passed in S. E. No. 9636 of 1923 will apply to them also.

[These Court Fee references, having been set down to be spoken to, on Thursday the 6th Day of November 1924, in the presence of the Advocate-General and Mr. K.S, Desikan, Vakil for the appellant in S.R. No. 9636 of 1923 (Appeal No. 186 of 1923), Mr. A. Viswanatba Aiyar, Vakil for the appellant, in S.R.No. 13674 of 1923, Mr. C.R. Mahadeva Aiyar for Mr. C.V. Ananthakrishna Aiyar, for the appellant in S.R. No. 12052 of 1923 and Mr. L.A. Govinda-revise the order dated 20th July, 1921, of the Court of the 3rd Presidency Magistrate, George Town, Madras, in C. C. No. 4408 of 1921.

ORDER

The accused were tried by the 3rd Presidency Magistrate in 1921, for getting the complainant arrested on a warrant and sent to the Civil Jail, when he possessed a valid protection order. The acts of the accused were taken as offences falling under Sects. 34, 341, 342, and 114, Indian Penal Code. The trial ended in the discharge of the two accused, and this is an application to set aside the discharge and to order further enquiry.

The reasons given by the Magistrate are (1) that the evidence shows that 1st accused was not present when the arrest was made; (2) the Bailiff who made the arrest takes the whole responsibility on himself; and (3) prosecution failed to make out a case against the accused.

The Bailiff (P. W. 3) no doubt stated in his evidence that he acted on his own interpretation of the protection order. But in his report (Ex. L. 3), he stated that the 2nd accused was worrying him to do his duty and to arrest the man and take him to jail; and prosecution witnesses 2, 4 and 6 stated in their evidence that accused 1 insisted on the complainant being taken to jail.

The Magistrates observation that the prosecution had not made out a case against the accused is thus not justified by the record. It would be no defence against the charge under Sects. 342 and 114, Indian Penal Code for the 1st accused to say he was not present at the actual arrest, if in fact he was instrumental in getting the arrest made, and, if after it was made, he instigated the bailiff to wrongfully confine a debtor, in spite of a protection order in his favour. However, since the accused were discharged, a Civil suit was based on the same cause of action has been decided and the 1st accused has been mulcted in heavy damages for his ill-advised actions. The appeal has also gone against him. I think it is not necessary in the ends of justice that he should again be put on his trial in a Criminal Court for these compoundable offences, after he has purged his offence in the civil Court. It would favour of vindictiveness to press further proceedings against him.

As regards the 2nd accused the same reasons cannot be urged in his favour. There is plenty of evidence that he was present at the arrest and that he pointed out the complainant as the person to be arrested. I set aside the order of discharge under Sect. 437, Criminal Procedure Code and direct the 3rd Presidency Magistrate to make further enquiries into his case.