Page images
PDF
EPUB

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,

...

342

466

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,

[merged small][ocr errors][merged small]

1395

1432

1554

ACT IX. OF 1854.

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

205

300

303

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.

[ocr errors][ocr errors]

Pleadings, Variance in, No. 1.

Process.

Valuation of Suits, Nos. 2, 3.

ACT VIII. OF 1850.

[ocr errors]

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,

ACT X. OF 1855.

...

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,

ACTION, BAR TO.

...

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.

344

413

962

357

1457

[ocr errors]

469

ACTION, CAUSE OF.

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,

ACTION, FORM OF.

.

[ocr errors]

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,

See Bond, No. 1.

565

821

365

1036

166

1517

[ocr errors][merged small]

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.

932

ACTIONS, PARTIES TO.

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,

[ocr errors]

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,

6.

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

[merged small][ocr errors][merged small][merged small][merged small][merged small][merged small]

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-

ant.

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,

[merged small][ocr errors][ocr errors][merged small]

Limitation, No. 6.

[ocr errors]

Putnee, No. 1.

[ocr errors]
[ocr errors]
[ocr errors]

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.

[ocr errors]

Joint Property.

Lease, No. 4

E

1519

1652

1655

1753

364

« PreviousContinue »