6. Held, that when the court summons a witness under Section XXXV. Act XIX. of 1853, the court should advance the expenses necessary for his attendance, and cause the amount to be tendered, as is provided in Section XII; the sum so advanced being eventually recovered from the party cast as a part of the costs in the case.
Held also that, under this view, the special appellant was legally justified in refusing to attend till the court had so acted, and that his case should not have been decided under Section XXIV.
7. A suit was dismissed by the first court under Section XXIV. Act XIX. of 1853, as the plaintiff failed to appear and give evidence.
The principal sudder ameen considered that it was not open to him to hear an appeal on the merits of the case from this order. Held that the case was open to trial by the principal sudder ameen, as the order of dismissal is discretionary and not im- perative, and as by law the order of the first court is not made final,
8. A zillah judge dismissed a suit, as the plaintiff did not give his evidence when summoned as a witness; but as the summons was not personally served on plaintiff, it was not competent, under Section XXIV. Act XIX. of 1853, to dismiss the suit, ... 1312 9. The lower court considered that, as defendants failed to appear as witnesses, the suit should, as of course, be decided against them.
Held that, under Section XXIV. Act XIX. of 1853, on the failure of a defendant, who had been personally summoned, to appear to be examined, the court is competent to decide the suit ex parte; and the case was accordingly remanded,
10. A summons to plaintiff to attend as a witness not having been personally served on him, the suit could not be dismissed under Section XXIV. Act XIX. of 1853,
11. Held that it is not competent to dismiss a suit under Section XXIV. Act XIX. of 1853, on the failure of plaintiff to appear to be examined as a witness, unless the summons be personally served,
1. The judge's order of remand on valuation of suit reversed, as opposed to Act IX. of 1854,
2. Case remanded to lower appellate court, as the cognizance in appeal of a plea of undervaluation is barred by Act IX. of 1854, 3. Case remanded, as lower appellate court was barred by Act IX. of 1854 from nonsuiting petitioner on the grounds assigned, 4. Plaintiff in his declaration included certain lands belonging to a third party, a lakhirajdar, within the boundaries sued for. Defendant on this score objected to the plaint. Plaintiff, in his replication, acknowledged the fact, adding that he claimed the land within the boundaries given, exclusive of beegas 21-94, the
property of the lakhirajdar. Plaintiff obtained a decree on the merits; and on appeal the judge nonsuited plaintiff on the defect in his plaint.
Held that, however informal the plaint may originally have been, and however informal the replication attempting to cure that informality of the plaint may have been, still as the case pro- ceeded to a hearing on the merits with the consent of, and without injury to, either party, it was not competent to the judge in appeal under Act IX. of 1854, himself to take up a point which is under the circumstances of the case purely a technical one.
The decision of the judge reversed and case remitted for investi- gation on its merits,
5. Order of remand for trial on the merits, as the judge's order, in appeal, of nonsuit, for want of prayer in the plaint to reverse an Act IV. of 1840 order and not filing copy of the award, was not only wrong in itself, but opposed to Act IX. of 1854, See Bond, No. 3.
Pleadings, Variance in, No. 1.
Valuation of Suits, Nos. 2, 3.
ACT VIII. OF 1850.
The lower appellate court, i. e. a principal sudder ameen, dismiss- ed an appeal without summoning the respondent, but without recording the reasons for its judgment.
Held that the case could be remanded, for the reasons to be re- corded under Section II. Act VIII. of 1850. Order of remand accordingly,
1. In this case, the judge, in appeal, dismissed the suit with re- ference to Section XVII. Act X. of 1855, because a deed referred to in the plaint had not been filed along with it. Held in special appeal, that this order is not by the law imperative, and that the non-presentation of the deed together with the plaint had been excused,
2. Appellants, lessees of a certain village, instituted a suit to oust defendants from 50 beegas, and the case was nonsuited by the zillah judge under Section XVII. Act X. of 1855, because plaintiff's had not filed their lease simultaneously with their plaint. Held that, as the suit was brought to oust defendants, who held the lands contrary to the terms of the lease originally made for that land, the plaintiffs' lease was not material to the proof of this case, and it was not imperative on them to file that deed with their plaint,
The mere withdrawal of a former suit, instituted upon the same cause of action, is no bar to the entertainment of the present suit,
See Land, Possession of, No. 9.
1. Held that, where plaintiff sues defendant in a certain relation- ship, and defendant denies that position, plaintiff must prove his averment, and that, failing to do so, his case should be dis- missed without reference to the proofs of defendant's case or to his admissions. But plaintiff may again sue defendant in such relationship as defendant admits,
2. Excavations from plaintiff's land being made to widen a public road, the excess width having been appropriated as for public purposes, plaintiff was at liberty to sue for the part excavated; but a suit for the road piece also was not sustainable in the courts,
See Jurisdiction, No. 6.
ACTION, SPLITTING THE CAUSE OF.
1. Order of remand on application for special appeal, as the dis- missal of petitioner's suit, on the ground that it was for property which should have been included in a previous suit, was under the circumstances of the claim erroneous,
2. Held that, as the plaint alluded to two roads, for the closing of one of which plaintiffs sue, and for the closing of the other of which they state that they would sue in a separate suit, the decision of the lower court, awarding to plaintiff's the right to close one road, is quite correct and in accordance with the prayer of the plaint, and no ground for special appeal on this head exists. Special appeal dismissed, with costs,
1. Appellant,usufructuary mortgagee, having been ousted, brought this suit, not for recovery of possession, but for recovery of the original loan.
Held agreeably to Construction and precedent cited that the suit would not lie,
2 Plaintiffs were joint shareholders in certain land. It was found as a fact by the courts below, that no petition or motion had been made in any local court with a view to prevent the erection of buildings on the land. Held, that a suit for demo- lition of buildings should be brought when the infringement of right by their construction is first threatened or commenced; and if a party suffers the erection, his consent is to be implied, and he must fall back on an action for damages. Costs on the par- ties respectively,
ACTIONS, MULTIFARIOUSNESS.
Held that, in a suit for rent, the plaintiffs could not obtain a decree for money appropriated by their co-sharers. The order of the judge affirmed, and the special appellants referred to a suit against their co-sharers for any sums misappropriated by them, See Hindoo Law-Minority, No. 1.
1 Plaintiff, as zemindar, sues defendant, the wife of Arman Alee Khan, deceased, the real owner of an ousut talook, for arrears of rent due after deducting what has been realised by the exe- cution of decrees, dated 17th August 1846 and 5th March 1849, obtained against defendants Dyamoye and Surboja, the wives respectively of Chunderseekur Goho and Neelmonee Bose, servants of Arman Alee Khan, in whose name the talook at which the rent has accrued stands.
Held by the Court that the present action as against the heirs of Arman Alee Khan will not lie. The plaintiff is the zemindar of the village and the defendants in the previous case were his ten- ant, and he obtained a decree against them; the sum decreed is therefore a personal debt of the defendants. In that suit those parties were either principals or agents for an undisclosed prin- cipal; and plaintiff had his election either to sue the agents as principals at once, or to wait until the principal was sufficiently disclosed to enable plaintiff to sue him effectually. Plaintiff chose the former course. He cannot therefore now sue a third party, for an unrealised portion of the personal debts of others decreed to him against them alone, on any grounds whatever. The heirs of Arman Alee Khan can now be sued by plaintiff in an action for damages sustained by him in consequence of a breach of contract by that person; and they are liable to the extent of the assets which they may have received from the wrong-doer.
The decision of the lower court is affirmed, with costs, 2. The judge's decree against certain parties made defendants pro forma reversed,
3. Petitioner, having a claim against A deceased, acquired a decree, making the property of A liable; but in this suit B, brother of A, was alone a defendant; and it was held that the decree made against B could not be executed as against C, who was not represented in the original action,
4. In a suit for the excess amount of revenue paid by plaintiff on behalf of his co-sharers, it is erroneous to nonsuit the case mere- ly because another sharer has not been made defendant, 5. If a plaintiff, to complete his case, chooses to bring a party into court as a substantial defendant, he must be held liable for the costs of such party should the latter be released from the claim, Case remanded, in order that the plaintiff may now be allowed to file a supplemental plaint making the lessees defendants, as, unless they are parties to the case, the plaintiff will be unable to execute any decree which he may obtain against the zemin- dar. This omission plaintiff should have been permitted to rectify when he made an application for this purpose to the judge at an earlier stage of the case,
7. Upon the mutual agreement of the only parties before him in the suit, the judge struck off the case.
It was held that the petitioner, a third party, could have no status in the court, until by the sanction and act of the court he had been substituted in the place of the original defendant, and that
consequently he could not come before the Court summarily, and, upon the allegation of the purchase of the property from the original defendant, appeal against the order of the judge. Held also that if the Court entertained the prayer of the petition- er, it would, upon new pleadings and fresh issues, have to determine a question between the defendant, not before it, and the petitioner as her alleged representative, which was not a matter between the plaintiff and defendant in the original action, 1346 8. Held that the transaction devolved in the plaint, though contained in three separate deeds, form in reality one continued transaction. Plaintiff lent a sum of money on bond to defend- ants, who 13 days afterwards executed a lease of certain villages to plaintiff's gomashta, for three years certain, but also to run till the debt was paid, and by a deed of assignment empowered the lessee to pay an annual sum as interest to the plaintiff. Plaintiff, being dispossessed by the purchasers of the pro- perty leased at a sale in execution, sues for possession under the terms of the transaction above set forth, making the heir of his gomashta, in whose name the lease was, to be a defend-
Held that the claim is in every way a legitimate one and all the proper parties are before the court. The case is therefore re- manded for re-investigation, the transaction being interpreted in the mode suggested,
9. Where A. bound himself to B.'s widow individually, not also to his executors, to a pecuniary payment, and kept faith with her, in lieu of dividing certain property, she could yet sue him under B.'s will to divide without intervention of the executors, 10. Case remanded for trial on its merits, as the omission of the name of a co-sharer as party to the suit could, under the cir- cumstances, prove of no injury to him,
11. Special appellants, not parties to this action, which was brought for possession under a foreclosed mortgage, cannot be affected by decision made,
Mahomedan Law-Pre-emption, No. 6. Nonsuit, No. 1.
ACTIONS, MISJOINDER OF PARTIES TO.
Order of remand on application for special appeal, as it had not been shown how alleged misjoinder of parties was productive of injury. Case to be tried on the merits, or the injury to be in- dicated in the decision,
See Actions, Multifariousness. ACTIONS, THIRD PARTY.
See Appeals, Nos. 2, 14.
Joint Property.
Lease, No. 4
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